David Wayne Stokes, Jr. v. State ( 2015 )

ACCEPTED
03-15-00478-CR
6943762
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/16/2015 9:00:41 AM
JEFFREY D. KYLE
CLERK
No. 03-15-00478-CR & 03-15-00479-CR
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
FOR THE THIRD SUPREME JUDICIAL DISTRICT
9/16/2015 9:00:41 AM
JEFFREY D. KYLE
Clerk
OF TEXAS
DAVID WAYNE STOKES, Appellant
VS.
THE STATE OF TEXAS, Appellee
From the 264th District Court of
Bell County, Texas,
the Honorable Judge Martha J. Trudo, presiding
BRIEF PURSUANT TO ANDERS v. CALIFORNIA
SUPPORTING COUNSEL’S CONCLUSION THAT THE RECORD
CONTAINS NO REVERSIBLE ERROR
Ken Mahaffey
Counsel for Appellant
P. O. Box 684585
Austin, Texas 78768
(512) 444-6557
St. Bar No. 12830050
Ken Mahaffey@yahoo.com
TABLE OF CONTENTS
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I
IDENTITY OF JUDGE, PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . iii
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . vii
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii
STATEMENT OF THE CASE AND SUMMARY OF ARGUMENT. . . . . . . . . . 1
DISCUSSION OF RULES GOVERNING FRIVOLOUS APPEALS. . . . . . . . . . . 2
LEGAL ISSUE EXAMINED NUMBER ONE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Did the indictment vest the trial court with jurisdiction by properly
charging appellant with an offense?
LEGAL ISSUE EXAMINED NUMBER TWO. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Did the trial court comply with Art. 26.13, Tex. Code Crim. Proc.
(2015) requiring admonitions before accepting the guilty plea?
LEGAL ISSUE EXAMINED NUMBER THREE. . . . . . . . . . . . . . . . . . . . . . . . . 10
Was the Evidence Legally Sufficient to Support the Conviction?
LEGAL ISSUE EXAMINED NUMBER FOUR. . . . . . . . . . . . . . . . . . . . . . . . . . 11
Was the Sentence Imposed Within the Proper Range of
Punishment?
i
LEGAL ISSUE EXAMINED NUMBER FIVE. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Did the Trial Court Abuse its Discretion in Sentencing?
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
CERTIFICATE OF SERVICE AND WORD COUNT COMPLIANCE . . . . . . . 15
ii
IDENTITY OF JUDGE, PARTIES AND COUNSEL
The following is a list of all parties to the trial court's final judgment and their
counsel in the trial court:
1. Trial Judge Martha J. Trudo
264th District Court
P.O. Box 324
Belton, Texas 76513
2. Appellant: David Wayne Stokes
Bell County Jail
113 West Central Ave
Belton, Texas 76513
3. Defense Counsel: Bradford Glendening
Attorney at Law
100 W. Central Express Way Ste. 309
Harker Heights TX 76584
4. The State of Texas: Bob D. Odom
Bell Co. D. A.'s Office
P.O. Box 540
Belton, Texas 76513
iii
INDEX OF AUTHORITIES
Cases:
State Cases:
Brinson v. State, 570 S.W.2d 937 (Tex. Crim. App. 1978). . . . . . . . . . . . . 11
Brinson v. State, 570 S.W.2d 937 (Tex. Crim. App. 1978). . . . . . . . . . . . . 11
Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997). . . . . . . . . . . . . . . 6, 9
Calton v. State, 176 S.W.3d 231 (Tex. Crim. App. 2005). . . . . . . . . . . . . . 12
Dale v. State, 170 S.W.3d 797 (Tex. App. – Fort Worth 2005, no pet.). . . 14
Davison v. State, 405 S.W.3d 682 (Tex. Crim. App. 2013). . . . . . . . . . . . . 10
Duron v. State, 551 S.W.2d 547 (Tex. Crim. App. 1997). . . . . . . . . . . . . 4, 5
Ford v. State, 334 S.W.3d 230 (Tex. Crim. App. 2011).. . . . . . . . . . . . . . . 12
High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).. . . . . . . . . . . . . . . . 3
Hill v. State, 493 S.W.2d 847 (Tex. Crim. App. 1973).. . . . . . . . . . . . . . . . 14
Jackson v. State, 680 S.W.2d 809 (Tex. Crim. App. 1984). . . . . . . . . . . . . 14
Johnson v. State, 885 S.W.2d 641 (Tex. App. - Waco 1994, no pet.). . . . 2, 3
Martinez v. State, 981 S.W.2d 195 (Tex. Crim. App. 1998). . . . . . . . . . . . . 7
Mendez v. State, 138 S.W.3d 334 (Tex. Crim. App. 2004). . . . . . . . . . . . . . 5
Mitschke v. State, 129 S.W.3d 130 (Tex. Crim. App. 2004). . . . . . . . . . . . 10
iv
Pender v. State, 02-13-00400-CR (Tex. App. -
Fort Worth May 8, 2014, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Phynes v. State, 828 S.W.2d 1 (Tex. Crim. App. 1992). . . . . . . . . . . . . . . . . 2
Schoor v. State, 279 S.W.3d 844 (Tex. App. - Amarillo 2009, pet. ref’d). . 6
Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991). . . . . . . . . . . . . . 2
Stahle v. State, 970 S.W.2d 682 (Tex. App. - Dallas 1998, pet. ref'd). . . . . 11
State v. Jimenez, 987 S.W.2d 886 (Tex. Crim. App. 1999). . . . . . . . . . . . 7, 9
State v. Webb, 12 S.W.3d 808 (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . 12
Federal Cases:
Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396,
1400, 18 L. Ed. 2d 493 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781,
61 L. Ed. 2d 360 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Constitutional Provisions:
Art. V, §12, TEX. CONST.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Statutes:
Art. 26.13, Tex. Code Crim. Proc. (2015).. . . . . . . . . . . . . . . . . . . . . . 5, 6, 10
Art. 4.05, Tex. Code of Crim. Proc. (Supp. 2015). . . . . . . . . . . . . . . . . . . . . 4
v
Art. 44.02, Tex. Code of Crim. Proc. (1979). . . . . . . . . . . . . . . . . . . . . . . . . 2
Sec. 12.34, Tex. Penal Code Ann. (2014). . . . . . . . . . . . . . . . . . . . . 8, 11, 13
Sec. 30.04, Tex. Penal Code Ann. (2014). . . . . . . . . . . . . . . . . . . . . . . 4, 8, 12
Sec. 30.04, Tex. Penal Code Ann. (2014).. . . . . . . . . . . . . . . . . . 4, 8, 12, 13
Rules:
Rule 25.2, Tex. R. App. Proc. (West 2003). . . . . . . . . . . . . . . . . . . . . . . . . . 2
Rule 3.03, Texas Rules of Prof. Conduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
vi
STATEMENT OF PROCEDURAL HISTORY
David Wayne Stokes was indicted for two offenses. In cause number 73914 he
was charged with Burglary of a Vehicle. In cause number 74268 he was charged with
Burglary of a Building. Both offenses were alleged to have been committed on
November 22, 2014. Appellant entered pleas of guilty to each charge in the same
proceeding. After a brief hearing before the judge, Appellant was convicted and
sentenced to 10 years in each case. On July 2, 2015, Appellant perfected an appeal
to this Court.
New counsel was appointed on appeal. Appellate counsel received and
reviewed the Clerk’s and Reporter’s Records. After this review, counsel determined
that the record does not support any legal argument that could conceivably convince
an appellate court to reverse the judgments of conviction or sentences imposed.
Because counsel could find no meritorious issues to argue in this appeal, he has
filed a Motion to Withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct.
1396, 18 L. Ed. 2d 493 (1967). This brief is presented to support counsel's conclusion
that this record shows no reversible error. Appellant was personally served by
certified mail with a copy of the motion, this supporting brief, and instructions on
how to obtain the record and file a pro se brief. A copy of the letter and evidence
demonstrating notice to Appellant is attached to the Motion to Withdraw.
vii
STATEMENT OF FACTS
On June 5, 2015, Appellant entered pleas of guilty in cause numbers 73,914
and 74,268 without a plea recommendation in either case. (RR2 4, 8). The trial court
accepted his pleas and found him guilty. (RR2 7 - 8; RR3 11). The case was reset for
sentencing. (RR2 11).
One July 2, 2015, a sentencing hearing was held. The trial court considered a
pre-sentence report, a letter from Appellant and argument of counsel. (RR3 5, 6 - 10).
The court then sentenced him to 10 years in both cases to run concurrently. (RR3 11).
On July 16, 2015, Appellant filed notices of appeal in both cases. (CR-73,914, p. 43;
CR-74,268, p. 33). The undersigned counsel was appointed on July 24, 2015. (CR-
73,914, p. 55; CR-74,268, p. 44).
The reporters record shows both cases were heard together and the record was
filed with this Court as a single proceeding. Because there were two different cause
numbers, the trial court clerk filed separate clerk's records in cause numbers 73,914
and 74,268. For the purposes of this brief, cause number 73,914 charging Burglary
of a Vehicle is referred to as "(CR-73,914)." Cause number 74,268 charging Burglary
of a Building is referred to as "(CR-74,268)."
viii
IN THE COURT OF APPEALS
FOR THE THIRD SUPREME JUDICIAL DISTRICT
OF TEXAS
DAVID WAYNE STOKES, Appellant
VS.
THE STATE OF TEXAS, Appellee
BRIEF PURSUANT TO ANDERS v. CALIFORNIA
SUPPORTING COUNSEL’S CONCLUSION THAT THE RECORD
CONTAINS NO REVERSIBLE ERROR
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
COMES NOW, Ken Mahaffey, appointed counsel for David Wayne Stokes,
and respectfully submits this Brief in support of counsel's motion to withdraw.
STATEMENT OF THE CASE AND SUMMARY OF ARGUMENT
This is an appeal from a conviction for Burglary of a Building and Burglary of
a Vehicle. Counsel has reviewed both the Clerk's and Reporter's records. Counsel did
not find a meritorious issue to for reversal. Counsel has moved to withdraw and this
brief is filed in support of that motion.
1
DISCUSSION OF RULES GOVERNING FRIVOLOUS APPEALS
There is no Federal or State constitutional right of appeal. Phynes v. State, 828
S.W.2d 1, 2 (Tex. Crim. App. 1992). Texas criminal defendants do have statutory
appellate rights. Art. 44.02, Tex. Code of Crim. Proc. (2015); Rule 25.2, Tex. R.
App. Proc. (West 2015). These statutory rights include a constitutional right to
counsel. Stafford v. State, 813 S.W.2d 503, 509 (Tex. Crim. App. 1991). Not all
appeals contain reversible errors or meritorious issues. Anders v. California, 386 U.S.
738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967).
"[A] defendant’s right to assistance of counsel does not include the right to
have an attorney urge frivolous or unmeritorious claims." Johnson v. State, 885
S.W.2d 641, 645 (Tex. App. - Waco 1994, no pet.). An attorney also has a duty to
disclose contrary authority to the court. Rule 3.03, Texas Rules of Prof. Conduct, Vol
3A, Tex. Gov't Code Ann. (1998). It is also improper for an attorney to make a
misleading or unsupported argument. Id.
Before determining that an appeal is frivolous, counsel must thoroughly review
the record and research any issues that may have merit. Johnson v. State, 885 S.W.2d
at 645. If appellate counsel is unable to find any issue that could "conceivably"
persuade a reviewing court to reverse, then counsel has a duty to withdraw. Id.
Appellate counsel has two additional duties. First, he must file a brief
2
discussing the record and detailing why each cognizable issue does not constitute
reversible error. Anders, 87 S.Ct at 1400; High v. State, 573 S.W.2d 807, 808 (Tex.
Crim. App. 1978). Second, he must notify appellant of the right to file a pro-se brief.
Anders, 87 S.Ct at 1400; Johnson, 885 S.W.2d at 646. This notice must also include
a copy of the Anders brief and instructions on how to gain access to the appellate
record. Id. A copy of the letter sent to Appellant is attached as an exhibit to the
"Motion to Withdraw" filed along with this brief. A certificate of counsel confirming
this notice has also been filed with this Court along with the motion.
The appellate court also has a duty to independently review the case. Johnson,
885 S.W.2d at 647. This includes determining that the appellate attorney conducted
a diligent search of the record for any arguable claims. Id. The reviewing court must
also conduct its own ". . . full examination of all the proceedings. . ." to ensure the
appeal is indeed devoid of any meritorious issues. Id., quoting Anders, 87 S.Ct. at
1400. If the court finds an arguable claim, new counsel should be appointed. Stafford,
813 S.W.2d at 511. If no meritorious issues are found, then the conviction must be
affirmed.
3
LEGAL ISSUES EVALUATED BY COUNSEL
LEGAL ISSUE EXAMINED NUMBER ONE:
DID THE INDICTMENT VEST THE TRIAL COURT WITH JURISDICTION
BY PROPERLY CHARGING APPELLANT WITH AN OFFENSE?
ARGUMENT AND AUTHORITIES
An indictment vests the court with jurisdiction and charges a defendant with
an offense if it ". . . accuses someone of a crime with enough clarity and specificity
to identify the penal statute under which the State intends to prosecute. . ." Duron v.
State, 956 S.W.2d 547, 550 - 551(Tex. Crim. App. 1997); Art. V, §12, TEX. CONST.
District courts have felony jurisdiction. Art. 4.05, Tex. Code of Crim. Proc. (2015).
The record does not contain any objections to the indictment.
The indictment in cause number 73914 charged the offense of Burglary of a
Vehicle under Sec. 30.04, Tex. Penal Code Ann. (2014). It states a date within the
applicable limitation period, identifies Appellant and tracks the statutory language.
(CR-73914, p. 4). Because it charges appellant with an offense, it vested the trial
court with jurisdiction and is sufficient under Article V, § 12 of the Texas
Constitution. Duron, supra, 956 S.W.2d at 550 - 55. Counsel could not identify any
legitimate legal argument from the record that could convince an appellate court to
4
reverse based on the Burglary of a Vehicle indictment.
The indictment in cause number 74,268 charges Burglary of a Building under
Sec. 30.02(a) (3), Tex. Penal Code Ann. (2014). (CR-74,268, p. 4). The indictment
states a date within the applicable limitation period, identifies Appellant and tracks
the statutory language. As such, it vested the trial court with jurisdiction. Duron,
supra, 956 S.W.2d at 550 - 55. Again, Counsel could also not identify a meritorious
argument to challenge this indictment.
LEGAL ISSUE EXAMINED NUMBER TWO:
DID THE TRIAL COURT COMPLY WITH ART. 26.13, TEX. CODE CRIM.
PROC. (2015) REQUIRING ADMONITIONS BEFORE ACCEPTING THE
GUILTY PLEA.
ARGUMENT AND AUTHORITIES
I. Compliance With Art. 26.13, Tex. Code Crim. Proc. (2015) Is Required.
In order to demonstrate that a plea of guilty is knowing, intelligent and
voluntary, the trial court must comply with Art. 26.13, Tex. Code Crim. Proc. (2015);
Mendez v. State, 138 S.W.3d 334, 344 (Tex. Crim. App. 2004). Article 26.13, supra,
requires that prior to accepting an un-negotiated plea of guilty or nolo contendere, the
trial court must admonish the defendant about the following matters:
C statutory range of punishment
C if not a citizen of the U.S., the plea could result in deportation
5
C applicability of sex offender registration
Art. 26.13 (a) (1) - (5), supra.1 The trial court shall also ensure the defendant is
mentally competent and the plea is voluntary. Id. (b). These admonitions may be
orally or in writing. Id. (c) & (d). The standard of review is "substantial compliance."
Id.; Cain v. State, 947 S.W.2d 262, 263 (Tex. Crim. App. 1997).
II. Record Shows Compliance.
a. Competency.
A defendant is mentally competent to stand trial if he has sufficient present
ability to consult with his lawyer with a reasonable degree of rational understanding,
or a rational as well as factual understanding of the proceedings against him. Art.
46B.0003 (a), Tex. Code Crim. Proc. (2015). Competence is presumed unless
rebutted a preponderance of the evidence. See Schoor v. State, 279 S.W.3d 844, 846
(Tex. App. - Amarillo 2009, pet. ref’d). Here, the trial court asked both appellant and
his counsel about competency and both responded he was competent. (RR6, 7). The
plea papers also contain the same statement. (CR-73,914, p. 30; CR-74,268, p. 19).
The trial court also made a specific finding of competence. (RR2 7). Nothing in this
1
The Statute also requires statement of the plea bargain terms and the need
for the trial court to approve it, but this was an un-negotiated plea. (CR-73,914, p.
27; CR-74,268, p. 16)(RR2 8).
6
record indicates appellant was not competent.
b. Voluntariness.
The trial court asked if this was appellant’s free and voluntary decision to
which appellant responded affirmatively. (RR2 8). "Generally, a guilty plea is
considered voluntary if the defendant was made fully aware of the direct
consequences of his plea." State v. Jimenez, 987 S.W.2d 886, 888 (Tex. Crim. App.
1999). The trial court also orally accepted a waiver of jury trial and informed
appellant he could be convicted on his plea. (RR2 6 - 7).Written warnings in the plea
papers also detailed the consequences. (CR-73,914, p. 28; CR-74,268, p. 17). Proper
admonishment by the trial court creates a prima facie showing that the defendant
entered a knowing and voluntary plea. Martinez v. State, 981 S.W.2d 195, 197 (Tex.
Crim. App. 1998). When that prima facie showing has been made, the burden shifts
to the defendant to show he entered his plea without knowing its consequences. Id.
The record does not reveal any indication that appellant was not properly informed
of these consequences. The record supports a finding that the plea was voluntary.
c. Range of Punishment.
In cause number 74268, Appellant was arraigned on the charge of Burglary of
a Building under Sec. 30.02(a) (3), Tex. Penal Code Ann. (2014). (RR5 ).While this
7
offense is normally a state jail felony, see Sec. 30.02 (c)(1), supra, it can be punished
as a third degree felony upon proof of two prior state jail felony convictions. See Sec.
12.425 (a), Tex. Penal Code Ann. (2014). Here, the indictment contained several
enhancement paragraphs and Appellant entered a plea of true to those allegations.
(RR2 7). The trial court advised appellant of the penalty range for a third degree
felony. (RR2 5). Appellant was properly informed of the range of punishment. See
Sec. 12.34, Tex. Penal Code Ann. (2014)(penalty range for third degree felony is 2
to 10 years and up to a $10,000 fine).
In cause number 73914, Appellant was arraigned for of Burglary of a Vehicle
under Sec. 30.04 (a), Tex. Penal Code Ann. (2014). While Burglary of a Vehicle is
initially designated as a Class A Misdemeanor, it becomes a state jail felony upon
proof of two or more prior convictions under that penal code section. See Sec. 30.04
(d)(2)(A), supra. The indictment contained allegations of three prior Burglary of a
Vehicle convictions. (CR-73914, p. 4). The indictment also contained six other
enhancement paragraphs alleging other state jail felony convictions sufficient to raise
the state jail felony to a third degree felony. (CR-73914, p. 4 - 5). Appellant entered
pleas of true to all those allegations. (RR2 7).
The trial court informed appellant that the range of punishment was from two
to ten years and up to a $10,000 fine in both cases. (RR2 5). Appellant was properly
8
informed of the range of punishment. See Sec. 12.34, Tex. Penal Code Ann.
(2014)(penalty range for third degree felony is 2 to 10 years).
d. Citizenship.
Appellant told the trial court he was a U.S. Citizen. (RR2 6). The written plea
documents also contain a warning concerning deportation. (CR-73,914, p. 28; CR-
74,268, p. 17). Appellant was properly informed about the risks of deportation under
Art. 26.13 (a) (4), supra. Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App.
1997)(any error in not discussing deportation consequences harmless where the
record showed defendant was a U.S. citizen); see also State v. Jimenez, 987 S.W.2d
886, 888 (Tex. Crim. App. 1999)(warning of deportation risk is not constitutionally
mandated and subject to harmless error rule).
e. Sex Offender Registration.
The trial court did not address sex offender registration. This, however, was not
an issue in this case as neither offense carries a registration requirement. While under
Sec. 30.02, Tex. Penal Code Ann. (2014), "burglary" can be a reportable offense, it
only becomes so if the offense is committed under subsection (d) which pertains only
to burglary of a habitation. See Art. 62.001(5)(D), Tex. Code Crim. Proc. (2015).
Burglary of a vehicle is not listed as a reportable offense. Id. As a result, there could
9
be no prejudice from failing to warn appellant about these consequences. See Pender
v. State, 02-13-00400-CR (Tex. App. - Fort Worth, May 8, 2014, (not designated for
publication) (warning not required because registration did not apply to charged
offense). In any event, any error would be harmless. See Mitschke v. State, 129
S.W.3d 130, 136 (Tex. Crim. App. 2004)(because registration is a collateral
consequence, lack of warning harmless where defendant failed to show harm.).
III. No Reversible Error Shown in Acceptance of Guilty Plea.
The record shows substantial compliance with Art. 26.13, Tex. Code Crim.
Proc. (2015); see also Davison v. State, 405 S.W.3d 682, 692 (Tex. Crim. App.
2013)(harmless error rule applies to Art. 26.13, supra, warnings). The record also
independently supports a finding that appellant’s plea was knowing and voluntary.
Counsel could discover no legal issue in the plea proceedings that could persuade an
appellate court to reverse.
LEGAL ISSUE EXAMINED NUMBER THREE:
WAS THE EVIDENCE LEGALLY SUFFICIENT TO SUPPORT THE
CONVICTION?
ARGUMENT AND AUTHORITIES
Appellant tendered a written judicial confession. (CR-73,914, p. 21; CR-
10
74,268, p. 29). He also told the judge he was pleading guilty because he ". . .
committed the offenses as alleged." (RR2 8). He further tendered a personal letter to
the trial court admitting his guilt. (RR3 5 - 6); (DX1).
"[A] plea of guilty . . . admits all the elements of the offense. . ." and ". . . is
conclusive as to the defendant's guilt." Brinson v. State, 570 S.W.2d 937, 938 - 939
(Tex. Crim. App. 1978); Stahle v. State, 970 S.W.2d 682, 688 (Tex. App. - Dallas
1998, pet. ref'd)(no additional evidence of guilt required). Counsel cannot identify
any legal argument that could persuade an appellate court that the evidence was
insufficient.
LEGAL ISSUE EXAMINED NUMBER FOUR:
WAS THE SENTENCE IMPOSED WITHIN THE PROPER RANGE OF
PUNISHMENT?
ARGUMENT AND AUTHORITIES
In cause number 74268, Appellant was convicted of Burglary of a Building
under Sec. 30.02(a) (3), Tex. Penal Code Ann. (2014). As discussed above, because
it was enhanced with prior convictions, it was punishable by as third degree felony.
Appellant entered a plea of true to the enhancement allegations. (RR2 7). The
sentence of 10 years was within the statutory range of punishment. See Sec. 12.34,
Tex. Penal Code Ann. (2014)(penalty range for third degree felony is 2 to 10 years).
11
Because the sentence was within the legal range, Counsel can identify no legitimate
legal argument to challenge the sentence.
In cause number 73914, Appellant was convicted of Burglary of a Vehicle
under Sec. 30.04, Tex. Penal Code Ann. (2014). Burglary of a Vehicle is normally a
Class A Misdemeanor. It becomes a state jail felony upon proof of two or more prior
convictions under that penal code section. See Sec. 30.04 (d)(2)(A), supra. Because
the offense charged was originally a misdemeanor, appellate counsel did examine
whether it could be properly enhanced again. This is because there is some caselaw
that suggests that further, or "double" enhancement is not allowed because the
"offense tried" does not change in relation to whether it could be enhanced. See State
v. Webb, 12 S.W.3d 808, 811 (Tex. Crim. App. 2000). However, there is a distinction
between offenses which are merely subject to greater punishment and those where
prior convictions are elements of the offense so as to create a new greater offense.
Ford v. State, 334 S.W.3d 230, 234 - 235 (Tex. Crim. App. 2011) (statutory language
stating an offense "shall be punished as" a greater offense increases the applicable
penalty range while the grade of the primary offense remains the same). When the
statutory language specifies that prior convictions are elements of the greater offense,
then the statute creates a new offense. See Ford v. State, 334 S.W.3d 230, 234 - 235
(Tex. Crim. App. 2011) (statutory language stating an offense "shall be punished as"
12
a greater offense increases the applicable penalty range while the grade of the primary
offense remains the same). If however, the statute provides the crime "becomes" a
greater offense upon proof of prior convictions, then those enhancements are not just
for punishment but are elements of the offense. Calton v. State, 176 S.W.3d 231, 234
- 235 (Tex. Crim. App. 2005)(distinguishing between punishment only enhancement
and those designated of elements of a new offense).
Here, the statute states that upon proof of two prior convictions ". . . is a state
jail felony . . ." See Sec. 30.04 (b) (2), Tex. Penal Code Ann. (2014)(emphasis added).
As a result, the Class A misdemeanor became new offense which was a state jail
felony subject to the enhancement provisions of Sec. 12.425 (a), Tex. Penal Code
Ann. (2014). Calton, supra at 234 (when a prior conviction is designated as an
element of the offense, a new greater offense is created).
A state jail felony may be punished as a third degree felony upon proof of two
prior state jail felony convictions. Sec. 12.425 (a), Tex. Penal Code Ann. (2014). The
indictment alleged six prior convictions beyond those necessary to raise the offense
to a state jail felony. (CR-73,914, p. 4). Because the charged offense a state jail
felony, it was not improperly doubly enhanced. Calton, supra at 234 - 235. The trial
court imposed a sentence of 10 years. This was within the statutory range of
punishment. See Sec. 12.34, Tex. Penal Code Ann. (2014)(penalty range for third
13
degree felony is 2 to 10 years). Because the sentence was within the legal range,
Counsel can identify no legitimate legal argument to challenge the sentence.
LEGAL ISSUE EXAMINED NUMBER FIVE:
DID THE TRIAL COURT ABUSE ITS DISCRETION IN SENTENCING?
ARGUMENT AND AUTHORITIES
Sentences imposed by a trial court are reviewed under the abuse of discretion
standard. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984).
Generally, a sentence within the statutory range of punishment for an offense is not
excessive, cruel, or unusual punishment. Hill v. State, 493 S.W.2d 847, 849 (Tex.
Crim. App. 1973); Dale v. State, 170 S.W.3d 797, 799 (Tex. App. – Fort Worth
2005, no pet.). As detailed above, both the indictments for Burglary of a Building and
Burglary of a vehicle included enhancements with multiple prior convictions. (CR-
74,268, p. 4; CR-73,914, p. 4). See Sec. 12.425, Tex. Penal Code Ann.
(2014)(authorizing punishment as third degree felony). Because the trial court had
discretion to impose sentence within the range of punishment, Counsel can identify
no argument of merit to challenge the trial court’s discretion to impose the sentence
of 10 years in this case.
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PRAYER FOR RELIEF
WHEREFORE, PREMISES, CONSIDERED, the undersigned counsel
respectfully requests that he be permitted to withdraw from representation in this
appeal and that the Court independently review the record.
Respectfully Submitted,
Ken Mahaffey
Counsel for Appellant
P.O. Box 684585
Austin, Texas 78768
Phone & Fax (512) 444-6557
St. Bar. No. 12830050
Ken Mahaffey@yahoo.com
CERTIFICATE OF SERVICE AND WORD COUNT COMPLIANCE
The above signature certifies that on September 16, 2015, this document was
sent to the Bell County D.A.’s Office, P.O. Box 540, Belton, Texas 76513 and, by
certified mail, to David Wayne Stokes, 02013175, Gurney Unit, 1385 FM 3328,
Tennessee Colony, TX 75803. The above signature also certifies that this document
contains 4262 words in compliance with Rule 9.4, Tex. R. App. Proc. (2015)(not to
exceed 15,000 words).
15
ACCEPTED
03-15-00478-CR
6943793
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/16/2015 9:02:43 AM
JEFFREY D. KYLE
CLERK
No. 03-15-00478-CR & 03-15-00479-CR
DAVID WAYNE STOKES ) IN THE COURT OF APPEALS
V. ) FOR THE THIRD SUPREME
STATE OF TEXAS ) JUDICIAL DISTRICT OF TEXAS
CERTIFICATE OF COUNSEL
In compliance with the requirements of Anders v. California, 386 U.S. 378
(1967), I, Ken Mahaffey, court-appointed counsel for appellant, David Wayne Stokes,
in the above referenced appeal(s), do hereby verify, in writing, to the Court that I
have:
1. notified appellant that I filed a motion to withdraw as counsel with an
accompanying Anders brief, and provided a copy of each to appellant;
2. informed appellant of his right to file a pro se response identifying
what he believes to be meritorious grounds to be raised in his appeal,
should he so desire;
3. advised appellant of his right to review the appellate record, should he
wish to do so, preparatory to filing that response;
4. explained the process for obtaining the appellate record, provided a
Motion for Pro Se Access to the Appellate Record lacking only
appellant's signature and the date, and provided the mailing address for
this Court; and
5. informed appellant of his right to seek discretionary review pro se
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should this Court declare his appeal frivolous.
Respectfully Submitted,
Ken Mahaffey
Counsel for Appellant
P.O. Box 684585
Austin, Texas 78768
Phone & Fax (512) 444-6557
St. Bar. No. 12830050
Ken Mahaffey@yahoo.com
2