Hung Le v. State ( 2015 )

ACCEPTED
01-14-01019-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
7/8/2015 7:18:20 PM
CHRISTOPHER PRINE
CLERK
No. 01-14-01019-CR
__________________________________________________________________
FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS
FOR THE 7/8/2015 7:18:20 PM
FIRST SUPREME JUDICIAL DISTRICT CHRISTOPHER A. PRINE
Clerk
AT HOUSTON
__________________________________________________________________
HUNG LE § APPELLANT
V. §
STATE OF TEXAS § APPELLEE
__________________________________________________________________
On Appeal in Cause 1398928 from the 232nd District Court of Harris County,
Texas
_________________________________________________________________
BRIEF OF APPELLANT
__________________________________________________________________
J. Sidney Crowley
214 Morton St.
Richmond, Texas 77469
(281)232-8332
TBC No. 05170200
ATTORNEY FOR APPELLANT
INTERESTED PARTIES
APPELLANT
Hung Le
Texas Department of Criminal Justice
Correctional Division
TRIAL JUDGE
Hon. Mary Lou Keel
232nd District Court
of Harris County
TRIAL COUNSEL
Samuel Adamo
3200 Travis, Fourth floor
Houston, Texas 77002
APPELLATE COUNSEL
J. Sidney Crowley
214 Morton St.
Richmond, Texas, 77469
STATE OF TEXAS
Devon Anderson
District Attorney, Harris County
1201 Franklin St.
Houston, Texas 77002
Markay Stroud
Assistant District Attorney
Harris County
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TABLE OF CONTENTS
LIST OF INTERESTED PARTIES ..........................................................................2
INDEX OF AUTHORITIES......................................................................................4
STATEMENT OF THE CASE..................................................................................5
POSSIBLE POINTS OF ERROR.............................................................................6
STATEMENT OF FACTS........................................................................................7
SUMMARY OF THE ARGUMENT........................................................................9
POSSIBLE POINT OF ERROR ONE
The trial court reversibly erred in failing to comply with the
requirements of TEX.CODE CRIM.PROC., art. 26.13...............................10
CERTIFICATE REGARDING FRIVOLOUS APPEAL........................................10
CONCLUSION........................................................................................................11
NOTICE TO APPELLANT.....................................................................................11
PRAYER..................................................................................................................12
CERTIFICATE OF COMPLIANCE.......................................................................13
CERTIFICATE OF SERVICE................................................................................13
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INDEX OF AUTHORITIES
Statutes
TEX. CODE CRIM. PROC., art. 26.13............................................................7,9,10
Cases
Anders v. California, 386 U.S. 738, 87 S.Ct., 1396 (1967)...................................5,9
Gomez v. State, 921 S.W.2d 329 (Tex.App.-Corpus Christi 1996).......................10
Lindsey v. State, 902 S.W.2d 9, 11 (Tex.App-Corpus Christi 1995).....................10
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TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
Appellant, Hung Le, by and through his attorney, J. SIDNEY CROWLEY,
submits this frivolous appeal brief pursuant to Anders v. California, 386 U.S. 738,
87 S. Ct. 1396 (1967).
STATEMENT OF THE CASE
Appellant, charged by indictment with the felony offense of aggravated assault
on a public servant, entered a plea of guilty to the trial court. The court sentenced
Appellant to confinement in the Texas Department of Corrections, Correctional
Division, for life.
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POSSIBLE POINT OF ERROR
POSSIBLE POINT OF ERROR ONE
The trial court reversibly erred in failing to comply with the requirements of
TEX.CODE CRIM.PROC., art. 26.13 when it accepted Appellant’s plea of guilty.
.
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STATEMENT OF FACTS
POSSIBLE POINT OF ERROR 0NE
Appellant was charged by indictment with the offense of aggravated assault on
a public servant. Appellant entered a plea of guilty without an agreed
recommendation from the state and requested the preparation of a presentence
investigation report. Prior to the plea, Appellant filed a document entitled “Waiver
of rights, agreement to stipulate and judicial confession” signed by the attorney for
the state, Appellant’s attorney, and Appellant himself (CR-1602). In it, Appellant
waived the right of trial by jury, the right to confront the witnesses and his right
against self-incrimination. Appellant also judicially confessed to having committed
the offense as alleged in the indictment.
A set of separate set of written admonishments, initialed and signed by
Appellant, the prosecutor and defense counsel was also executed (CR-1604). The
admonishments are those set forth in TEX. CODE CRIM. PROC., art. 26.13. The
trial court also orally admonished Appellant (RR-2). The Court inquired whether
Appellant had been forced to plead guilty or had been promised anything, to which
Appellant responded in the negative. The court orally admonished Appellant on the
correct range of punishment for the offense (RR-2, p. 4). The court informed him that
he could possibly receive probation but also that the court could very well sentence
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him to life in prison (RR-2, p. 4). The Court asked if he had understood the paper
work and Appellant replied in the affirmative. The court then recessed the
proceedings and ordered the preparation of a presentence report.
The court conducted a sentencing hearing 3 months later when the presentence
report was ready. The state introduced numerous medical records and a video tape.
Appellant’s sister testified concerning his history. At the close of the hearing the
court found Appellant guilty and sentenced him to confinement for life in the
Institutional Division.
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SUMMARY OF THE ARGUMENT
POSSIBLE POINT OF ERROR ONE
Appellant signed a long series of written admonishments, which satisfied
the requirements of article 26.13. In addition he was orally admonished by the
trial court.
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POSSIBLE POINT OF ERROR ONE
The trial court reversibly erred in failing to comply with the requirements of
TEX. CODE CRIM. PROC., art. 26.13 when it accepted Appellant’s plea of guilty.
Argument and Authorities
Before accepting a plea of guilty the trial court must admonish the defendant
in accord with the requirements of article 26.13. The admonishments may be orally
or in writing. Gomez v. State, 921 S.W.2d 329 (Tex.App.-Corpus Christi, 1996). If
the trial court admonishes the defendant in writing instead of orally, the court must
receive a statement signed by the defendant and his attorney that he understands the
admonishments and is aware of the consequences of his plea. Lindsey v. State, 902
S.W.2d 9,11 (Tex.App.-Corpus Christi 1995). The trial record contains such a signed
statement. The trial court fully complied with all of the statutory requisites in
accepting Appellant’s plea. Appellant was also admonished orally by the trial court.
In addition Appellant was sentenced within the permissible range of punishment for
the offense of aggravated assault on a public servant.
CERTIFICATE REGARDING FRIVOLOUS APPEAL
In compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967),
counsel has conscientiously reviewed the entire Clerk’s and Reporters record from
the proceedings below, has thoroughly researched the law, and has exercised
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judgment in identifying the arguments that may be advanced on appeal. In searching
for the strongest arguments available, counsel resolved all doubts and legal questions
in Appellant’s favor. The only theories that counsel could discover after his
conscientious review of the record and the law were arguments that lacked any merit
and that could not conceivably persuade this Court to reverse Appellant’s judgment
of conviction. Therefore counsel is of the opinion that the appeal is “frivolous”.
Accordingly counsel is filing this brief with reference to anything that might
“arguably support the appeal”. Id., at 744, 87 S.Ct., at 1400.
A copy of this brief has been forwarded to Appellant. Pursuant to Anders,
counsel has advised Appellant that he has the right to file a pro se brief raising any
other additional points that he chooses.
CONCLUSION
Appellate counsel has examined the entire record, and in his opinion, this
appeal is frivolous. In addition, he has mailed a copy of the brief to Appellant.
NOTICE TO APPELLANT
I have made a thorough and conscientious review of the record and the law in
your case. After searching for the strongest arguments available and resolving all
doubts and ambiguous legal questions in your favor, the only theories that I can
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discover are arguments that cannot conceivably persuade an appellate court to reverse
the judgment.
You have a right of access to the record and the right to file a brief on your own
behalf at the Court of Appeals. The address of the Court of Appeals is:
Clerk, First Court of Appeals
301 Fannin St,
Houston, Texas 77002
You may request access to the record by filing a request with the First Court of
Appeals at the above address. A form for obtaining the record will be sent to you.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays that this
Court accept this brief, that the Court conduct an independent examination of the
record in the instant case, and that it take appropriate action.
Respectfully submitted,
/s/ J. SIDNEY CROWLEY
214 Morton St.
Richmond, Tx. 77469
281-232-8332
TBC 05170200
Attorney for Appellant
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CERTIFICATE OF COMPLIANCE
The foregoing instrument consists of 1306 words, computer generated.
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing instrument was e-served
on the Appellate Division, Harris County District Attorney’s Office, Houston,
Texas and mailed to Hung Le, TDCJ-ID No. 01966229, Michael Unit, 2664 FM
2054, Tennessee Colony, Texas 75886, this the 9th day of July, 2015.
/s/ J. Sidney Crowley
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