Christopher Anthony Davidson v. State ( 2015 )

ACCEPTED
06-15-00065-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
7/2/2015 4:51:14 PM
DEBBIE AUTREY
CLERK
NOS. 06-15-00065-CR; 06-15-00066-CR; 06-15-00071-CR
FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
IN THE COURT OF APPEALS 7/7/2015 4:17:00 PM
SIXTH DISTRICT OF TEXAS DEBBIE AUTREY
AT TEXARKANA Clerk
CHRISTOPHER ANTHONY DAVIDSON
APPELLANT
v.
THE STATE OF TEXAS,
APPELLEE
On Appeal from the 196th Judicial District Court
Of Hunt County, Texas
Trial Court Cause Nos. 29,694; 29,922; and 30,032
Hon. J. Andrew Bench, Judge Presiding
ANDERS BRIEF IN SUPPORT OF MOTION TO WITHDRAW
Katherine A. Ferguson (SBN 06918050)
Renshaw, Davis & Ferguson, L.L.P.
2900 Lee Street, Suite 102
P.O. Box 21
Greenville, Texas 75403-0021
Telephone: (903) 454-6050
Facsimile: (903) 454-4898
Email: rdflawoffice@yahoo.com
ORAL ARGUMENT NOT REQUESTED
IDENTITIES OF PARTIES AND COUNSEL
Appellant: CHRISTOPHER ANTHONY
DAVIDSON
Defense Counsel at Trial: D. Keith Willeford, Esq.
Law Offices of Keith Willeford
P.O. Box 11
2615 Lee Street
Greenville, Texas 75403
Appellant’s Attorney on Appeal: Katherine A. Ferguson
Renshaw, Davis & Ferguson, L.L.P.
2900 Lee Street, Suite 102
P.O. Box 21
Greenville, Texas 75403-0021
Appellee’s Attorney at Trial: Calvin Grogan
Assistant District Attorney
Hunt Co. District Attorney
P.O. Box 441
Greenville, Texas 75403-0441
Appellee’s Attorney on Appeal: Calvin Grogan
Assistant District Attorney
Hunt Co. District Attorney
P.O. Box 441
Greenville, Texas 75403-0441
Trial Judge: Hon. J. Andrew Bench
196th Judicial District Court
P.O. Box 1097
Greenville, Texas 75403-1097
TABLE OF CONTENTS
Identity of the Parties and Counsel ............................................................................ii
Table of Contents .......................................................................................................ii
Index of Authorities ..................................................................................................iii
Statement of the Case ................................................................................................ 1
Certificate of Counsel .............................. …………………………………………2
Special Statement to the Court .................................................................................. 3
Statement of the Facts ................................................................................................ 4
Issues and Authorities ................................................................................................ 7
Indictment and Jurisdiction ......................................................................... 7
Assistance of Counsel .................................................................................... 8
Competence .................................................................................................... 8
Limitations ..................................................................................................... 9
Jeopardy ....................................................................................................... 10
Presence of Defendant ................................................................................. 10
Presentence Investigation ........................................................................... 10
Punishment ................................................................................................... 10
Back Time ..................................................................................................... 11
Written Judgment ....................................................................................... 12
Sentencing Procedure: Allocution ............................................................ 12
Finger Prints ................................................................................................ 12
Summary ...................................................................................................... 13
Prayer ....................................................................................................................... 13
Certificate of Service .............................................................................................. 14
Certificate of Compliance with Rule 9.4 ................................................................. 14
INDEX OF AUTHORITIES
FEDERAL CASES:
Anders v. California, 386 U.S. 738, (1967) ............................................................... 2
Strickland v. Washington, 466 U.S. 668 (1984) ........................................................ 8
STATE CASES:
Fluellen v. State, 71 S.W.3d 870(Tex. App.-Texarkana 2002, pet. ref'd) ............... 11
Gainous v. State, 436 S.W.2d 137, (Tex. Crim. App. 1969) ..................................... 2
Hidalgo v. State, 983 S.W.2d 746, (Tex. Crim. App. 1999) ..................................... 8
Howlett v. State, 994 S.W.2d 663 (Tex. Crim. App. 1999) ..................................... 10
Jackson v. State, 989 S.W.2d 842, (Tex. App.-Texarkana 1999, no pet.) .............. 11
Jordan v. State, 495 S.W.2d 949 (Tex. Crim.App.1973) ........................................ 11
Latham v. State, 20 S.W.3d 63(Tex. App.-Texarkana 2000, pet. ref'd) .................. 11
McGowin v. State, 912 S.W.2d 837(Tex. App.—Dallas1995, no pet)...................... 9
Mizell v. State, 119 S.W.3d 804 (Tex. Crim. App. 2003) ....................................... 10
Proctor v. State, 967 S.W.2d 840 (Tex. Crim. App. 1998) ..................................... 10
Studer v. State, 799 S.W.2d 263 (Tex. Crim. App. 1989) ......................................... 7
STATE STATUTES:
TEX. CODE CRIM. PRO. ANN. ART. 1.14(b)................................................................. 7
TEX. CODE CRIM. PRO. ANN. ART 12.01(4)................................................................ 9
TEX. CODE CRIM. PRO. ANN. ART. 12.01(7) .............................................................. 9
TEX. CODE CRIM. PRO. ANN. ART 37.06. ................................................................. 10
TEX. CODE CRIM. PRO. ANN. ART 42.01 .................................................................. 12
TEX. CODE CRIM. PRO. ANN. ART 42.03. ................................................................. 12
TEX. CODE CRIM. PRO. ANN. ART.42.07. ................................................................. 12
TEX. CODE CRIM. PRO. ANN. ART 42.12 sec. 9(g) ................................................... 10
TEX. CODE CRIM. PRO. ANN. ART 46B.003 ............................................................... 9
TEXAS HEALTH & SAFETY CODE §481.106 ................................................................ 9
TEXAS HEALTH & SAFETY CODE §481.115 (b) ....................................................... 11
TEX. PENAL CODE ANN. § 30.02 (a)(1)
TEX. PENAL CODE ANN. § 12.35 ............................................................................. 11
TEX. R. APP. P. 33.1(a) ............................................................................................. 13
NO. 06-14-00074-CR
IN THE COURT OF APPEALS
SIXTH DISTRICT OF TEXAS
AT TEXARKANA
CHRISTOPHER ANTHONY DAVIDSON
APPELLANT
v.
THE STATE OF TEXAS,
APPELLEE
On Appeal from the 354th Judicial District Court
Of Hunt County, Texas
Trial Court Cause No. 29,512
Hon. Richard A. Beacom, Jr., Judge Presiding
ANDERS BRIEF IN SUPPORT OF MOTION TO WITHDRAW
TO THE HONORABLE COURT OF APPEALS:
NOW COMES Counsel for Appellant and respectfully submits this
brief pursuant to the provisions of the Texas Rules of Appellate Procedure.
STATEMENT OF THE CASE
This is an appeal of the judgments and sentences in three criminal
cases in the 196th Judicial District Court of Hunt County, Texas. Appellant
was indicted for the offense of Possession of a Controlled Substance,
Namely Methamphetamine in an Amount Less than 1 Gram in Cause No.
29,694; Burglary of a Building with Intent to Commit Theft in Cause No.
29,922; and Burglary of a Building in Cause No. 30,032. Appellant pled
guilty in all three cases. A presentence investigation was performed. On
March 2, 2015 the Trial Court conducted a sentencing hearing. At the
conclusion of the sentencing hearing, the Trial Court sentenced the
Appellant to two years in the State Jail with time credit of 282 days in Cause
No. 29,694; two years in the State Jail with time credit of 312 days in Cause
No. 29,922; and two years in the State jail with time credit of 293 days in
Cause No. 30,032. The Notice of Appeal was given on March 18, 2015 in
the trial court. The clerk’s record was filed on May 7, 2015. The reporter’s
record was filed on May 12, 2015.
CERTIFICATE OF COUNSEL
In compliance with requirements of Anders v. California, 386 U.S.
S.Ct.1396, 18 L. Ed 2d 493 (1966) and Gainous v. State, 436 S.W.2d 137,
138 (Tex. Crim. App. 1969), the undersigned appointed attorney on appeal
for CHRISTOPHER ANTHONY DAVIDSON states that she has diligently
reviewed the entire record and the law applicable thereto and, in her opinion,
the appeal is without merit and wholly frivolous in that the record reflects no
reversible error. It is also the opinion of the undersigned appointed attorney
on appeal that there are no grounds of error upon which an appeal can be
predicated. The undersigned appointed attorney on appeal has served a copy
of this brief, clerk's record, and reporter's record on Appellant.
At that time, the undersigned attorney informed Appellant, by letter
that, in her professional opinion, the appeal was without merit. The
undersigned attorney also explained that Appellant has the right to review
the record and file a pro se brief if he so desires. The undersigned attorney
has made the record available to Appellant. Appellant has also been
informed by the undersigned attorney that he may request an extension of
time from this Honorable Court for the filing of a pro se brief.
SPECIAL STATEMENT TO THE COURT
After diligent search, the undersigned attorney, appointed as counsel
for Appellant on appeal has determined that the appeal is frivolous and
without merit, and further, that the record contains nothing upon which an
appeal can be predicated.
The record in this cause reflects that Appellant's rights were protected
at every stage of the proceedings. He was represented by competent counsel
at all critical stages of the trial process. This appeal was filed on March 18,
2015 within Appellant's thirty day time limit for filing an appeal. (20,694
CR 59-60; 20,922 CR 49-50; 30,032 CR 50-51).
STATEMENT OF FACTS
Appellant CHRISTOPHER ANTHONY DAVIDSON (hereinafter,
“Appellant”) was charged in Cause Nos. 29,922 and Cause No. 30,032 with
the offense of Burglary of a Building. Appellant was also charged in Cause
No. 29,694 with Possession of a Controlled Substance Namely
Methamphetamine in an Amount Less than 1 Gram. Appellant entered into
an “open” plea agreement with the State of Texas, wherein the Appellant
pled guilty in all three cases and agreed to a sentencing hearing to be
conducted by the Trial Court. (20,694 CR 28; 29,922 CR20; 30,032 CR
20)1. An order to prepare a presentence investigation was signed on
November 5, 2014. (20,694 CR 37; 29,922 CR 29; 30,032 CR 29) On
January 22, 2015, the Trial Court conducted a review hearing, and at the
request of the State and the Appellant, ordered appointment of an expert to
evaluate Appellant’s mental health. (20,694 CR 41; 29,922 CR 33; 30,032
CR 34) (RR Vol. 2, pages 4-6) The mental health expert filed his report
with the Trial Court on February 19, 2015. (JX 2).
1
References to the Clerk’s Record are designated as “CR #”, references to the Reporter’s Record are
designated RR Vol. ___, page #: line #, and Joint, State and Defendant’s exhibits are designated JX, SX
and DX, respectively)
At the sentencing hearing, the State called Mariah May (“May”), an
employee with the Hunt County Community Supervision and Corrections
Department (“HCCSCD”). (RR Vol. 3, page 7:18) May prepared the
presentence investigation (“PSI”) for the Appellant in these cases. (RR Vol.
3, page 7:19-25) (JX 1) May testified that in preparing the PSI, the
Appellant’s family, living, and criminal histories were explored and taken
into account. (RR Vol. 3, page 8:13-23) May also explored the Appellant’s
mental health. (RR Vol. 3, page 10:10-11:3) Appellant’s substance abuse
issues were also documented. (RR Vol. 3, [age 11:18-25) May testified
that based upon her investigations in preparing the PSI, the Appellant did not
have the financial ability to make restitution. (RR Vol. 3, page 13:4-14)
May’s recommendation to the Trial Court in the PSI was that Appellant be
sentenced to prison. (RR Vol. 3, 14:14-16). The State rested at that point,
with the request to call on more witness if he appeared. (RR Vol. 3, page
19:12-15)
The Appellant called Kenneth Peters (“Peters”), an investigator with
the Hunt County Sheriff’s Office. (RR Vol. 3, page 20:2-5) Peters testified
that he had spoken with Appellant about the offenses and cooperating with
the State by providing information. (RR Vol. 3, page 20:10-14) Peters
testified that he and two other investigators conducted interviews with the
Appellant, but that no useful information or leads came from the information
provided by Appellant. (RR Vol. 3, page 20:20-22).
The Appellant next called Kelly Phillips (“Phillips”), another
investigator with the Hunt County Sheriff’s Office. Phillips sat in on the
interview with Appellant. (RR Vol. 3, page 23:2) Phillips also stated that
the information provided by Appellant was of no use. (RR Vol. 3, page
25:8-25)
The Appellant next testified. Appellant acknowledged that he was the
same individual who pled guilty on all three cases. (RR Vol. 3, 28:17-20)
Appellant admitted that he had previously been to prison and to state jail.
(RR Vol. 3, page 29:3-14) Appellant requested that the Trial Court give him
a second chance. (RR Vol. 3, 29:20) Appellant also verified that his
criminal history as reflected in the PSI was correct. (RR Vol. 3, page 29:24-
30:1) Appellant asserted that he would be able to make restitution if the
Trial Court placed him on probation. (RR Vol. 3, page 30:2-4) The Trial
Court inquired of Appellant about his prior history as well as the
circumstances of the underlying offenses. (RR Vol. 3, page 41:2151:15)
After Appellant’s testimony, the Appellant rested. (RR Vol. 3, page 51:23)
The State called Herman Fichtner (“Fichtner”). Fichtner testified that
he was the owner of one of the buildings burglarized by Appellant. (RR
Vol. 3, page 55:10-22) Fichtner testified that the value of the items stolen
from him was around $75,000.00 (RR Vol. 3, page 58:6-14) Fichtner also
testified that he did not want to see Appellant receive probation. (RR Vol. 3,
59:21-60:5)
After hearing all the testimony and arguments of counsel, the Trial
Court sentenced Appellant to two years in a state jail facility in each case.
(RR Vol. 68:1-15). The Trial Court also ordered $57,941.00 in restitution in
Cause No. 29,922 (29,922 CR 35) and $13,350.00 in restitution in Cause
No. 30,032. The written judgment was prepared and entered on March 6,
2015 (RR Vol. 4, page 4:1-5:7).
ISSUES AND AUTHORITIES
INDICMENT AND JURISDICTION
The indictments allege and contain all elements of the offense as
prescribed by Tex. Health & Safety Code § 481.102(6) and TEX. PENAL
CODE ANN. § 30.02. The indictments conferred jurisdiction upon the trial
court. Studer v. State, 799 S.W.2d 263, 273 (Tex. Crim. App. 1989). There
is no objection or complaint on the record regarding the indictments; hence
nothing is presented or preserved for appellate review. TEX. CODE CRIM.
PROC. ANN. ART. 1.14(b) (O’Connor’s 2014).
ASSISTANCE OF COUNSEL
A complete review of the record reflects that Appellant was
represented by counsel at all critical stages of the proceedings as required by
the Texas and U.S. Constitutions, and that his counsel joined in all decisions
as required by law. Hidalgo v. State, 983 S.W.2d 746, 750 (Tex. Crim. App.
1999). Counsel is ineffective only if his representation of Appellant falls
below a minimum standard for representation and his errors undermine the
reliability of the result to the appellant. Strickland v. Washington, 466 U.S.
668, 687(1984). In this case trial counsel vigorously represented Appellant,
objected to evidence, cross-examined all witnesses, and admitted evidence
on Appellant’s behalf. Nothing in the record reflects that trial counsel’s
representation of Appellant fell below the minimum standard.
COMPETENCE
“A person is incompetent if he lacks either (1) sufficient present
ability to consult with his lawyer with a reasonable degree of rational
understanding; or (2) a rational as well as a factual understanding of the
proceedings against him. A person is presumed competent to stand trial and
shall be found competent to stand trial unless proved incompetent by a
preponderance of the evidence.” TEX. CODE CRIM. PROC. ANN. ART.
46B.003 (O’Connor’s 2014); see McGowin v. State, 912 S.W.2d 837, 840
(Tex. App.—Dallas1995, no pet).
The Trial Court ordered a competency evaluation of
Appellant in these cases. (20,694 CR 41; 29,922 CR 33; 30,032 CR 34) (RR
Vol. 2, pages 4-6) The mental health expert filed his report with the Trial
Court on February 19, 2015. (JX 2). The report stated: “It is also my
opinion that while he might feel better with a medication, medications are
not necessary to complete his legal requirements and he is fully capable of
engaging competently with the courts and with his attorney.” (JX 2)
LIMITATIONS
The offense in Cause No. 29,694 was alleged to have been committed
on or about October 4, 2013 and the indictment was presented April 25,
2014. (29,694 CR. 12). This is within the three year limitation for felonies
provided in TEX. CODE CRIM. PRO. ANN. ART. 12.01(7) (O’Connor’s 2014).
The offense in Cause No. 29,922 was alleged to have been committed on or
about November 23, 2013 and the indictment was presented August 22,
2014. (29,922 CR. 6). The offense in Cause No. 30,032 was alleged to have
been committed on or about December 10, 2013 and the indictment was
presented October 24, 2014. (30,022 CR. 9-10). This is within the five year
limitation for felonies provided in TEX. CODE CRIM. PRO. ANN. ART.
12.01(4) (O’Connor’s 2014). Furthermore, the Appellant did not make any
challenge to the indictments on the basis of expiration of the statute of
limitations. Limitations is a defensive issue, and must be raised by
defendant or it is waived. Proctor v. State, 967 S.W.2d 840, 844 (Tex. Crim.
App. 1998); Howlett v. State, 994 S.W.2d 663.667 (Tex. Crim. App. 1999).
JEOPARDY
There is no jeopardy argument because Appellant was indicted and
prosecuted in the cases and nothing in the record suggests the Appellant had
previously been charged with and tried for these same offenses.
PRESENCE OF DEFENDANT
Appellant was present when the verdict was pronounced as required
by TEX. CODE CRIM. PRO. ANN. ART.37.06. (O’Connor’s 2014)
PRE SENTENCE INVESTIGATION
A pre-sentence report was not required in this case pursuant to TEX.
CODE CRIM. PRO. ANN. ART.42.12 sec. 9(g). (O’Connor’s 2014). However,
one was prepared. (20,694 CR 37; 29,922 CR 29; 30,032 CR 29)
PUNISHMENT
A sentence outside the maximum or minimum range of punishment is
unauthorized by law and therefore illegal. Mizell v. State, 119 S.W.3d 804,
806 (Tex. Crim. App. 2003). Appellant was charged with three state jail
felonies. Appellant’s sentence of two years in a State Jail Facility of the
Texas Department of Corrections, Institutional Division in each is within the
statutory range of punishment for the offenses. TEX. HEALTH & SAFETY
CODE § 481.115(b); TEX. PENAL CODE §12.35.
In Texas, the courts have traditionally held that as long as the
punishment assessed is within the range prescribed by the Legislature in a
valid statute, the punishment is not excessive, cruel, or unusual. Jordan v.
State, 495 S.W.2d 949, 952 (Tex. Crim. App.1973). Yet, in Jackson v.
State, 989 S.W.2d 842, 845 (Tex. App.-Texarkana 1999, no pet.), this Court
recognized that a prohibition against grossly disproportionate punishment
survives under the Eighth Amendment to the United States Constitution
apart from any consideration of whether the punishment assessed is within
the range established by the Legislature. Fluellen v. State, 71 S.W.3d 870,
873 (Tex. App.-Texarkana 2002, pet. ref'd); Latham v. State, 20 S.W.3d 63,
68-69 (Tex. App.-Texarkana 2000, pet. ref'd).
BACK TIME
The Trial Court gave Appellant 282 days credit in Cause 29,694; 312
days credit in Cause No. 29,922; and 293 days credit in Cause No. 30,032
(RR Vol. 4, page 4:16-19) 29,964 CR 44; 29,922 CR 35; 30,032 CR 35).
Appellant was credited with all back time, as reflected in the judgments,
accurately calculated, as required by law.
WRITTEN JUDGMENT
The written judgments conform to the court's oral pronouncement of
judgment and sentence, as required by law. (RR Vol. 3, page 68:2-13)
(29,694 CR 44-47; 29,922 CR 35-38; 30,032 CR 35-38).
SENTENCING PROCEDURE: ALLOCUTION
Article 42.07 of the Texas Code of Criminal Procedure requires that:
"Before pronouncing sentence, the defendant shall be asked whether he has
anything to say why the sentence should not be pronounced against him."
TEX. CODE CRIM. PRO. ANN. ART. 42.07 (O’Connor’s 2014). The trial court
in this case did not make that inquiry and trial counsel did not object. (RR
Vol. 3, page 67:25). However, the record does not reflect that any
substantive rights of Appellant were impacted by the trial court’s failure to
ask Appellant this question. The trial court properly pronounced sentence in
Appellant's presence as required by TEX. CODE CRIM. PRO. ANN. ART. 42.03.
(Vernon’s 2014).
FINGERPRINTS
The record reflects that Appellant's right thumb prints were taken as
required by TEX. CODE CRIM. PRO. ANN. ART. 42.01(23) and TEX. CODE
CRIM. PRO. ANN. ART. 38.33 (Vernon’s 2014). (29,694 CR 44-47; 29,922
CR 35-38; 30,032 CR 35-38).
SUMMARY
The undersigned attorney has reviewed the entire record to determine
if any objections were made on Appellant's behalf which would support a
point of error on appeal. TEX. R. APP. P. 33.1(a) (O’Connor’s 2014). In
counsel’s professional opinion, the trial court displayed no prejudice toward
either side. For above reasons, appellate counsel found no arguable grounds
on which to appeal the instant conviction, and Appellant should receive the
opportunity to file a pro se brief.
CONCLUSION AND PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, the undersigned counsel
being of the earnest opinion that no arguable points of error appear in the
record at the plea or sentencing stages of the case, Counsel prays that this
Honorable Court will grant her Motion for Counsel to Withdraw and afford
Appellant the opportunity to file a pro se brief asserting all grounds of which
he knows to reverse the judgment of the trial court below and render
judgment of acquittal or, alternatively, remand the cause to the trial court for
further proceedings.
Respectfully submitted,
RENSHAW, DAVIS & FERGUSON,
L.L.P.
By: /s/ Katherine A. Ferguson
Katherine A. Ferguson (SBN
06918050)
2900 Lee Street, Suite 102
P.O. Box 21
Greenville, Texas 75403-0021
Telephone: (903) 454-6050
Facsimile: (903) 454-4898
Email: rdflawoffice@yahoo.com
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the Anders Brief in Support of
Motion to Withdraw was sent by first class United States Mail, postage
prepaid, to the Honorable Noble Walker, Hunt County District Attorney,
P.O. Box 441, Greenville, Texas 75403-0441 on this the 2nd day of July
2015.
I further certify that a true and correct copy of Anders Brief in
Support of Motion to Withdraw was sent by first class United States mail,
postage prepaid to CHRISTOPHER ANTHONY DAVIDSON,
TDJC#01988392, Fabian Dale Dominguez State Jail, 6535Cagnon Road,
San Antonio, Texas 78252-2202 on this the 2nd day of July, 2015.
/s/ Katherine A. Ferguson
Katherine A. Ferguson
CERTIFICATE OF COMPLIANCE WITH RULE 9.4
Pursuant to Texas Rule of Appellate Procedure 9.4, this certifies that
this document complies with the type volume limitations because it is
computer generated and does not exceed 15,000 words. Using the word
count feature of Microsoft Word, the undersigned certifies that this
document contains 2,504 words in the entire document, except in the
following sections: caption, identities of parties and counsel, statement
regarding oral argument, table of contents, index of authorities, statement of
the case, statement of issues presented, signature, certificate of service and
certificate of compliance. This document also complies with the typeface
requirements as it has been prepared in a proportionally spaced typeface
using Microsoft Word in 14-point Times New Roman.
/s/ Katherine A. Ferguson
Katherine A. Ferguson