John Lee Bowman v. State ( 2015 )

ACCEPTED
03-15-00263-CR
8017189
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/30/2015 3:35:16 PM
JEFFREY D. KYLE
CLERK
No. 03-15-00263-CR
In the FILED IN
3rd COURT OF APPEALS
COURT OF APPEALS AUSTIN, TEXAS
For the 11/30/2015 3:35:16 PM
THIRD SUPREME JUDICIAL DISTRICT JEFFREY D. KYLE
Clerk
at Austin
On Appeal from the 264th Judicial District Court of
Bell County, Texas
Cause Number 73,061
JOHN LEE BOWMAN, Appellant
v.
THE STATE OF TEXAS, Appellee
ANDERS BRIEF IN SUPPORT OF
COUNSEL'S MOTION TO WITHDRAW
Counsel for Appellant KRISTEN JERNIGAN
J o h n L e e B o w m a n AT TO R N E Y AT L AW
STATE BAR NUMBER 90001898
207 S. AUSTIN AVE.
GEORGETOWN, TEXAS 78626
(512)904-0123
(512) 931-3650 (FAX)
Kristen@txcrimapp.com
ORAL ARGUMENT NOT REQUESTED
IDENTIFICATION OF PARTIES
Pursuant to Texas Rule of Appellate Procedure 38.1, a complete list of the
names of all interested parties is provided below so the members of this Honorable
Court may at once determine whether they are disqualified to serve or should
recuse themselves from participating in the decision of this case.
Appellant:
John Lee Bowman
Counsel for Appellant:
Kurt Glass (at trial)
408 N. Main
Belton, Texas 76513
Kristen Jernigan (on appeal)
207 S. Austin Ave.
Georgetown, Texas 78626
Counsel for Appellee, The State of Texas:
Henry Garza
Bell County District Attorney
Michael Waldman
Terry Clark
Assistant District Attorneys
1201 Huey Road
P.O. Box 540
Belton, Texas 76513
Trial Court Judge:
The Honorable Martha Trudo
u
TABLE OF CONTENTS
I D E N T I F I C AT I O N OF PA RT I E S ii
INDEX OF AUTHORITIES iv
S TAT E M E N T R E G A R D I N G O R A L A R G U M E N T v i i
S TAT E M E N T OF THE CASE 1
S TAT E M E N T OF FACTS 2
ISSUES PRESENTED 7
PROFESSIONAL E VA L U AT I O N 9
POTENTIAL ERRORS CONSIDERED 10
CONCLUSION 16
NOTICE TO APPELLANT 16
P R AY E R FOR RELIEF 16
C E RT I F I C AT E OF SERVICE 17
C E RT I F I C AT E OF WORD COUNT 17
C E RT I F I C AT E OF COUNSEL 18
in
INDEX OF AUTHORITIES
CASES
A n d e r s v. C a l i f o r n i a , 3 8 6 U . S . 7 3 8 ( 1 9 6 7 ) 7 , 8
Crank v. State, 761 S.W.2d 328 (Tex. Crim. App. 1988) 12
Ethington v. State, 819 S.W.2d 854 (Tex. Crim. App. 1991) 11, 13, 15
Gaines v. State, 479 S.W.2d 678 (Tex. Crim. App. 1972) 15
Hawkins v. State, 112 S.W.3d 340 (Tex. App.-Corpus Christi 2003) 8
Hudson v. State, 675 S.W.2d 507 (Tex. Crim. App. 1984) 11, 13, 15
Jordan v. State 495 S.W.2d 949 (Tex. Crim. App. 1973) 15
Lockhart v. State, 847 S.W.2d 568 (Tex. Crim. App. 1992) 11,12
Luna v. State, 268 S.W.3d 594 (Tex. Crim. App. 2008) 10
McCoy v. Court of Appeals of Wisconsin, District I, 486 U.S. 429 (1988) 7, 8
Mincey v. Arizona, 437 U.S. 385 (1978) 10
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1992) 11
Rankin v. State, 953 S.W.2d 740 (Tex. Crim. App. 1996) 12
Robinson v. State, 701 S.W.2d 895 (Tex. Crim. App. 1985) 12
Samuel v. State, All S.W.2d 611 (Tex. Crim. App. 1972) 15
Sattiewhite v. State, 786 S.W.2d 271 (Tex. Crim. App. 1989),
cert, denied AS9 U.S. 881 (1990) 12
State v. Elrod, 395 S.W.3d 869 (Tex. App.—Austin 2013) 10
iv
Templin v. State, 711 S.W.2d 30 (Tex. Crim. App. 1986) 12
Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 2002) 14
Tucker v. State, 990 S.W.2d 261 (Tex. Crim. App. 1999) 11, 13, 15
Wilkerson v. State, 736 S.W.2d 656 (Tex. Crim. App. 1987) 11
Wilson v. State, 40 S.W.3d 192 (Tex. App. - Texarkana 2001) 7, 8
STATUTES AND RULES
Te x . Const, art. I, § 9 10
Te x . Penal Code § 12.42 9
Te x . Penal Code § 46.04 9
Te x . R. App. P. 33.1 11 , 1 3 , 1 5
Te x . R. Evid. 404(b) 11 , 1 2 , 1 3
Te x . R. Evid. 609 14
U.S. Const. Amend. IV 10
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Texas Rule of Appellate Procedure 39.1, oral argument is not
appropriate in the current case.
vi
No. 03-14-00263-CR
In the
COURT OF APPEALS
For the
THIRD SUPREME JUDICIAL DISTRICT
at Austin
On Appeal from the 264th Judicial District Court of
Williamson County, Texas
Cause Number 73,061
JOHN LEE BOWMAN, Appellant
v.
THE STATE OF TEXAS, Appellee
ANDERS BRIEF IN SUPPORT OF
COUNSEL'S MOTION TO WITHDRAW
STATEMENT OF THE CASE
On July 23, 2014, Appellant was indicted for the felony offense of unlawful
possession of a firearm by a felon, enhanced for punishment by a prior felony
conviction. (CR: 4, 6). On April 7, 2015, a jury found Appellant guilty and
assessed Appellant's punishment at eighteen years' confinement in the Texas
Department of Criminal Justice - Institutional Division. (CR: 31, 35, 39-40).
Appellant timely filed Notice of Appeal on April 13, 2015. (CR: 47). This
appeal results.
STATEMENT OF FACTS
Karl Ortiz, an investigator with the Bell County District Attorney's Office
told the jury that he obtained a set of fingerprints from Appellant and compared
them to a judgment and sentence from Cause Number 46335 from the 27th District
Court in Bell County. (RR4: 23-25). Ortiz determined that the fingerprint on
the judgment and sentence matched Appellant's. (RR4: 23-25). Ortiz related
that in Cause Number 46335, Appellant was convicted of burglary of a habitation
on September 15, 1999, and was sentenced to twelve years in prison. (RR4:
26-27).
Veronica Barbosa, a parole officer with the Texas Department of Criminal
Justice - Parole Division, testified that Appellant was released from prison on
January 25, 2008. (RR4: 34). Appellant was on parole until he successfully
completed his parole term on November 10, 2010. (RR4: 35).
Amy Retz, a records custodian for the Bell County 911 Call Center, stated
that on July 3, 2014, a 911 call came in and was recorded. (RR4: 47). The
caller reported that there were two men with guns in the neighborhood. (RR4:
47).
Kevin Dallas, a patrol officer with the Bell County Sheriffs Office, told the
jury that at approximately 12:30 a.m. on July 3, 2014, he was dispatched to 2809
Pecan Drive in Bell County. (RR4: 58). The Bell County 911 Communications
Center reported that there was a man pointing a gun at a 911 caller. (RR4: 59).
Dallas also learned that the man pointing the gun was described as a man named
"John Lee" who was wearing a black shirt and riding a bicycle. (RR4: 59-60).
Because of his familiarity with Appellant and the neighborhood, Dallas suspected
the man pointing the gun was Appellant. (RR4: 60). Before he reached 2809
Pecan, Dallas saw Appellant, who was wearing a black shirt, riding a bicycle.
(RR4: 60-61). Appellant had a spotlight in his hand and had a backpack. (RR4:
62). Dallas ordered Appellant to stop and get off of his bicycle. (RR4: 63).
He instructed Appellant to put the backpack on the ground and, according to
Dallas, when he went to pick up the backpack, he felt a shotgun handle inside the
backpack. (RR4: 63). Dallas opened the backpack and found a loaded,
sawed-off .410 shotgun. (RR4: 64, 66). On cross-examination, Dallas
acknowledged that Ann Marie Hunt was riding her bicycle about ten feet in front
of Appellant when Dallas first saw Appellant on his bicycle. (RR4: 69-70).
Hunt was arrested for the offense of deadly conduct for pointing a gun at the 911
caller, Harley Hughling. (RR4: 69-70). At the close of Dallas's testimony, the
State rested its case in chief. (RR4: 72).
Harley Hughling was called by the defense and testified that he did not
remember calling 911 and was bad with dates, but a woman with the nickname of
"Peggy Sue" pointed a gun at him at his home. (RR5: 8-9). On
cross-examination, Hughling stated that he did remember calling 911 during the
summer of 2014 because someone pointed a gun at him. (RR5: 10). Hughling
had cameras outside his house because the area in which he lived was dangerous
and referred to as "Methville." (RR5: 12). Hughling saw a man and a woman
on bicycles and the woman pointed a gun at his house. (RR5: 14). The
prosecutor then asked if Hughling knew whether Appellant was a member of the
Aryan Brotherhood. (RR5: 16). Hughling responded that he had heard that.
(RR5: 16). The prosecutor asked Hughling if he was on methamphetamine while
he was testifying. (RR5: 16). Hughling responded that he was not but had used
methamphetamine the night before. (RR5: 16).
Appellant testified in his own defense and related that on July 3, 2014, he
left work on his bicycle with Hunt. (RR5: 39). They bicycled home through
Hughling's neighborhood but never stopped. (RR5: 39). Appellant saw Dallas
pull up so he stopped and got off of his bicycle. (RR5: 39). He put down his
satchel, which was not as large as a backpack. (RR5: 41). Appellant testified
that he did not have a gun in his backpack and is unaware how a shotgun appeared
at the scene. (RR5: 41). In fact, Appellant told Dallas the shotgun was not his.
(RR5: 42). Appellant then told the jury that he knew that he was not allowed to
carry a firearm and that when he was previously convicted, he accepted a plea
agreement because he knew what he had done was wrong. (RR5: 43).
Specifically, he broke into a friend's home and stole marijuana. (RR5: 43).
Appellant explained that he did not do drugs, was not a gang member, and worked
at a ranch. (RR5: 42, 44). On cross-examination, Appellant admitted that he
has a long history of misdemeanors and had been convicted of felony possession of
methamphetamine. (RR5: 44-46). The prosecutor then listed Appellant's
convictions including two counts of theft, three counts of assault bodily injury,
unauthorized use of a motor vehicle, evading arrest in a motor vehicle, unlawful
transfer or a weapon, two counts of unlawfully carrying a weapon, and escape.
(RR5: 53-56). In addition, Appellant admitted that he missed a pre-trial court
date in this case while on bond. (RR5: 63). Appellant was also forced to admit
that on November 27, 2014, he was stopped by the police but took off running in a
pursuit that lasted thirty minutes. (RR5: 67-68). On re-direct examination,
Appellant testified that he was guilty of his previous convictions, fled from the
police, and missed a court date, but did not possess the gun in question in the
present case. (RR5: 69-70). At the close of Appellant's testimony, the defense
rested its case in chief. (RR5: 73).
On rebuttal, William Hamilton, Jr., a patrol deputy with the Bell County
Police Department, stated that on November 27, 2014, he initiated a traffic stop
due to an expired registration sticker. (RR5: 77). Instead of stopping, the
vehicle sped off, but eventually stopped and the driver, Appellant, fled on foot.
(RR5: 77-78, 82). Hamilton chased Appellant through a wooded area yelling
"Stop, police." (RR5: 80). Hamilton lost track of Appellant, but Appellant was
later stopped and taken into custody by Department of Public Safety Trooper
Matias Falcon. (RR5: 84-85).
Trooper Falcon testified that on November 27, 2014, he and two other
troopers heard over the radio that Belton police officers were engaged in a foot
chase with a suspect. (RR5: 89). Falcon decided to assist and drove to
Appellant's residence. (RR5: 91). While there, Falcon saw Appellant walking
toward the residence. (RR5: 92). Falcon approached Appellant and asked what
he was doing. (RR5: 92). Appellant responded that he was going for a walk.
(RR5: 92). Falcon confirmed the description of who Belton police were chasing
and "did a felony take down" on Appellant. (RR5: 92). On cross-examination,
Falcon acknowledged that Appellant was not aggressive, obnoxious, or mean
during their encounter. (RR5: 95-96). At the close of Falcon's testimony, both
sides rested and closed. (RR5: 97).
ISSUE PRESENTED
Whether the Instant Appeal Is Frivolous and Without Merit, Such That
the Undersigned Should Withdraw as Counsel.
A criminal defense attorney's duty is to zealously represent the interests of
his or her client on appeal. Anders v. California, 386 U.S. 738, 744 (1967). If
the appointed attorney finds the "case to be wholly frivolous, after a conscientious
examination of it, he should so advise the court and request permission to
withdraw." Anders, 386 U.S. at 744.
Both retained and appointed appellate attorneys have a "duty to withdraw"
as counsel when they conclude that an appeal would be frivolous, but appointed
counsel "is presented with a dilemma because withdrawal is not possible without
leave of court, and advising the court of counsel's opinion that the appeal is
frivolous would appear to conflict with the advocate's duty to the client." McCoy
v. Court of Appeals of Wisconsin, District I, 486 U.S. 429, 437 (1988). "It is well
settled, however, that this dilemma must be resolved by informing the court of
counsel's conclusion." Id. "Under Anders and its progeny, if an appointed
attorney concludes that his client's appeal is without merit, he or she must (1) so
inform the court, (2) seek permission to withdraw, and (3) file a brief 'referring to
anything in the record that might arguably support the appeal.'" Wilson v. State,
40 S.W.3d 192, 196 (Tex. App. - Texarkana 2001).
As the Supreme Court explained, the attorney's motion to withdraw must,
however, be accompanied by a brief referring to anything in the record that might
arguably support the appeal. Anders, 386 U.S. at 744. A copy of counsel's brief
should be provided to the Appellant and time should be allowed for him to raise
any points that he chooses. Id. Then, the Court, and not counsel, decides, after
a full examination of all the proceedings, whether the case is wholly frivolous.
Id. If it so finds, it may grant counsel's request to withdraw and dismiss the
appeal insofar as federal requirements are concerned, or proceed to a decision on
the merits, if state law so requires. Anders, 386 U.S. at 744. In Texas, an Anders
brief need not specifically advance "arguable" points of error if counsel finds none,
but it must provide record references to the facts and procedural history and set out
pertinent legal authorities. See Hawkins v. State, 112 S.W.3d 340, 343-344 (Tex.
App .-Corpus Christi 2003). The attorney's duty to withdraw is based upon his or
her professional and ethical responsibilities as an officer of the court not to burden
the judicial system with false claims, frivolous pleadings, or burdensome time
demands. McCoy, 486 U.S. at 436. The Supreme Court instructs: "Neither paid
nor appointed counsel may deliberately mislead the court with respect to either the
facts or the law, or consume the time and the energies of the court or the opposing
party by advancing frivolous arguments. An attorney, whether appointed or paid,
is therefore under an ethical obligation to refuse to prosecute a frivolous appeal."
Id.
PROFESSONAL EVALUATION
Counsel would respectfully show the Court of Appeals that the instant
appeal is frivolous and without merit, for the following reasons:
The trial court had jurisdiction over the present felony case and venue was
proper in Bell County, where the offense was alleged to have occurred. Appellant
was found guilty by a jury of the felony offense of unlawful possession of a
firearm by a felon and was sentenced to eighteen years in prison. See Tex. Penal
Code § 46.04(a)(2). The punishment range for that offense is that of a third
degree felony. See Tex. Penal Code § 46.04(e). However, Appellant's
punishment range was enhanced by a prior felony conviction to that of a second
degree felony. See Tex. Penal Code § 12.42(a).
Prior to trial, Appellant was admonished as to the proper range of
punishment he faced and the charges against him. (RR2: 4-5). In addition, the
Court explained Appellant's options to him including a jury trial, a jury trial where
the Court assessed punishment, a bench trial, an open plea, or a plea bargain.
(RR2: 5-7). Appellant indicated that he understood his options and then rejected
the State's plea offer often years in prison on the record. (RR2: 8-9). Appellant
further stated his decision to go forward with a jury trial and have the jury assess
punishment. (RR2:8-9)
POTENTIAL ERRORS CONSIDERED BY COUNSEL
Counsel considered the following point of errors on appeal:
(1) Whether the search of Appellant's backpack violated his Fourth
Amendment Right against Illegal Search and Seizure.
"The Fourth Amendment to the United States Constitution and Article I,
Section 9 of the Texas Constitution protect individuals against unreasonable
searches and seizures." State v. Elrod, 395 S.W.3d 869, 877 (Tex. App.—Austin
2013), citing U.S. CONST. AMEND. IV; Tex. Const, art. I, § 9; Mincey v. Arizona,
437 U.S. 385, 390 (1978); Luna v. State, 268 S.W.3d 594, 603 (Tex. Crim. App.
2008).
While it appears Dallas may have had reasonable suspicion to detain
Appellant, he articulated no reason for searching Appellant's property. However,
counsel did not file a Motion to Suppress and did not object to Dallas's testimony
regarding his search of Appellant's backpack.
It is well-settled that as a prerequisite to presenting a point of error for
appellate review, the record must show that the complaint in question was made to
the trial court by a timely request, objection, or motion, and the trial court ruled on
10
the request, objection, or motion. Tex. R. App. P. 33.1; Tucker v. State, 990 S.W.2d
261, 262 (Tex. Crim. App. 1999). Further, a party must continue to object every
time the evidence he seeks to exclude is offered. Ethington v. State, 819 S.W.2d
854, 858 (Tex. Crim. App. 1991); Hudson v. State, 675 S.W.2d 507, 511 (Tex.
Crim. App. 1984).
Because error was not preserved with respect to this issue, and the trial court
was not afforded the opportunity to rule on this issue, Counsel cannot, in good
faith, raise a point of error challenging the admissibility of Appellant's prior
convictions. See Tex. R. App. P. 33.1.
(2) Whether extraneous offense evidence that Appellant used
methamphetamine and was a member of the Aryan Brotherhood was
admissible at the guilt or innocence stage of trial.
A Defendant is to be tried only on the crimes alleged in the indictment and
not for being a criminal generally. Wilkerson v. State, 736 S.W.2d 656, 659 (Tex.
Crim. App. 1987). Therefore, evidence of extraneous offenses or bad acts
committed by the defendant may not be introduced during the guilt or innocence
portion of the trial to show the Defendant acted in conformity with his criminal
nature. Lockhart v. State, 847 S.W.2d 568, 570 (Tex. Crim. App. 1992);
Montgomery v. State, 810 S.W.2d 372, 386 (Tex. Crim. App. 1992); Tex. R. Evid.
404(b). This is because evidence of extraneous offenses "is inherently
11
prejudicial, tends to confuse the issues in the case, and forces the accused to defend
himself against charges which he had not been notified would be brought against
him." Crank v. State, 161 S.W.2d 328, 341 (Tex. Crim. App. 1988).
The Court of Criminal Appeals has consistently held that the introduction of
extraneous offenses to the jury is inherently "prejudicial," and hence, harms the
defendant, because it requires the defendant to defend against not only the offense
charged but also his uncharged actions. See Sattiewhite v. State, 786 S.W.2d 271,
285 (Tex. Crim. App. 1989), cert, denied 489 U.S. 881 (1990); Robinson v. State,
701 S.W.2d 895, 899 (Tex. Crim. App. 1985). The admission of extraneous
offenses also prejudices the defendant because of jurors' natural inclination to infer
guilt to the charged offense from the extraneous offenses. See Lockhart, 847
S.W.2d at 570; Templin v. State, 711 S.W.2d 30, 32 (Tex. Crim. App. 1986).
An extraneous offense includes any act of misconduct, whether resulting in
prosecution or not, that is not alleged in the indictment. Rankin v. State, 953
S.W.2d 740, 741 (Tex. Crim. App. 1996).
Additionally, Texas Rule of Evidence 404(b) provides:
Evidence of other crimes, wrongs or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident, provided that upon timely
request by the accused in a criminal case, reasonable notice is given in
12
advance of trial of intent to introduce in the State's case-in-chief such
evidence other than that arising in the same transaction.
Tex. R. Evid. 404(b).
In the present case, the prosecutor elicited testimony from Hughling that
Appellant was a member of the Ayran Brotherhood Gang. (RR5: 16). Further,
an officer was allowed to testify that another officer asked Appellant "you still on
that stuff?" (referring to methamphetamine) and Appellant responded he had been
off of it for a month. (RR5: 94). Trial counsel did not object to either of these
exchanges.
It is well-settled that as a prerequisite to presenting a point of error for
appellate review, the record must show that the complaint in question was made to
the trial court by a timely request, objection, or motion, and the trial court ruled on
the request, objection, or motion. Tex. R. App. P. 33.1; Tucker v. State, 990 S.W.2d
261, 262 (Tex. Crim. App. 1999). Further, a party must continue to object every
time the evidence he seeks to exclude is offered. Ethington v. State, 819 S.W.2d
854, 858 (Tex. Crim. App. 1991); Hudson v. State, 615 S.W.2d 507, 511 (Tex.
Crim. App. 1984).
Because error was not preserved with respect to this issue, and the trial court
was not afforded the opportunity to rule on this issue, Counsel cannot, in good
faith, raise a point of error challenging the admissibility of Appellant's prior
13
convictions. See Tex. R. App. P. 33.1.
(3) Whether evidence of Appellant's lengthy criminal history was
admissible at the guilt or innocence phase of trial.
Texas Rule of Evidence 609 provides that evidence that a witness has been
convicted of a crime shall be admitted only if the crime was a felony or involved
moral turpitude and the Court determines that the probative value of the admitted
convictions outweighs its prejudicial effect. Tex. R. Evid. 609, Theus v. State,
845 S.W.2d 874, 879-80 (Tex. Crim. App. 2002). In addition, Texas Rule of
Evidence 609 imposes a time limit often years for admissibility of evidence of any
convictions without a finding from the trial court that the probative value of the
conviction, supported by specific facts and circumstances substantially outweighs
its prejudicial effect. Tex. R. Evid. 609, Theus, 845 S.W.2d 879-80).
It appears that many of Appellant's prior convictions that were put before
the jury are misdemeanors and/or are outside of the ten year limit for admissibility
pursuant to Texas Rule of Evidence 609. However, trial counsel did not file a
Motion in Limine or a Motion to Testify without Impeachment of Prior
Conviction1 and failed to object each time the prosecutor elicited testimony
regarding Appellant's prior convictions.
1 In Theus, counsel filed a "Motion to Testify Free from Impeachment of Prior Conviction,"
when challenging the admissibility of prior convictions under Rule of Evidence 609. See
77iews,845S.W.2dat877.
14
It is well-settled that as a prerequisite to presenting a point of error for
appellate review, the record must show that the complaint in question was made to
the trial court by a timely request, objection, or motion, and the trial court ruled on
the request, objection, or motion. Tex. R. App. P. 33.1; Tucker v. State, 990 S.W.2d
261, 262 (Tex. Crim. App. 1999). Further, a party must continue to object every
time the evidence he seeks to exclude is offered. Ethington v. State, 819 S.W.2d
854, 858 (Tex. Crim. App. 1991); Hudson v. State, 675 S.W.2d 507, 511 (Tex.
Crim. App. 1984).
Because error was not preserved with respect to this issue, and the trial court
was not afforded the opportunity to rule on this issue, Counsel cannot, in good
faith, raise a point of error challenging the admissibility of Appellant's prior
convictions. See Tex. R. App. P. 33.1.
(4) Whether Appellant's sentence exceeded the proper range of
punishment.
It is counsel's opinion that the punishment assessed was not excessive
because Appellant's punishment fell within the statutory punishment range for the
offense alleged. A punishment which falls within the statutory range is not
excessive, cruel, or unusual. Gaines v. State, 479 S.W.2d 678, 679 (Tex. Crim.
App. 1972); See also Jordan v. State 495 S.W.2d 949, 952 (Tex. Crim. App.
1973); Samuel v. State, All S.W.2d 611,614 (Tex. Crim. App. 1972).
15
CONCLUSION
There are no points of error, which, in good conscience, could be raised in
this appeal.
NOTICE TO APPELLANT
The undersigned has forwarded a copy of this motion to withdraw and a
letter explaining Appellant's rights, as well as the procedures to be followed when
a brief is filed by counsel indicating that the appeal is frivolous and without merit,
to Appellant. The letter also informs Appellant of his right to file a pro se
petition for discretionary review. In addition to the letter, the undersigned has
also forwarded to Appellant a Motion for Pro Se Access to the Appellate Record
so that Appellant can obtain the necessary records to file a brief, should he choose
to do so. A true and correct copy of such letter is attached hereto.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Kristen Jernigan,
court-appointed counsel for Appellant in the above styled and numbered cause
respectfully prays that, after providing Appellant an opportunity to submit a. pro se
brief, this Honorable Court of Appeals will review the appellate record to make an
independent determination of whether there are grounds upon which to appeal. The
undersigned also prays that the Court will grant this motion to withdraw.
16
Respectfully submitted,
/s/ Kristen Jernigan
KRISTEN JERNIGAN
State Bar Number 90001898
207 S. Austin Ave.
Georgetown, Texas 78626
(512)904-0123
(512) 931-3650 (fax)
Kristen@txcrimapp.com
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the
foregoing Anders Brief in support of Counsel's Motion to Withdraw has been
mailed on November 30, 2015, to the Bell County District Attorney's Office, 1201
Huey Road, Belton, Texas 76513.
"/s/" Kristen Jernigan
Kristen Jernigan
CERTIFICATE OF WORD COUNT
The undersigned hereby certifies that the foregoing document consists of
5,718 words in compliance with Texas Rule of Appellate Procedure 9.4.
"/s/" Kristen Jernigan
Kristen Jernigan
17
No. 03-15-00263-CR
In the
COURT OF APPEALS
For the
THIRD SUPREME JUDICIAL DISTRICT
at Austin
On Appeal from the 264th Judicial District Court of
Bell County, Texas
Cause Number 73061
JOHN LEE BOWMAN, Appellant
v.
THE STATE OF TEXAS, Appellee
CERTIFICATE OF COUNSEL
In compliance with the requirements of Anders v. California, 386 U.S. 378
(1967), I, Kristen Jernigan, court-appointed counsel for Appellant, John Lee
Bowman, in the above-referenced appeal, 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
18
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 should
this Court declare his appeal frivolous.
Respectfully submitted,
/s/ Kristen Jernigan
Kristen Jernigan
19
Kristen Jernigan
Attorney at Law
207 S. Austin Ave., Georgetown, Texas 78626
(512) 904-0123 (OFFICE) (512) 931-3650 (Fax)
Kristen@txcrimapp.com
November 30, 2015
John Lee Bowman
TDCJ ID No. 01994059
Hutchins Unit
1500E. LangdonRd.
Dallas, Texas 75241
VIA CERTIFIED MAIL 7013 2250 0000 950 1837
Dear Mr. Bowman:
Enclosed, please find a copy of the Anders Brief and Motion to Withdraw as
Counsel I have prepared and filed in your case. After a diligent search of both the
Clerk's Record and the Reporter's Record in your case and the applicable law, it is
my opinion that no reversible error occurred during your trial.
Whenever appellate counsel files a motion such as this, the law provides the
Appellant the right to review the record of the proceedings and file any brief which
he or she deems necessary. Because I have submitted such a brief, you now have
the right to review the record of your trial and file any brief which you deem
necessary. The brief must be filed within thirty days of today's date, unless you
file a Motion for Extension of Time to file your pro se brief.
In order to obtain the appellate record to prepare your brief, I have attached a
Motion for Pro Se Access to the Appellate Record for you to file. You must sign
and date the motion and mail it to the Court of Appeals within ten days of the date
of this letter to this address:
Third Court of Appeals:
Hon. Jeffrey Kyle
Third Court of Appeals
P.O. Box 12547
Austin, Texas 78711
Should the Court of Appeals ultimately rule your appeal was frivolous, and
affirm your conviction and sentence, you may file a Pro Se Petition for
Discretionary Review with the Texas Court of Criminal Appeals. The address to
file your petition is:
Texas Court of Criminal Appeals:
Hon. Abel Acosta
Clerk of The Court
Texas Court of Criminal Appeals
P.O. Box 12308
Austin, Texas 78711
You must file your petition within thirty days of the date of the Court of
Appeals' opinion or request an extension of time to file your petition. Be sure to
attach a copy of the Court's opinion to your petition should you choose to file one.
Feel free to write me if you have any questions. I will do my best to answer
any questions you may have.
Sincerely,
/s/ Kristen Jernigan
Kristen Jernigan
No. 03-15-00263-CR
In the
COURT OF APPEALS
For the
THIRD SUPREME JUDICIAL DISTRICT
at Austin
On Appeal from the 264th Judicial District Court of
Bell County, Texas
Cause Number 73061
JOHN LEE BOWMAN, Appellant
v.
THE STATE OF TEXAS, Appellee
MOTION FOR PRO SE ACCESS TO APPELLATE RECORD
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF
APPEALS:
COMES NOW, John Lee Bowman, Appellant herein, and files this, his
Motion for Pro Se Access to Appellate Record. In support of said motion,
Appellant would show the Court the following:
Appointed Counsel for Appellant has filed an Anders Brief and Motion to
Withdraw. Pursuant to the Texas Court of Criminal Appeals' recent decision in
Kelly v. State, No. PD-0702-13 (Delivered June 25, 2014), Appellant now requests
access to the appellate record for the preparation of his pro se response.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully
requests that this Court grant his Motion for Pro Se Access to the Appellate
Record.
Respectfully submitted,
John Lee Bowman
DATE: