Glen Leach v. State ( 2017 )

NUMBER 13-15-00551-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
GLEN LEACH, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 319th District Court of
Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras,1 and Longoria
Memorandum Opinion by Justice Longoria
Appellant Glen Leach challenges his conviction for possession of more than one
but less than four grams of methamphetamine, a third-degree felony. See TEX. HEALTH
& SAFETY CODE ANN. § 481.115(c) (West, Westlaw through 2015 R.S.). We affirm.
1 Justice Dori Contreras, formerly Dori Contreras Garza. See TEX. FAM. CODE ANN. § 45.101 et
seq. (West, Westlaw through 2015 R.S.).
I. BACKGROUND
On January 18, 2014, Corpus Christi police officers discovered appellant asleep in
the driver’s seat of a pickup truck. The officers arrested him for possession of drug
paraphernalia after a search of his person disclosed a syringe. A search incident to arrest
uncovered a clear plastic baggie continuing “a purplish crystal substance” which the
officer believed to be methamphetamine. Tests by the Texas Department of Public
Safety’s crime laboratory later confirmed that the substance was in fact
methamphetamine.
The State charged appellant by indictment with possession of more than one
ounce but less than four ounces of methamphetamine. See id. Appellant entered an
open plea, executed a judicial confession, and requested that the trial court place him on
probation given the state of his health.2 The trial court accepted appellant’s plea and
confession, convicted him of the offense, and assessed punishment at three years’
imprisonment in the Institutional Division of the Texas Department of Criminal Justice.
This appeal followed.
Appellant did not file a brief by the deadline of April 4, 2016. When his counsel
failed to respond to our notice that his brief had not been filed, we abated and remanded
the case for the trial court to conduct a hearing and determine: whether appellant desired
to prosecute the appeal; why appellant’s counsel failed to file a brief and whether counsel
had effectively abandoned the appeal; whether appellant had been denied effective
assistance of counsel; whether appellant’s counsel should be removed; and whether
2 Appellant’s medical records are part of the clerk’s record and reveal that he has cancer of the
lungs and brain. Appellant’s counsel informed us in his most recent communication with this Court that
appellant is under hospice care.
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appellant is indigent and entitled to court-appointed counsel. See TEX. R. APP. P.
38.8(b)(2), (3). The trial court found that appellant wished to continue the appeal and had
retained counsel, and that appellant’s counsel needed ten extra days to submit the brief.
Appellant’s counsel then filed an Anders brief concluding the appeal was frivolous.
See Anders v. California, 386 U.S. 738, 744 (1967). By an order dated July 19, 2016, we
struck the Anders brief for failing to cite to pertinent legal authorities and ordered counsel
to re-brief. By an order dated October 6, 2016, we withdrew our order of July 19 as
improvidently issued. We observed that the Anders procedures do not apply to retained
counsel “because by securing retained counsel, the appellant has received all that Anders
was designed to ensure.” Lopez v. State, 283 S.W.3d 479, 480 (Tex. App.—Texarkana
2009, no pet.). We instead ordered appellant’s counsel to either file a brief on the merits
or inform this Court of his determination that the appeal had no merit and file a motion to
withdraw compliant with Texas Rule of Appellate Procedure 6.5. See TEX. R. APP. P. 6.5;
see also Rivera v. State, 130 S.W.3d 454, 458 (Tex. App.—Corpus Christi 2004, no pet.)
(“A retained attorney, on determining that an appeal is frivolous, must inform this Court
that the appeal has no merit and seek leave to withdraw by filing a motion complying with
rule 6.5 of the rules of appellate procedure.”). We stated that if appellant failed to act
within thirty days from the date of our order we would set the appeal for submission
without briefs. See TEX. R. APP. P. 38.8(b)(4). More than thirty days has passed, and this
Court has not received a brief on the merits or a motion to withdraw. We have accordingly
submitted this appeal on the record. See id.
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II. FUNDAMENTAL ERROR
In the criminal context, an appellate court’s inherent power to dismiss a case is
usually reserved for those situations in which a party has engaged in serious misconduct
such as bad-faith abuse of the judicial process. Burton v. State, 267 S.W.3d 101, 103
(Tex. App.—Corpus Christi 2008, no pet.). When, as here, an appellant has not filed a
brief but has not engaged in serious misconduct, we submit the case on the record without
benefit of briefs and review the record in the interest of justice. Id.; see TEX. R. APP. P.
38.8(b)(4).
When an appellant fails to file a brief, our review is limited to fundamental error.
Burton, 267 S.W.3d at 103 (citing Lott v. State, 874 S.W.2d 687, 688 (Tex. Crim. App.
1994)). The Texas Court of Criminal Appeals has identified three general categories of
fundamental error: (1) errors recognized by the Legislature to be fundamental; (2) the
violation of rights which are waivable only; and (3) the denial of absolute, systemic
requirements. Saldano v. State, 70 S.W.3d 873, 887–88 (Tex. Crim. App. 2002). The
Saldano Court gave the following specific examples of fundamental error: (1) denial of
the right to counsel; (2) denial of the right to a jury trial; (3) denial of ten days’ pretrial
preparation for appointed counsel; (4) absence of personal jurisdiction over the
defendant; (5) absence of subject-matter jurisdiction; (6) jury charge error resulting in
egregious harm; (7) holding the trial at a location other than the county seat; (8)
prosecution under an ex post facto law; and (9) comments by the trial judge which taint
the presumption of innocence. See id. at 888–89.
We have carefully reviewed the record for fundamental error, but have found none.
Appellant’s right to counsel was not violated because he was represented by counsel
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during the plea hearing. The trial court obtained personal jurisdiction over appellant by
virtue of the indictment. See State v. Dunbar, 297 S.W.3d 777, 780 (Tex. Crim. App.
2009). The statutory requirement of ten days’ preparation is inapplicable because
appellant’s counsel was not appointed. See Harville v. State, 591 S.W.2d 864, 869 (Tex.
Crim. App. 1979); see also Salazar v. State, No. 13-14-00499-CR, 2015 WL 832079, at
*2 (Tex. App.—Corpus Christi Feb. 26, 2015, no pet.) (mem. op., not designated for
publication). The district court possessed subject matter jurisdiction because the charged
offense was a third-degree felony. See TEX. CODE CRIM. PROC. ANN. art. 4.05 (West,
Westlaw through 2015 R.S.) (providing that “[d]istrict courts and criminal district courts
shall have original jurisdiction in criminal cases of the grade of felony”). The plea hearing
was held in Corpus Christi, which is the county seat of Nueces County. There was no
jury charge, and no court has held that the law under which appellant was prosecuted
violates the prohibition against ex post facto laws. Finally, nothing in the record reflects
any comments by the trial judge which might taint the presumption of innocence. In sum,
our review of the record has found no fundamental error.
III. CONCLUSION
We affirm the trial court’s judgment.
NORA L. LONGORIA,
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
2nd day of February, 2017.
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