Brittany Michelle Barrett v. State ( 2015 )

ACCEPTED
12-15-00146-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
9/22/2015 3:36:22 PM
Pam Estes
CLERK
ORAL ARGUMENT NOT REQUESTED
NO. 12-15-00146-CR FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
IN THE COURT OF APPEALS 9/22/2015 3:36:22 PM
12TH JUDICIAL DISTRICT PAM ESTES
Clerk
TYLER, TEXAS
BRITTANY BARRETT,
APPELLANT
VS.
THE STATE OF TEXAS,
APPELLEE
ON APPEAL IN CAUSE NUMBER 114-0874-12
FROM THE 114TH JUDICIAL DISTRICT COURT
OF SMITH COUNTY, TEXAS
HONORABLE CHRISTI KENNEDY, JUDGE PRESIDING
APPELLANT’S BRIEF
JAMES W. HUGGLER, JR.
100 E. FERGUSON, SUITE 805
TYLER, TEXAS 75702
903-593-2400
STATE BAR NUMBER 00795437
ATTORNEY FOR APPELLANT
IDENTITY OF PARTIES AND COUNSEL
APPELLANT:
Brittany Barrett
APPELLANT’S TRIAL COUNSEL:
Walter Nicholson
PO Box 1811
901 North Perry
Palestine, Texas 75802
903-729-5400
Brent Ratekin
422 S. Spring
Tyler, Texas 75702
903-595-1516
Norman Ladd
235 S. Broadway, Suite 200
Tyler, Texas 75702
903-705-7211
APPELLANT’S APPELLATE COUNSEL
James Huggler
100 E. Ferguson, Suite 805
Tyler, Texas 75702
903-593-2400
903-593-3830 (fax)
APPELLEE
The State of Texas
APPELLEE’S TRIAL COUNSEL
Jacob Putman
Whitney Tharpe
Chris Gatewood
Smith County Criminal District Attorney’s Office
ii
100 N. Broadway, 4th Floor
Tyler, Texas 75702
903-590-1720
903-590-1719 (fax)
APPELLEE’S APPELLATE COUNSEL
Michael West
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702
903-590-1720
903-590-1719 (fax)
iii
TABLE OF CONTENTS
PAGE
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
PROFESSIONAL EVALUATION OF THE RECORD. . . . . . . . . . . . . . . 4
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
iv
TABLE OF AUTHORITIES
CONST.
TEX. CONST. art. V, § 12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
STATUTES
TEX. CODE CRIM. PROC. ANN. art. 4.05 (West 2011). . . . . . . . . . . . . . . . 5
TEX. PENAL CODE ANN. § 12.33 (West 2011).. . . . . . . . . . . . . . . . . . . . . . 6
Tex. Penal Code Ann. §22.01(a)(2) (West 2011). . . . . . . . . . . . . . . . . . . . 3
TEX. PENAL CODE ANN. § 22.02 (West 2011).. . . . . . . . . . . . . . . . . . . . 1, 3
CASES
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396,
18 L. Ed. 2d 493 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Bray v. State, 179 S.W.3d 725 (Tex. App.– Fort Worth 2005, no pet.). . 6
Duron v. State, 956 S.W.2d 547 (Tex. Crim. App. 1997). . . . . . . . . . . . . 5
Mays v. State, 904 S.W.2d 920 (Tex. App. – Fort Worth 1995, no pet.). 5
Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991).. . . . . . . . . . . 7
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999).. . . . . . . . . . . 7
RULES
Tex. R. App. P. 9.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
TEX. R. APP. P. 38.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4
v
NO. 12-15-00146-CR
BRITTANY BARRETT, ,§ IN THE COURT OF APPEALS
APPELLANT §
§
VS. § 12TH JUDICIAL DISTRICT
§
THE STATE OF TEXAS, §
APPELLEE § TYLER, TEXAS
APPELLANT’S BRIEF
TO THE HONORABLE COURT OF APPEALS AND THE JUSTICES
THEREOF:
Comes now Brittany Barrett (“Appellant”), by and through her
attorney of record, James Huggler, and pursuant to the provisions of TEX.
R. APP. PROC. 38, et seq., respectfully submits this brief on appeal.
STATEMENT OF THE CASE
Appellant was charged by felony indictment in Smith County cause
number 114-0874-12 with the felony offense of aggravated arrest. TEX.
1
PENAL CODE ANN. §22.02 (West 2011). I CR 11. This is one of three cases
which all occurred at the same time and have been given sequential cause
numbers by both the trial court and this Court. Following a plea
agreement, the court placed Ms. Barrett on ten years deferred
adjudication supervision. I CR 32-33, 40; III RR 12-13.2 Timely notice of
appeal was filed on June 2, 2015. I CR 84. A First Amended Application
to Proceed to Final Adjudication was filed. I CR 67-71. Ms. Barrett
entered a plea of true to each allegation. I CR 77; VI RR 12-17. Following
evidence and argument, the trial court proceeded to final adjudication,
found Ms. Barrett guilty of the offense. VI RR 61-62. Following
argument, the court assessed a fifteen year sentence in this case. VI RR
65. This brief is timely filed on or before September 23, 2015.
ISSUES PRESENTED
None
1
References to the Clerk’s Record are made using “CR” with a roman numeral preceding “CR”
designating the correct volume and an arabic numeral following specifying the correct page.
2
References to the Reporter’s Record are made using “RR” with a roman numeral preceding
designating the volume and an arabic numeral following designating the correct page.
2
STATEMENT OF THE FACTS
Appellant was charged by felony indictment in Smith County cause
number 114-0874-12 and charged with the felony offense of aggravated
assault. TEX. PENAL CODE ANN. §22.02(a)(2) and 22.01 (a)(2) (West 2011);
I CR 1. The indictment alleged that Ms. Barrett committed an aggravated
assault against Terrence Brown on May 14, 2012 by striking him with a
motor vehicle while using or exhibiting a deadly weapon. I CR 1.
Ms. Barrett entered a plea of guilty, pursuant to an agreement to
receive ten years deferred adjudication supervision. I CR 40; II RR 17.
The court accepted the plea agreement. III RR 12-13. The State filed an
amended application to proceed to final adjudication alleging a total of
eight paragraphs. I CR 67-71. Ms. Barrett entered a plea of true to each
paragraph. I CR 77; VI RR 12-17. Following evidence and argument of
counsel, the court found Ms. Barrett guilty of the offense. VI RR 61-62.
Following argument, the court imposed a fifteen year sentence with no
fine. VI RR 65; I CR 73-74. This appeal follows.
3
SUMMARY OF ARGUMENT
Counsel has reviewed the record and has concluded that, in his
professional opinion, the record contains no reversible error or
jurisdictional defects. Anders v. California, 386 U.S. 738, 744, 87 S. Ct.
1396, 1400, 18 L. Ed. 2d 493 (1967). Thus, counsel must move for leave
to withdraw from the case.
ARGUMENT
There is no argument to present to this Court; however, Counsel has
included this section to strictly comply with Texas Rule of Appellate
Procedure 38. Counsel has reviewed the record and has concluded that,
in his professional opinion, the record contains no reversible error or
jurisdictional defects. Anders v. California, 386 U.S. 738, 744, 87 S. Ct.
1396, 1400, 18 L. Ed. 2d 493 (1967). Therefore, counsel is including the
following explanatory section.
PROFESSIONAL EVALUATION OF THE RECORD
When counsel contends that there are no arguable grounds for
4
reversal on appeal, counsel is required to present a professional
evaluation of the record supporting this assertion. See Mays v. State, 904
S.W.2d 920, 922-23 (Tex. App. – Fort Worth 1995, no pet.)
The indictment conferred jurisdiction on the trial court and provided
Appellant with sufficient notice of the charged offense. See TEX. CONST.
art. V, § 12; Duron v. State, 956 S.W.2d 547, 550-51 (Tex. Crim. App.
1997). The trial court has jurisdiction over the case. See TEX. CODE
CRIM. PROC. ANN. Art. 4.05 (West 2011) (stating that district courts shall
have original jurisdiction in felony criminal cases).
Appellant's attorney confirmed that he was satisfied that Appellant
was competent and the State offered no evidence regarding competency.
III RR 15. Ms. Barrett was correctly admonished as to the punishment
range. III RR 8; I CR 41. She was admonished as to the effects a guilty
plea may have regarding any immigration status. III RR 8.
Counsel has found no error occurring in the final hearing and
assessment of punishment. At the sentencing hearing, the trial court
sentenced Appellant to fifteen years confinement. VI RR 65; I CR 73-74.
The sentence assessed by the trial court is within the punishment range
5
provided for by law. See TEX. PENAL CODE ANN. § 12.33 (West 2011).
Moreover, the judgment does not contain any improper assessment
of fees. See Bray v. State, 179 S.W.3d 725 (Tex. App.--Fort Worth 2005, no
pet.). The bill of costs prepared appears to be accurate and matches the
judgment. I CR 82, 73-74. Because the sentence was within the range of
punishment for a second degree felony, there was no reversible error
during the punishment phase.
Finally, the undersigned has reviewed the record and found no
arguable ground for ineffective assistance of counsel. Counsel is strongly
presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment. Strickland
v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674
(1984).
Upon review of the PSI by the trial court, the trial court was of the
opinion that deferred was not appropriate in these cases. III RR 4. Mr.
Nicholson was able to argue effectively for the court to allow Ms. Barrett
the opportunity for the deferred. III RR 9-10. He also sought a transfer
of supervision to Anderson County, and voiced his concerns when the
6
court refused that request. III RR 14, 16-17. Ms. Barrett expresses no
dissatisfaction with Mr. Nicholson. III RR 20.
Mr. Nicholson’s concerns at the original sentencing were proven
correct at a later hearing on January 30, 2015. IV RR 4-5. Mr. Ratekin
was appointed to represent Ms. Barrett and argued successfully for the
same transfer Mr. Nicholson had sought on September 5, 2012. IV RR 6.
At the final application to revoke hearing, Mr. Ladd effectively
argued for Ms. Barrett. He was able to cross-examine the witnesses
thoroughly. Ms. Barrett received a fifteen year sentence when the State
sought a seventeen year sentence. VI RR 63. Considering the totality of
the representation of Appellant's trial counsels, the record contains
nothing that would indicate that any counsel's performance was deficient.
See id. at 687, 104 S. Ct. at 2064; Thompson v. State, 9 S.W.3d 808, 812
(Tex. Crim. App. 1999).
CONCLUSION
Since counsel is unable to raise any arguable issues for appeal, he
is required to move for leave to withdraw. See Stafford v. State, 813
7
S.W.2d 503 (Tex. Crim. App. 1991).
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Counsel respectfully
prays that this Court permit him to withdraw after this Court’s own
examination of the record in this cause and to afford Appellant his right
to file any pro se brief that he may wish to file.
Respectfully submitted,
/s/ James Huggler
James W. Huggler, Jr.
State Bar Number 00795437
100 E. Ferguson, Suite 805
Tyler, Texas 75702
903-593-2400
903-593-3830 fax
ATTORNEY FOR APPELLANT
8
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing Brief of the Appellant has been
forwarded to counsel for the State by electronic filing on this the 22nd day
of September, 2015. And by regular mail to Ms. Barrett at the address
below.
Attorney for the State:
Mr. Mike West
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702
Ms. Brittany Barrett
TDCJ 02002124
Lockhart Unit
PO Box 1170
Lockhart, Texas 78644
CERTIFICATE OF COMPLIANCE
I certify that this Brief complies with Tex. R. App. P. 9.4, specifically
using 14 point Century font and contains 1,786 words as counted by
Corel WordPerfect version x6.
/s/ James Huggler
James W. Huggler, Jr.
9