Adeli Medina Carranza v. State ( 2015 )

ACCEPTED
06-15-00138-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
12/14/2015 3:33:49 PM
DEBBIE AUTREY
CLERK
Nos. 06-15-00138-CR; 06-15-00139-CR
FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
12/14/2015 3:33:49 PM
In the DEBBIE AUTREY
Clerk
Sixth Court of Appeals
at Texarkana, Texas
_______________________
Adeli Medina Carranza,
Appellant,
v.
The State of Texas,
Appellee.
_______________________________
On Appeal from the
6th District Court of Lamar County
Hon. William Harris, Presiding
_______________________________
APPELLANT’S BRIEF
(IN ACCORDANCE WITH ANDERS V. CALIRFORNIA)
DON BIARD
STATE BAR NO. 24047755
COUNSEL FOR APPELLANT
ORAL ARGUMENT NOT REQUESTED
PREAMBLE
I have submitted this brief in accordance with Anders v. California, 386 U.S. 738(1967) and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). After having
carefully examined this record and after having researched the relevant issues and
case law, I have concluded that this appeal presents only legally frivolous issues.
Therefore, I request the Court’s permission to withdraw as attorney of record and
to allow Appellant, Adeli Medina Carranza, to file any further briefs he deems
necessary.
1
IDENTITY OF PARTIES AND COUNSEL
Defendant Below
Appellant in this Court
Adeli Medina Carranza
Counsel for Appellant:
Don Biard (on appeal)
State Bar No. 24047755
38 First Northwest
Paris, Texas 75460
Tel: (903)785-1606
Fax: (903)785-7580
David C. Turner, Jr. (at trial)
State Bar No. 20337000
1116 Lamar Avenue
Paris, Texas 75460
Tel: (903)785-8511
Fax: (903)785-8513
Appellee in this Court
The State of Texas
Counsel for Appellee:
Lamar County District and County Attorney’s Office
119 N. Main Street
Paris, Texas 75460
Tel: (903)737-2458
Fax: (903)737-2455
2
TABLE OF CONTENTS
Preamble....................................................................................................................1
Identity of Parties and Counsel……………………..…………………....................2
Table of Contents………………………………..…………………….....................3
Index of Authorities…………………………………………..……….....................4
Statement of the Case………………………………………………........................5
Issues Presented…………………………..………………………….......................5
Procedural History……………………..……………………………....................6-7
Facts……………………………………………….…………………..................8-9
Argument and Authorities………………………………………..…................10-15
Prayer………………………………………….…………………….....................16
Certificate of Service…………………………………………………...................17
Certificate of Compliance with TRAP 9.4(i)(3)......................................................18
3
INDEX OF AUTHORITIES
Caselaw
Anders v. California, 386 U.S. 738 (1967)……………………..………….…...1,16
High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978)……………..………....1,16
Statutes
Tex. Pen. Code §12.42...............................................................................................6
Tex. Pen. Code §46.04 ………………………………………………......................6
Tex. Health & Safety Code §481.115………………………………………………6
Tex. Health & Safety Code §481.134………………………………………………6
Tex. Govt. Code §25.0003.......................................................................................10
Tex. Govt. Code §25.1412.......................................................................................13
Rules of Procedure
Tex. Code Crim. Pro. Art. 26.13……………………………………………….…11
4
STATEMENT OF THE CASE
Nature of the Case: Guilty plea to one charge of Possession of a
Controlled Substance in a Drug Free Zone and one
charge of Unlawful Possession of a Firearm by a
Felon
Trial Court: The Honorable William Harris
6th District Court, Lamar County, Texas
Trial Court Disposition: The trial court accepted Appelant’s guilty plea,
found Appellant guilty of the charged offenses,
and sentenced Appellant to 18 years’
imprisonment.
ISSUES PRESENTED
My review of the record reveals no issues which can be advanced in good faith.
Any arguable points that could exist would arise from Appellant’s guilty plea
and/or his subsequent sentencing. Thus, the questions raised in this Anders appeal
are:
I. Whether the trial court erred in denying Appellant’s request for new trial
counsel?
II. Whether the trial court reversibly erred at Appellant’s guilty plea?
III. Whether the trial court reversibly erred at Appellant’s sentencing?
5
PROCEDURAL HISTORY1
On February 12, 2015, a grand jury indicted Appellant for unlawful
possession of a firearm by a felon, a third degree felony in violation of Texas Penal
Code §46.04.2 On April 5, 2015, a grand jury indicted Appellant for Possession of
Methamphetamine in an amount more than one gram but less than four grams
within 1000 feet of a school, also a third degree felony in violation of Texas Health
and Safety Code §481.115 and §481.134.3 Appellant was also alleged to have been
a repeat offender under the provisions of Texas Penal Code 12.42(b).4
On June 19, 2015, Appellant plead guilty to the charged offenses and pled
true to the drug free zone finding.5 The plea of guilty was made pursuant to a plea
bargain in which the defendant would have the trial judge assess punishment.
There was no cap placed on the permitted punishment.6 On July 8, 2015, a
sentencing hearing was held and the court sentenced Appellant to 10 years’
imprisonment on the unlawful possession of a firearm charge and 18 years’
1
All references to the record on appeal are made in the following manner: CR, pg.# and RR,
pg.#. CR designates the Clerk’s Record and RR designates the Reporter’s Record, followed by
the particular page in that record. CR, Vol. 1, designates the Clerk’s Record in Cause No.
26122. CR, Vol. 2, designates the Clerk’s Record in Cause No. 26186.
2
CR, Vol. 1, pg. 7
3
CR, Vol. 2, pg. 11
4
CR, Vol. 2, pg. 14
5
RR, Vol. 2, pg. 28, 34
6
CR, Vol. 1, pg. 45
6
imprisonment on the possession of methamphetamine charge. The sentences were
ordered to run concurrently.7 Appellant timely filed notice of appeal.8
7
RR, Vol. 3, pg. 116
8
CR, Vol. 1, pg. 69
7
FACTUAL BACKGROUND
In January 2015, Leigh Foreman, a detective with the Paris Police
Department, received information that someone was selling drugs from a room at a
local hotel. That hotel is located near a daycare and preschool as well as an
elementary school.9
On January 19, 2015, Detective Foreman and another detective went to the
hotel to investigate.10 Detective Foreman knocked on the door of the one rooms at
the hotel and found Appellant inside.11 Detective Foreman testified he noticed the
odor of marijuana coming from inside the room.12
Detective Foreman talked to Appellant in the doorway of the room. At some
point, they became engaged in a struggle.13 During the struggle, Foreman noticed
Appellant kept reaching towards a trash can with his right hand.14 Foreman
eventually subdued Appellant.
A search of Appellant’s room uncovered two handguns – a .38 caliber
revolver in a trash can by the door and a .380 semi-automatic handgun in the
9
RR, Vol. 3. Pg. 9-10
10
RR, Vol. 3, pg. 9
11
RR, Vol. 3, pg. 13
12
RR, Vol. 3, pg. 13
13
RR, Vol. 3, pg. 14
14
RR, Vol. 3, pg. 15
8
opposite corner of the room.15 The detectives also found 1.36 grams of
methamphetamine in the room.16
15
RR, Vol. 3, pg. 18
16
RR, Vol. 3, pg. 22
9
SUMMARY OF THE ARGUMENT
Appellate counsel has reviewed the record thoroughly and has failed to
identify any legally non-frivolous issues. The only areas in which arguable issues
could arise would be: (1) the trial court’s denial of Appellant’s request for new
trial counsel; (2) the guilty plea; and (3) the sentencing.
The record does not show that the trial court erred in failing to appoint
Appellant new trial counsel. The record shows the trial court substantially
complied with Tex. Code Crim. Pro. Art. 27.13 and Art. 26.13 when accepting
Appellant’s plea. The trial court also issued a sentence within the permissible
range of punishment, and within the parameters of Appellants’s plea bargain, when
it sentenced Appellant to 18 years’ imprisonment.
10
ARGUMENT
I. Whether the trial court reversibly erred in failing to appoint Appellant a
different attorney?
Analysis
Prior to entering his plea, Appellant asked the trial court to appoint him new
trial counsel.17 The trial court denied this request.
The record contains insufficient evidence to make a good faith argument that
Appellant’s appointed trial counsel was ineffective or that the trial court erred in
failing to appoint Appellant new trial counsel.18
17
RR, Vol. 2, pg. 5
18
RR, Vol. 2, pgs. 5-11
11
II. Whether the trial court reversibly erred in accepting Appellants’s guilty
plea?
Analysis
Appellate counsel has reviewed the record in detail and has identified no
action or inaction on the trial court’s part that suggests harmful error during the
plea admonishments. Nor has counsel identified any aspect of the plea hearing that
would suggest Appellant’s plea was involuntary. In fact, the record shows that
both the trial judge and Appellant’s trial counsel spent considerable time on the
record informing Appellant about the effect of a guilty plea.19 The trial court
fulfilled all of the requirements of Article 26.13 of the Code of Criminal Procedure
when accepting Appellant’s plea. These admonishments were given orally by the
judge. 20 In addition, these admonishments were made in writing and signed by
Appellant and his attorney.21
This Court’s review of the plea hearing will confirm that the trial court
properly inquired into the necessary relevant areas before accepting Appellant’s
plea. If the trial court omitted some necessary admonishments or inquiries, those
omissions were harmless.
19
RR, Vol. 3, pgs. 11-23
20
RR, Vol. 3, pgs. 26-37
21
CR, Vol 1, pgs. 45-56; CR, Vol. 2, pgs. 27-38; also see Tex. Code Crim. Pro. Art. 26.13(d)
12
If a trial court fails to substantially comply with Article 26.13, a harm
analysis is conducted under Tex. R. App. Pro. 44.2(b). Under that analysis, any
error that does not affect the substantial rights of the accused must be disregarded.
Viewed against the backdrop of its more-than-substantial compliance with Article
26.13, the trial court’s actions to do not give rise to any non-frivolous appellate
challenge.
13
III. Whether the trial court reversibly erred at Appellant’s sentencing?
Analysis
a. Jurisdiction of the Trial Court
Appellant’s case was assigned to the 6th District Court. However, his guilty
plea and sentencing hearing were heard by Judge William Harris, presiding judge
of the Lamar County Court at Law.
By statute, the judge of the Lamar County Court at Law has jurisdiction to
accept guilty pleas in all felony cases.22 Further, the judge of the Lamar County
Court at Law may exchange benches with a judge of a district court and act in any
manner pending before the district court.23
b. Disproportionate Sentence
Appellant was sentenced to serve 18 years’ in prison on the possession of
methamphetamine charge and 10 years’ in prison on the unlawful possession of a
firearm charge. The sentences were ordered to run concurrently.
Appellant faced a minimum sentence of 7 years’ imprisonment and a
maximum sentence of 20 years’ imprisonment for the drug charge and 10 years’
imprisonment for the firearm charge. This amounted to an effective maximum
sentence of 30 years’ imprisonment if the maximum punishment had been assessed
on each charge and the sentences had been ordered to run consecutively.
22
Tex. Govt. Code §25.1412(a)(1)(C)
23
Tex. Govt. Code §25.1412(n)
14
The trial court’s sentence of 18 year’s imprisonment fell roughly halfway
between the minimum and maximum possible sentences. There is no evidence that
this sentence exceeds those given for similar crimes in this jurisdiction. Further,
there were several aggravating factors for the trial court to consider including
Appellant’s criminal history, Appellant’s struggle with a police officer during the
arrest, and Appellant’s perceived lack of candor during his testimony.24
Considering all of the above, counsel for Appellant is unable to make a good
faith argument that Appellant’s sentence was excessive on a constitutional
dimension.
24
RR, Vol. 4, pg. 114; RR, Exhibits 8-11
15
PRAYER
In accordance with Anders v. California and High v. State, I have examined
the record for issues which might reasonably support an appeal. In my opinion,
there are none. Consequently, I respectfully move to withdraw from this case in
accordance with Anders and High and ask the Court to rule on this appeal
accordingly.
Respectfully Submitted,
/s/ Don Biard_________________
Don Biard
State Bar No. 24047755
McLaughlin, Hutchison & Biard, LLP
38 First Northwest
Paris, Texas 75460
Tel: (903)785-1606
Fax: (903)785-7580
Counsel for Appellant
16
CERTIFICATE OF SERVICE
I certify that on December 14, 2015 a copy of the foregoing Appellant’s Brief was
served to the following parties by the method indicated below.
/s/ Don Biard //
Don Biard
Via Email and Hand Delivery
Hon. Gary Young
Lamar County District Attorney’s Office
119 N. Main Street
Paris, Texas 75460
Tel: (903)737-2458
Fax: (903)737-2455
Via Certified Mail RRR
Adeli Medina Carrana #02012148
Hutchins Unit
1500 E. Langdon Rd.
Dallas, TX 75241
17
CERTIFICATE OF COMPLIANCE PURSUANT TO TEXAS RULE OF
APPELLATE PROCEDURE 9.4(i)(3)
__________________________________________________________________
TO THE HONORABLE COURT OF APPEALS:
Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,
Counsel for Appellant files this certification that Appellant’s brief is a computer-
generated document that contains 1,980 words. Counsel further certifies that he
relied on the word count of the computer program used to prepare this document.
Respectfully submitted,
/s/ Don Biard //
Don Biard
State Bar No. 24047755
McLaughlin, Hutchison & Biard
38 First Northwest
Paris, Texas 75460
Tel: (903)785-1606
Fax: (903)785-7580
Attorney for Appellant
18