Johnathon Ramey v. State

ACCEPTED
05-18-00254-CR
FIFTH COURT OF APPEALS
DALLAS, TEXAS
5/31/2018 2:34 PM
LISA MATZ
5th Court of Appeals
CLERK
FILED: 06/04/2018
Lisa Matz, Clerk
IN THE COURT OF APPEALS
FOR THE FIFTH DISTRICT
DALLAS, TEXAS RECEIVED IN
5th COURT OF APPEALS
DALLAS, TEXAS
5/31/2018 2:34:11 PM
Johnathon Ramey § LISA MATZ
Appellant § Clerk
§
vs. § APPEAL NUMBER
§ 05-18-00254-CR
State of Texas §
Appellee §
On Appeal from the 363rd Judicial District Court of
Dallas County, Texas
No.F-17-35064
Appellant Counsel’s Anders Brief
RONALD L. GORANSON
3838 Oak Lawn Avenue, Ste. 1124
Dallas, Texas 75219
(214) 651.1122
(214) 871-0640 (fax)
State Bar No. 08195000
ATTORNEY FOR APPELLANT
Ramey
Identity of Parties and Counsel
Appellant Johnathon C. Ramey
TDJC # 2182808
John Middleton Unit
13055 FM 3522
Abilene, TX 79601
Appellant’s Counsel Ronald L. Goranson
3838 Oak Lawn, Ste. 1124
Dallas, Texas 75219
(214) 651.1122
(214) 871-0620 (facsimile)
SBOT No. 08195000
Appellant’s Trial Counsels Mr. Clayton C. Smith
3300 Oak Lawn Avenue, Ste. 600
Dallas, Texas 75219
SBOT NO. 24050002
(214) 774-1125
State of Texas Faith Johnson,
District Attorney
SBOT No. 00794284
Dallas County, Texas
Appellate Attorney Lori Ordiway
SBOT No. 12327300
Trial Attorneys Maxim Ternosky
SBOT No. 24088516
Assistant District Attorneys
Frank Crowley Courts Building, LB 19
133 N. Riverfront Boulevard
Dallas, Texas 75207
214-653-3600
214-653-5774 (facsimile)
Appellant Ramey’s Anders Appeal Brief Page ii
TABLE OF CONTENTS
PRELIMINARY STATEMENT ............................................................................... 1
STATEMENT OF THE CASE ................................................................................. 2
POTENTIAL POINT OF ERROR ............................................................................ 3
STATEMENT OF THE FACTS ............................................................................... 4
• EVIDENCE ..................................................................................................... 4
SUMMARY ............................................................................................................... 9
APPELLANT COUNSEL'S ANALYSIS OF THE CASE ................................ 10
A. INDICTMENT ......................................................................................... 10
B. PLEA PAPERS ........................................................................................ 13
C. JUDGMENT ADJUDICATING GUILT ................................................. 16
D. POTENTIAL GROUND OF ERROR ..................................................... 19
CONCLUSION ........................................................................................................ 27
CERTIFICATE OF SERVICE ................................................................................ 27
CERTIFICATE OF SERVICE - APPELLANT ...................................................... 28
CERTIFICATE OF COMPLIANCE ……………………………………………..28
Appellant Ramey’s Anders Appeal Brief Page iii
TABLE OF AUTHORITIES
CASES:
Anders v. California, 386 U.S. 738, 744 (1967).............................................. 1, 9, 28
Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969) .... 23
Edwards v. State, 921 S.W.2d 477, 480 (Tex.App.--Houston [1st Dist.] 1996, no
pet.) ....................................................................................................................... 22
Ex parte Williams, 703 S.W.2d 674, 682 (Tex.Crim.App. 1986) ........................... 22
Fisher v. State, 887 S.W.2d 49, 54-55 (Tex.Crim.App.1994) ................................. 12
Fryar v. State, ___ S.W.3d, ___, (Tex. App. – Dallas, 05-14-01255-CR,
02/02/2015) ............................................................................................................ 2
Garner v. State, 300 S.W.3d 763 (Tex.Crim.App. 2009) .......................................... 9
Jeffery v. State, 903 S.W.2d 776, 779 (Tex.App.-Dallas 1995, no pet.) ................... 9
Kelly v. State, 436 S.W.3d 313 (Tex.Crim.App. 2014) ........................................ 2, 9
Lawal v. State, ,368 S.W.3d 876, 885 (Tex.App.--Houston [14th Dist.] 2012, no
pet.) ....................................................................................................................... 25
Marshall v. State, 479 S.W.3d 840, 842 (Tex.Crim.App. 2016) ....................... 11, 12
McGill v. State, 200 S.W.3d 325, 330 (Tex.App.--Dallas 2006, no pet.) ...23, 24, 25
Mendez v. State, 138 S.W.3d 334, 344 (Tex.Crim.App. 2004) .............................. 24
Menefee v. State, 287 S.W.3d 9, 14 (Tex.Crim.App.2009) .................................... 23
Moon v. State, 572 S.W.2d 681 (Tex. Crim. App. 1978).................................. 21, 22
Appellant Ramey’s Anders Appeal Brief Page iv
O'Brien v. State, 154 S.W.3d 908, 910 (Tex. App.-Dallas 2005, no pet.) .............. 23
Simpson v. State, 67 S.W.3d 327, 329 (Tex. App.-Texarkana 2001, no pet.) ........ 25
Solis v. State, 945 S.W.2d 300, 303 (Tex.App.--Houston [1st Dist.] 1997, pet.
ref'd)...................................................................................................................... 22
Studer v. State, 799 S.W.2d 263, 268, 273 (Tex.Crim.App.1990).......................... 12
Valle v. State, 747 S.W.2d 541, 546 (Tex.App. —Fort Worth 1988, no pet.) ....... 25
Appellant Ramey’s Anders Appeal Brief Page v
STATUTES:
Texas Penal Code
Tex. Pen. Code § 22.01 (a)(1) and (b)(2)(A) ........................................................... 10
Tex. Pen. Code § 22.01 (b-2) ............................................................................... 2, 11
Tex. Pen. Code § 22.01 (b)(2)(A) .............................................................................. 2
Texas Code of Criminal Procedure
Tex. Code Crim. Proc. Ann art. 1.14(b) .................................................................. 12
Tex. Code Crim. Proc. Ann art. 1.15 ....................................................................... 23
Tex. Code Crim. Proc. Ann art. 21.01 through 21.17 ............................................. 12
Tex. Code Crim. Proc. Ann art. 21.19 ..................................................................... 12
Tex. Code Crim. Proc. Ann art. 42.01 ..................................................................... 16
Tex. Code Crim. Proc. Ann art. 44.02 ....................................................................... 3
Texas Rules of Appellate Procedure
Tex. R. App. Pro. Rule 9.4(i)(1) .............................................................................. 28
Tex. R. App. Pro. Rule 9.4(i)(3) .............................................................................. 28
Tex. R. App. Pro. Rule 25.2 ...................................................................................... 3
Constitutions
Art. V of the Texas Constitution.............................................................................. 12
Appellant Ramey’s Anders Appeal Brief Page vi
IN THE COURT OF APPEALS
FOR THE FIFTH DISTRICT
DALLAS, TEXAS
Johnathon Ramey §
Appellant §
§
VS. § APPEAL NUMBER
§ 05-18-00254-CR
State of Texas §
Appellee §
On Appeal from the 363rd Judicial District Court of
Dallas County, Texas
No.F-17-35064
Appellant Counsel’s Anders Brief
To the Honorable Justices of the Court of Appeals:
Preliminary Statement:
Counsel for Appellant is appointed in this case1. Counsel has
determined that there are no legal or factual issues that arguably could be
raised for appellate review in this case. Counsel has determined that that
this appeal is wholly frivolous and without merit. Counsel has filed a
motion to withdraw. This brief presents an evaluation of the record showing
1
This Appeal brief is identical to the brief filed contemporaneously in Ramey v.
State, #05-18-00253-CR except for several page references.
Appellant Ramey’s Anders Appeal Brief Page 1
why there are no arguable grounds to advance. A copy of the motion to
withdraw, this brief, the trial court’s record and the statement of facts are
being sent to Appellant at his last known address with a letter advising him
of his right to respond to this brief or file his own Appellant’s Brief. See
Kelly v. State, 436 S.W.3d 313, 315, 319-320 (Tex.Crim.App. 2014); Fryar
v. State, ___ S.W.3d, ___, (Tex. App. – Dallas, 05-14-01255-CR,
03/06/2015).
Statement of the Case:
Appellant Johnathon Ramey was charged in two indictments with
separate cases of felony assault – family violence. 2 In F-17-35063 (05-18-
00253-CR) he was charged with a third-degree felony assault on November
5, 2017, contrary to Tex. Penal Code, §22.01(b)(2)(A). (R-253, p. 7). In F-
17-35064 (05-18-00254), he was charged with second-degree felony assault
on November 7, 2017, contrary to Tex. Penal Code §22.01(b-2). (R-254, p.
7) The complainant in each case was the same person. On February 6, 2018
Appellant waived his right to a jury trial and pled guilty. The plea was an
“open plea.” (SF, pp. 5-7) In other words, there was no plea bargain with
2
The matters were tried together and the issues raised are identical. Counsel will
identify the Clerk’s record in each case by the letter “R” and the last three digits of the
Appeal number. In other words, one clerk’s record will be identified as “R-253” and the
other as “R-254.” The case was tried together so there will only be one designation for
the statement of facts – “SF.”
Appellant Ramey’s Anders Appeal Brief Page 2
reference to the sentence. After a hearing on punishment, the trial court
assessed a sentence of six years on each case (R 253, p. 29-30; R-254, p. 23-
24; SF, p. 84)
The Appellant timely filed a notice of appeal in each case. (R 253, p.
40; R 254, p. 39) The Trial Court’s Certification of Defendant’s Right of
Appeal indicates each case was not a plea bargain case and the
Defendant/Appellant had a right to appeal. (R 253, p. 20; R254, p. 27)
This jurisdiction of this Court is invoked pursuant to Art. 44.02 of the
Texas Code of Criminal Procedure and Rule 25.2 of the Texas Rules of
Appellate Procedure. This Brief was due on May 30, 2018. Appellant has
filed a Motion to extend the filing date one day to May 31, 2018. The cause
is properly before this Court of Appeals.
Potential Point of Error
The trial court should have sua sponte entered a plea of not guilty
after the Appellant denied committing any of the facts necessary to state an
offense of family violence.
Appellant Ramey’s Anders Appeal Brief Page 3
Statement of Facts:
Evidence:
On February 6, 2018 Appellant pled guilty in both cases. (SF Vol. 2,
p. 6) The State introduced without objection Appellant’s judicial
confession. (SF Vol. 2, p. 6). Stephanie Parker testified on punishment.
She identified the Appellant. (SF Vol. 2, p. 9) She stated they began dating.
She stated the Appellant lied about everything – his job, his house, his car.
(SF Vol 2, pp. 9-10) She described two incidents that were not the subject
of the indictments. (SF Vol. 2, pp. 12 and 13) After a while she called
things off because of a drinking problem, drugs, selling drugs and his
behavior was getting more violent. (SF Vol. 2, p. 13) When Appellant got
out of prison she allowed him to stay for a few weeks so he could help her
with recovery from surgery. (SF Vol. 2, p. 13) After being out with friends,
she came home and found several suit cases in her living room. (SF Vol 2,
p. 14) Appellant was intoxicated. (SF Vol 2, p. 15) She then described
several incidents of assault, including choking (SF Vol 2. pp. 15-21) The
State offered State’s Exhibits 1-10 – photos taken by the police that evening
showing her injuries (St Ex. 1-4) and the scene (St. Exs. 5-10). The defense
had no objection and the photos were admitted (SF Vol 2, p.21; Vol 3, pp. 7-
16). At one point the Appellant left the room and she went into her
Appellant Ramey’s Anders Appeal Brief Page 4
bathroom, locked the door and called 911. (SF Vol 2, p. 23) The State then
offered the 911 tape. The defense had no objection and the tape was
admitte3d and played. (SF Vol 2, pp. 24-25) During the 911 call she stated
Appellant broke into the bathroom. She terminated the call. He slapped her
one time on the leg, grabbed his back pack and left. (SF Vol 2, p. 25) She
found he phone and called 911 again. (SF Vol 2, p; 25). This portion of the
tale was played for the court. (SF Vol 2, p. 26).
After the police left, Appellant began texting her. (SF Vol 2, p. 28)
Copies of the texts were identified as State Exhibits 17-19. The exhibits
were admitted with no objection by the defense. (SF Vol 2, pp. 29)
She testified that he convinced her ex-husband and her to sit down and have
a conversation. She stated that Appellant convinced them it was a one-time
drinking problem, it would never happen again and that he needed help. She
stated “we” agreed to help him and allowed him back. (SF Vol 2, p. 29). In
one of the text’s (State’s Exhibit 19) she testified that Appellant tried to
convince her to lie to the police about the incident. (SF Vol. 2, p. 30) She
stated that she and her ex-husband met with Appellant at a restaurant.
Appellant told her that he had not drank in almost a year, he did not realize
the effect it had on him and that it would never happen again. He asked for
help. She agreed to get him in with their church and with AA and get him to
Appellant Ramey’s Anders Appeal Brief Page 5
a safe place. (SF Vol 2, p. 31) Ms. Parker testified that Appellant came
back to her residence that night. She went to work the next morning. She
started getting strange text messages from him while at work. The State
introduced the text messages as State’s Exhibits 20-26 (SF Vol. 2, p. 32; SF
Vol 3, pp. 20-32). There was no objection to the exhibits. (SF Vol 2, p. 32).
The text messages stated Appellant was going to flee, move to Galveston,
get a new identity, and move to Thailand forever. (SF Vol 2, pp. 32-33)
The texts continued, getting weirder and weirder. (SF Vol 2, p. 34) Ms.
Parker left work early and returned home. She called her ex-husband and
left him on the line. (SF Vol. 2, p. 37) When she tried to open the door,
there appeared to be another key in the lock. (SF Vol 2, p. 37) Appellant
opened the door. As soon as she walked in, he attacked her, slamming her
against the door. (SF Vol 2, p. 37) The Appellant appeared to be
intoxicated. (SF Vol 2, p. 38) She went to the bathroom. When Appellant
left the room, she asked her ex-husband to call 911. (SF Vol 2, p. 38)
Appellant came into the bathroom and slammed into her. HE slammed her
against the vanity and her head against the sink. She bolted for the front
door, but he slammed it shut. He had an electric razor in his hand. “[T]his
time he really strangled [her].” (SF Vol 2, p. 38) He kept saying he was not
going back to prison. (SF Vol. 2, p. 39) Ms. Parker’s ex-husband arrived
Appellant Ramey’s Anders Appeal Brief Page 6
and calmed things down. Appellant was convinced to leave. While getting
his things together, she testified he attacked her again, jumped on top of her,
pushing and screaming at her. (SF Vol 2, p. 42) State’s Exhibits 11-15 were
introduced and admitted without objection. (SF Vol 2, p. 42) The exhibits
showed the damage to the bathroom door and the electric razor that was used
to cut her neck. (SF Vol 2, pp. 43-44) She also identified a piece of paper
with her name and address that was covered in blood. The exhibit was
introduced into evidence without objection. (SF Vol 2, pp. 46-47)
The Appellant testified. (SF Vol 2, pp. 52-81) He acknowledged he
had the option for a negotiated plea to prison, a jury trial or an open plea, but
he and defense counsel “decided to do an open plea and ask for mercy from
the Court.” (SF Vol 2, p. 52) He stated he grew up in foster care – 21 foster
homes, 13 high schools. He also stated he attended two colleges. (SF Vol 2,
p. 53) He stated he had been to State Jail before, but not to prison. He
stated that he was willing to do any of the programs recommended after a
CATS evaluation. He stated that he had enrolled in a BIPP program for
about ten weeks. He stated he had an alcohol program and was going to an
AA program. (SF Vol 2, pp. 54-55) He explained how he and Ms. Parker
cut their hands on the mirror and the bloody envelope (SF Vol 2, pp. 58-59).
The following then occurred:
Appellant Ramey’s Anders Appeal Brief Page 7
Q Do you have anything else to tell the Court at this time?
A I just want to say that a lot of this stuff that -- that was
said in those affidavits and by Ms. Parker isn't all -- all the
truth. A lot of that stuff was -- was – was blown kind of out of
proportion.
THE COURT: Why don't you tell me what happened. (SF
Vol. 2, p. 60)
The Appellant then testified that although he and Ms. Parker argued, he did
not assault her – he did not slam her up against anything, he never twisted
her arm, punched her in the stomach or choked her. (SF Vol 2, p. 61) When
asked by the court why she would make all that up, he stated she wanted his
Facebook passwords and they argued about that. She immediately stated he
was being shady. He knew she had trust issues, but he never thought she
would try to get him thrown into prison. (SF Vol 2, pp. 61-62)
On cross-examination Appellant again denied that he punched Ms.
Parker, he never choked her, never slammed her against the wall, he did
nothing physical from his end. (SF Vol. 2, p. 66). He denied taking the
phone from her while she was calling 911. (SF Vol 2, p. 67) He stated she
made up the allegations about choking and punching her on the second
incident. (SF Vol 2, p. 68) The State then reviewed his criminal record.
(SF Vol 2, pp. 71-76)
Appellant Ramey’s Anders Appeal Brief Page 8
On Re-direct Appellant stated he did not want a jury trial, that he was
pleading guilty and that he was asking for probation. (SF Vol 2, pp. 77-78)
Summary
Under Anders, a court-appointed attorney may not raise an issue in an
appeal if he makes a conscientious examination of the case and finds the
appeal wholly frivolous. Anders v. California, 386 U.S. 738, 744 (1967).
See also Garner v. State, 300 S.W.3d 763 (Tex.Crim.App. 2009), Kelly v.
State, 436 S.W.3d 313 (Tex.Crim.App. 2014) and Jeffery v. State, 903
S.W.2d 776, 779 (Tex.App.-Dallas 1995, no pet.). An appointed attorney
must withdraw from a frivolous appeal by filing a motion to withdraw and a
brief in support of the motion. Id. The brief is commonly known as an
Anders brief. Id. The purpose of an Anders brief is to show counsel
performed a conscientious examination of the record and the appeal is so
frivolous that the indigent appellant should be denied his right to appointed
counsel on appeal. Id. After the appellant is given an opportunity to respond,
the court makes a full examination of the record to detect whether the case is
frivolous. Anders, 386 U.S. at 744. Appellant’s counsel has reviewed the
transcript, the sentence received by Appellant, and the factual basis for the
sentence. As set forth below, there are no non-frivolous issues.
Appellant Ramey’s Anders Appeal Brief Page 9
APPELLANT COUNSEL’S ANALYSIS OF THE
CASE
A. Indictment:
The offense of assault family violence as applied in this case is
defined in Texas Penal Code § 22.01(a)(1) and (b-2):
§ 22.01. Assault
(a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly causes bodily
injury to another, including the person's spouse;
(b-2) [Amended by Acts 2017, Texas Acts of the 85th
Leg. - Regular Session, ch. TBD] Notwithstanding
Subsection (b)(2), an offense under Subsection (a)(1) is a
felony of the second degree if:
(1) the offense is committed against a person
whose relationship to or association with the
defendant is described by Section 71.0021(b),
71.003, or 71.005, Family Code;
(2) it is shown on the trial of the offense that the
defendant has been previously convicted of an
offense under this chapter, Chapter 19, or Section
20.03, 20.04, or 21.11 against a person whose
relationship to or association with the defendant is
described by Section 71.0021(b), 71.003, or
71.005, Family Code; and
Appellant Ramey’s Anders Appeal Brief Page 10
(3) the offense is committed by intentionally,
knowingly, or recklessly impeding the normal
breathing or circulation of the blood of the person
by applying pressure to the person's throat or neck
or by blocking the person's nose or mouth.
Section 22.01(b-2)(2) enhances the offense of assault causing bodily
injury from a class A misdemeanor to a second-degree felony. See Marshall
v. State, 479 S.W.3d 840, 842 (Tex.Crim.App. 2016) As relevant here, the
offense is a second-degree felony if it is committed against “a person whose
relationship to or association with the defendant is described by Section ...
71.005 [defining household], Family Code” and if “it is shown on the trial
of the offense that the defendant has been previously convicted of an offense
under this chapter ... against a person whose relationship to or association
with the defendant is described by Section 71.0021(b), 71.003, or 71.005,
Family Code and the offense is committed by intentionally, knowingly, or
recklessly impeding the normal breathing or circulation of the blood of the
person by applying pressure to the person's throat or neck or by blocking the
person's nose or mouth” TEX. PENAL CODE ANN. § 22.01(b-2).
Under a hypothetically correct jury charge, the State was required to
prove (1) appellant (2) intentionally, knowingly, or recklessly (3) caused
bodily injury to the complainant (4) who is a member of appellant’s
household, (5) had previously been convicted of an assault involving family
Appellant Ramey’s Anders Appeal Brief Page 11
violence and (6) did then and there intentionally, knowingly, or recklessly
impede the normal breathing or circulation of the blood of the complainant
by blocking her nose or mouth See Marshall v. State, supra.
The indictment in this case tracks the statutory language. It alleges
that the Appellant intentionally, knowingly and recklessly caused bodily
injury to Stephanie Parker by various means and that prior to the incident he
had been previously convicted of an assault against a family member in a
specified case in Denton County, Texas and that he intentionally, knowingly
and recklessly impeded the complainant’s normal breathing and circulation
by applying pressure to her throat and neck and by blocking her nose and
mouth. (R 254, p. 7).
No objections were made to the indictment. The failure to object to
the form or substance of the indictment prior to trial constitutes a waiver of
the error, if any. See Tex.Const. art. V, § 12(b); Tex.Code Crim.Proc.Ann. §
1.14(b); Fisher v. State, 887 S.W.2d 49, 54-55 (Tex.Crim.App.1994); Studer
v. State, 799 S.W.2d 263, 268, 273 (Tex.Crim.App.1990). The indictment
contains all the requisites as required by Arts. 21.01 through 21.17 of the
Code of Criminal Procedure. There are no defects of form or substance in
the allegations in the indictment that prejudice the substantial rights of the
Appellant. See Art. 21.19, Tex. Code Cr. Proc.
Appellant Ramey’s Anders Appeal Brief Page 12
B. Plea Papers
A document titled Plea Agreement was filed in this case. (R 254, p.
19-22) The first part states that the defendant will plead guilty, and it will be
an “open plea.” (R253, p. 32). The document included a section titled
“Court’s Admonitions to Defendant” where the trial court stated Appellant
was charged with the offense of “Assault FV (enh)(imp)” and the
punishment range for a second degree felony at 2-20 years and an optional
fine up to $10,000. (R 254, p.20). The document includes admonitions
about the Appellant’s right to a jury trial, to confront and cross-examine
witnesses and his right to testify in his own behalf if he chooses to. (R 254,
p. 20). The court also advised that the prosecutor’s recommendation on
punishment was not binding on the court, and if the court rejected the plea
bargain, the Appellant would be permitted to withdraw his plea of guilty. (R
254, p. 20) The court then stated that if the punishment was not greater than
the plea bargain, the Appellant would not be able to appeal the case with
certain exceptions not applicable in this case. (R 254, p. 20). The court then
advised the Appellant about certain time limits he and his counsel had to
prepare. (R 254, p. 20). The trial court then stated that if the Appellant
received unadjudicated community supervision and violated the conditions
of probation, Appellant would be subject to arrest and a hearing to determine
Appellant Ramey’s Anders Appeal Brief Page 13
if guilt should be adjudicated. If guilt was adjudicated, then the full range of
punishment would be open to the court. (R 254, p. 20).
The plea agreement document continued with a section titled
“Defendant’s Statements and Waivers.” (R 254, p. 20). The Appellant
stated that he was the accused and was mentally competent, that he
understood the nature of the accusation, the range of punishment and the
consequences of a plea of guilty or nolo contender. (R 254, p. 20). He stated
that he knew he had an absolute right to a jury trial, a right to remain silent,
that anything he said could and would be used against him, that he had the
right to confront and cross-examine the witnesses against him and the right
to be tried upon an indictment returned by the Grand Jury. (R 254, p. 20)
After acknowledging immigration issues not relevant to his case, he waived
his right to be tried upon an indictment returned by the Grand jury, any
defects in the indictment, the right to a jury trial and the right to remain
silent. (R 254, p. 21) He also waived arraignment, the reading of the
indictment. He waived the appearance (R 254, p. 21), confrontation and
cross-examination of witnesses, his right to ten days to prepare for trial after
the appointment of counsel and the preparation of a pre-sentence report, (R
254, p. 21) The next paragraph includes a judicial confession where the
Appellant admits that he committed the offense of “Assault FV (enh) on
Appellant Ramey’s Anders Appeal Brief Page 14
__________ exactly as alleged” in the indictment. (R 253, p. 21) He
affirmed that his plea and judicial confession were freely and voluntarily
made and not influenced by any consideration of fear, persuasion or delusive
hope of pardon or parole. (R 254, p. 21) He stated he understood the
admonitions regarding unadjudicated community supervision. (R 254, p.
21) He stated he understood his rights under the Uniform Extradition Act.
He stated he understood he did not have a right to appeal the plea if the
Court followed the terms of the State’s recommendation as to sentencing.
(R 254, p. 21) Appellant signed the plea agreement stating that his attorney
explained the document to him, that he understood it and that the plea, his
statements and waivers were knowingly, freely and voluntarily made with
full understanding of the consequences. He asked the trial court to accept
his plea. (R 253, p. 34)
The Appellant, his defense counsel, the prosecutor and the trial judge
signed the document and it was filed with the court clerk. (R 254, p. 21)
A document entitled “Judicial Confession was introduced into
evidence as State Exhibit 1. (R 254, p. 30-31; SF, p. 6) The document
signed by the Appellant and his counsel states that the Appellant consents to
the stipulation of evidence and waives the appearance, confrontation and
cross-examination of witnesses and that he consents to the introduction of
Appellant Ramey’s Anders Appeal Brief Page 15
the “Judicial Confession.” (R 254, pp. 30-31; SF-Plea Vol. 2, pp. 6; State’s
Exhibit 1 – hereinafter cited as “ST Ex 1”). The “Judicial Confession” then
states that, after waiving his state and federal constitutional rights against
self-incrimination, and after being sworn, upon oath, committed the offense
as detailed in the indictment:
C. Judgment of Conviction
The Judgment of Conviction (R 254, pp. 23-25) appears to be proper
and states each of the applicable requirements of Art. 42.01 of the Code of
Criminal Procedure. The Judgment was signed by the trial court and entered
of record. It reflects:
1. The title and number of the case;
Appellant Ramey’s Anders Appeal Brief Page 16
2. That the case was called and the parties appeared, naming the
attorney for the state, the defendant, and the attorney for the
defendant;
3. The plea of true to the offense charged;
4. The submission of the evidence;
6. The verdict or findings of the court;
7. That the defendant was adjudged guilty of the offense as found
by the finding of the court, and that the defendant be punished in
accordance with the court's finding as to the proper punishment;
8. That the defendant was sentenced a term of confinement;
9. The county and court in which the case was tried;
10. The offense for which the defendant was convicted;
11. The date of the offense and degree of offense for which the
defendant was convicted;
14. The term of sentence;
15. The date judgment was entered;
16. The date sentence was imposed;
17. The date sentence was to commence and any credit for time
served;
Appellant Ramey’s Anders Appeal Brief Page 17
18. The terms of any order entered pursuant to Article 42.08 Texas
Code of Criminal Procedure that the defendant's sentence is to run
concurrently with another sentence or sentences;
19. The terms of any plea bargain (The record indicates that this
case did not have a plea bargain on the issue of sentence (R 254, p.
19; SF- Vol. 2, pp. 6, 52);
20. The defendant's thumbprint was taken in accordance with
Article 38.33 of the code of criminal procedure (Article 38.33 of the
Code of Criminal Procedure requires that the defendant’s right
thumbprint be rolled legibly on the judgment or docket sheet in the
case. This was not done, but the Judgment states: “Thumbprint
Certificate attached.” (R 254, p. 24). In the Record on Appeal is a
document titled “Judgment Certificate of Thumbprint.” (R 254, p. 25).
The document appears to comply with the requirements of the statute.
Further there is nothing in the record to indicate that the fingerprint is
for anyone other than the Appellant. No objection was lodged below
to the failure of the Judgment or the docket sheet to include a rolled
fingerprint of the Appellant’s right thumbprint.);
Appellant Ramey’s Anders Appeal Brief Page 18
21. The trial court did not order the defendant to repay a reward or
part of a reward under Articles 37.073 and 42.152 of the code of
criminal procedure;
22. The trial court did not order restitution to be paid to the victim;
23. The Appellant was not required to register as a sex offender;
24. The Appellant’s state identification number was entered; and
25. The state incident number was entered.
D. Potential Ground of Error
During the hearing on punishment the Appellant clearly testified that
he was not guilty. (See pages 10-11 above and SF Vol 2, pp. 61, 63-64, 66,
67, 68, 69). However after making the initial statements to the trial court on
direct examination, he following occurred:
Q (BY MR. SMITH) Now, Mr. Ramey -- now, we basically --
we are doing an open plea here; do you understand that?
A Yes, sir.
Q And you entered a plea of guilty?
A Yes.
Q And we gave up our right to a jury trial?
A Yes, sir.
Appellant Ramey’s Anders Appeal Brief Page 19
THE COURT: I'm a little bit confused. If you didn't do any of
the things that she says, that she has testified that you did, why
are you pleading guilty?
THE DEFENDANT: I guess I know how the court system
works. I know -- I know how I look. I know how she looks. I
know that it doesn't look good for me. I just -- I really want to
get back out there
to my kids. She -- she has no reason to fear me whatsoever. She
-- like I said, she'll never see me again for -- for -- for the rest of
her life and the rest of my life. I -- the only thing I want to do is
get back to my children. My relationship with my daughter was
very, very close one, and she hasn't seen her father now in over
a year and a half. And my son is two-years-old and I've been
locked away for almost a year now. (SF Vol 2, pp. 64-65)
After his cross-examination, the following occurred:
REDIRECT EXAMINATION
BY MR. SMITH:
Q Johnathon, do you want to have a jury trial?
A No, sir.
Q All right. Are you pleading guilty?
A Yes, sir.
Q And, again, you're asking for a chance at probation to
prove to the Court you -- you can do it?
A Yes, sir. And I -- I also enrolled in the BIPP class. I've
done ten weeks and I plan to continue after I get out of here.
Appellant Ramey’s Anders Appeal Brief Page 20
Q And you're asking for a chance at the felony domestic
violence specialty court program?
A Yes, sir.
Q IOP?
A Yes, sir.
Q High-risk caseload?
A Yes, sir.
Q Anything -- anything, but for prison, is what we're asking
for here?
A Yes, sir. I'm asking for the chance to get out there and be
able to be a father to my children and lead by example. (SF Vol
2, pp. 77-78)
Prior to 1978 the trial court would have been required to withdraw
Appellant’s plea and set the case for a trial. See Moon v. State, 572 S.W.2d
681 (Tex. Crim. App. 1978). 3 However the current law does not require
3
In a long line of authorities the Court of Criminal Appeals has held that when the
evidence introduced makes evident the innocence of the accused or which reasonably and
fairly raises an issue as to such fact and such evidence is not withdrawn, the trial court is
required on its own motion to withdraw the defendant's guilty plea or nolo contendere
plea and enter a not guilty plea for the defendant. E. G. Harris v. State (76 Tex. Crim.
126), 172 S.W. 975 (Tex.Cr.App.1915); Edwards v. State (134 Tex. Crim. 153), 114
S.W.2d 572 (Tex.Cr.App.1938); Navarro v. State (141 Tex. Crim. 196), 147 S.W.2d 1081
(Tex.Cr.App.1941); Rayson v. State (160 Tex. Crim. 103), 267 S.W.2d 153
(Tex.Cr.App.1954); Fite v. State (163 Tex. Crim. 279), 290 S.W.2d 897
(Tex.Cr.App.1956); Richardson v. State (164 Tex. Crim. 500), 300 S.W.2d 83
(Tex.Cr.App.1957); Edworthy v. State, 371 S.W.2d 563 (Tex.Cr.App.1963); Reyna v.
State, 434 S.W.2d 362 (Tex.Cr.App.1968); Swanson v. State, 447 S.W.2d 942
Appellant Ramey’s Anders Appeal Brief Page 21
such action. The trial court is not required to withdraw a defendant's plea of
guilty sua sponte and enter a plea of not guilty when a defendant enters a
plea of guilty before the trial court after waiving a jury, even if evidence is
presented that either makes the defendant's innocence evident or reasonably
and fairly raises an issue as to his guilt. See id. at 682. The Moon decision
reasoned that it is the trial court's duty to consider the evidence submitted
and, as the trier of facts, the court may find the defendant guilty of the crime
charged or a lesser offense or it may acquit the defendant. Thus, no valid
purpose would be served to require a trial court to withdraw a guilty plea.
See Moon, 572 S.W.2d at 682; Solis v. State, 945 S.W.2d 300, 303
(Tex.App.--Houston [1st Dist.] 1997, pet. ref'd); Edwards v. State, 921
S.W.2d 477, 480 (Tex.App.--Houston [1st Dist.] 1996, no pet.).
The entry of a valid guilty plea “has the effect of admitting all
material facts alleged in the formal criminal charge.” Ex parte Williams, 703
S.W.2d 674, 682 (Tex.Crim.App. 1986). In a trial before the court, once a
(Tex.Cr.App.1969); Hays (Hayes) v. State, 484 S.W.2d 922 (Tex.Cr.App.1972); Lee v.
State, 503 S.W.2d 244 (Tex.Cr.App.1974); Lewis v. State, 529 S.W.2d 550
(Tex.Cr.App.1975); Gates v. State, 543 S.W.2d 360 (Tex.Cr.App.1976); Woodberry v.
State, 547 S.W.2d 629 (Tex.Cr.App.1977); Malone v. State, (548) S.W.2d (908)
((Tex.Cr.App 1977). This rule has been recognized and applied even when a jury has
been waived and the plea is before the court without a jury. Burks v. State (145 Tex. Crim.
15), 165 S.W.2d 460 (Tex.Cr.App.1942); Gonzales v. State, 480 S.W.2d 663
(Tex.Cr.App.1972); Faz v. State, 510 S.W.2d 922 (Tex.Cr.App.1974); Trevino v. State,
519 S.W.2d 864 (Tex.Cr.App.1975); Cooper v. State, 537 S.W.2d 940
(Tex.Cr.App.1976); Sanchez v. State, 543 S.W.2d 132 (Tex.Cr.App.1976).
Appellant Ramey’s Anders Appeal Brief Page 22
defendant enters a valid guilty plea, no constitutional “fact questions”
remain for the purposes of his constitutional right to a factual sufficiency
review of the evidence used to convict him. The State is no longer required
to prove his guilt beyond a reasonable doubt. See id. In fact, for the purposes
of federal due process, a plea of guilty is itself a conviction awaiting only
determination of punishment. See Boykin v. Alabama, 395 U.S. 238, 242, 89
S. Ct. 1709, 23 L. Ed. 2d 274 (1969); see also O'Brien v. State, 154 S.W.3d
908, 910 (Tex. App.-Dallas 2005, no pet.) (holding no federal due process
right to factual sufficiency review). In Texas, however, the State is also
bound by statute to support the plea with sufficient evidence. See Tex. Code
Crim. Proc. Ann. art. 1.15. Under Article 1.15, Texas Code of Criminal
Procedure, the State is required to introduce evidence demonstrating the
defendant's guilt. Tex.Code Crim. Proc. Ann. art. 1.15. A judicial
confession alone is usually sufficient to satisfy the requirements of Article
1.15 “so long as it embraces every constituent element of the charged
offense.” Menefee v. State, 287 S.W.3d 9, 14 (Tex.Crim.App.2009).
A defendant relinquishes his right to complain about the State's proof
of his guilt beyond a reasonable doubt when he voluntarily enters his guilty
plea. McGill v. State, 200 S.W.3d 325, 330 (Tex.App.--Dallas 2006, no
pet.) Due process is not denied by a conviction based on a plea of guilty
Appellant Ramey’s Anders Appeal Brief Page 23
accompanied by a strong factual basis for the plea and a defendant's clearly
expressed desire to enter it despite his professed innocence. McGill v. State,
supra; Mendez v. State, 138 S.W.3d 334, 344 (Tex.Crim.App. 2004) (citing
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162
(1970)). The number of cases in which defendants change their mind about
the waiver of their right to plead not guilty is small, the appearance of
evidence inconsistent with guilt is unpredictable to the court, and cases are
common in which there is some evidence in the defendant's favor but he has
validly chosen to plead guilty after weighing the advantage of such a plea
against the chance of acquittal. See Mendez, 138 S.W.3d at 350. After a trial
court has implemented the constitutional rights entailed in the entry of a
guilty plea, it is "appropriate that the defendant be required to take some
affirmative action to don the armor again" if he wants an appellate court to
review the factual sufficiency of the evidence against him. See id.
If a guilty-pleading defendant decides mid-trial that he wants to
compel the trial court to evaluate the evidence under the reasonable doubt
standard, he must seek to withdraw the plea of guilty. McGill v. State, supra
If he fails to do so, he is precluded from having an appellate court review the
evidence against him under the traditional legal and factual sufficiency
Appellant Ramey’s Anders Appeal Brief Page 24
analyses. McGill v. State, supra ; Simpson v. State, 67 S.W.3d 327, 329
(Tex. App.-Texarkana 2001, no pet.).
In Valle v. State, 747 S.W.2d 541, 546 (Tex.App. —Fort Worth
1988, no pet.) the Appellant testified as to the reasons he pled guilty. The
Court stated:
“The fact that appellant entered a plea of guilty in hope of
escaping the possibility of a higher sentence does not invalidate
the plea. North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160,
27 L. Ed. 2d 162 (1970); Hill v. Estelle, 653 F.2d 202 (5th
Cir.1981), cert. denied, 454 U.S. 1036, 102 S. Ct. 577, 70
L. Ed. 2d 481 (1981). This is not fear of bodily harm, improper
inducements or ‘terror’ which the statute is meant to
circumvent. See Boykin, 395 U.S. at 243, 89 S.Ct. at 1712; see
also Jones v. Estelle, 584 F.2d 687 (5th Cir.1978).”
In Lawal v. State, ,368 S.W.3d 876, 885 (Tex.App.--Houston [14th Dist.]
2012, no pet.) the Houston Court of Appeals stated:
“A defendant may withdraw his plea as a matter of right,
without assigning a reason, until judgment is pronounced or the
case is taken under advisement by the trial court. Jackson v.
State, 590 S.W.2d 514, 515 (Tex.Crim.App.1979); Jagaroo v.
State, 180 S.W.3d 793, 802 (Tex.App.-Houston [14th Dist.]
2005, pet. ref'd). If, however, a defendant desires to withdraw
his guilty plea after the court has taken the case under
advisement, withdrawal of the plea is within the sound
discretion of the court. Jackson, 590 S.W.2d at 515; Jagaroo,
180 S.W.3d at 802. After a trial court has admonished a
defendant, received the plea and evidence, and passed the case
for pre-sentence investigation, the case has been taken under
Appellant Ramey’s Anders Appeal Brief Page 25
advisement. DeVary v. State, 615 S.W.2d 739, 740
(Tex.Crim.App.1981); Jagaroo, 180 S.W.3d at 802.[1] Because
Lawal did not seek to withdraw his plea until the case had been
taken under advisement, he could not withdraw the plea as a
matter of right.
***
Nevertheless, because the judge is free to make any
finding based on the evidence regardless of the plea, withdrawal
of a guilty plea is not required even when evidence in a PSI
raises an issue of a defendant's innocence. Fisher v. State, 104
S.W.3d 923, 924 (Tex.App.-Houston [14th Dist.] 2003, no
pet.); Graves v. State, 803 S.W.2d 342, 346 (Tex.App.-Houston
[14th Dist.] 1990, pet. ref'd). Proper admonishments by a trial
court establish prima facie proof that a guilty plea was entered
knowingly and voluntarily. Martinez v. State, 981 S.W.2d 195,
197 (Tex.Crim.App.1998); Houston v. State, 201 S.W.3d 212,
217 (Tex.App.-Houston [14th Dist.] 2006, no pet.). The burden
then shifts to the defendant to show he pleaded guilty without
understanding the consequences of his plea and, consequently,
suffered harm. Houston, 201 S.W.3d at 217. A defendant has a
“heavy burden” to prove in a subsequent hearing that he entered
the plea involuntarily. Id.”
In the pre3sent case there is absolutely no indication that Appellant
wished to withdraw his plea of guilty. The transcript clearly shows that
although the Appellant denied doing the acts alleged in the indictments, he
clearly wished to continue with his plea of guilty and try to get a probated
sentence. Without some hint the Appellant wished to withdraw his plea,
counsel on appeal cannot make an effort to raise the issue on direct appeal.
Appellant Ramey’s Anders Appeal Brief Page 26
Conclusion
Based on the review of the Clerk’s Record and the Statement of Facts
it is counsel’s belief that there are no arguable grounds of error to present to
this Court of Appeals.
Respectfully submitted,
/s/ Ronald L. Goranson
RONALD L. GORANSON
3838 Oak Lawn Avenue, Ste. 1124
Dallas, Texas 75219
(214) 651.1122
(214) 871.0620 (fax)
State Bar No. 08195000
Email – rlgatty@aol.com
ATTORNEY FOR APPELLANT
CERTIFICATE OF SERVICE
I, the undersigned, do hereby certify that a true and correct copy of the
Appellant's Brief was delivered to Ms. Lori Ordiway, Assistant District
Attorney, Appellant Division, Dallas County District Attorney’s Office, 133
N. Riverfront Blvd, 10th floor, Dallas, Texas, 75207 this May 31, 2018.
/s/Ronald L. Goranson
RONALD L. GORANSON
Appellant Ramey’s Anders Appeal Brief Page 27
CERTIFICATE OF SERVICE - APPELLANT
I certify that the above Appellant’s Anders Brief was placed in an
envelope properly addressed and mailed to:
Johnathon C. Ramey
TDJC # 2182808
John Middleton Unit
13055 FM 3522
Abilene, TX 79601
on this May 31, 2018. I further certify that a copy of the Statement of Facts
and the Appellate Record have been forwarded to Appellant at the above
address, along with a letter advising him of his right to file an appeal brief
and the address of this Court of Appeals. Also enclosed was a copy of a
motion requesting an extension of time within which to file him brief.
/s/Ronald L. Goranson
RONALD L. GORANSON
Certificate of Compliance
Pursuant to Rule 9.4(i)(3), Texas Rules of Appellate Procedure,
counsel for Appellant certifies that there are 6507 words in this document
pursuant to the inclusions and exclusions required by Rule 9.4(i)(1), Texas
Rules of Appellate Procedure.
/s/Ronald L. Goranson
RONALD L. GORANSON
Appellant Ramey’s Anders Appeal Brief Page 28