Tarsha Yvonne Wiley v. State

ACCEPTED
03-14-00563-CR
4564597
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/19/2015 1:44:21 PM
JEFFREY D. KYLE
CLERK
NO. 03-14-00563-CR
IN THE FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
COURT OF APPEALS 3/19/2015 1:44:21 PM
JEFFREY D. KYLE
THIRD DISTRICT OF TEXAS Clerk
AT AUSTIN
**********************************************
TARSHA YVONNE WILEY APPELLANT
VS.
THE STATE OF TEXAS APPELLEE
**********************************************
AMENDED APPELLANT’S ATTORNEY’S MOTION TO WITHDRAW AND
BRIEF
_______________________________________________________
APPEAL OF JUDGMENT IN CAUSE NO. 69,201
FROM THE 264th JUDICIAL DISTRICT COURT OF
BELL COUNTY, TEXAS,
_______________________________________________________
NO ORAL ARGUMENT REQUESTED
JAMES H. KREIMEYER
ATTORNEY FOR APPELLANT
P.O. BOX 727
BELTON, TEXAS 76513
(254) 939-9393
(254) 939-2870 FAX
T.S.B. #11722000
jkreime@vvm.com
IDENTITY OF PARTIES AND COUNSEL
Trial Judge: HON. Martha J. Trudo
264th Judicial
District Court Judge
P.O. Box 324
Belton, Texas 76513
Prosecutors: Michael Waldman
Asst. District Attorney
P.O. Box 540
Belton, Texas 76513
Defense Attorney At Buckley H. Major
Plea Hearing Attorney at Law
2010 SW HK Dodgen Loop
Temple, TX 76504
Defense Attorney At Jon McDurmitt
Revocation Hearing: Attorney at Law
P.O. Box 855
Belton, TX 76513
Appellate Attorney: James H. Kreimeyer
Attorney at Law
P.O. Box 727
Belton, Texas 76513
Attorney for Appellee: Bob Odom
Asst. District Attorney
P.O. Box 540
Belton, Texas 76513
Appellant: Tarsha Yvonne Wiley
TDCJ #01941874
Lockhart Correctional Fac
P.O. Box 1170
Lockhart, TX 78640
i.
TABLE OF CONTENTS
PAGE NO.
IDENTITY OF PARTIES AND COUNSEL . .. . . . . . i
TABLE OF CONTENTS . . . . . . . . . .. . . . . ii
INDEX OF AUTHORITIES . . . . . . . . .. . . iii-iv
STATEMENT OF THE CASE . . . . . . . . . . . . 2-5
FRIVOLOUS APPEAL STATMENT. . . . . . . . . . . . 5
INDICTMENT. . . . . . . . . . . . . . . . . .5-6
ORIGINAL PLEA OF GUILTY . . . . . . . . . . . .6-7
PUNISHMENT HEARING . . . . . . . . . . . . . . . 8
MOTION TO ADJUDICATE. . . . . . . . . . . . . .8-9
HEARING ON MOTION TO ADJUDICATE. . . . . . . .9-11
ARGUMENT. . . . . . . . . . . . . . . . . . .11-13
PUNISHMENT HEARING. . . . . . . . . . . . . .13-15
ASSESSMENT OF COURT COSTS. . . . . . . . . . 15-16
PRAYER. . . . . . . . . . . . . . . . . . . . . 17
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . 18
CERTIFICATE OF COUNSEL . . . . . . . . . . . 19-20
CERTIFICATE OF SERVICE . . . . . . . . . . . . 21
ii.
INDEX OF AUTHORITIES
CASES: PAGE NO.
Anders v. California, 386 U.S. 738 (1967). . . .5
High v. State, 573 S.W.2d 807
(Tex. Crim. App. 1978 . . . . . . . . . . . 5
Currie v. State, 516 S.W.2d 684
(Tex. Crim. App. 1974). . . . . . . . . . . 5
Nichols v. State, 394 S.W.3d 612,616
(Tex. App. Texarkana 2011 pet. r.). . . . . 7
Smith v. State, 286 S.W.3d 333
(Tex. Crim. App. 2009). . . . . . . . . . .11
Jones v. State, 571 S.W.2d 191, 194
(Tex. Crim. App. 1978). . . . . . . . . . .11
Rickels v. State, 202 S.W.3d 759, 763-64
(Tex. Crim. App. 2006). . . . . . . . . . .12
Mauney v. State, 107 S.W.3d 693,695
(Tex. App. Austin 2003 no pet. h.). . . 12-13
Mullins v. State, 208 S.W.3d 469, 470
(Tex. App. 2006). . . . . . . . . . . . . .15
Martin v. State, 405 S.W.3d 944,947
(Tex. App. Texarkana 2013 no pet. h.). . . 16
iii.
INDEX OF AUTHORITIES
Statues: PAGE NO.
Texas Penal Code
§ 22.02(a)(2) . . . . . . . . . . . . . . .6
§ 22.02(b). . . . . . . . . . . . . . . . 15
Texas Code of Criminal Procedure
Article 26.13 . . . . . . . . . . . . . . .7
Article 42.12 §(5)(b) . . . . . . . . .14-15
iv.
NO.03-14-00563-CR
IN THE
COURT OF APPEALS
THIRD DISTRICT OF TEXAS
AT AUSTIN
*****************************************************
TARSHA YVONNE WILEY APPELLANT
VS.
THE STATE OF TEXAS APPELLEE
******************************************************
AMENDED APPELLANT’S ATTORNEY’S MOTION
TO WITHDRAW AND BRIEF
Comes now the undersigned court appointed
counsel for the Appellant and moves this court to
allow said counsel to withdraw for the reason that
counsel has carefully examined the record herein
and the law applicable to Appellant’s case and is
unable to find any supportable grounds for appeal
and has concluded that the appeal of this cause is
1
wholly frivolous and in support thereof shows the
court as follows:
STATEMENT OF THE CASE
Appellant was accused by indictment with the
offense of aggravated assault by intentionally,
knowingly and recklessly causing bodily injury to
the complainant with a deadly weapon, to wit: a
knife; alleged to have occurred on November 15,
2011. (Cl. R. at 4) A motion to release defendant
and set reasonable bail was filed (Cl. R. at 12)
Appellant’s bond was reduced from $100,000.00 to
$35,000.00. (R.R. II at 36)
Thereafter, on May 10, 2012 Appellant entered a
plea of guilty to the offense charged in the
indictment. (R.R. III at 8)
On June 14, 2012 a punishment hearing was
conducted and a pre-sentence investigation report
was placed before the trial court. (R.R. IV at 4)
The State called no witnesses. Appellant called a
witness (R.R. IV at 5) and; the trial court having
2
heard the evidence, considered the pre-sentence
report, and argument of counsel; withheld a finding
of guilt, found a deadly weapon had been used in
the commission of the offense and placed Appellant
on ten (10) years deferred adjudication community
supervision. (R.R. IV at 24) Appellant waived
appeal. (R.R. IV at 30)(Cl. R. at 21) A judgment
was entered by the trial court on June 14, 2012
placing Appellant on community supervision. (Cl.
R. 34)
On October 8, 2013 a Motion to Adjudicate
Appellant’s community supervision was filed,
alleging various violations of the terms and
condition of community supervision. (Cl. R. at 39)
July 10, 2014 the trial court called for
announcements on the motion to adjudicate filed,
after both the State and Appellant announced ready,
Appellant entered a plea of not true to all the
allegations of violation of the terms and
3
conditions of her community supervision. (R.R. VI
at 6)
After hearing the testimony from the State’s
and Appellant’s witnesses; the trial court found
the violations alleged in the motion to adjudicate
to be true and set the matter for a punishment
hearing. (R.R. VI at 53,54)
On July 17, 2014 the hearing continued and the
trial court found the evidence sufficient to find
Appellant violated the terms and conditions of
probation and revoked the deferred adjudication
previously granted Appellant; (R.R. VII at 12) and
imposed a sentence of five (5) years. (R.R. VII at
13) Judgment adjudicating guilt was entered on July
17, 2014. (Cl. R. at 56)
On August 6, 2014 notice of appeal was filed
(Cl. R. at 61) and Appellant’s trial counsel filed
a motion to withdraw,(Cl. R. at 62) which the trial
court granted. (Cl. R. at 63)
4
Appellate counsel was appointed on August 18,
2014. (Cl. R. 67) Appellant’s brief is due on or
before the March 19, 2015.
FRIVOLOUS APPEAL STATEMENT
The undersigned counsel, having been appointed
to represent Appellant on appeal, after having
fully examined the record herein, is of the opinion
that this appeal is wholly frivolous and without
merit and that no arguable points on appeal or
authorities to support such points are to be found
in the record. Counsel, however, offers the
following evaluation of the record as required in
Anders v. California, 386 U.S. 738 (1967); High v.
State, 573 S.W.2d 807 (Tex. Crim. App. 1978);
Currie v. State, 516 S.W.2d 684 (Tex. Crim. App.
1974).
INDICTMENT
Appellant was accused by indictment with the
offense of aggravated assault with a deadly weapon.
The indictment (Cl. R. at 4) properly charged the
5
offense under Tex. Penal Code § 22.02(a)(2),
defining the offense of aggravated assault with a
deadly weapon.
ORIGINAL PLEA OF GUILTY
On May 10, 2012 a written waiver of a jury and
agreement to stipulate upon a plea of guilty was
signed and filed by Appellant and her counsel at
that time, Buckley H. Major. (Cl. R. at 25) A
judicial confession, which tracked the allegations
in the indictment, was signed by Appellant waiving
all of her rights to remain silent and agreeing
that the facts in the statement are true and
correct. (Cl. R. at 23) A plea recommendation in
which the State recommended Appellant be sentenced
anywhere within the range of punishment not to
exceed five (5) years to the Texas Department of
Criminal Justice-Institutional Division. The range
of punishment included the possibility of deferred
adjudication community supervision.(Cl. R. at 19)
6
After calling the case for trial, the trial
court properly admonished Appellant as to her right
to a trial by jury, the range of punishment, the
right to confront and cross-examine the witnesses
and a constitutional right to remain silent. These
rights were waived by Appellant, (R.R. III at 5)
with the concurrence of her attorney. The trial
court accepted Appellant’s waivers, found Appellant
to be competent, and accepted her plea of guilty;
along with the proper admonishments concerning the
voluntariness of her plea. (R.R. III at 8) The
trial court’s admonishments substantially complied
with Article 26.13 Tex. Crim. Proc. Code. Nichols
v. State, 394 S.W.3d 612,616 (Tex. App. Texarkana
2011 pet. r.) The State offered into evidence
Appellant’s judicial confession, State’s Exhibit 1,
which was admitted without objection. The trial
court withheld a finding of guilt and recessed
until a later date for sentencing. (R.R. III at 10)
7
PUNISHMENT HEARING
On June 14, 2012, the trial court withheld a
finding of guilt and placed Appellant on ten (10)
years deferred adjudication. (R.R. IV at 24)
Appellant waived her appellate rights. (R.R. IV at
30) (Cl. R. at 21)
MOTION TO ADJUDICATE
On about October 8, 2013 a Motion to Adjudicate
the deferred adjudication community supervision
previously granted Appellant on June 14, 2012 was
filed, alleging various violations of the terms and
conditions of Appellant’s community supervision.
(Cl. R. at 39)
On May 23, 2014 the Motion to Adjudicate
Appellant’s deferred adjudication was before the
trial court for announcement hearing and the trial
court was advised Appellant intended to enter pleas
of not true to the allegations in the motion to
adjudicate. (R.R. V at 6)
8
Upon determining Appellant had tested positive
for a controlled substance, cocaine, on May 23,
2014; (Cl. R. at 52) the trial court ordered she be
drug tested weekly through the Bell County
Community Corrections and Supervision Department.
(R.R. V at 10)
HEARING ON MOTION TO ADJUDICATE
The hearing on Appellant’s plea of not true to
the motion to adjudicate began on July 10, 2014.
(R.R. VI at 4) There were ten (10) allegations of
violations of the terms and conditions of community
supervision. These allegations included a new
offense alleged to have been committed after being
placed on community supervision, using or
possessing alcohol and illegal drugs, failure to
participate in various programs and assessments,
and failure to pay various fees and fines. (Cl. R.
at 39)
Jason Smith, a community supervision officer
for Bell County Probation Department testified
9
(R.R. VI at 7) Appellant admitted using marijuana
on July 19, 2013 (R.R. VI at 9) and admitted and
tested positive for cocaine on September 13, 2013.
(R.R. VI at 10) Smith went on to relate Appellant
did not complete some of the requirements of her
terms and conditions of probation. (R.R. VI at 11)
Sherman Craig was called by the State (R.R. VI
at 21) and he related Appellant was living at his
residence in Killeen, Bell County, Texas; with
Appellant. (R.R. VI at 22) On August 9, 2013,
Appellant was drinking and an argument, which
became a tussle; according to the witness. (R.R. VI
at 26) At one point, Appellant threw a bottle of
water from the freezer, which struck Craig on the
head; even though he put up his hand to deflect it.
(R.R. VI at 30) Craig grabbed Appellant’s arms to
stop the fighting and Appellant bit him on his
hand; causing it to bleed. (R.R. VI at 31)
The trial court found all allegations to be
true, despite the indication that some of the
10
programs and sanctions were completed; to include,
increased community service restitution, letter of
explanation, and Texas Work Force Commission
referral. (Cl. R. at 41)
ARGUMENT
As the Court of Criminal Appeals noted: “We
have long held that ‘one sufficient ground for
revocation would support the trial court's order
revoking’ community supervision.” Smith v. State,
286 S.W.3d 333 (Tex. Crim. App. 2009); Jones v.
State, 571 S.W.2d 191, 194 (Tex. Crim. App. 1978)
Since all the allegations in the State’s Motion to
Adjudicate were found the be true, the violation of
Condition #1 as alleged in paragraph “A” of the
State’s motion alone would be sufficient to enter
the finding of guilty. (Cl. R. at 39-40)
“Appellate review of an order revoking
probation is limited to abuse of the trial court's
discretion.” In determining questions regarding
sufficiency of the evidence in probation revocation
11
cases, the burden of proof is by a preponderance of
the evidence. The Court stated that “an order
revoking probation must be supported by a
preponderance of the evidence; in other words, that
greater weight of the credible evidence which would
create a reasonable belief that the defendant has
violated a condition of his probation.” Rickels v.
State, 202 S.W.3d 759, 763-64 (Tex. Crim. App.
2006)
A trial court's decision to revoke probation is
reviewed for an abuse of discretion. A trial court
abuses its discretion if the decision is so clearly
wrong as to lie outside the zone within which
reasonable persons might disagree. The Appellant
court views the evidence presented in a revocation
proceeding in the light most favorable to the trial
court's ruling. As the tier of fact, it is left to
the trial court to judge the credibility of
witnesses and the weight to be given their
12
testimony. [citations omitted] Mauney v. State, 107
S.W.3d 693, 695 (Tex. App. Austin 2003 no pet. h.)
There is sufficient evidence to uphold the
trial court’s finding of guilt on the State’s
motion to adjudicate. There is no error calling for
reversal of the finding of guilty and punishment
assessed by the trial court.
PUNISHMENT HEARING
On July 17, 2014 the trial court took up the
issue of the disposition of Appellant’s deferred
adjudication community supervision. (R.R. VII at 4)
The State recalled for the trial court some of
the facts of the leading to Appellant being charged
with Aggravated Assault with a Deadly Weapon which
led to her community supervision and the facts of
the assault on Mr. Craig. (R.R. VII 5)
There was no additional evidence submitted,
other than a certificate of appreciation for
Appellant’s volunteer work at the Bell County
Indigent Health Services and a certificate showing
13
completion of an anger resolution seminar. (R.R.
VII at 6) (R.R. VIII Defendant’s Exhibit 1)
After a plea by Appellant’s attorney to leave
Appellant on the deferred adjudication probation
because Appellant was getting treatment and
medications for her mental issues. (R.R. VII at
6,7) The State gave an opinion, based on the facts
before the trial court, of Appellant’s propensity
for drug abuse and violence. (R.R. VII at 9)
The trial court found Appellant guilty of the
original accusation of aggravated assault with a
deadly weapon (R.R. VII at 12) and assessed her
punishment at five (5) years in the Texas
Department of Criminal Justice—Institutional
Division.
After an adjudication of guilt, all
proceedings, including assessment of punishment,
pronouncement of sentence, granting of community
supervision, and defendant's appeal continue as if
the adjudication of guilt had not been deferred.
14
Tex. Crim. Proc. Code Article 42.12 §5(b). The
trial court did conduct a punishment hearing
identical to one performed after a direct finding
of guilty. Texas 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. A sentence of six (6) years falls within
the applicable range of two to ten years. Mullins
v. State, 208 S.W.3d 469, 470 (Tex. App. 2006) The
five (5) year sentence assessed against Appellant
is in the lower range of the two (2) years to
twenty (20) called for by Section 22.02(b) Tex.
Pen. Code.
ASSESSMENT OF COURT COSTS
When Appellant was sentenced by the trial
court, the trial court imposed the sentence of five
(5) years, with any credits, court costs and
restitution. (R.R. VII at 13) There is no
restitution amount set out in the trial court’s
15
Judgment Adjudicating Guilt; however Appellant was
ordered to pay court costs in the amount of
$502.00. (Cl. R. at 56) A bill of costs was filed
on July 23, 2014 confirming the amount of court
costs. (Cl. R. at 59)
A defendant's ability to pay is not relevant
with respect to legislatively mandated court costs.
The Court of Appeals in Texarkana has recently
agreed with the Amarillo court and has held that a
trial court can order an indigent defendant to pay
legislatively mandated court costs provided payment
is not demanded before the trial court proceedings
have concluded. [citations omitted] Martin v.
State, 405 S.W.3d 944, 947 (Tex. App. Texarkana
2013 no pet. h.) Since there is a bill of costs in
the appellate record, Appellant can be required to
pay the court costs; despite her being indigent.
Her indigency is supported by the trial court
having appointed both trial and appellate counsel.
(Cl. R. at 48 & 67)
16
PRAYER
Wherefore, premises considered, after a review
of the entire record in this cause, counsel for
Appellant submits there are no issues or arguable
grounds for appeal and; therefore, prays the Court
of Appeals to grant counsel’s motion to withdraw.
Respectfully submitted,
/s/ James H. Kreimeyer
James H. Kreimeyer
Counsel for Appellant
P.O. Box 727
Belton, TX 76513
254-939-9393 Fax:939-2870
TSB#11722000
jkreime@vvm.com
17
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with
the length limitations of Texas Rule of Appellate
Procedure 9.4(i)(3) because this brief contains
1,792 words, excluding the parts of the brief
exempted by Texas Rule of Appellate Procedure
9.4(i)(1); a number which is less than the 15,000
words allowed under Rule 9.4(i)(2)(B).
I also certify that this brief complies with
the typeface requirements of Texas Rule of
Appellate Procedure 9.4(e) because this brief has
been written with a conventional typeface using a
14-point font (with footnotes no smaller than 12-
points) using Microsoft Office Word 2010 (version
14), in Courier New font.
/s/ James H. Kreimeyer
JAMES H. KREIMEYER
18
NO. 03-14-00563-CR
Tarsha Yvonne Wiley § IN THE COURT OF APPEALS
v. § THIRD JUDICIAL DISTRICT
THE STATE OF TEXAS § SITTING AT AUSTIN, TEXAS
CERTIFICATE OF COUNSEL
In compliance with the requirements of Anders
v. California, 386 U.S. 378 (1967), I, James H.
Kriemeyer, court-appointed counsel for appellant,
Tarsha Yvonne Wiley, in the above referenced
appeal, do hereby verify, in writing, to the Court
that I have:
1. notified appellant that I filed a motion to
withdraw as counsel with an accompanying Anders
brief, and provided a copy of each to appellant;
2. informed appellant of her right to file a pro
se response identifying what she believes to be
meritorious grounds to be raised in her appeal,
should she so desire;
19
3. advised appellant of her right to review the
appellate record, should she wish to do so,
preparatory to filing that response;
4. explained the process for obtaining the
appellate record, provided a Motion for Pro Se
Access to the Appellate Record lacking only
appellant’s signature and the date, and provided
the mailing address for this Court; and
5. informed appellant of her right to seek
discretionary review pro se should this Court
declare her appeal frivolous.
Respectfully submitted,
/s/ James H. Kreimeyer
Attorney for Appellant
James H. Kreimeyer
20
CERTIFICATE OF SERVICE TO OPPOSING COUNSEL
This is to certify a true copy of the foregoing
Appellant’s Brief was furnished to Bob Odom
Assistant District Attorney for Bell County, P.O.
Box 540, Belton, Texas 76513 on the 19th day of
March, 2015.
/s/ James H. Kreimeyer
JAMES H. KREIMEYER
CERTIFICATE OF SERVICE TO APPELLANT
This is to certify a true copy of the brief, a
motion to obtain the appellate record and a letter
explaining Appellant’s right to file a pro se brief
in this cause; was forwarded to Appellant, Tarsha
Yvonne Wiley, Lockhart Correctional Facility, P.O.
Box 1170, Lockhart, TX 78640 on the 19th day of
March, 2015.
/s/ James H. Kreimeyer
JAMES H. KREIMEYER
21
JAMES H. KREIMEYER
ATTORNEY AT LAW
P.O. Box 727 BOARD CERTIFIED-CRIMINAL LAW (254) 939-9393
BELTON, TEXAS 76513 TEXAS BOARD OF LEGAL SPECIALIZATION FAX (254) 939-2870
March 19, 2015
Tarsha Yvonne Wiley
TCJ#01941874
Lockhart Correctional Facility
P.O. Box 1170
Lockhart, TX 78640
Notification letter re:
(1) Anders situation, no arguable grounds, and motion
to withdraw,
(2) right to file pro se brief,
(3) right to file petition for discretionary review,
(4) relevant appellate rules, and
(5) Appellant’s motion for pro se access to the
appellate record
Dear Ms. Wiley:
Enclosed please find a copy of the motion to withdraw
as counsel and brief pursuant to Anders v. California that
I have prepared and filed in your case. After a diligent
search of both the clerk’s record and reporters record in
your case and a review of the applicable law, it is my
opinion that no reversible error occurred at your
revocation proceeding.
Whenever appellate counsel files a motion such as
this, the law provides the appellant the right to review
the record and file a response identifying to the appellant
court any grounds she thinks are non-frivolous issues to be
raised on her behalf that the appellate court should
consider in deciding whether the case presents any
meritorious grounds for appeal. Because I have filed this
motion and brief, you now have the right to review the
record and file a response or brief if you so choose. To
assist you in obtaining the record if you wish to review
it, I have enclosed a Motion for Pro Se Access to the
Appellate Record for you to file. In order to obtain the
22
appellate record, you must sign and date the motion and
mail it to the Third Court of Appeals within ten days of
the date of this letter at the following address:
Jeffrey D. Kyle, Clerk
Third Court of Appeals
P.O. Box 12547
Austin, TX 78711
The Court of Appeals will then direct the clerk of the
trial court to provide you with a copy of the appellate
record. Your response will be due to be filed in the Third
Court of Appeals within 30 days of the date the clerk
provides the record to you.
Whether or not you file a response, the law requires
the Court of Appeals to review the record to determine if
the Court agrees with my assessment that no meritorious
grounds for appeal exist, i.e., that no reversible error
exists. If the Court does not agree, but instead believes
there are non-frivolous issues to be raised on your behalf,
the Court must abate the appeal to have another attorney
appointed to review the record on your behalf.
Should the Court of Appeals ultimately determine that
there are no meritorious grounds to be raised and that your
appeal is frivolous, the Court will affirm your revocation.
You may then file a pro se petition for discretionary
review with the Texas Court of Criminal Appeals. Such
petition must be filed within 30 days of the date the Court
of Appeals renders its judgment.
Feel free to write me if you have any questions about
the procedure utilized in your appeal. I will do my best
to answer any questions you may have.
Sincerely,
/s/ James H. Kreimeyer
James H. Kreimeyer
23