Charlie Joseph Motes v. State ( 2015 )

ORAL ARGUMENT NOT REQUESTED
NO. 12-15-00111-CR FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
IN THE COURT OF APPEALS 8/24/2015 6:11:12 PM
12TH JUDICIAL DISTRICT CATHY S. LUSK
Clerk
TYLER, TEXAS
CHARLIE MOTES,
APPELLANT
VS.
THE STATE OF TEXAS,
APPELLEE
ON APPEAL IN CAUSE NUMBER 114-1777-13
FROM THE 114TH JUDICIAL DISTRICT COURT
OF SMITH COUNTY, TEXAS
HONORABLE CHRISTI KENNEDY, JUDGE PRESIDING
APPELLANT’S BRIEF
JAMES W. HUGGLER, JR.
100 E. FERGUSON, SUITE 805
TYLER, TEXAS 75702
903-593-2400
STATE BAR NUMBER 00795437
ATTORNEY FOR APPELLANT
IDENTITY OF PARTIES AND COUNSEL
APPELLANT:
Charlie Motes
APPELLANT’S TRIAL COUNSEL:
LaJuanda Lacy
2419 Cecil
Tyler, Texas 75702
903-592-8335
APPELLANT’S APPELLATE COUNSEL
James Huggler
100 E. Ferguson, Suite 805
Tyler, Texas 75702
903-593-2400
903-593-3830 (fax)
APPELLEE
The State of Texas
APPELLEE’S TRIAL COUNSEL
Chris Gatewood
Jacob Putman
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702
903-590-1720 903-590-1719 (fax)
APPELLEE’S APPELLATE COUNSEL
Michael West
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702
903-590-1720 903-590-1719 (fax)
ii
TABLE OF CONTENTS
PAGE
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
PROFESSIONAL EVALUATION OF THE RECORD. . . . . . . . . . . . . . . 6
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
iii
TABLE OF AUTHORITIES
CONST.
TEX. CONST. art. V, § 12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
STATUTES
TEX. CODE CRIM. PROC. ANN. art. 4.05 (West 2013). . . . . . . . . . . . . . . . 6
TEX. CODE CRIM. PROC. ANN. art. 26.14(a)(4) (West 2013).. . . . . . . . . . . 7
TEX. CODE CRIM. PROC. ANN. art. 39.14 (West 2013). . . . . . . . . . . . . . . . 6
TEX. PENAL CODE ANN. § 12.35(c)(1) (West 2013). . . . . . . . . . . . . . 2, 3, 7
TEX. PENAL CODE ANN. § 38.04(a) (West 2013). . . . . . . . . . . . . . . . . . 1, 3
TEX. PENAL CODE ANN. § 38.04(b)(1)(B) (West 2013). . . . . . . . . . . . . . 2, 3
CASES
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396,
18 L. Ed. 2d 493 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Bray v. State, 179 S.W.3d 725 (Tex. App.– Fort Worth 2005, no pet.). . 8
Ex parte Dunn, 976 S.W.2d 208 (Tex. Crim. App. 1998). . . . . . . . . . . . . 8
Duron v. State, 956 S.W.2d 547 (Tex. Crim. App. 1997). . . . . . . . . . . . . 6
Mallett v. State, 65 S.W.2d 59, 64 (Tex. Crim. App. 2001). . . . . . . . . . . 6
Mays v. State, 904 S.W.2d 920 (Tex. App. – Fort Worth 1995, no pet.). 6
Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991).. . . . . . . . . . . 9
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Ex parte Thiles, 333 S.W.3d 148 (Tex. Crim. App. 2011). . . . . . . . . . . . 8
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999).. . . . . . . . . . . 9
iv
RULES
Tex. R. App. P. 9.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
TEX. R. APP. P. 38.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5
v
NO. 12-15-00111-CR
CHARLIE MOTES, ,§ IN THE COURT OF APPEALS
APPELLANT §
§
VS. § 12TH JUDICIAL DISTRICT
§
THE STATE OF TEXAS, §
APPELLEE § TYLER, TEXAS
APPELLANT’S BRIEF
TO THE HONORABLE COURT OF APPEALS AND THE JUSTICES
THEREOF:
Comes now Charlie Motes (“Appellant”), by and through his attorney
of record, James Huggler, and pursuant to the provisions of TEX. R. APP.
PROC. 38, et seq., respectfully submits this brief on appeal.
STATEMENT OF THE CASE
Appellant was indicted in Smith County cause number 114-1777-13
and charged with the felony offense of evading arrest. TEX. PENAL CODE
1
ANN. §38.04(a) and (b)(1)(B) (West 2013). I CR 41. The punishment range
was enhanced to a third degree range with the inclusion of a deadly
weapon allegation. TEX. PENAL CODE. ANN. §12.35(c)(1) (West 2013).
Appellant elected to plead guilty to the indictment with an agreement for
ten years deferred adjudication. I CR 47; I RR 16.2 Following evidence
and argument, the court followed the agreement. I CR 90-91; IV RR 7. At
a later time, Mr. Motes entered pleas of true to several allegations, the
court found them true, found him guilty and sentenced him to eight years
confinement. I CR 142, V RR 11-14, Timely notice of appeal was filed on
April 30, 2015. I CR 126. This brief is timely filed on or before August 24,
2015.
ISSUES PRESENTED
None
1
References to the Clerk’s Record are made using “CR” with a roman numeral preceding “CR”
designating the correct volume and an arabic numeral following specifying the correct page.
2
References to the Reporter’s Record are made using “RR” with a roman numeral preceding
designating the volume and an arabic numeral following designating the correct page.
2
STATEMENT OF THE FACTS
Appellant was indicted in Smith County cause number 114-1777-13
and charged with the felony offense of evading arrest. TEX. PENAL CODE
ANN. §38.04(a) and (b)(1)(B) (West 2013); I CR 1. The punishment range
for the offense was enhanced to a third degree felony range by the
inclusion of use of a deadly weapon allegation. TEX. PENAL CODE ANN.
§12.35(c)(1); I CR 1. Appellant entered a plea of guilty to the charge in the
indictment with an agreed recommendation as to punishment. I RR 16;
I CR 47. Appellant waived his right to a jury trial, his right to confront
and cross-examine witnesses, the notification that if Appellant was not a
citizen, a plea of guilty may result in deportation, the effect of the plea on
his rights, the consequences of the plea and the range of punishment for
a state jail felony enhanced to a second degree felony. I CR 48-54. Mr.
Motes entered a plea of guilty to the offense and plea of true to the deadly
weapon allegation. I RR 16-17. A stipulation of evidence was also
admitted at this hearing that detailed the Appellant's conduct. I CR 52-
53.
A sentencing hearing was held on May 29, 2014. Following the
3
evidence and argument of counsel the court withheld a finding of guilt and
placed Mr. Motes on ten years deferred adjudication supervision. IV RR
7-9; I CR 90-91, 92-95.
The State filed an application to proceed to final adjudication. I CR
127-133. Three paragraphs were abandoned propr to the hearing. I CR
130-131; V RR 4. Mr. Motes entered pleas of true to each of the remaining
paragraphs including: identity (¶ 1; V RR 10-11); that he possessed a
controlled substance (¶2 V RR 11); that he failed to report to his probation
officer from and including August 2014 to March 2015 (¶3; V RR 11-12);
that he possessed a controlled substance (¶ 6; V RR 12); that he failed to
support his dependents (¶ 8; V RR 12-13); that he failed to report a contact
by law enforcement (¶9; V RR 13); that he failed to pay supervision fees
(¶10; V RR 14); that he failed to pay court costs including appointed
counsel fees (¶ 11; V RR 14) and that he failed to pay for the preparation
of the presentence investigation report (¶ 12; V RR 14).
Mr. Motes testified during this proceeding. Following the evidence
and argument of counsel, the trial court found Mr. Motes guilty of the
offense, V RR 49. The court moved to a punishment phase, no additional
4
evidence was offered. Following argument, the court assessed an eight
year sentence without a fine. V RR 51; I CR 136-138. This appeal follows.
SUMMARY OF ARGUMENT
Counsel has reviewed the record and has concluded that, in his
professional opinion, the record contains no reversible error or
jurisdictional defects. Anders v. California, 386 U.S. 738, 744, 87 S. Ct.
1396, 1400, 18 L. Ed. 2d 493 (1967). Thus, counsel must move for leave
to withdraw from the case.
ARGUMENT
There is no argument to present to this Court; however, Counsel has
included this section to strictly comply with Texas Rule of Appellate
Procedure 38. Counsel has reviewed the record and has concluded that,
in his professional opinion, the record contains no reversible error or
jurisdictional defects. Anders v. California, 386 U.S. 738, 744, 87 S. Ct.
1396, 1400, 18 L. Ed. 2d 493 (1967). Therefore, counsel is including the
following explanatory section.
5
PROFESSIONAL EVALUATION OF THE RECORD
When counsel contends that there are no arguable grounds for
reversal on appeal, counsel is required to present a professional
evaluation of the record supporting this assertion. See Mays v. State, 904
S.W.2d 920, 922-23 (Tex. App. – Fort Worth 1995, no pet.)
The indictment conferred jurisdiction on the trial court and provided
Appellant with sufficient notice of the charged offense. See TEX. CONST.
art. V, § 12; Duron v. State, 956 S.W.2d 547, 550-51 (Tex. Crim. App.
1997). The trial court has jurisdiction over the case. See TEX. CODE
CRIM. PROC. ANN. Art. 4.05 (West 2013) (stating that district courts shall
have original jurisdiction in felony criminal cases). Mr. Cotes was
admonished as to his rights and the range of punishment. I RR 8, 9-10.
The conviction was supported by Appellant’s signed confession, and
the written plea admonishments indicate that Appellant's plea was made
freely and voluntarily3. I CR 47-54. The court found that the plea was
made freely, intelligently, knowingly and intelligently. I RR 17. The
Morton Act was complied with in this case. I RR 12-13; I CR 57. TEX.
3
When the record indicates that a defendant was properly admonished after pleading guilty, it is
sufficient evidence to establish a prima facie case that the plea was both knowing and voluntary.
Mallett v. State, 65 S.W.3d 59, 64 (Tex. Crim. App. 2001).
6
CODE CRIM. PROC. ANN. art. 39.14 (West 2013).
During the change of plea hearing, the trial court confirmed that
Appellant had reviewed the written plea admonishments with his
attorney and that Appellant was making the plea of his own free will. I
RR 15, 17. Mr. Cotes was able to assist his attorney with the facts of the
case, possible defenses and assist for preparation for trial. I RR 8, 14.
The court questioned Mr. Cotes as to consumption of alcohol, drugs or
other intoxicating substance. I RR 7. He was properly admonished as to
possible immigration consequences. I RR 8-9; Tex. CODE CRIM. PROC.
ANN. art. 26.14(a)(4) (West 2013). Appellant's attorney confirmed that she
was satisfied that Appellant was competent and the State offered no
evidence regarding competency. I RR 15.
Counsel has found no error occurring in the final hearing and
assessment of punishment. Mr. Cotes entered a plea of true to each
remaining allegation in the application to proceed. I CR 142. At the
sentencing hearing, the trial court sentenced Appellant to eight years
confinement. V RR 51. The sentence assessed by the trial court is within
the punishment range provided for by law. See TEX. PENAL CODE ANN. §
12.35(c)(1) (West 2013)(state jail enhanced to a third degree range).
7
Moreover, the judgment does not contain any improper assessment
of fees. See Bray v. State, 179 S.W.3d 725 (Tex. App.--Fort Worth 2005, no
pet.). Counsel is concerned that the application to proceed prepared by
the probation department and submitted by the District Attorney’s Office
includes an allegation that Mr. Cotes was responsible for paying court
costs, including court appointed attorney’s fees. I CR 132 at ¶11.
However, there were no attorney’s fees assessed in either of the
judgments. I CR 90-91, 136-138 and 151.
Counsel is also concerned that Mr. Cotes was mistakenly released
from custody following the sentence being imposed. II CR 1 at ¶2.
Despite his being released from custody by the Henderson County
Sheriff’s Office, the judgment in this case appears correct at the time it
was issued, and any determination as to proper time credited would
properly be the subject of a post-conviction writ. Ex parte Thiles, 333
S.W.3d 148 (Tex. Crim. App. 2011); Ex parte Dunn, 976 S.W.2d 208 (Tex.
Crim. App. 1998). Thus, there is no reversible error during the
punishment phase.
Finally, the undersigned has reviewed the record and found no
arguable ground for ineffective assistance of counsel. Counsel is strongly
8
presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment. Strickland
v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674
(1984).
In the present case, trial counsel offered pertinent evidence at the
revocation hearing, and argued effectively. Considering the totality of the
representation of Appellant's trial counsel, the record contains nothing
that would indicate that counsel's performance was deficient. See id. at
687, 104 S. Ct. at 2064; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim.
App. 1999).
CONCLUSION
Since counsel is unable to raise any arguable issues for appeal, he
is required to move for leave to withdraw. See Stafford v. State, 813
S.W.2d 503 (Tex. Crim. App. 1991).
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Counsel respectfully
9
prays that this Court permit him to withdraw after this Court’s own
examination of the record in this cause and to afford Appellant his right
to file any pro se brief that he may wish to file.
Respectfully submitted,
/s/ James Huggler
James W. Huggler, Jr.
State Bar Number 00795437
100 E. Ferguson, Suite 805
Tyler, Texas 75702
903-593-2400
903-593-3830 fax
ATTORNEY FOR APPELLANT
10
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing Brief of the Appellant has been
forwarded to counsel for the State by electronic filing on this the 20th day
of July, 2015.
Attorney for the State:
Mr. Mike West
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702
CERTIFICATE OF COMPLIANCE
I certify that this Brief complies with Tex. R. App. P. 9.4, specifically
using 14 point Century font and contains 2,233 words as counted by
Corel WordPerfect version x6.
/s/ James Huggler
James W. Huggler, Jr.
11