Benjamin Robert Barran v. State ( 2015 )

ACCEPTED
14-15-00359-CR
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
7/13/2015 10:11:29 AM
CHRISTOPHER PRINE
CLERK
NO. 14-15-00359-CR
IN THE COURT OF APPEALS FILED IN
14th COURT OF APPEALS
HOUSTON, TEXAS
FOURTEENTH DISTRICT 7/13/2015 10:11:29 AM
CHRISTOPHER A. PRINE
Clerk
HOUSTON, TEXAS
NO. 1401264
IN THE TRIAL COURT
338TH JUDICIAL DISTRICT
HARRIS COUNTY, TEXAS
BENJAMIN ROBERT BARRAN § APPELLANT
VS. §
THE STATE OF TEXAS § APPELLEE
APPOINTED COUNSEL’S
MOTION TO WITHDRAW FROM FRIVOLOUS APPEAL
ALLEN C. ISBELL
2016 Main St., Suite 110
Houston, Texas 77002
713/236-1000
Fax No. 713/236-1809
STATE BAR NO. 10431500
Email: allenisbell@sbcglobal.net
COUNSEL ON APPEAL
TO THE HONORABLE COURT OF APPEALS:
COMES NOW ALLEN C. ISBELL, court-appointed counsel of record for
BENJAMIN ROBERT BARRAN, appellant, in the above entitled and numbered
cause and respectfully requests permission to withdraw from the case for the
following reasons:
I.
After a thorough review of record, counsel has been unable to find any
error which he can, in good faith, urge as warranting a reversal of the
conviction.
II.
Counsel has filed a brief on Appellant's behalf in accordance with the
mandates of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493
(1967), and has notified appellant of his right to review the record and raise any
points he may choose. A copy of that brief is attached and incorporated herein
by reference as Exhibit “A” and a copy of the letter to appellant is attached and
incorporated herein by reference as Exhibit “B.”
III.
This request for permission to withdraw is required by Anders v.
California, supra at 744, and Stafford v. State, 813 S.W.2d 503 (Tex. Crim.
App. 1991).
c:\appeals\barran\motion to withdraw & order 2
IV.
Appellant’s last known address is as follows: Mr. Benjamin Robert
Barran, TDCJ #01995410, Garza West Unit, 4250 Hwy. 202, Beeville, Texas
78102.
WHEREFORE, PREMISES CONSIDERED, Counsel prays that this Court
grant him permission to withdraw from the case.
Respectfully submitted,
/s/ Allen C. Isbell
ALLEN C. ISBELL
202 Travis, Suite 208
Houston, Texas 77002
713/236-1000
Fax No.: 713/236-1809
STATE BAR NO. 10431500
email: allenisbell@sbcglobal.net
COUNSEL ON APPEAL
ORDER
On this day came on to be heard the Motion to Withdraw filed by
Appellant's court-appointed counsel on appeal.
After reviewing the Anders v. California, supra brief filed on Appellant's
behalf and finding that it IS/IS NOT acceptable, the Motion to Withdraw is
hereby
c:\appeals\barran\motion to withdraw & order 3
________ GRANTED
________ DENIED.
SIGNED on this the day of , 20___.
______________________________
JUDGE PRESIDING
Certificate of Service
I hereby certify that on this 13th day of July, 2015, a true and correct copy
of the Motion to Withdraw which was filed previously was sent to the District
Attorney's Office, Appellate Division of Harris County, Texas, and to Mr.
Benjamin Robert Barran, appellant.
/s/ Allen C. Isbell
ALLEN C. ISBELL
Certificate of Compliance
The undersigned attorney on appeal certifies this motion is computer
generated and consists of 479 words. Counsel is relying on the word count
provided by the Word Perfect computer software used to prepare the motion.
/s/ Allen C. Isbell
ALLEN C. ISBELL
c:\appeals\barran\motion to withdraw & order 4
Exhibit “A”
c:\appeals\barran\motion to withdraw & order 5
NO. 14-15-00359-CR
IN THE COURT OF APPEALS
FOURTEENTH DISTRICT
HOUSTON, TEXAS
NO. 1401264
IN THE TRIAL COURT
338TH JUDICIAL DISTRICT
HARRIS COUNTY, TEXAS
BENJAMIN ROBERT BARRAN § APPELLANT
VS. §
THE STATE OF TEXAS § APPELLEE
BRIEF IN SUPPORT OF MOTION TO WITHDRAW
FROM FRIVOLOUS APPEAL
ALLEN C. ISBELL
2016 Main St., Suite 110
Houston, Texas 77002
713/236-1000
Fax: 713/236-1809
STATE BAR NO. 10431500
Email: allenisbell@sbcglobal.net
COUNSEL ON APPEAL
ORAL ARGUMENT WAIVED
NAMES AND ADDRESSES OF ALL PARTIES
AT THE TRIAL COURT’S FINAL JUDGMENT
Trial Judge
Honorable Brock Thomas, Judge Presiding
338th District Court
1201 Franklin, 15th Fl., Houston, Texas 77002
Appellant/Defendant
Mr. Benjamin Robert Barran
#01995410
Garza West Unit
4250 Hwy. 202
Beeville, Texas 78102-8982
Appellant’s Counsel
Mr. Allen C. Isbell - Counsel on Appeal
2016 Main St., Suite 110, Houston, Texas 77002
Mr. Jerald Graber - Counsel
917 Franklin, #510, Houston, Texas 77002
Attorneys for the State of Texas
Mr. Alan Curry - Assistant District Attorney on Appeal
1201 Franklin, Ste. 600, Houston, Texas 77002
Ms. Shannon Drehner - Assistant District Attorney
1201 Franklin, 6th Fl., Houston, Texas 77002
c:\appeals\barran\friv. brief ii
TABLE OF CONTENTS
PAGE
Names and Addresses of All Parties at the Trial Court’s Final Judgment
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . vii
Statement of the Nature of the Case . . . . . . . . . . . . . . . . . . . . . . . . . 1
Preliminary Question: Appellant’s Right to Appeal . . . . . . . . . . . . . . 2
Review of the Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Appeal is Wholly Frivolous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
I. Admonishments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(1) Range of punishment . . . . . . . . . . . . . . . . . . . . . . . 10
(2) Non-Binding Recommendation . . . . . . . . . . . . . . . . 11
(3) Permission to prosecute an appeal . . . . . . . . . . . . . 11
(4) Consequences of non-citizenship . . . . . . . . . . . . . . 11
II. Pretrial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(1) Sufficiency of the Indictment . . . . . . . . . . . . . . . . . . 12
(2) Pre-trial motions . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
III. Plea of Guilty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(1) Mental Competence . . . . . . . . . . . . . . . . . . . . . . . . 13
c:\appeals\barran\friv. brief iii
(2) Sufficiency of Evidence . . . . . . . . . . . . . . . . . . . . . . 14
(3) Pre-sentence Investigation Report . . . . . . . . . . . . . 14
IV. Sentencing Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(1) Punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Conclusion and Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Exhibit “A” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
c:\appeals\barran\friv. brief iv
INDEX OF AUTHORITIES
CASES PAGE
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1957)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 15-16
Bailey v. State, 543 S.W.2d 419 (Tex.Crim.App. 1977)
.....................................................3
Blanco v. State, 18 S.W.3d 218, 219 (Tex.Crim.App. 2000)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3
Bledsoe v. State, 178 S.W.3d 824 (Tex. Crim. App. 2005)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Dinnery v. State, 592 S.W.2d 343, 353 (Tex.Crim.App. 1979)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Dukes v. State, 239 S.W.3d 444, 448 (Tex.App. Dallas 2007, pet. ref’d
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Ex parte Broadway, 301 S.W.3d 694, 697-698 (Tex.Crim.App. 2009)
.....................................................5
Ex parte De Leon, 400 S.W.3d 83, 89 (Tex.Crim.App. 2013)
.....................................................6
Ex parte Delaney, 207 S.W.3d 794, 799 (Tex.Crim.App. 2006)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4
Ex parte Hogan, 556 S.W.2d 56 (Tex.Crim.App. 1978)
.....................................................3
Ex parte Moussazadeh, 64 S.W.3d 404, 411-412 (Tex.Crim.App. 2001)
.....................................................6
c:\appeals\barran\friv. brief v
Ex parte Reedy, 282 S.W.3d 492,496-497 (Tex.Crim.App. 2009)
.....................................................3
Ex parte Thomas, 545 S.W.2d 469, 470 (Tex.Crim.App. 1977)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4
Ex parte Townsend, 538 S.W.2d 419 (Tex.Crim.App. 1976)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4
Garner v. State, 300 S.W.3d 763 (Tex.Crim.App. 2009)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Gutierrez v. State, 176 S.W.3d 394, 396 (Tex.App. Houston [1st Dist.] 2004,
pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
In re Schulman, 252 S.W.3d 403, 407 n.12 (Tex.Crim.App. 2008)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Kennedy v. State, 297 S.W.3d 338 (Tex.Crim.App. 2009)
.....................................................6
Marsh v. State, 444 S.W.3d 654 (Tex.Crim.App. 2014)
.....................................................3
Monreal v. State, 99 S.W.3d 615 (Tex.Crim.App. 2003)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4
Moore v. State, 295 S.W.3d 329, 331 (Tex.Crim.App. 2009)
.....................................................6
Shankle v. State, 119 S.W.3d 808,813 (Tex.Crim.App. 2003)
.....................................................6
Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 15
State vs. Edmond, 933 S.W.2d 120, 128 (Tex.Crim.App. 1996)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
c:\appeals\barran\friv. brief vi
Stone v. State, 919 S.W.2d 424 (Tex.Crim.App. 1996)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Washington v. State, 363 S.W.3d 589, 589-90 (Tex.Crim.App. 2012)
.....................................................2
Wilson v. State, 366 S.W.3d 335 (Tex.App. Houston [1st Dist.] 2012, no pet.)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
STATUTES
Texas Code of Criminal Procedure, Art. 1.13. . . . . . . . . . . . . . . . . . . . . . . 5
Texas Code of Criminal Procedure, Art. 1.15 . . . . . . . . . . . . . . . . . . . . . . 14
Texas Penal Code, Sec. 12.33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Texas Penal Code, Sec. 32.51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12
Texas Rules of Appellate Procedure, Rule 25.2(a)(2) . . . . . . . . . . . . . . . . 6
c:\appeals\barran\friv. brief vii
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is waived.
c:\appeals\barran\friv. brief viii
TO THE HONORABLE COURT OF APPEALS:
COMES NOW BENJAMIN ROBERT BARRAN, appellant, by and
through his appointed attorney of record, ALLEN C. ISBELL, and files this
Brief in support of his Motion to Withdraw.
Statement of the Nature of the Case
The indictment charged appellant with the offense of Fraudulent Use of
Identifying Information in Cause No. 1401264. On January 15, 2015,
appellant entered a plea of guilty in the 338th District Court of Harris County,
Texas, the Honorable Brock Thomas, Judge Presiding (C.R. l 26-27). On
April 10, 2015, following a pre-sentence investigation report and hearing, the
trial Court assessed punishment at confinement the Institutional Division of
the Texas Department of Corrections for twenty (20) years and a fine of One
Thousand ($1,000) Dollars. On that day, appellant filed a written notice of
appeal (C.R. 1 37-38, 41).
The trial court signed a document saying that appellant did not have the
right to appeal because appellant waived his right to appeal. In a letter dated
June 10, 2015, this Court notified the trial court judge that after reviewing the
clerk’s record it concluded that this is not a plea bargain case, so the
certification of the defendant’s right which states that “the defendant has
c:\appeals\barran\friv. brief 1
waived his right to appeal” appears to be incorrect. This Court noted that
although negotiated waivers of the right to appeal are valid, non-negotiated
waivers of the right to appeal are valid only if the defendant waived this right,
knowing with certainty the punishment that would be assessed. Citing:
Washington v. State, 363 S.W.3d 589, 589-90 (Tex.Crim.App. 2012) and
Monreal v. State, 99 S.W.3d 615 (Tex.Crim.App. 2003). The letter concluded
that the record did not appear to reflect with certainty that appellant waived
his right to appeal, knowing with certainty the punishment that would be
assessed. Citing: Ex parte Delaney, 207 S.W.3d 794, 799 (Tex.Crim.App.
2006); Blanco v. State, 18 S.W.3d 218, 219 (Tex.Crim.App. 2000). The letter
requested that in connection with this appeal, the record be reviewed, and, if
necessary, the certificate of certification be corrected and a supplemental
clerk’s record containing the corrected certification be filed within thirty days.
Preliminary Question: Appellant’s Right to Appeal
Based on the Clerk’s Record alone, this Court concluded that the trial
court’s certification regarding appellant’s right to appeal may be incorrect.
The court requested that the issue be reviewed as part of the appeal without
prescribing what a new certification, if necessary, should say. If a review of
the record shows that appellant did waive his right of appeal, the proper
c:\appeals\barran\friv. brief 2
remedy is to dismiss the appeal. Marsh v. State, 444 S.W.3d 654
(Tex.Crim.App. 2014).
In Ex parte Reedy, 282 S.W.3d 492,496-497 (Tex.Crim.App. 2009), the
Court of Criminal Appeals explained the holdings in most of the cases cited
in this Court’s letter. In Ex parte Townsend, 538 S.W.2d 419 (Tex.Crim.App.
1976), the Court of Criminal Appeals held that as a matter of law a waiver of
the right to appeal made prior to trial cannot be knowing and intelligent
because the defendant does not know with certainty the punishment that will
be assessed, and the defendant cannot anticipate the errors that may occur
during trial.
In Bailey v. State, 543 S.W.2d 419 (Tex.Crim.App. 1977), and in Ex
parte Thomas, 545 S.W.2d 469, 470 (Tex.Crim.App. 1977), the Court of
Criminal Appeals considered waivers of appeal made after the conviction, but
before sentencing. It found them to be unenforceable for the same reasons.
However, a waiver of appeal made after judgment and sentence is valid and
enforceable. Ex parte Hogan, 556 S.W.2d 56 (Tex.Crim.App. 1978). That was
the state of the law in 2000 when Blanco v. State, supra, was decided.
In Blanco, the defendant waived his right of appeal as part of a
sentencing-bargain. The trial court followed the sentencing recommendation,
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but the defendant appealed anyway claiming the waiver was not binding
under Ex parte Thomas, supra, because it was made after the conviction but
prior to sentencing. The Court of Criminal Appeals upheld the waiver,
notwithstanding prior case law, because the considerations that led to the
cases such as Ex parte Townsend, supra, are less compelling where the trial
court follows the sentencing recommendation. The Court of Criminal Appeals
distinguished Ex parte Thomas because the waiver of appeal was not part of
the plea agreement.
In Monreal v. State, supra, the defendant executed a waiver of appeal
after a conviction and after sentencing. The Court held that a waiver given at
that time, presumptively, is knowing and intelligent, whether or not the guilty
plea was the product of a negotiated agreement.
In Ex parte Delaney, supra, the defendant waived his right to appeal
after entering an open plea of guilty and receiving deferred-adjudication
community supervision for ten years. A few months later, the State moved to
proceed to adjudication and the trial court imposed a life sentence. The Court
of Criminal Appeals held that when a pre-sentencing waiver of appeal is not
bargained for, the waiver is not valid.
c:\appeals\barran\friv. brief 4
In Ex parte Broadway, 301 S.W.3d 694, 697-698 (Tex.Crim.App. 2009),
the issue presented was “whether a defendant can voluntarily waive his entire
appeal as a part of a plea, even when sentencing is not agreed upon, where
consideration is given by the State for that waiver.” The Court of Criminal
Appeals answered that issue, “Yes.” It found that the State gave
consideration for the plea by agreeing to waive its right to a jury trial under
Texas Code of Criminal Procedure, Art. 1.13. In the writ hearing, the trial
court found that the State did not want to consent to the defendant’s waiver
of a jury trial. However, the defendant induced the State to consent by the
defendant agreeing to waive his right to appeal.
The two most common kinds of plea-bargaining that affect punishment
are “sentence-bargaining” and “charge-bargaining.” Sentence-bargaining may
be for a binding or non-binding recommendation to place a “cap” on the
sentence imposed. It may involve an agreement to recommend, or refrain
from opposing, deferred-adjudication community supervision. Charge-
bargaining involves a defendant’s agreement to plead guilty to the offense that
has been alleged or to a lesser included offense, in exchange for the
prosecution dismissing , or refraining from bringing, other charges. Before
reaching a charge-bargain agreement, the defendant is subject to separate
c:\appeals\barran\friv. brief 5
additional punishments for the pending charges. An agreement to dismiss a
pending charge, or not to bring an available charge, effectively puts a cap on
punishment which the defendant may receive at the maximum sentence for
a charge that is not dismissed. When the defendant enters into a charge-
agreement, this constitutes a plea-bargain case, governed by Texas Rules
of Appellate Procedure, Rule 25.2(a)(2). Shankle v. State, 119 S.W.3d
808,813 (Tex.Crim.App. 2003)(State dismissed a burglary charge); Kennedy
v. State, 297 S.W.3d 338 (Tex.Crim.App. 2009)(State dismissed charges for
attempted murder and deadly conduct).
A plea bargain is a contract between the State and the defendant.
Moore v. State, 295 S.W.3d 329, 331 (Tex.Crim.App. 2009). General
contract-law principles are applied to determine the intended content of a plea
agreement. Appellate courts look to the written agreement, as well as the
formal record, to determine the terms of the plea agreement. Ex parte De
Leon, 400 S.W.3d 83, 89 (Tex.Crim.App. 2013) citing Ex parte Moussazadeh,
64 S.W.3d 404, 411-412 (Tex.Crim.App. 2001).
Review of the Record
The certification of appellant’s right to appeal indicates that appellant
waived the right to appeal. The certification was signed by the trial judge, the
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defendant, and defendant’s counsel (C.R. I, 33). The Judgment of Conviction
indicates that there was no agreed recommendation, that the right of appeal
was waived, and that no permission to appeal was granted (C.R. I, 38).
Appellant’s written plea of guilty and stipulation of evidence (State’s
Exhibit 1), states that appellant was pleading guilty to the alleged offense in
exchange for the State dismissing four other pending charges, (C.R. I, 26-27).
The official transcript of the plea reflects that appellant intended to waive any
right to appeal. This waiver of a right to appeal was part of the “charging-
agreement” between appellant and the prosecution, as shown by the colloquy
during the plea between the trial court judge, defense counsel, and appellant:
THE COURT: I noticed also on here that on the certification
page that there is a waiver of a right to appeal.
MR. GRABER [Defense Counsel]: Yes.
THE COURT: Okay.
MR. GRABER: We did have a question about that. We want
to make sure that we did that correctly.
*****
MR. GRABER: . . . . But the question that I had was: Just
generally speaking, if somebody pleads without an agreement - -
if they plead guilty to the Court without an agreement, is that a
waiver of his right to appeal?
THE COURT: Unless there is some waiver in terms of either
a plea bargain - -
c:\appeals\barran\friv. brief 7
(Off-the-record discussion)
MR. GRABER: Judge, we can go back on the record.
THE COURT: All right.
MR. GRABER: Judge, I have broached the subject with the
State. I have admonished and explained to the defendant that
it’s part of the deal. Because they are dismissing four cases
because he’s entering a plea to this charge, that it is a waiver of
an appeal. That was my admonishment to him.
My question to the Court was more generally speaking.
I’ve spoken to the State. That is what the State is
requesting. And, so, it can stay as written.
THE COURT: Just so I’m clear, Mr. Barran: Is it your
understanding, if I accept this at this point that you’re waiving your
right to appeal?
THE DEFENDANT: Yes, sir. I understand.
THE COURT: You’re pleading guilty without an agreed
recommendation; and in exchange for that, there’s also four cases
being dismissed, is that correct?
THE DEFENDANT: Yes, sir.
THE COURT: That means, bottom line: I will conduct that
sentencing hearing and whatever I sentence you to, you won’t
have the right to appeal that.
THE DEFENDANT: That’s correct. I understand.
THE COURT: Do you understand that?
THE DEFENDANT: Yes, sir.
c:\appeals\barran\friv. brief 8
THE COURT: Do you need any further time to talk to Mr.
Graber about that?
THE DEFENDANT: No, sir.
THE COURT: All right. And you’ve had a chance to visit
with him regard to that issue?
MR. GRABER: I have, Judge. And the point that I made to
him was that as long as the Judge sentences you within the range
of punishment, there’s no appeal.
Obviously, I know the Court will sentence him within the
range of punishment.
THE COURT: Right.
MR. GRABER: So, that was my last admonishment to him
regarding appeal (R.R. 2, 6-9).
The judgment states that there was no agreed recommendation as to
punishment, and the certification states that appellant waived his right of
appeal. The record appears to reflect that appellant voluntarily, knowingly and
intelligently waived his right of appeal as part of a negotiated plea-bargain that
the State would dismiss four pending charges, if he pled guilty without a
recommendation as to sentencing in the instant case.
Appeal is Wholly Frivolous
If this court decides that the waiver of appeal was not valid, and that this
court has jurisdiction to entertain this appeal, counsel has reviewed the record
c:\appeals\barran\friv. brief 9
for reversible error. After a thorough review of the record, appointed counsel
on appeal is unable to find any error which, in good faith, he can urge as
warranting a reversal of the judgment of conviction or a remand for a new
punishment hearing. Counsel is aware of his duty to advance arguable
grounds of error. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18
L. Ed. 2d 493 (1957); Stafford v. State, 813 S.W.2d 503, 510 (Tex.Crim.App.
1991); In re Schulman, 252 S.W.3d 403, 407 n.12 (Tex.Crim.App.
2008)(Counsel must argue any ground that could “conceivably persuade” the
court); Wilson v. State, 366 S.W.3d 335 (Tex.App. Houston [1st Dist.] 2012, no
pet.)(Counsel cannot file an Anders brief if the record is incomplete).
I. Admonishments
(1) Range of punishment. Appellant was charged with the fraudulent
possession of at least ten but less than fifty items of identifying information,
Texas Penal Code, Sec. 32.51(c)(2). This offense is punishable as a felony
of the second degree. Texas Penal Code, Sec. 12.33 provides that the
applicable sentence for a second degree felony offense is imprisonment in the
Texas Department of Criminal Justice for any term of not more than 20 years
or less than 2 years, with a possible fine not to exceed $10,000. The trial
court judge properly admonished appellant that his punishment could be
c:\appeals\barran\friv. brief 10
assessed within that range (C.R. I, 28; R.R. 2, 3; R.R. 3, 4).
(2) Non-Binding Recommendation. Appellant was admonished that
any sentencing recommendation is not binding on the court (C.R. I, 29). The
record reflects that the prosecution did not make a sentencing
recommendation (R.R. 2, 5-6).
(3) Permission to prosecute an appeal. The trial court admonished
appellant that in a plea bargain case, the Court must give its permission
before appellant could appeal any matter in the case, except for matters that
were raised by written motion filed prior to trial (C.R. I, 29). The Court
ascertained that the plea bargain in this case was a charge-bargain, in which
appellant agreed to waive his right to appeal and enter a plea of guilty in
exchange for the prosecution dismissing four other pending charges (C.R. I,
27; R.R. 2, 8-9; R.R. 3, 4).
(4) Consequences of non-citizenship. Appellant was admonished
that if he is not a citizen of the United States, a plea of guilty for the alleged
offense may result in his deportation, or exclusion from admission the country,
or the denial of his naturalization (C.R. I, 30). The record reflects that
appellant is a U.S. citizen (R.R. 2, 3).
c:\appeals\barran\friv. brief 11
II. Pretrial
(1) Sufficiency of the Indictment. Appellant was charged with the
fraudulent possession of identifying information by an indictment which
alleged that:
“In Harris County, Texas, BENJAMIN ROBERT BARRAN,
hereafter styled the Defendant, heretofore, on or about
SEPTEMBER 4, 2013, did then and there unlawfully, with the
intent to defraud and harm another, OBTAIN AND POSSESS AT
LEAST TEN BUT LESS THAN FIFTY ITEMS of identifying
information, namely, THE NAME, THE DATE OF BIRTH, THE
SOCIAL SECURITY NUMBER, AND A GOVERNMENT-ISSUED
IDENTIFICATION NUMBER of NATALIE WEBER, CHARLES
HRNCIR, DAVID FLACSH, AND DAVID KOENIG, hereafter called
the Complainant, without the Complainant’s consent” (C.R. I, 9).
The alleged felony offense is set forth in Texas Penal Code, Sec. 32.51.
That statute reads in pertinent part as follows:
Sec. 32.51 Fraudulent Use or Possession of Identifying
Information
(a) In this section:
(1) “Identifying information means information that alone or
in conjunction with other information identifies a person, including
a person’s:
(A) name and social security number, date of birth, or
government issued identification number.
(b) A person commits an offense if the person, with the
intent to harm or defraud another, obtains, possesses, transfers
or uses an item of:
c:\appeals\barran\friv. brief 12
(1) identifying information of another person without
the other person’s consent.
Appellant did not file a Motion to Quash the Indictment. When the
charging instrument tracks the language of a criminal statute, generally, it is
sufficient to provide a defendant with notice of the charged offense, to invoke
the jurisdiction of the District Court, and to support a judgment of conviction.
State vs. Edmond, 933 S.W.2d 120, 128 (Tex.Crim.App. 1996); Dukes v.
State, 239 S.W.3d 444, 448 (Tex.App. Dallas 2007, pet. ref’d).
(2) Pre-trial motions. There were no pre-trial motions filed or ruled
upon.
III. Plea of Guilty
(1) Mental Competence. Prior to accepting appellant’s plea of guilty in
open court, the trial court ascertained that appellant suffers from depression
and was currently on medication for that psychological condition. However,
appellant was able to understand the proceedings and the admonishments
from the court. Defense counsel informed the judge that there had been no
problems discussing the case with appellant, and that he believed that
appellant was competent to enter his plea (R.R. 2, 3-4). The trial court was
satisfied that appellant was competent, and was entering his plea freely and
voluntarily (R.R. 2, 4-5). The record supports that finding.
c:\appeals\barran\friv. brief 13
(2) Sufficiency of Evidence. Appellant entered a plea of guilty in open
court (R.R. 2, 3). A defendant charged with a felony offense may not be
convicted on his plea of guilty or no contest alone; rather the State must
introduce sufficient evidence to support the plea. Texas Code of Criminal
Procedure, Art. 1.15. Appellant executed and signed a written stipulation of
evidence and judicial confession in which he waived his right to a trial by jury.
It was signed by defense counsel and approved by the prosecutor and the trial
court (C.R. I, 28-29). This document was introduced into evidence as State’s
Exhibit 1 (R.R. 2, 5-6). The trial court found the evidence was sufficient to
support appellant’s plea of guilty (R.R. 2, 10).
A judicial confession or stipulation of evidence that embraces every
essential element of the offense charged, by itself, suffices to sustain a
conviction rendered upon a guilty plea. Dinnery v. State, 592 S.W.2d 343,
353 (Tex.Crim.App. 1979); Stone v. State, 919 S.W.2d 424 (Tex.Crim.App.
1996); Gutierrez v. State, 176 S.W.3d 394, 396 (Tex.App. Houston [1st Dist.]
2004, pet. ref’d).
(3) Pre-sentence Investigation Report. After finding that the evidence
was sufficient to support a finding of guilt, the trial court withheld a finding of
guilt until he received the pre-sentence investigation report . This report was
c:\appeals\barran\friv. brief 14
reviewed by the parties (C.R. I, 30; R.R. 2, 5-6, 10). Neither side had an
objection to the pre-sentence report (R.R. 3, 4).
IV. Sentencing Hearing
(1) Punishment. At the sentencing hearing the trial court judge
reviewed the pre-sentence investigation report, considered additional
documents from both parties (R.R. 3, 5-6), and heard the arguments of
counsel. Then, the trial court found appellant guilty as charged and
sentenced him to 20 years confinement in the Texas Department of Criminal
Justice Institutional Division and a $1,000 fine (R.R.3, 22). The punishment
assessed was within the range for a second degree felony offense.
Conclusion and Prayer
WHEREFORE, PREMISES CONSIDERED, Counsel on appeal prays
that this Court accept this frivolous brief and itself examine the record for
reversible error as required by Anders v. State, supra; Stafford v. State, 813
S.W.2d 503 (Tex. Crim. App. 1991); and Bledsoe v. State, 178 S.W.3d 824
(Tex. Crim. App. 2005).
Counsel has written appellant advising him of his right to examine a
copy of the Appellate Record and to file a brief on his own behalf in
accordance with Anders v. California, supra. See: Garner v. State, 300
c:\appeals\barran\friv. brief 15
S.W.3d 763 (Tex.Crim.App. 2009). In that letter, counsel has advised
appellant of his right to submit a Petition for Discretionary Review by the Court
of Criminal Appeals in the event the Court of Appeals affirms the conviction.
A copy of that letter is attached and incorporated herein by reference as
Exhibit “A.”
Respectfully submitted,
/s/ Allen C. Isbell
ALLEN C. ISBELL
2016 Main St., Suite 110
Houston, Texas 77002
713/236-1000
Fax No.: 713/236-1809
STATE BAR NO. 10431500
email: allenisbell@sbcglobal.net
COUNSEL ON APPEAL
Certificate of Service
I hereby certify that on this 13th day of July, 2015, a true and correct
copy of the foregoing brief was sent to the District Attorney's Office, Appellate
Division of Harris County, Texas, and to Mr. Benjamin Robert Barran,
appellant,
/s/ Allen C. Isbell
ALLEN C. ISBELL
c:\appeals\barran\friv. brief 16
Certificate of Compliance
The undersigned attorney on appeal certifies this brief is computer
generated and consists of 3,918 words. Counsel is relying on the word count
provided by the Word Perfect computer software used to prepare the brief.
/s/ Allen C. Isbell
ALLEN C. ISBELL
c:\appeals\barran\friv. brief 17
EXHIBIT “A”
c:\appeals\barran\friv. brief 18
Allen C. Isbell
Attorney at Law
BOARD CERTIFIED CRIMINAL LAW 2016 MAIN ST., SUITE 110
BOARD CERTIFIED CRIMINAL APPELLATE LAW HOUSTON, TEXAS 77002
COLLEGE OF THE STATE BAR, MEMBER (713)236-1000
FAX (713)236-1809
July 13, 2015
Via C.M.R.R.R. #7007 0710 0000 7019 7626
Mr. Benjamin R. Barran
#01995410
Garza West Unit
4250 Hwy. 202
Beeville, Texas 78102-8982
Re: No(s). 14-15-00359-CR; Benjamin Robert Barran vs. State of
Texas; Trial Court No(s). 1401264;
Dear Mr. Barran:
Enclosed is a copy of the “Anders Brief” I filed on your behalf. I could not advance any
arguable grounds for a reversal of your conviction. Please be advised that you have a right
to review the records yourself and to submit a Pro Se Brief on your own behalf.
A pro se brief means a brief you file on your own behalf. Because I could not find any errors
which I could urge to overturn your conviction, you have the right to examine the trial records
and write a brief yourself, if you are able to find any errors.
If you want to review the appellate record and file a Pro Se Brief on your own behalf, I have
enclosed a courtesy “Pro Se Motion for Access to the Appellate Record.” Please sign, date,
and file the original and two (2) copies of the motion with the Fourteenth Court of Appeals,
301 Fannin, Suite 245, Houston, Texas 77002, within ten (10) days from receipt of this letter.
Also, I have requested a (60) day extension of time with the Fourteenth Court of Appeals for
you to have time to prepare and file a Pro Se Brief, should you choose to do so. An original
and one (1) copy of the Pro Se Brief must be filed with the Fourteenth Court of Appeals, 301
Fannin, Suite 245, Houston, Texas 77002.
In the event that the Fourteenth Court of Appeals affirms your conviction, please be advised
that you have the right to submit a Petition for Discretionary Review by the Court of Criminal
Appeals on your own behalf, or to retain other counsel for that purpose. I have attached a
copy of Rule 68 pertaining to the Petition for Discretionary Review. You must file the petition
thirty (30) days from the date the opinion was rendered. An original and eleven (11) copies
of the petition must be filed with the Court of Criminal Appeals, P.O. Box 12308,
Austin, Texas. Please be advised that a copy of the Opinion must be attached to the
original and to each copy of the petition for discretionary review.
Mr. Benjamin R. Barran
Page 02
July 13, 2015
I have also filed a motion to withdraw as the attorney of record. Until the Court of Appeals
grants this motion, I remain your attorney.
Very truly yours,
/s/ Allen C. Isbell
Allen C. Isbell
ACI/mr
ENCLS.:
(1) Brief in Support of the Motion to Withdraw from Frivolous Appeal, (2) Motion to Withdraw from
Frivolous Appeal, (3) Appellant’s Pro Se Motion for Access to Appellate Record, (4) Motion for
Extension of Time for filing Pro Se Brief, (5) T.R.A.P., Rule 68.
cc: Fourteenth Court of Appeals
Exhibit “B”
c:\appeals\barran\motion to withdraw & order 6
Allen C. Isbell
Attorney at Law
BOARD CERTIFIED CRIMINAL LAW 2016 MAIN ST., SUITE 110
BOARD CERTIFIED CRIMINAL APPELLATE LAW HOUSTON, TEXAS 77002
COLLEGE OF THE STATE BAR, MEMBER (713)236-1000
FAX (713)236-1809
July 13, 2015
Via C.M.R.R.R. #7007 0710 0000 7019 7626
Mr. Benjamin R. Barran
#01995410
Garza West Unit
4250 Hwy. 202
Beeville, Texas 78102-8982
Re: No(s). 14-15-00359-CR; Benjamin Robert Barran vs. State of
Texas; Trial Court No(s). 1401264;
Dear Mr. Barran:
Enclosed is a copy of the “Anders Brief” I filed on your behalf. I could not advance any
arguable grounds for a reversal of your conviction. Please be advised that you have a right
to review the records yourself and to submit a Pro Se Brief on your own behalf.
A pro se brief means a brief you file on your own behalf. Because I could not find any errors
which I could urge to overturn your conviction, you have the right to examine the trial records
and write a brief yourself, if you are able to find any errors.
If you want to review the appellate record and file a Pro Se Brief on your own behalf, I have
enclosed a courtesy “Pro Se Motion for Access to the Appellate Record.” Please sign, date,
and file the original and two (2) copies of the motion with the Fourteenth Court of Appeals,
301 Fannin, Suite 245, Houston, Texas 77002, within ten (10) days from receipt of this letter.
Also, I have requested a (60) day extension of time with the Fourteenth Court of Appeals for
you to have time to prepare and file a Pro Se Brief, should you choose to do so. An original
and one (1) copy of the Pro Se Brief must be filed with the Fourteenth Court of Appeals, 301
Fannin, Suite 245, Houston, Texas 77002.
In the event that the Fourteenth Court of Appeals affirms your conviction, please be advised
that you have the right to submit a Petition for Discretionary Review by the Court of Criminal
Appeals on your own behalf, or to retain other counsel for that purpose. I have attached a
copy of Rule 68 pertaining to the Petition for Discretionary Review. You must file the petition
thirty (30) days from the date the opinion was rendered. An original and eleven (11) copies
of the petition must be filed with the Court of Criminal Appeals, P.O. Box 12308,
Austin, Texas. Please be advised that a copy of the Opinion must be attached to the
original and to each copy of the petition for discretionary review.
Mr. Benjamin R. Barran
Page 02
July 13, 2015
I have also filed a motion to withdraw as the attorney of record. Until the Court of Appeals
grants this motion, I remain your attorney.
Very truly yours,
/s/ Allen C. Isbell
Allen C. Isbell
ACI/mr
ENCLS.:
(1) Brief in Support of the Motion to Withdraw from Frivolous Appeal, (2) Motion to Withdraw from
Frivolous Appeal, (3) Appellant’s Pro Se Motion for Access to Appellate Record, (4) Motion for
Extension of Time for filing Pro Se Brief, (5) T.R.A.P., Rule 68.
cc: Fourteenth Court of Appeals