Darnell, Stacy ( 2015 )

PD-0556-15
Clerk of the Court of Criminal Appeals
Supreme Court Bldg
201 W. 14th St., Rm 106
P.O. Box 12308
Austin, TX 78711-2308
MAY 07 29|5
In the Court of Criminal Appeals
of Texas
No. 11-14-00339-CR
STACY DARNELL, Petitioner/Appellant
V.
THE STATE OF TEXAS, Respondent
On Petition from the Eleventh Court ofAppeals, Eastland,Texas
Appellate Cause No. 11-14-00339-CR
On Appeal from the 35th District Court, Brown County, Texas Trial Court
Cause No. CR22692
STACY DARNELL'S PETITION
FOR DISCRETIONARY REVIEW
Stacy Darnell
Petitioner/Appellant, pro se
#1964522
James V. Allred Unit
2101 FM 369 North
Iowa Park, Texas 76367
TABLE OF CONTENTS
PAGE
a) Table of Contents 2
b) Index ofAuthorities 4
c) Statement Regarding Oral Argument 5
d) Statement of the Case 6
e) Procedural History 7
f) Grounds for Review 8
1. The Court ofAppeals erred in dismissing Appellant's request for a
free copy of record 8
2. The Court ofAppeals erred in dismissing Appellant's request for
Appellant counsel to perfect appeal 8
3. The Court ofAppeals erred by dismissing appeal where that dismissal
deprived Appellant of his right to appeal his criminal conviction and pre-trial
errors that support conviction 8
g) Argument and Authorities
Ground 1 9
Ground 2 9
Ground 3 10
h) Prayer for Relief. 12
APPENDIX A-l
Appendix Table A-2
Memorandum Opinion, Eleventh Court ofAppeals A-3
TABLE OF CONTENTS (continued^
Appellant's Response Showing Grounds To Continue Appeal A-7
Defendants Motion for Examining Trial to Examine State's Probable Cause for on-sight arrest,
charges, and detention, and Moves for Dismissal of Charges A-13
to INDEX OF AUTHORITIES
United States Supreme Court:
Evits v. Lucey. 469U.S.387.396Q985) 10
Pa. v. Finley. 481U.S.551.555(1987) 10
Texas Court of Criminal Appeals:
Menefee v. State. 287S.W.3d9.14nex.Crim.App.2009) 11
Young v. State. 8S.W3d656.667(Tex.Crini.App.2000) 10
Texas Criminal Procedure:
Art. 1.15 11
Art. 44.02 10
Texas Rules ofAppellate Procedure:
Rule, 20.2 9
Rule, 68.4(f) 9
c) STATEMENT REGARDING ORAL ARGUMENT
Oral argument is not requested.
d) STATEMENT OF THE CASE
Appellant, STACYDARNELL, entered a plea of no contest to the offense of possession
of a controlled subsance in a drug-free zone. The trial court sentenced Appellant to thirty years
confinement in accordance with terms of state's plea agreement. Appellant did not sign waiver of
appeal, rather Appellant timely requested trial court's permission to appeal.
The Court ofAppeals found that Appellant has no right of appeal in a plea-bargaining
case and dismissed the appeal without considerations ofAppellant's grounds for Appeal or
Appellant's requests for access to record and appointment of counsel to perfect appeal.
e) PROCEDURAL HISTORY
1) On March 6, 2015 the Memorandum Opinion for the Court ofAppeals of the Eleventh District
of Texas, in Eastland, Texas was handed down. (See Appendix at pg A-1 infra-Memorandum
Opinion.)
2) No motion for rehearing was filed.
3) An extension fo 60 days was granted to file Petition for Discretionary Review.
f> GROUNDS FOR REVIEW
1. The Court ofAppeals erred in dismissing Appellant's request for a free copy of the record.
2. The Court ofAppeals erred in dismissing Appellant's request for Appellant counsel to perfect
appeal.
3. The Court ofAppeals erred by dismissing appeal where that dismissal deprived Appellant of
his right to appeal criminal conviction and pre-trial errors that support conviction.
g) ARGUMENT AND AUTHORITIES
1. The Court ofAppeals erred in dismissing Appellant's request for a free copy of the record.
Texas Rules ofAppellate Procedure, Rule 20.2 requires that the appellate record must be
furnished to Appellant. Here, Appellant gave oath of his indigence to the trial court and indicated
his inability to purchase copy of record by his request to the Court ofAppeals for a free copy of
the record, that request being made within the time for perfecting his appeal. (See Appendix, pg
A-9 infra, "Appellant's response showing grounds to continue Appeal" at 12.) Appellant has not
been provided access to record.
The value of the record on appeal is and indispensable one. Appellant has no alternative
devices for citing errors on appeal, absent access to record. The Court ofAppeals has denied
Appellant his right to equal protection of the law by dismissing any considerations of his request
for copy of record. Thus, Appellant's appeal process has been impeded by lack of basic tools of
appeal such as access to the record.
Despite Appellant's oath of indigence to the trial court and his request for record on
appeal, Appellant has not been provided access to record. Appellant's harm has now extended to
this petition for discretionary review where he is unable to meet the requirements of citations to
record in support of his grounds for review. (See Texas Rules ofAppellate Procedure, Rule 68.4
(f) "...the petitioner must..." refer to the page of the record where the matter complained of is
found.)
The court should remand to court of appeals with instructions that Appellant be furnished
access to record, opportunity to perfect his appeal, and opportunity to present his grounds for
appeal supported by citations to record.
2. The Court ofAppeals erred in dismissing Appellant's request for Appellant counsel to perfect
appeal.
Due process requires effective assistance of counsel during appeal. Evits v. Lucey. 469
US.387,396 (1985) The right to appointed counsel applies to first appeal of right. Pa. v. Finley.
481 U.S.551,555(1987)
Appellant requested appointment of counsel to perfect appeal. (See pg A-9 infra, "
Appellant's response showing groundsto continueappeal" at 13.) Appellant has not been
provided withAppellant counsel. The Court of Appeals erred by dismissing appeal without
Appellant counsel or consideration of Appellant's requestfor Appellant counsel.
This court should remand to Court ofAppeals with instructions to appoint Appellant
counsel to perfect appeal.
3. The Court ofAppeals erred by dismissing appeal where that dismissal deprived Apellant of his
right to his criminal conviction and pre-trial errors that support conviction.
A defendant is any criminal action has the right of appeal. Texas Code of Criminal
Procedure, art.44.02. The statute places limitations on appeals where a defendant has been
convicted upon a plea of no contest and punishment is agreed to. In those cases he may appeal
any matter with trail court's permission or any matter raised by written motion filed prior to trial.
Texas Code of Criminal Procedure, art44.02. The statute has no provision for waiver of appellate
rights based upon plea-agreements.
Appellant exercised his right of appeal. Appellant did not sign waiver of appeal, (see pg
A-5 infra, "Memorandum Opinion") rather, Appellants exercised his right of appeal by timely
notifying the trial court of his desire to appeal. The trial court did not oppose nor deny
Appellant's request for appeal. Appellant's notice of appeal was forwarded to the Eleventh Court
ofAppeals for consideration of appeal. Upon the Court ofAppeal's request, Appellant provided
Grounds for Appeal. (See pg A-8 infra, "Appellant's response showing grounds to continue
appeal".) Appellant presented several matters raised by written motion prior to trial such as:
a) Motion to Examine State's Probable Cause...
and moves for dismissal of charges. (See pg A-13 infra "Defendant's Motion for
Examining Trial to examine state's probable cause for on-sight arrest, charges, and
detention, and moves for dismissal of charges".);
b) Pre-trial Habeas (C.R.); and
c) Motion to Suppress (C.R.). (pg A-18 infra)
If any one of the above pre-trial matters had been ruled favorable to Appellant the
judgment of guilt could not have occurred, thus, the judgment is supported by those pre-trial
matters presented as grounds for appeal. Those matters cannot be forfeited or waived on appeal.
Young v. State 8S.W.3d656,667 (Tex. Crim. App. 2000) (A valid plea of no contest may waive
or forfeit the right to appeal a claim of error only when the judgment of guilt was rendered
independent of the error.)
The harm caused by those pre-trial matters are exasperated by the statutory requirement
that:
"...in no event shall a person charged be convicted upon his plea without sufficient
evidence to support the same." Texas Code of Criminal Procedure art.1.15
Appellant's pre-trialmatters were specificto no evidenceof him ever being in possesion of any
controlled substance. (See pg A-17 infra, DARNELL [Appellant] was only a passenger in Clark's
vehicle; and pg A-19 infra, at IV. "Summary")Appellantopted to plea no contest to the chargeof
possesion of a controlled substance without expressly admitting the charges were true and
10
correct. The state failed to produce any evidence to support that the chages were true and correct.
The only support for the judgment of conviction is Appelant's plea of no contest which is not
tantamount to ajudicial confession sufficient to satisfy art.1.15. Menefee v. State 287S.W.3d9,
14(Tex.Crim.App.2009)
By dismissing appeal the Court ofAppeals has violated Apeallant's statutory right to
appeal the above pre-trial matters which support the error of conviction. The court should grant
review to clarify the parameters of the stautory provisions above.
11
PRAYER FOR RELIEF
Appellant prays that the court grant review to define the parameters of above statutory
provisions and/or remand with instructions to provide Appellant access to record, Appellant
counsel and opportunity to appeal.
Respectfully submitted on this the 1st day of May, 2015.
X.
T
Stacy Darnell
Petitioner/Appellant, pro se
#1964522
James V. Alfred Unit
2101 FM 369 North
Iowa Park, Texas 76367
12
CERTIFICATE OF SERVICE
TRAP68.11
This is to certify that on May 1,2015 a true and correct copy of the above foregoing
petition for Discretionary Review was served on:
The District Attorney's Office,
200 S. Broadway
Brownwood, TX 76801
and
The State Prosecuting Attorney
P.O. Box 12548
Austin, TX 78711-2548
by first class mail, postage prepaid.
X
* Stacy Darnell
13
APPENDIX
RECEIVED IN
COURT OF CRIMINAL APPEALS
MAY 07 2015
AbelAcosta, Clerk
APPENDTX TABLE
DOCUMENT • : PAGE
MEMORANDUM OPINION, Eleventh Court ofAppeals A-3
APPELLANT'S RESPONSE Showing Grounds to Continue Appeal A-7
DEFENDANT'S MOTION for Examining Trial to examine state's
probable cause for on-sight arrest, charges, and detention, and
moves for dismissal of charges '%::: A-13
•* >i<
A-2
Eleventh Court of Appeals
MEMORANDUM OPINION
A-3
£lmL Hr-f^oir
Opinion filed March 6, 2015
In The
detent!) Court of appeal*
No. 11-14-00339-CR
STACY DARNELL, Appellant
THE STATE OF TEXAS, Appellee
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CR22692
MEMORANDUM OPINION
Appellant, Stacy Darnell, judicially confessed and pleaded no contest to the
offense of possession of a controlled substance in a drug-free zone and pleaded
true to the habitual-offender enhancement allegation. The trial court assessed
Appellant's punishment in accordance with the terms of his plea agreement in this
case at confinement for thirty years. We dismiss the appeal.
This court notified Appellant by a letter dated December 5, 2014, that we
had received information from the trial court that Appellant waived his right of
*
4-4-
LN-/-5"
* appeal and that this is a plea-bargain case in which Appellant has no right of
appeal. See Tex. R. App.P. 25.2(a)(2), (d). We requested that Appellant respond
and show grounds to continue the appeal. Appellant has filed a response in which
he asserts, among other things, that the State lacked probable cause, that he has a
right to appeal, and that his guilty plea and waiver of appeal were not voluntary.
Rule 25.2(a)(2) provides that, in a plea bargain case in which the punishment
does not exceed the punishment agreed to in the plea bargain, "a defendant may
appeal only: (A) those matters that were raised by written motion filed and ruled
on before trial, or (B) after getting the trial court's permission to appeal." The
documents on file in this case reflect that Appellant entered into a plea bargain;
that his punishment was'assessed in accordance with the plea bargain; and that
Appellant affirmatively, "voluntarily, knowingly and intelligently waive[d] [his]
right to appeal." The trial court's certification was signed by Appellant's trial
counsel and the judge of the trial court, and it reflects that Appellant^declinedjo
sign. The trial court certified that Appellant has no right of appeal. The
documents on file in this court support the...trial court's certification and show that
Appellant waived his right of appeal. See Dears v. State, 154 S.W.3d 610 (Tex.
Crim. App. 2005). Accordingly, we must dismiss this appeal without further
action. Tex. R. App. P. 25.2(d); Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim.
App. 2006).
Accordingly, this appeal is dismissed.
PER CURIAM
March 6, 2015
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
4
AS
Hr-i-lS
+
11 th Court of Appeals
Eastland, Texas
Judgment
Stacy Darnell, * From the 35th District
Court of Brown County,
Trial Court No. CR22692.
Vs. No. 11-14-00339-CR * March 6, 2015
The State of Texas, * Per Curiam Memorandum Opinion
(Panel consists of: Wright, C.J.,
" Willson, J., and Bailey, J.)
This court has inspected the record in this cause and concludes that the
appeal should be dismissed. Therefore, in accordance with this court's opinion,
the appeal is dismissed.
A-6
APPELLANT'S RESPONSE SHOWING
GROUNDS TO CONTINUE APPEAL
A-7

c. Search
DARNELL moves to examine the next chronological event, the search conducted of
CLARK's vehicle and search of DARNELL'S person.
DARNELL seeks to examine any probable cause or proffered consent to search
CLARK's vehicle as a measure to show that any drugs found as a result of the search of
CLARK's vehicle cannot be linked to DARNELL, as DARNELL was only a passenger in
CLARK's vehicle.
DARNELL reservesthe right to challengewhetherCLARKsigned any consent to
search form for police or whether CLARK voluntarily gave consent to search his vehicle.
According to the"probable cause" (Exhibit #1), Gover obtained consent from CLARK
to searchCLARK's Dodge. Gover began searchbut doesnot specifywhere, when, and how
long, orwhat he searched (console area ornot?). Police do not indicate why Stroope was called
Page 4 of6
A-n
to search CLARK's Dodge again after Gover had searched the Dodge. Stroope's subsequent
arrival and search finds a baggie of methamphetamine, but does not describe methamphetamine
(powder, powdery, white, liquid, clear, crystal, watery, etc.-?); does not describe baggie (clear,
size, color, style, weight, etc.?); does not describe cigarette pack (box, soft pack, regular,
menthol, lights, etc.?); does not describe center console or where in center console (on top of or
beneath other item? if so what other items?); does not describe whether cigarette pack
containing baggie was concealed or why Gover was unable to find baggie during his search of
CLARK's Dodge.
The baggie of methamphetamine was not found in plain sight, and it was not discovered
in passenger area of vehicle where DARNELL was a passenger, rather, it was found concealed
in the console in proximity to driver, CLARK.
No Police officer ever witnessed DARNELL possess any drugs. A search of
DARNELL'S person revealed no drugs, no paraphernalia used for ingesting drugs, no evidence
of prior drug use such as burns or needle marks and no drug money was found on DARNELL'S
person. Nothing resulting from the search of CLARK's Dodge can be linked to DARNELL,
who was only a passenger in CLARK's Dodge.
If it took several police officers to conduct several consecutive searches of CLARK's
vehicle to discover one small baggie in proximity to the driver (CLARK), it cannot be assumed
that DARNELL had any awareness of the small baggie found in CLARK's Dodge. DARNELL
was only a passenger, and as such, knowledge cannot be inferred to DARNELL. DARNELL
moves for dismissal based on illegal search.
d. Drugs, Possession thereof
No lab has found actual methamphetamine (field test found "characteristics") and no
weight has been measuredon any certified scales of alleged drugs with or without baggie.
According to Police, CHANCE CLARK is the driver and owner of the Dodge that the
methamphetamine was found in. Under the law, Clark is the legal possessor of his vehicle and
all of its contents, and it cannot be inferred that a passenger, such as DARNELL, has possession
of drugs found concealed in CLARK's vehicle where nothing links DARNELL to those drugs.
DARNELLwas a passenger only.Nothing that could be associated with drugs or drug
use was found on his person. There is not any link between DARNELL and the small baggie of
methamphetamine allegedly found in CLARK's Podge.
Only CLARK, the-driver, owner, and "possessor" of vehicle-is described as trembling,
nervous, and fumbling. DARNELLwas cairn, not-worried, sober, and had full function of ail of
his mental faculties. Police do not state ^otherwise. DARNELL is a passenger only, whom the
law recognizes as not being in possession of contraband contained in other persons' vehicles. No
paraphernalia used for using/ingesting drugs was found. Thereis no connection between
DARNELL and drugs, CI or otherwise, that exist linking DARNELL to methamphetamine
allegedly found in CLARK's Dodge.
DARNELL is prepared to present evidence that at the time ofhis arrest, he voluntarily
submitted a urine sample to Police for druganalysis. The results ofthat analysis were negative,
conclusive evidence that DARNELL had not been using any drugs prior to his arrest.
The court will also hear that CLARK, the driver, owner and possessor ofthe Dodge was
found to have methamphetamine in his system at the time of DARNELL'S and CLARK's arrest.
Page 5 of6
A-\&
There exist absolutely no connection to any drugs, nor any drug use, by DARNELL, that
could be used to support probable cause for his arrest, drug possession charges, and continued
detention. DARNELL moves for dismissal of charges.
e. Drug-Free Zone
The probable cause gives 2001 Austin Avenue as the physical location of Coggin Park
and alleges that DARNELL was arrested within 1000 feet of that address. However, the
probable cause does notgive any physical location ofJflw&xactly DARNELL was arrested. It
only states "on Ave J" somewhere by 1st Street. Without a physical street address of exactly
where the arrest took place, Police deprive DARNELL of any specific measuring points for
DARNELL to use to show that he was not within 1000 feet of Coggin Park. When the police
allege that DARNELL is within 1000 feet of Coggin Park and do not cite the physical locations
of point to point measurements, police forfeit that allegation because it deprives DARNELL of
any ability to make his own measurements in Defense. DARNELL moves that the court dismiss
the Drug-Free Zone enhancement.
f. Probable Cause Not Proper in Form
Lastly, the probable cause for on-sight arrest is not proper as it is not notarized.
IV. SUMMARY
Police rely upon a non-credible informant as a triggering event for probable cause,
conduct an invalid vehicle stop on a vehicle not referenced by CI; then, several officers conduct
consecutive searches, no specifics nor any descriptions are given, and drugs are allegedly found
concealed in CLARK's Dodge; DARNELL is only a passenger who has no links whatsoever to
the drugs found, nor any links to any drug use, and CLARK is found to have methamphetamine
concealed in his Dodge and in his system at the time of arrest. The court should grant
DARNELL and Exarnining Trial and/or dismiss the charges against him.
V. PRAYER
WHEREFORE PREMISES CONSIDERED, DARNELL prays that the Honorable Court
grant him and examining trial and/or dismiss the charges against him.
Respectfully submitted.
Stacy Allen Darnell
VI. CERTIFICATE OF SERVICE
I, StacyDarnell, declarethat a true and correct copy of theToreeome has beenserved on
States Attorney for Brown County, TX on this the &p day of gnntitwW^z013.
KJA
Stacy AlleiTDarnell
Page 6 of 6
A-n
Y E^l^X
PROBABLE CAUSE FOR ON-&GHT ARREST
PfcFENDANT NAME: STACY ALLEN DARNELL DOB: 08-19-1972
OUTENSE ARRESTED FOR:
goss ofSub PG 1< 1gram Drug Free Zone Felony 3 Degree
! The above named Defendant was arrested for the offense listed above on the 9Day
ofAugust 2013, at 1:00 o'clock rj.m. Probable
cause for this on-sight arrest is based on the following: I,
Carlyle Gover, aPeace Officer for the State ofTexas. Brown County, do
hereby state that:
Oa August 9,20131 mvestipatarGover received informationfiofn aconfidenrial mfhtmant fCDthat
CHANCECLARK. STACYDARNEri. VJ"Phfllm^andKri^ram^
Oa^IimMctelroom#143.TlreCladvL<^tha
distributing methamrfietaminefh^
ok^ed two males amitvynfi^lrepigx^
white DodgeOiarggdisplaying? temporarytag' jSfc Guthrie andIfollowed the Dndpe
Cl3agertoseverdkxaD«ismEarfr&"
Chan»erfailedto signal, pulled overtotherightofiheroadand stonedIinitiatednivemergercv lights
fflKJconductedatrafScstop. The solepassengerSTACTDARr^lexitedthe vehiclevWnS m.mlipht
e»ga"^mhis liand Icontactedthe cfev^
Pttssesacmofa substancemr*gafrygto^
was testedvMapresmtriyemethmiiDhetam^
-cfaaractenst.es formethatnphetamtne. The baggie «nd methamphetafhine were laterweighed via aHiatal
^andtbetofalv^gfatvvas^ 1000feetofCogomP^ ^hw,
is locatedat2001 Austin Ave FnH nftqvg- "
All ofabove occurred inBrown County, Texas.
AGAINST THE PEACE AND DIGNTriTY OFTHE STATE
AFFIANT
SWORNTOANDSUBSCKIBEDBEFOREMEBY (<\f W
CREDIBLE PERSON, ON THE °) DAY OF j^uGUST 20^3.
PEACE OFFICER
NOTORYFUBLIC,BROWNCOUNTY, TEXAS
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