Johny Ray Hargrove v. State ( 2015 )

ACCEPTED
13-14-00687-CR
FILED THIRTEENTH COURT OF APPEALS
IN THE 13TH COURT OF APPEALS CORPUS CHRISTI, TEXAS
CORPUS CHRISTI - EDINBURG 6/22/2015 5:43:09 PM
CECILE FOY GSANGER
CLERK
6/22/15
Appellate Cause No. 13-14-00687-CR
CECILE FOY GSANGER, CLERK
BY DTello
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RECEIVED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
IN THE COURT OF APPEALS6/22/2015 5:43:09 PM
THIRTEENTH JUDICIAL DISTRICTCECILE FOY GSANGER
AT CORPUS CHRISTI, TEXAS Clerk
********************************************************
JOHNY RAY HARGROVE,
Appellant.
v.
THE STATE OF TEXAS,
Appellee.
**********************************************************
Appeal from Cause Numbers A-14-5081-2-CR
In the 36th Judicial District Court
of Aransas County, Texas
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AMENDED ANDER’S BRIEF
**********************************************************
CORETTA T. GRAHAM
Attorney at Law
SBN 50511851
Graham Legal Services
3206 Reid Drive, suite 105
Corpus Christi, TX 78404
(361) 723-1530 office
(361) 723-1531 fax
grahamlegalservices@yahoo.com (E-mail)
COUNSEL FOR APPELLANT
pg. 1
IDENTITY OF PARTIES AND COUNSEL
Appellant JOHNY RAY HARGROVE TDC#01973074
TDCJ – WILLACY UNIT
1695 South Buffalo Drive
Raymondville, TX 78580
Counsel for Appellant (Trial) At the Trial, the defendant was represented by:
RICHARD ZAPATA
SBN 24037766
P.O. BOX 867
Sinton, TX 78387
Phone: 361-364-1775
Fax: 361-364-1778
Counsel for Appellant (Appeal) On Appeal, the defendant is represented by:
CORETTA T. GRAHAM
SBN 50511851
3206 Reid Drive Suite 105
Corpus Christi, Texas 78404
Phone: 361-723-1530
Fax: 361-723-1531
Counsel for Appellee The Honorable Michael Welborn
36th Judicial District Attorney Office
PO BOX 1393
Sinton TX 78387
Phone: 361-364-9390
Fax: 361-364-9490
pg. 2
TABLE OF CONTENTS
Item Page
Identity of the Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-6
Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-12
Prayer/Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
pg. 3
INDEX OF AUTHORITIES
United States Supreme Court Cited at Page
Anders v. California, 386 U.S. 738 (1967) 6, 8
Court of Appeals/ Court of Criminal Appeals Cited at Page
Kelly v. State, PD-0702-13, 2014 WL 2865901, at **1–4
(Tex. Crim. App. June 25, 2014) 6, 8
In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008) 8
Hawkins v. State, 112 S.W.3d 340
(Tex. App.—Corpus Christi 2003, no pet.) 9
pg. 4
STATEMENT OF THE CASE
On or about February 29, 2013, Johny Ray Hargrove (“Hargrove”) requested
counsel per inmate request forms. [CR, Pg. 13-14] Defendant was then appointed
counsel. [CR, Pg. 11-12] On May 27, 2014, Hargrove was indicted along with Eric
Ochoa for one count of Possession of Heroin with intent to deliver, a second
degree felony. [CR, Pg. 5-6] On June 24, 2014, Counsel for Hargrove filed several
motions including a motion to suppress evidence and a motion for competency and
insanity evaluations. [CR, Pg. 16-39] Orders for a competency evaluation and for
an insanity evaluation were signed on July 9, 2014. [CR, Pg. 59-60] A psychiatric
(competency) evaluation was completed and submitted to the court on or about
September 23, 2014 [CR, Pg. 46-53] A competency (insanity) evaluation was
completed and submitted to the court on or about September 16, 2014. [CR, Pg.
54-58]
On October 9, 2014, Hargrove with Counsel signed written admonishments,
a judicial confession and stipulations, without a plea agreement with the State of
Texas. [CR, Pg. 61-122] Hargrove entered a plea of guilty. [CR, Pg. 61] Hargrove
applied for deferred adjudication probation [CR, Pg. 123] On or about November
20, 2014, at sentencing, Hargrove’s application for community supervision was
denied and he was given a sentence of ten years at the Texas Department of
pg. 5
Criminal Justice, Institutional Division (“TDC-ID”). [CR, Pg. 129] Also, the trial
court certified Hargrove’s right to appeal. [CR, Pg. 124] A notice of appeal was
filed on November 24, 2014. [CR, Pg. 126] Counsel was appointed for Hargrove’s
appeal. [CR, Pg. 127]
STATEMENT REGARDING ORAL ARGUMENT
I am not requesting oral argument. Further, I have filed a motion to
withdraw as counsel and have filed this brief pursuant to Anders v. California, 386
U.S. 738 (1967) and Kelly v. State, PD-0702-13, 2014 WL 2865901, at **1–4
(Tex. Crim. App. June 25, 2014). After meeting with the appellant, doing careful
study of the record including the competency and insanity evaluations, and
reviewing the applicable law, I believe that this case presents no appealable issues.
ISSUES PRESENTED
My review of the record reveals no issues which can be advanced in good
faith. Any arguable points that could exist were waived by Hargrove during his
open plea agreement. Thus, the questions raised in this Anders appeal are:
I. Whether the trial court committed reversible error with Hargrove’s
plea?; and
II. Whether the trial court committed reversible error with Hargrove’s
sentence?
pg. 6
STATEMENT OF FACTS
On October 9, 2014, a hearing was held to consider Hargrove’s plea. [RR
Vol. 2, Pg. 1 Ln 15-23] The court confirmed Hargrove’s identity and reviewed the
range of punishment. [RR Vol 2, Pg. 2 Ln 10-20] The court considered Hargrove’s
competency to enter a plea. [RR Vol. 2, Pg. 4 Ln 1-25] Without objection from
defense counsel, Hargrove was found competent to proceed with his plea. [RR
Vol.2 Pg. 5 Ln 1-6] The court reviewed the waiver of rights form, and the “court’s
written admonishments” form; and Hargrove waived his right to a jury trial. [RR
Vol.2, Pg. 5 Ln 4-25] Then Hargrove was asked about the stipulation and judicial
confession that he signed. [RR Vol. 2, Pg. 6 Ln 9-25] Hargrove acknowledged that
he signed the documents to admit his guilt. [RR Vol. 2, Pg. 7 Ln 9-11]
Hargrove also pled guilty in open court. [RR Vol. 2, Pg. 7 Ln 17-18] The
court reviewed the voluntariness of his plea. [RR Vol. 2, Pg. 7 Ln 19-23] The court
acknowledged his application for community supervision as part of an open plea to
the court. [RR Vol. 2, Pg. 8 Ln 5-16] The case was set for a sentencing on
November 20, 2014. [RR Vol. 2, Pg. 8 Ln 23-24] On November 20, 2014, after
hearing testimony, the trial court sentenced Hargrove to ten years TDC-ID. [CR
Pg. 136] This Anders appeal arises from Hargrove’s plea and/or the subsequent
sentencing.
pg. 7
SUMMARY OF THE ARGUMENT
I have submitted this brief in accordance with Anders v. California, 386 U.S.
738 (1967) and Kelly v. State, PD-0702-13, 2014 WL 2865901, at **1–4 (Tex.
Crim. App. June 25, 2014). After having carefully examined this record and after
having researched relevant case law, I have concluded that Hargrove’s appeal
concerning the involuntariness of his plea cannot be substantiated. Therefore, I
request the Court's permission to withdraw as attorney of record and to allow
Appellant Johny Ray Hargrove to file any further briefs he deems necessary.
ARGUMENT
I. Whether the trial court committed reversible error with Hargrove’s plea?
Analysis
Pursuant to Anders v. California, 386 U.S. at 744, and Kelly v. State, PD-
0702-13, 2014 WL 2865901, at **1–4, the Court must evaluate whether Counsel’s
brief meets the requirements of Anders as it presents a professional evaluation
demonstrating why there are no arguable grounds to advance on appeal. See In re
Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (“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
pg. 8
set out pertinent legal authorities.”) (citing Hawkins v. State, 112 S.W.3d 340, 343-
44 (Tex. App.—Corpus Christi 2003, no pet.));
Appellate counsel has reviewed the court records in detail concerning
Hargrove’s assertions that his plea was involuntary, and counsel has identified no
action or inaction on the district court’s part or defense counsel’s part that would
suggest harmful or reversible error. This case is pending in this Thirteenth Court of
Appeals from the 36th Judicial District Court in Aransas County, Texas. Counsel
has not identified any aspect of the plea hearing that would suggest Hargrove’s
plea was involuntary. In fact, the record affirmatively suggests Hargrove was
evaluated for competency and evaluated for insanity prior to the plea hearing. [CR,
Pg. 46-58] At the hearing, the trial court reviewed the issue of competency. [RR
Vol. 2 Pg. 4 Ln 2-25] Hargrove’s plea of guilty was voluntarily made. [RR Vol. 2
Pg. 7 Ln 17-18] Counsel on appeal has reviewed the appellant records concerning
Hargrove’s plea as follows:
GUILTY PLEA REVIEW
I. Sufficiency of the indictment or misdemeanor information - CR, Pg. 5
II. Any adverse pretrial rulings, including but not limited to rulings on motions to
suppress, motions to quash, and motions for speedy trial – No adverse pretrial
ruling exist; Motion to Suppress filed but waived; An order granting competency
and insanity evaluation granted – CR, Pg.59-60
pg. 9
III. Advising of the Defendant with written Admonishments in compliance with
Texas Code of Criminal Procedure 26.13
(A) risk of perjury CR, Pg. 115
(B) right to plead not guilty CR, Pg. 116
(C) right to a jury trial CR, Pg. 116
(D) right to counsel at trial and every other stage CR, Pg. 116
(E) the range punishment range TCCP 26.13(a)(1) CR, Pg. 115, 121
(F) nature of the charge CR, Pg. 115
(G) recommendation of punishment not binding on the court CR, Pg. 115
TCCP 26.13 (a)(2)
(H) if punishment does not exceed plea bargain, trial court CR, Pg. 116, 117,
must give permission to appeal. TCCP 26.13 (a)(3) 119
(I) admonishment on effect of plea on citizenship TCCP CR, Pg. 116
26.13(a)(4)
(J) no plea accept unless defendant is mentally competent to CR, Pg. 116, 118
accept plea TCCP 26.13 (b)
(K) court compliance with review of written CR, Pg. 120
admonishments for defendant TCCP 26.13 (c & d)
(L) inquire into victim statement (if applicable) TCCP N/A
26.13(e) (1) N/A
(M) inquiry into notice to victim (if applicable) TCCP 26.13
(e) (2) N/A
(N) inquiry on registration requirement of Chapter 62 (if
applicable) TCCP 26.13 (a)(5) & (h)
IV. Trial Court proceedings
(A) Whether the issue of competency was raised prior to RR Vol. 2 Pg. 4 Ln
sentencing; inquiry into a plea bargain. 2-25
(B) defendant’s waiver of trial rights RR Vol 2 Pg.5 Ln
23-25; Pg. 6 Ln 1-5
(C) nature of the charge RR Vol 2 Pg. 3
Ln10-12
(D) Whether appellant was mentally competent when the RR Vol. 2, Pg. 4 Ln
court accepted the plea 1-25
pg. 10
(E) the range punishment range RR Vol 2 Pg. 3
Ln14-20
(F) applicable fines CR, Pg. 125
(G) any applicable forfeiture N/A
(H) any applicable restitution RR Vol 2 Pg.8 Ln 1-
5
V. Voluntariness of Plea RR Vol 2 Pg. 7 Ln
15-23
VI. Any adverse rulings during the sentencing hearing on objections or motions -
none
VII. Any failure on the part of appellant's trial counsel to object to fundamental
error. - none
VIII. Whether the sentence imposed was within the applicable range of
punishment. CR, Pg. 129, 136
IX. Factual Basis for the Plea CR, Pg. 88-89
X. Judicial Consideration of Plea Agreement (advisory to defendant on the type
of plea considered) - court informed appellant on open plea. RR Vol 2 Pg.5 Ln 5
XI. Accepting Plea Agreement (informing defendant that, toRR Vol 2 Pg.6 Ln 8-
the extent agreement is of specified type, the agreed10; Pg. 7 Ln 9-16;
disposition will be in the judgment) Pg. 7 Ln 24-25
XII. Whether the written judgment accurately reflects the sentence that was
imposed and whether any credit was properly applied. CR, Pg. 129-132
XIII. Whether the appellant was denied effective assistance of counsel. - No
evidence found on ineffective assistance of counsel.
II. Whether the trial court committed reversible error with Hargrove’s
sentence?
Analysis
Appellate counsel has reviewed the court records for Hargrove’s sentencing
and has detected no error, clear or harmless. In this cause, Hargrove was indicted
pg. 11
on a second degree felony. [RR Vol. 2 Pg. 3 Ln 10-14] The range of punishment
for second degree felony is two years up to twenty years in the Institutional
Division of the Texas Department of Criminal Justice. [CR, Pg. 121] Hargrove
submitted an application for community supervision as part of an open plea to the
court with his trial counsel. [RR Vol. 2 Pg. 8 Ln 6-15] A hearing was held and the
trial court imposed a ten year sentence. [CR, Pg. 136] Hargrove was given time
credits toward his sentence. [CR, Pg. 132]
CONCLUSION
In accordance with Anders v. California and Kelly v. State, I have examined
the record for issues which might arguably support an appeal. In my opinion, there
are none. Consequently, I respectfully move to withdraw from this case in
accordance with Anders and ask the Court to rule on this appeal accordingly.
Respectfully submitted,
_/s/Coretta T. Graham____________
CORETTA T. GRAHAM
Attorney at Law
SBN 50511851
Graham Legal Services
3206 Reid Drive, suite 105
Corpus Christi, TX 78404
(361) 723-1530 office
(361) 723-1531 fax
pg. 12
grahamlegalservices@yahoo.com (E-mail)
COUNSEL FOR APPELLANT
CERTIFICATE OF COMPLIANCE
I, CORETTA GRAHAM, certify that there are 2724 words in the document
per the word count of the computer program used to prepare the document.
_/s/Coretta T. Graham____________
CORETTA T. GRAHAM
pg. 13
CERTIFICATE OF SERVICE
I, CORETTA GRAHAM, certify that, a copy of this Amended Anders brief
for Appellant Johny Ray Hargrove was served upon following parties on or about
June 22, 2015 via fax and certified mail:
The Honorable Michael Welborn
36th Judicial District Attorney Office
PO BOX 1393
Sinton TX 78387
Phone: 361-364-9390
Fax: 361-364-9490
JOHNY RAY HARGROVE TDC#01973074
TDCJ – WILLACY UNIT
1695 South Buffalo Drive
Raymondville, TX 78580
Respectfully Submitted,
_/s/Coretta T. Graham____________
CORETTA T. GRAHAM
Attorney at Law
SBN 50511851
Graham Legal Services
3206 Reid Drive, suite 105
Corpus Christi, TX 78404
(361) 723-1530 office
(361) 723-1531 fax
grahamlegalservices@yahoo.com (E-mail)
COUNSEL FOR APPELLANT
pg. 14