Darrian Dewayne Johnson, Jr. v. State ( 2015 )

ACCEPTED
12-15-00100-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
8/5/2015 2:48:44 PM
CATHY LUSK
CLERK
NO. 12-15-00100CR
JOHNSON, DARRIAN § FILED IN
IN THE COURT OF APPEALS
12th COURT OF APPEALS
DEWAYNE, JR. TYLER, TEXAS
§ 8/5/2015 2:48:44 PM
vs. § 12 TH JUDICIAL DISTRICT
CATHY S. LUSK
Clerk
§
STATE OF TEXAS § STATE OF TEXAS
MOTION TO W ITHDRAW AS APPELLATE COUNSEL
(ANDERS BRIEF)
TO THE HONORA BLE JUSTICES OF SAID COURT:
Comes now Movant, Forrest K. Phifer, Ap pellate Counsel for Darrian DeWa yne
Johnson, Jr., Appellant herein, and files this his Motion to Withdraw pursuant to
requirements of an Anders Brief and in accordance with Tex. R. App. P. 6.5.
Accompanying this motion, the undersigned has filed an Anders Brief.
Accordingly, the undersigned respectfully requests that he be allowed to withdraw
from further representation in this matter.
In accordance with TRAP 6.5, the undersigned certifies:
1. There are no current deadlines in this case as ide from the filing of
Appellant’s Brief and this motion.
2. Appellant’s name and last known add ress are:
Darrian DeWayne Johns on, Jr.
TDCJ # 01987904
SID # 08052716
TDC J,ID
Brads haw U nit
Henderson, Texas 75653-9000
903/655-0 880 (voice)
3. As noted in the below Certificate of Service, this motion has been
delivered to Appellant both by Certif ied M ail, Return Receipt Requested
and by First Class U.S. Mail, Address Correction Requested.
4. Appellant is hereby notified of his right to object in writing.
5. Appellant has a right to obtain a copy of the record from the undersigned
for the preparation of a pro se brief. Accordingly, Appellate Counsel has
provided Appellant a “USB Flash Drive” containing downloaded true and
correct copies of: 1) the Clerk’s Record; 2) the Court Reporter’s Record;
and 3) Ap pellate correspondences as an enclosure w ith a copy of the
Anders Brief and the instant Motion to Withdraw in the correspondence
sent via Certified Mail, Return Receip t Requested. (The d ocuments
referenced were provided to Appellant Counsel in electronic form and
therefor, an electronic copy of same were copied to the drive for
Appellant’s convenienc e.) Also included within that same
correspondence was a proposed , unsigned request for an extension of
time to file Appellant’s brief, for Appellant’s review and consideration in
the event Appellant desired to respond and file his own brief. See
attached exhibit “A.”
WHEREFORE, PRE MISES C ONSIDE RED , Movant respectf ully requests
that his Motion to W ithdraw be GRAN TED, that he be relieved from further
representation of Appellant in this matter, and for such further and other relief, whether
at law or in equity, to which he has shown himself justly entitled.
Respectfully submitted,
Forrest k. Phifer Forrest k. Phifer
P.O. Box 829
Rusk, Texas 75785-0829
BY: /S/ Forrest K. Phifer (903) 721-1842
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing
instrument has been forwarded by electronic filing to the Cherokee County District
Attorney’s Office in accordance with TRAP 9.5(b)(1) on August 5, 2015.
Furthermore, a true and correct copy of the foregoing instrument has been
forwarded by both Certified Mail, Return Receipt Requested, and via First Class, U.S.
Mail, Address Correction Requested, to:
Darrian DeWayne Johns on, Jr.
TDCJ # 01987904
SID # 08052716
TDC J,ID
Brads haw U nit
P.O. Box 9000
Henderson, Texas 75653-9000
on the sa me date. (See attached exhib it “B”.)
BY: /S/ Forrest K. Phifer
EXHIBIT “A”
NO. 12-15-00100CR
JOHNSON, DARRIAN § IN THE COURT OF APPEALS
DEWAYNE, JR.
§
vs. § 12 TH JUDICIAL DISTRICT
§
STATE OF TEXAS § STATE OF TEXAS
1 ST PRO SE MOTION FOR EXTENSION OF TIME TO FILE BRIEF
TO THE HONORA BLE JUSTICES OF SAID COURT:
COMES NOW the Ap pellant in the above styled and numbered cause, and files
this his 1st Pre Se Motion for Extension of time to File Appellant Brief and in support
thereof would show this court the following:
1. This case is on appeal from the 2 nd Judicial District Court of Cherokee
County, Texas.
2. The case below was styled State of Texas vs. Darrian Dewayne Johnson,
Jr. and was numbered 1 9099. Ap pellant waived indictment, entered a
plea of Guilty and received 4 years Deferred Adjud ication on January 16,
2014.
3 On July 9, 2014, a Motion to Adjudicate was filed to which Defendant
pled NOT TRUE to allegations alleged in paragraphs ## 11, 12, 13, 14,
22, 24, 29 and 30 of the Motion to Ad judicate and the State abandoned
paragraph 15. To the remaining allegations, Defendant pled TRUE.
Hearing was held before the Court on the Motion to Adjudicate for the
underlying charge of Aband on/Endanger of Child-Criminal N eglect.
Upon hearing thereof on January 8, 2015, the Court found the presented
allegations in the Motion to Adjudicate to be True and sentenced the
Defendant to confinement in the Texas Department of Criminal Justice,
State Jail Division for a term of two (2) years with costs and 1 50 da ys jail
credit, to run consecutively with the companion case # 18851.
4. Notice of Appeal was filed pro se on January 20, 2015.
5. Both the Clerk’s Record and the Rep orter’s Records have been
previously filed with the C ourt.
6. Appellant’s trial counsel withdrew on January 15, 201 5. Although
Appellate Counsel was appointe d on February 12, 2015, the order was
not filed until March 17, 2015 and notic e was not forwarded until March
18, 2015. Appellate Counsel has filed an Anders Brief and an
accompanying Motion to Withdraw and notified A ppellate of this action.
Because of the above, Appellant has not been able to properly research
and prepare a b rief on behalf of A ppellant.
7. Appellant requests that an extension of a minimum of 30 days, or such
additional time as the Court may deem appropriate, be granted for the
filing of Appellant’s response to this action and brief.
8. This request is not sought merely for delay, but rather that justice may be
had. This delay will not occasion any undue delay in the progression of
this case.
WHEREFORE, PREMISES CONSIDERED, Appellant prays that the Court
GRANT this request and extend the date for filing of Appellant’s brief.
Respectfully submitted,
TDCJ # 01987904 Darrian DeWayne Johns on, Jr.
SID # 08052716
TDC J, ID
Brads haw U nit
P.O. Box 9000
Henderson, Texas 75653-9000
903-655 -0880 (voice) By:
Darrian DeWayne Johns on, Jr.
CERTIFICATE OF CONFERENCE
By the signature above, I hereby certify that I have NOT conferenced w ith the
prosecutor in this case regarding the merits of this request.
By:
Darrian DeWayne Johns on, Jr.
CERTIFICATE OF SERVICE
This is to certify that on_________ ______ ______ , a true and correct copy o f
the above and foregoing document was served on the District Attorney's Office,
Cherokee County, 13 5 S. Main, Rusk, Texas 75785, by U .S. mail delivery.
By:
Darrian DeWayne Johns on, Jr.
EXHIBIT “B”
Law Office of Forrest K. Phifer
P.O. Box 829
Rusk, Texas 75785-0829
August 5, 2015
“Attorney-C lient Corres pondence; Pr ivileged C ommunication”
Darrian DeWayne Jo hnson, Jr.
SID # 08052716
TDCJ # 01987904
TDCJ, ID
Brads haw U nit
P.O.Box 9000
Henderson, Texas 75653-9000
Re: Darrian DeWayne Johnson, Jr. vs. State of Texas
Trial Case # 19099; In The 2nd District Court of Cherokee County, Texas
Appellate Case # 12-15-00100-CR; In The 12th District Court of Appeals of Texas , sitting in
Tyler, TX
Dear M r. Johnson:
As you are aware, I w as appointed to represent you in the ab ove referenced ap pellate matter by Judge
Bascom Bentley. You have been c onvicted of the criminal offense of “Endangerment of a Child.”
After a thorough review of the Clerk’s R ecord and the Court Repo rter’s Record, I have be en unable
to find any legal or factual non-frivolous ground reas onably calculated to return a judgment of
modification or reversal. Accordingly, I must file a motion to withdraw as your a ttorney. You have
the right to object and file a respons e to my motion. A copy of my motion , along with the Anders brief
in support thereof is included herein for your review and consideration.
I have asked the court to allow you time to file a response and a brief, if you so desire. It is very
important that you maintain adherence to the court’s deadlines.
The next few paragraphs will present a basic outline of the procedural steps and considerations that
are a part of a criminal appeal post appellate decision. Please bear in mind that I am authorized only
to represent you on the appeal of this current case to the initial Court of Appeals and NOT to the Court
of Criminal Appeals in Austin, Texas.
Motion for Rehearing: Once the Court of Appeals has made its decision, the losing party (either you
or the State) has an opportunity to file a petition asking the court to reconsider their decision. The
petition must be filed within 15 days after the issua nce of the decision. Generally speaking, a motion
for rehearing should be filed only if you believe that the court mistakenly interpreted the facts or the
law. Even if I do not file a request for rehearing, you have the right to do so on your own behalf, if
you so desire. If the court gra nts a rehearing, it has the authority to issue a new op inion reaching a
different result.
Further Proceeding: If the Court of Appeals does not grant relief in your case, affirms the conviction,
or otherwise issues a n opinion with which you disagree, you may have a further appeal of your case
by filing a Petition for Discretionary Review in the Texas Court of Criminal Appeals. This petition
must be filed within 30 days after the issua nce of the Court of App eals’ opinion (or within 30 da ys
after the Court of Appeals denies a motion for rehearing, if one is filed).
I have not been appointed to represent you o n an appeal to the Court of Criminal Appeals or the U.S.
Supreme Court. THEREFORE , IF YOU WISH TO CON TINUE THE APPEAL, YOU WILL NEED
TO FILE A PETITION FOR DISCRETIONARY REVIEW. You w ill need to file the petition and a ll
copies of the petition with the Court of Appeals. The Appellate Court with jurisdiction for your case.
The address for the Court of Appeals handling this particular case is as follows:
12th Court of Appe als
1517 W. Front Street #354
Tyler, Texas 75702
(903) 593-8471
(Fax) 593-2193
The address for the Court of Criminal Appeals is as follows:
Texas Court of Criminal Appea ls
P.O. Box 12308
Capitol Station
Austin, Texas 78711
(512) 463-1551.
You may also request the Court of Criminal Appea ls to extend the time to file a petition, but only if
you request it within fifteen (15) days after the d ate the court issues an opinion on the request for
rehearing.
A Petition for Discretionary Review must be as brief as possible. It must be addressed to the “Court
of Criminal Appeals of Texas” and must state your name as the party applying for review. It must also
contain the following:
1. A “Table of Contents” with references to the pages of the petition and must
indicate the subject matter of each ground or question presented for review.
2. An “Index of Authorities” arranged alphabetically and indicating the pages
of the petition where the authorities are cited.
3. A “Stateme nt Regarding Oral A rgument” explaining why oral arguments
would be helpful or that such arguments are waived.
4. A “Statement of the Case” briefly describing the nature of the case.
5. A “Statement of the Procedural History” providing:
a. the date any opinion of the Court of Appe als
was issued;
b. The date of the filing of the motion for
rehearing; and,
c. The date the motion for rehearing was denied.
6. The “Grounds for Review” for which you are requesting re view, separately
numbered.
7. The “Reasons for Review” providing a concise and direct argument, with
supporting authorities, as to why the court should review your case.
8. A “Prayer for Relief” clearly stating what relief you are seeking; and,
9. An “Append ix” containing a copy of the opinion of the Court of Appeals.
10. A “Certification pursuant to TRAP 9.4" wherein you advise the C ourt how many
word s are in yo ur brief.
The petition must be no longer than fifteen (15) pages, exclusive of the Table of Contents, Index of
Authorities, Statement Regarding Oral Arguments, Statement of the Case, Statements of Procedural
History and the Appe ndix.
The State has the right to petition for review if the Court of Appeals grants the relief you request. IF
THIS OCCUR S, YOU M AY BE ELIGIBLE FO RELEASE ON BAIL WHILE THE STATE SEEKS
DISCRETIONARY REV IEW. The amount of bail is determined by the Court of Criminal Appe als
upon your filing a motion requesting same.
Potential Adverse C onsequences of a Reversal: Although the Court of Appeals affirms far more cases
that ir reverses, I feel it is important that you understand the appellate process and its possible effect
on you.
If the punishment in your case was assessed by a jury and your case is remanded for a new trial, you
may be found guilty a second time. At the new trial, a second jury may give you any sentence it
deems appropriate, within the range allowed by law, i.e., the same se ntence as w as granted originally,
a sentence less than before, or one greater than before.
If your case is remanded and you choose to have a judge assess punishment, you may be assessed a
greater punishment in the event the court is made aware of new testimony or evidence not presented
at the first trial which warrants a longer sentence, or if you have engaged in some action after the first
trial that might be used to justify a longer sentence. Of course, the judge is also permitted to assessed
a sentence le ss than at the firs t trial.
Termination of Authority: As stated earlier, I am not authorized to represent you on any other matter.
I represent you only on the initial preparation and appeal in this matter, and my authority to do so
terminates upon the entry and acceptance of a judgment issued b y the court. Also, my app ointment
to represent you on the current appeal does not include an appointment to pursue a Petition for
Discretionary R eview; howe ver, if the Court of Criminal Appeals grants your petition, the Trial Court
must appoint an attorney to represent you in further proceedings.
I have als o enclo sed w ithin the po sting forw arded to you via Certified Mail, Return Receipt Requested,
a USB Flash Drive w herein is downloade d the Clerk’s Record and the Court R eporter’s R ecord, along
with the appellate correspondence for your review.
Thank you for your kind understanding of the above. I wish that the circumstances could have been
different. Nevertheless, I do wish you well in your future.
Sincerely,
Forrest K. Phifer
Attorney at Law
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