Stuckey, Tarvarus Deandre ( 2015 )

PD-1302-15
PD-1302-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/1/2015 11:37:48 AM
Accepted 10/2/2015 10:48:35 AM
ABEL ACOSTA
NO._________________
CLERK
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
TARVARUS DEANDRE STUCKEY
Petitioner
v.
THE STATE OF TEXAS
Respondent
Petition is in Cause No. 1103963D from the
297th Criminal District Court of Tarrant County, Texas,
and Cause No. 07-14-00082-CR in the
Court of Appeals for the Seventh District of Texas
PETITION FOR DISCRETIONARY REVIEW
Abe Factor
TBN: 06768500
Factor, Campbell & Collins
Attorneys at Law
5719 Airport Freeway
Phone: (817) 222-3333
Fax: (817) 222-3330
Email: lawfactor@yahoo.com
Attorney for Petitioner
Tarvarus Deandre Stuckey
October 2, 2015
IDENTITY OF PARTIES AND COUNSEL
The following is a complete list of all parties to the trial court’s
final judgment, as well as the names and addresses of all trial and
appellate counsel.
Trial Judge: The Hon. Everett Young, Judge, 297th
Criminal District Court, Tarrant Co.
Petitioner: Tarvarus Deandre Stuckey
Petitioner’s Trial Counsel: Roberta Walker
TBN: 24045270
Attorney at Law
2363 Hwy. 287 N., Ste. 202
Mansfield, Texas 76063
Petitioner’s Counsel Abe Factor
on Appeal: TBN: 06768500
Factor, Campbell & Collins
Attorneys at Law
5719 Airport Freeway
Fort Worth, Texas 76117
Appellee: The State of Texas
Appellee’s Trial Counsel: Lisa Callahan
TBN: 01160700
District Attorney’s Office
401 W. Belknap Street
Fort Worth, Texas 76196
Appellee’s Counsel Debra Windsor
on Appeal: TBN: 00788692
John Meskunas
TBN: 24055967
District Attorney’s Office
401 W. Belknap Street
Fort Worth, Texas 76196
ii
TABLE OF CONTENTS
page
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iv
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . .1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . 2
GROUNDS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
REASONS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. The Court of Appeals erred when it failed to delete
the entirety of the “Reparations” assessed in the
judgment below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. Stuckey I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
C. Stuckey II. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
D. Stuckey III. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
E. Stuckey IV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
F. Controlling Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
iii
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
iv
INDEX OF AUTHORITIES
Cases page
Adkins v. State,
764 S.W.2d 782 (Tex. Crim. App. 1988). . . . . . . . . . . . . . . . . . 3, 11
Carmell v. State,
331 S.W.3d 450 (Tex. App. 2010). . . . . . . . . . . . . . . . . . . . . . . . . .10
Garrett v. State,
749 S.W.2d 784 (Tex. Crim. App. 1986). . . . . . . . . . . . . . . . . . . . 10
Johnson v. Tenth Judicial Dist. Ct. of Appeals,
280 S.W.3d 866 (Tex. Crim. App. 2008). . . . . . . . . . . . . . . . . . . . . 5
Johnson v. State,
423 S.W.3d 385 (Tex. Crim. App. 2014). . . . . . . . . . . . . . . . . . . . . 6
Keehn v. State,
233 S.W.3d 348 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . . 11
Malik v. State,
953 S.W.2d 234 (Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . 10
Stuckey v. State,
07-14-00082-CR, 2014 WL 4161568 (Tex. App.–Amarillo,
August 20, 2014, no. pet) (mem. op., not designated for
publication) (Stuckey I).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2, 7
Stuckey v. State,
07-14-00082-CR, 2015 WL 774623 (Tex. App.–Amarillo,
February 12, 2015, pet. granted) (op. on rehearing) (mem.
op., not designated for publication) (Stuckey II). . . . 2, 7, 8
Stuckey v. State,
PD–0286–15, 2015 WL 2452797 (Tex. Crim. App.
May 20, 2015) (per curium)
(not designated for publication) (Stuckey III). . . . . . . . 2, 9
v
Stuckey v. State, 07–14–00082–CR, 2015 WL 5578498 (Tex. App.–
Fort Worth, Sept. 22, 2015, no. pet. h.) (mem. op., not
designated for publication) (Stuckey IV). . . . . . . . . . . . . . . 3, 9, 10
Wiley v. State,
410 S.W.3d 313 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . . . . . . 8
Will. v. State,
145 S.W.3d 737 (Tex. App.–Fort Worth 2004, no pet.). . . . . . . .11
Statutes
T EX. C RIM. P ROC. C ODE A NN. § 103.001 (West Supp. 2014). . . . . . . . . . 6
T EX. G OV’T C ODE § 501.014(e)(4) (West 2012). . . . . . . . . . . . . . . . . . . . . .5
T EX. P ENAL C ODE A NN.§ 29.03(a)(2) (West 2011). . . . . . . . . . . . . . . . .1, 4
Court Rules
T EX. R. A PP. P. 41.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
T EX. R. A PP. P. 47.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
vi
STATEMENT REGARDING ORAL ARGUMENT
Because Petitioner does not believe that oral argument will
materially assist the Court in its evaluation of matters raised by this
pleading, Petitioner respectfully waives oral argument.
STATEMENT OF THE CASE
On July 19, 2011, Petitioner Tarvarus Deandre Stuckey (“Mr.
Stuckey” or “Petitioner”) pled guilty and was placed on ten years
deferred adjudication community supervision for the first degree
felony offense of aggravated robbery with a deadly weapon. [C.R.51];
see T EX. P ENAL C ODE A NN.§ 29.03(a)(2) (West 2011). Subsequently, the
State moved to adjudicate Mr. Stuckey’s guilt, and a hearing was held
on the matter. At the hearing, Petitioner pled true to the remaining
allegations in the State’s second amended petition to proceed to
adjudication after the State waived three allegations. (II R.R. 9). The
trial court adjudicated Mr. Stuckey guilty and sentenced him to twenty
years in prison. (C.R. 78). Mr. Stuckey timely appealed.
Mr. Stuckey’s original appointed appellate counsel filed an
Anders Brief and a Motion to Withdraw. The Seventh Court of Appeals
granted the Motion to Withdraw, but issued an opinion abating and
remanding the case for the appointment of new appellate counsel, so
1
that an arguable issue discovered by the Court’s own review could be
briefed. See Stuckey v. State, 2014 WL 4161568 (Tex. App.–Amarillo,
August 20, 2014, no. pet) (mem. op., not designated for publication)
(Stuckey I). Undersigned counsel was then appointed by the trial court.
In the resulting appeal, Seventh Court of Appeals in a
superseding opinion1 modified Mr. Stuckey’s judgment and affirmed
as modified in a superseding opinion handed down on February 12,
2015. See Stuckey v. State, 07-14-00082-CR, 2015 WL 774623 (Tex.
App.–Amarillo, February 12, 2015, pet. granted) (op. on rehearing)
(mem. op., not designated for publication) (Stuckey II). vacated at
PD–0286–15, 2015 WL 2452797 (Tex. Crim. App. 2015) (per curium) (not
designated for publication) (Stuckey III). This court vacated the opinion
of the Seventh Court of Appeals and remanded to that court. Stuckey v.
State, PD–0286–15, 2015 WL 2452797 (Tex. Crim. App. May 20, 2015)
(per curium) (not designated for publication) (Stuckey III).
STATEMENT OF PROCEDURAL HISTORY
The Seventh Court of Appeals issued it Opinion on Remand
from the Court of Criminal Appeals affirming Mr. Stuckey’s judgment
1
Mr. Stuckey’s Motion for Rehearing was granted and the court withdrew
its opinion handed down on January 16, 2015.
2
and conviction as modified was handed down on September 22, 2015.
See Stuckey v. State, 07–14–00082–CR, 2015 WL 5578498 (Tex. App.–Fort
Worth, Sept. 22, 2015, no. pet. h.) (mem. op., not designated for
publication) (Stuckey IV). This Petition for Discretionary review is
therefore timely.
GROUNDS FOR REVIEW
GROUND FOR REVIEW ONE
I. The Court of Appeals erred when it failed to address all of
Appellant’s complaints on remand.
REASONS FOR REVIEW
1. The decision by the Seventh Court of Appeals has decided an
important question of state law in a way that conflicts with the
applicable decisions of the Court of Criminal Appeals; specifically
Adkins v. State, 764 S.W.2d 782, 784 (Tex. Crim. App. 1988).
2. The Seventh Court of Appeals has so far departed from the
accepted and usual course of judicial proceedings as to call for an
exercise of the Court of Criminal Appeals’ power of supervision.
ARGUMENT
GROUND FOR REVIEW ONE (Restated)
I. The Court of Appeals erred when it failed to address all of
Appellant’s complaints on remand.
A. Facts
On July 19, 2011, Mr. Stuckey pled guilty and was placed on ten
3
years deferred adjudication community supervision for the first degree
felony offense of aggravated robbery with a deadly weapon.2 [C.R. 52];
see T EX. P ENAL C ODE A NN. § 29.03(a)(2). In the Order of Deferred
Adjudication, Mr. Stuckey was ordered inter alia to pay “ATTORNEY
FEES TO BE DETERMINED.” [C.R. 53]. A few months later on
December 12, 2011, Mr. Stuckey’s conditions of community supervision
were amended, adding a requirement for him to “[p]ay court
appointed attorney fees in the amount of $3360.00.” 3 [C.R. 60].
Subsequently, the State moved in its Second Amended Petition
filed on January 2, 2014 to adjudicate Mr. Stuckey’s guilt, and a hearing
was held on the matter. [C.R. 74; II R.R. passim]. At the hearing,
appellant pled true to four of the allegations in the State’s petition after
the State waived three allegations.4 [II R.R. 9]. The trial court
2
Included in the terms of the plea admonishments on file in this case, is a
boilerplate provision in which Mr. Stuckey waives his right to appeal in
the original proceeding placing him on community supervision. [C.R. 48].
The Trial Court’s Certification Of Defendant’s Right Of Appeal also holds
that the defendant has waived the right of appeal. [C.R. 55]. Pursuant to
those waivers, Mr. Stuckey did not appeal the original judgment placing
him on deferred adjudication.
3
Mr. Stuckey’s signature appears on the document setting forth the
amendment requiring him to pay court appointed attorney fees. (C.R. 60).
4
The State’s Second Amended Petition did not allege any non-payment of
fees, fines or costs by Mr. Stuckey as grounds for adjudication. (C.R. 74).
4
adjudicated Mr. Stuckey guilty and sentenced him to twenty years in
prison. [C.R.78]. In the Judgment Adjudicating Guilt, the trial court
assessed reparations in the amount of $6216.00. [C.R.79]. The trial court
also entered an order authorizing the withdrawal of funds from the Mr.
Stuckey’s inmate trust fund account, on a fixed monthly basis, until
both his reparations and his court costs are paid off.5 [C.R. 81]. On file
with the papers in this case is a document styled a “Bill of Costs,”
which purports that Mr. Stuckey owes $6216.00 in reparations,
parenthetically characterized as “Probation Fees.” [C.R. 82]. That same
document allows that Mr. Stuckey owes “$0.00" in “Attorney’s Fees.
[C.R. 82]. During the course of the instant case, Mr. Stuckey was found
to be indigent and entitled to appointed representation on four separate
occasions by the trial court.6 [C.R. 22, 69, 92; Supp. C.R. 9].
In the Judgment Adjudicating Guilt, the trial court set forth
monetary payments denoted as Court Costs and “Reparations.” The
5
See TEX. GOV ’T CODE § 501.014(e)(4) (West 2012) (“The department shall
make withdrawals and payments from an inmate’s account under this
subsection according to the following schedule of priorities. . .(4) as
payment in full for all orders for court fees and costs[.]”); Johnson v. Tenth
Judicial Dist. Ct. of Appeals, 280 S.W.3d 866 (Tex. Crim. App. 2008).
6
While still on bond on the original charge in July of 2009, the trial court
ordered Mr. Stuckey to make monthly payments into the registry of the
court in the of $100 to offset the cost of his appointed attorney. [C.R. 23].
5
Court Costs in the amount of $305.00 are properly calculated, and firm
basis for those fees is found in the record. See T EX. C RIM. P ROC. C ODE
A NN. § 103.001 (West Supp. 2014); Johnson v. State, 423 S.W.3d 385, 390
(Tex. Crim. App. 2014). Mr. Stuckey did not below, and does not here,
contest the court costs assessed in the amount of $305.00.
However, according to unsigned documents of unsure reliability
included in the record, the remaining allegations of monies owed and
characterized as “Reparations” are further broken down as follows:
Fines Remaining: $976.00 (C.R. 85);
Attorney Fees Remaining: $3360.00 (C.R. 85);
Due to CSCD: $80.00 (C.R. 84);
Probation Fees: $1800.00 (C.R. 84).
The amounts set forth in the categories of “Due to CSCD” and
“Probation Fees” do not have any other specific reference or basis in
the record.7
B. Stuckey I
Original appointed appellate counsel filed a Motion to Withdraw
7
However, the record does show that Mr. Stuckey was ordered to pay a
$60.00 community supervision fee on a monthly basis, beginning in
August of 2011. [C.R. 56].
6
concurrent with an Anders Brief. The Seventh Court of Appeals granted
the motion, but remanded to the trial court to appoint new appellate
counsel to brief any appealable issues, including specifically the issue
of “reparations” assessed by the trial court; an issue the court of appeal
found arguable based on its own review of the record. See Stuckey I,
2014 WL 4161568 at *1.
C. Stuckey II
In its Opinion on Rehearing, the Seventh Court of Appeals
accurately noted the byzantine state of the record regarding what fees,
costs and assessments were still owed by Mr. Stuckey at the time of
revocation. See Stuckey II, 2015 WL 774623 at *3 (“Needless to say, the
record is far from uncontradicted on what is and is not outstanding.”).
The court adopted the state’s concession that the order for payment
of $976 in fines and $80 in CSCD fees was not supported by the record
and deleted them from the judgment. See id. at *3. Additionally, Mr.
Stuckey conceded that the Court Costs in the amount of $305.00 were
properly calculated, and the court agreed with that assessment and
held same. Id. at *4.
However, the court held that notwithstanding Mr. Stuckey’s
7
repeated and consistent status of indigency as found by the trial court
at every stage of the proceeding, because he did not object when the
trial court amended his conditions of community supervision some
seven months into his term requiring his repayment of attorney fees,
he could not now object to the attorney fees now re-characterized as
“reparations.” Id. at 4 (citing Wiley v. State, 410 S.W.3d 313 (Tex. Crim.
App. 2013). The court of appeals summarily held the same for the
unpaid probation fees now re-characterized as “Reparations.” Id. Thus,
the net result from the opinion of the court of appeals was that Mr.
Stuckey owed $305 in court costs, $1800 in probation fees; and $3260 in
attorney fees. Id.
D. Stuckey III
On Petition for Discretionary Review, this Court held that
Appellant has filed a petition for discretionary review in which
he argues, inter alia, that the Court of Appeals erred to reject his
argument regarding his community supervision fees on the
grounds that he failed to object at the time that he was placed on
community supervision. We agree. Appellant’s claim regarding
his community supervision fees is not that the imposition of the
$60/month fee was invalid. His claim is that the fees could not
be assessed in the judgment as reparations, and that the $ 1,800
amount assessed in the judgment is inaccurate. These claims
could not have been raised at the time that Appellant was placed
on community supervision.
Accordingly, we grant Appellant's petition for discretionary
8
review, vacate the judgment of the Court of Appeals, and
remand this case to the Court of Appeals to decide whether
Appellant forfeited this claim by not objecting at the time that
the judgment was entered, and if not, whether his claim has
merit.
Stuckey III, 2015 WL 2452797 at *1.
E. Stuckey IV
On remand, the Seventh Court of Appeals accurately stated that
it had invited supplemental briefing, see Stuckey IV, 2015 WL 5578498
at *1, but pertinent to this Petition for Discretionary Review addressed
only a portion of Mr. Stuckey’s complaint and went on to hold that
[o]ne other matter necessitates attention. It concerns appellant’s
effort to contest the assessment of attorney's fees as reparations.
Upon review of the opinion from the Court of Criminal Appeals
remanding the dispute to us, we find nothing therein alluding to
that issue. This is of import since the only new issues that an
appellant may present on remand are those addressed in the
decision of the Court of Criminal Appeals or necessary to its
application on remand. Whether attorney’s fees are reparation
and subject to assessment here had nothing to do with the issue
addressed by the Court of Criminal Appeals in its Stuckey
decision, that issue being appellant’s complaint about the
probation fees. So the matter of attorney’s fees being assessed as
reparations is not before us.
Id. at *2 (citations omitted).
F. Controlling Law
This Court has held that when it reverses and remands a case to
the court of appeals, the court of appeals is not limited on remand to
9
considering only the issue the court of criminal appeals reviewed and
reversed; the court of appeals on remand may even review unassigned
error that was preserved in the trial court. See Garrett v. State, 749
S.W.2d 784, 786-87 (Tex. Crim. App. 1986), overruled in part on other
grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997); Carmell
v. State, 331 S.W.3d 450, 458 (Tex. App. 2010).
Moreover, although the court of appeals expressed a belief below
that it was somehow limited to reviewing only the “reparations” which
had formerly been unpaid probation fees on remand, see Stuckey IV,
2015 WL 5578498 at *1, the Second Court of Appeals8 in an earlier case
knew differently:
As the court of criminal appeals recognized in Carroll v. State,
“The Rules of Appellate Procedure ... do not specifically address
the scope of an intermediate appellate court’s review following
a remand from [the Texas Court of Criminal Appeals].” In
Carroll, however, the court held that “the courts of appeals are
not limited on remand to deciding the pertinent point of error
based solely on the explicit basis set out by this Court in a
remand order.” Accordingly, while the court of criminal
appeals’s holding on Appellant’s petition for discretionary
review pertains only to Appellant's voice exemplar and does not
8
As this case was transferred by the Texas Supreme Court to the Seventh
Court of Appeals from the Second Court of Appeals, “the transferee court
(i.e., the Amarillo Court of Appeals) must abide by the precedent of the
transferor court, (i.e., the Fort Worth Court of Appeals).” Stuckey IV, 2015
WL 5578498 at *1 (citing TEX. R. APP. P. 41.3).
10
specifically address his complaint as to the denial of his request
to show the jury the condition of his mouth, we will reexamine
our holding on the latter issue before turning to the question of
whether Appellant was harmed by the trial court’s rulings.
Williams v. State, 145 S.W.3d 737, 740 (Tex. App.–Fort Worth 2004, no
pet.) (citations omitted) (alterations in original).
Moreover, as recognized by this Court, it would be a violation of
Texas law for this Court to limit the scope of review for a court of
appeals on remand:
[F]or this Court to issue an “order of remand” to restrict the
court of appeals in renewed exercise of its own jurisdiction,
power and authority would seem to be an impossible and
unwarranted abridgement of constitutional grant of same to
courts of appeals by Article V, § 6, Constitution of Texas, as
implemented by Articles 4.03, 44.24 and 44.25, V.A.C.C.P.
Adkins v. State, 764 S.W.2d 782, 784 (Tex. Crim. App. 1988).
“The court of appeals must hand down a written opinion that is
as brief as practicable but that addresses every issue raised and
necessary to final disposition of the appeal.” T EX. R. A PP. P. 47.1; see also
Keehn v. State, 233 S.W.3d 348 (Tex. Crim. App. 2007). Because the
Seventh Court of Appeals failed to properly address every issue raised,
this Court should exercise its power of supervision and correct that
failure.
11
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully
prays that this Court grant discretionary review and allow each party
to fully brief and argue the issues before the Court of Criminal
Appeals, and that upon reviewing the judgment entered below, that
this Court vacate the opinion of the Seventh Court of Appeals and
remand for full consideration of Petitioner’s complaints on appeal.
Respectfully submitted,
/s/Abe Factor
Abe Factor
TBN: 06768500
Factor, Campbell & Collins
Attorneys at Law
5719 Airport Freeway
Fort Worth, Texas 76117
Phone: (817) 222-3333
Fax: (817) 222-3330
Email: lawfactor@yahoo.com
Attorney for Petitioner
Tarvarus Deandre Stuckey
12
CERTIFICATE OF COMPLIANCE
I hereby certify that the word count for the portion of this filing
covered by Rule 9.4(i)(1) of the Texas Rules of Appellate Procedure is
2,101.
/s/Abe Factor
Abe Factor
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing
instrument has been furnished to counsel for the State’s Prosecuting
Attorney and the Tarrant County District Attorney by a manner
compliant with the Texas Rules of Appellate Procedure, on this 1st
day of October , 2015.
/s/Abe Factor
Abe Factor
13
APPENDIX
1. Opinion on Remand from the Court of Criminal of the Seventh
Court of Appeals, September 22, 2015
14