Johnson, Morris Landon Ii ( 2015 )


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  •      ? IH5
    jK ib IN A L
    COURT OF CRWAIA^       3
    SEP 18 2015
    Petition for
    Discretionary Review            Abel AcOSta, Gte:':
    Morris Landon Johnson II
    PD-0911-15
    FILED IN
    ORAL ARGUMENT NOT REQUESTED       C0URT 0F CRIMINAL APPEALS
    SEP 18 2015
    Motion for Rehearing not Filed
    Abel Acosta, Clerk
    Identity of Parties
    Morris Landon II Appellant/Petitioner
    2661FM 2054
    Tennessee Colony, Texas 76408
    Appellate Counsel
    Richard L. Mattox
    State Bar No. 09233200
    201 E. Bridge Street
    Granbury, Texas 76048
    Trial Counsel/Defense
    Angie Hadley
    State Bar No. 24050705
    600 S. Texas Street
    DeLeon, Texas 76444
    Appellee/State of Texas
    Trial Court
    Robert Christian
    State Bar No. 004798106
    1200 W. Pearl Street
    Granbury, Texas 76408
    Table of Contents
    Cover
    Identity of Parties
    Table of Contents
    Table of Cases/Index of Authorities
    Statement of the Case
    Procedural History
    Argument/Question 1
    Argument/Question 2
    Summary of the Argument
    Certificate of Service
    Table of Cases
    State
    Carroll v State 916 Sw2d p. 494 (Tx.crim.app 1996)
    Coleman v State 915 Sw2d p80 (Tx. App-Waco 1996 pdr gntd
    Coleman v State 966 SW2D p. 525 (Tx. Crim.app 1998)
    Ex Parte Shumake 953 Sw2d p. 942 (Tx.app-Austin 1997)
    High v State 573 Sw2d p. 807, 812 (Tx.crim.app 1978)
    Jefferyv State 903 Sw2d p. 776 (Tx.app-Dallas 1995) remanded
    Mitten v State 79 Sw3d p. 751 (Tx.app-Corpus Christi 2002)
    Mitten v State 145 Sw3d p. 225 (Tx.crim.app.app) on remand
    Mitten v State 225 Sw3d p. 693 (Tx.crim.ap) rr
    Polask v State 16 SW3d p.83 (Tx.app-Houston 1 Dist 2000)
    Pena v State 932 Sw2d p. 31 (Tx.app-EI Passo 1997)
    Ramirez v State 802 Sw2d p. 674 (Tx.crim.appl993)
    Virte v State 739 Sw2d p. 25, 35 (Tx.Cr.app 1987)
    Supreme Court
    Alford v United States 51S ct p. 1218 (1931)
    Anders v State 
    386 U.S. 734
    (1967)
    Chambers v Mississippi 93 S ct p. 1308 (1973)
    Evitts v Lucy 105 S ct p. 930 (1985)
    McCoy v Court of Appeals 108 S ct p. 1895 (1988)
    Pointer v Texas 85 s ct p. 1065 (1988)
    Smith v Illinois 88s ct p. 748 (1962)
    Washington v Texas 87 s ct p. 1920 (1967)
    Statement of the Case
    This case involved a conviction for delivery of a controlled substance. The transaction was set
    up by a confidential informant (CI) and a detective. A pre-trial suppression hearing focused on texting
    information was denied. The jury found the defendant guilty and sentence was placed at forty years.
    At the close of trial, the district clerk handed to trial counsel prepared subpoenas of Camon
    Buchannon that was never served. No prior notice of this failure was provided, (see Appellate record of
    Angie Hadley) -Affidavit
    Procedural History
    Trial counsel was appointed on 10/13/2013. A jury trial commenced on 9/15/2014. After a
    finding of guilt, Richard Mattox was appointed as appellate counsel who then filed an Anders Brief and
    motion to withdraw on 1/7/2015, the same day notifying the defendant by letter of such with
    instructions how to file a pdr.
    The Appellate Court filed pro se a response to the Anders Brief. Late on June 18, 2015 the
    Second Court of Appeals issued their opinion affirming the decision, and granting the withdraw motion.
    This PDR follows.
    QUESTION FOR REVIEW
    WHETHER AN ANDERS BRIEF CAN
    STAND ON AN INCOMPLETE RECORD
    ARGUMENT
    It is well settled that a Defendant is entitled to the effective assistance of counsel on appeal.
    Evitts v Lucy 108 s ct p. 830 (1987).
    The proper standard for evaluating ineffectiveness of counsel on appeal is that set forth in
    Strickland v Washington 104 s ct p. 2052. See Smith v Robbins s ct p. 746 (2000). To achieve this
    standard, counsel must play the role of an active advocate rather than a mere friend of the court,
    assigned in a detached evaluation of his client's claim. Anders v State 
    386 U.S. 734
    (1967).
    Counsel in reviewing the record must be "zealous and resolve all doubts that any arguable
    grounds are wholly frivolous" Pena v State 932 Sw3d p. 31 (tx.app-EI Paso 1997) citing McCoy vs Court of
    Appeals 108 S ct p.1895 (1988). Conclusory statements in the brief are insufficient. High v State 573
    Sw2d p. 807, 812 (Tx.cr.app 1978). The Anders Brief provides the appellate courts with a basis for
    determining whether appointed counsel has fully performed their duty to support their client's appeal
    to the best of his duty. Ex Patte Shumake 953 Sw2d p. 942 (Tx.app-Austin 1997).
    This is a critical determination that must be kept free from unreasonable distinction that can
    only impede open and equal access to the courts.
    This process of the appellate courts involves two questions. First, whether the lawyer really did
    function as a committed advocate, and two, whether he misjudged the legitimate applicability of any
    issue. In this review, the court is responsible for assuring that counsel has gone as far as advocacy will
    take him with the best issues discounted. See Jeffery v State 903 Sw2d p. 776 (Tx.app-Dallas 1995)
    remanded.
    In Jeffery, counsel submitted an Anders brief. The appellate "court in it's review discovered that
    the oral pronouncement of 20 years was not reflected accurately in the judgement of 20 years plus a
    1000.00 dollar fine. "If counsel missed such an obvious error, we cannot assure that counsel would have
    caught other more subtle points of error". Appellant counsel was allowed to withdraw and new counsel
    was appoint to file a brief.
    In the instant case, appellate counsel appears to have missed a subpoena not served, and more
    importantly that bench conferences were not recorded, particularly on cross. The absence lends to
    restricted testimony and dial of confrontation.
    Trial counsel filed an affidavit as to the actions of the District Clerk not serving the complete
    subpoena.
    Discretionary review should be granted on the grounds of an incomplete record, and on
    appellate counsel's failure to act in good faith, in light of existing facts.
    Questions Two
    WHETHER THE COA DECISION CAN STAND ON AN INCOMPLETE RECORD
    An accused has a right ofcompulsory process for obtaining witnesses on his behalf. US
    Constitution VI, Texas Constitution Art 110. The Texas Constitution offers more protection in a criminal
    case.
    Trial counsel filed a written, sworn application that identified a witness and that his testimony
    would be material and relevant at sentencing.
    Issuance ofa subpoena is a matter ofright on written, sworn application, identifying the witness
    and indicating that their testimony is material to state or defense. See Mitten vState 79 Sw3d (Tx.app-
    Corpus Christi 2002) pdr gntd rvds 145 Sw3d p. 225, (Tex.crim.app, on remand 225 Sw3d p. 693 citing
    Colman v State 915 Sw2d p. 80 (Tx.app-Waco 1996) pdr gntd.
    Colman was reversed and granted a new trial. See 966 Sw2d p. 525 (Tx.crim.app 1998 En. Banc.
    If astate arbitrarily denies a criminal defendant the right to have a person to testify who was physically
    and mentally capable totestify toevidence that he had personally observed and would have given
    evidence which would have been relevant and material to defense, then his constitution rights are
    violated.
    Such was the holding in Washington vTexas 87 Sct p. 1920 (1967). This right is not absolute, as
    the witness testimony must both be relevant, material and favorable. See United States vValenzuela-
    Bernal 102 S ct p. 3440 (1983).
    The court reported failed to record four bench conferences requested by the state (RR vol 4 p.
    65, 90,91,126,127. The state requested such on the cross by thedefense of the CI.
    The right to confront witnesses is guaranteed US Const Amend v. as held in Pointer vTexas 85 S
    ct p.1065 (1988). This right ensures fairness to any matter that could reflect awitness's credibility. Virte
    v State 7.39 Sw2d p. 25, 35 (Tex.cr.app 1987).
    There are limitations to this right. See Chambers v Mississippi 921S ct p. 1038 (1973). In cross
    examination, the trial judge determines to safeguard the witness from; harassment, prejudice, confusion
    of the issues, and repetition or marginal relevant interrogation (see Smith vIllinois 85 Sctp.748 1962).
    This instant case involved a criminal informant. (CI) also asdistinguished in the holding ofCarrol
    vState 916 Sw2d p. 494 (Tex.cr.app 1996). The trial counsel was questioning both the detective and the
    CI as to in part agreements, such was evaded by the witness.
    The State during such facts opened the door attheir opening statements to which the details
    that the defense counsel was forced to abandoned. When a witness leaves afalse impression, the
    opposing party is allowed to correct that false information see Ramirez vState 802 Sw2d p. 674
    (Tex.crim.app 1998)
    Where a CI is part of a criminal case the motive of bias exists, and defense much be allowed, as
    an unqualified right to determine any coercion, or immunity, such concern is relevant. See Alford v
    United States 51 s ct p.1218 (1931).
    The request to record all proceedings pursuant to T.R.A.P. 113.1 has been found to be in conflict
    with Tex.Govt Code 52.046 (a) see Polasek v State 16 Sw3d p. 82 (Tex.app-Houston [1 dist} 2000). The
    dissenting opinion focused on the plain meaning of the rule "upon request, shall".
    In the appellants case a review of the record is needed to determine if such rule was followed.
    This request is based on on in part the bad faith of appellate counsel.
    SUMMARY OF THE ARGUMENT
    The PDRshould be granted because the filing of an Ander's Brief was impeded the appellant to
    fully develop the record, as is his ability to establish the violation of the right to compel witnesses in his
    favor. The COA decision ought not to stand on procedural errors effecting the constitutional right of the
    Petitioner.
    Prayer
    Therefore it is the Prayer of the Petitioner, Pro Se, grant review of the Appellate Courts decision in this
    case and provide all judicial relief applicable to petitioner.
    Sincerely
    Morris Landon Johnson II
    TDC# 1877943
    Coffield Unit
    2661FM 2054
    Tennessee Colony, Texas 75884
    I
    Cause #12645
    8      IN THE 355th JUDICIAL
    THE STATE OF TEXAS                        |
    I       DISTRICT COURT OF
    vs                                        !
    MORRIS LANDON JOHNSON                      §I     WOOD COUNTY, TEXAS
    HOODCOUN
    ^mPAVTT OF FACTS
    being by me duly sworn stated the following under oath:
    -My name is Angie H^ey.latnovertheageoffour.ena^ears.a.dlam
    co^torna.etMsafndav, Thestentscontainedhereinare *ueand correct.
    ^Mahou,Octoherl5,20n..wasappointed«orepresen,Mr.MorriSLmdonIohnSon
    ^rheeharseofManurac^eliveryofa—edSubs^nrorethanag^butless^
    4grams inHoodCounty, aseconddegreefelony enhancedto afirst.
    .OnSeptenrbcr^OHM, Johnsonwastriedby abound guilty and sentenced*
    .^h.TOa.However.rhesentencingwi.ness^t.s^aednevershowedupfor*
    i. andat^
    only Mr. Johnson's brother    the hmther's girlfriend who 1had personally spoken with,
    biother sgirimen
    (Applicationfor Subpoenas attached as exhibit A)
    served.                                                                              ..
    ^Hevethat ifCanonBue—(theonly sentencingwitnesses subpoenaed by
    a^hadbeenservedand.d^edatthesentencingphaseof.etrial^theo^e
    served him with a subpoena.
    ^S.ONINOTH.S^AV.VOLL.TAIULY.IHAVBNO^.N
    PROMTSBOFANYNATXlREBBENMAOElNEXCHANOEFORMYEXECOnONO
    THIS AFFIDAVIT."
    SieT^ley                      |
    SWORN and SUBSCRIBED
    before me, the undersigned authority, onthis ^   clay
    ,2015.
    of
    3TPARK£R                  Nota^ubiicTStote ofTexas
    «»522K52?tt,:
    (--';   ___
    CR-12645
    IN THE 355TH JUDICIAL
    THE STATE OFTEXAS                   §
    §
    §     DISTRICT COURT OF
    §
    VS.
    §
    §
    HOOD COUNTY, TEXAS
    MORRIS LANDON JOHNSON               §
    *,Fm ir ATION FQW SUBPOENA
    testimony ofthese persons is ^ ^ ^ ^ ^ fctfaL
    witness needs to appear September 16,2014 at 9.0U am
    1. Scott Johnson (brother)
    1415 Private Road 702
    Stephenville,TX 76401
    254-592-4679
    2. PattiNisbit
    1415 Private Road 702
    Stephenville,TX 76401
    3. CamonBuchannon
    1301 Shawnee Trail
    Granbury, TX 76048
    817-501-7405
    Angie Hadley
    State Bar #: 24050705
    PO Box 336
    DeLeon,TX 76444
    Phone: 254-893-7778
    Fax: 254-893-7779
    yfgcctc.net /
    jmey at Law
    e.w»*A
    COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 02-14-00411-CR
    MORRIS LANDON JOHNSON, II                                         APPELLANT
    V.
    THE STATE OF TEXAS                                                      STATE
    FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
    TRIAL COURT NO. CR12645
    MEMORANDUM OPINION1
    A jury found Appellant Morris Landon Johnson, II guilty of delivery of one
    gram or more but less than four grams of methamphetamine; Johnson pleaded
    true to an enhancement allegation and the jury assessed his punishment at forty
    years' confinement and a $5,000 fine. The trial court sentenced him accordingly.
    1SeeTex. R. App. P. 47.4.
    See Tex. Health & Safety Code Ann. § 481.112(a), (c) (West 2010); Tex. Penal
    Code Ann. § 12.42(b) (West Supp. 2014). Johnson timely perfected this appeal.
    Johnson's appointed appellate counsel has filed a motion to withdraw as
    counsel and a brief in support of that motion. Counsel's brief and motion meet
    the requirements of Anders v. California by presenting a professional evaluation
    of the record demonstrating why there are, in counsel's assessment, no arguable
    grounds for relief.   See 
    386 U.S. 738
    , 744, 
    87 S. Ct. 1396
    , 1400 (1967). In
    compliance with Kelly v. State, counsel notified Johnson of his motion to
    withdraw, provided him a copy of the brief, informed him of his right to file a pro
    se response, informed him of his pro se right to seek discretionary review should
    this court hold the appeal is frivolous, and took concrete measures to facilitate
    Johnson's review of the appellate record by providing him with a copy of the
    clerk's record and the reporter's record. See 
    436 S.W.3d 313
    , 319 (Tex. Crim.
    App. 2014). Johnson filed a pro se response to counsel's Anders brief raising
    five points, many of which are unpreserved for our review. See Tex. R. App. P.
    33.1.
    As the reviewing court, we must conduct an independent evaluation of the
    record to determine whether counsel is correct in determining that the appeal is
    frivolous. See Stafford v. State, 
    813 S.W.2d 503
    , 511 (Tex. Crim. App. 1991);
    Mays v. State, 
    904 S.W.2d 920
    , 923 (Tex. App.—Fort Worth 1995, no pet.). Only
    then may we grant counsel's motion to withdraw. See Penson v. Ohio, 
    488 U.S. 75
    , 82-83, 
    109 S. Ct. 346
    , 351 (1988).
    We have carefully reviewed the record, counsel's brief, and Johnson's pro
    se response.    We agree with counsel that this appeal is wholly frivolous and
    without merit; we find no preserved error in the record that arguably might
    support an appeal. See Bledsoe v. State, 
    178 S.W.3d 824
    , 827-28 (Tex. Crim.
    App. 2005). Accordingly, we grant counsel's motion to withdraw and affirm the
    trial court's judgment.
    /s/ Sue Walker
    SUE WALKER
    JUSTICE
    PANEL: GARDNER, WALKER, and MEIER, JJ.
    DO NOT PUBLISH
    Tex. R. App. P. 47.2(b)
    DELIVERED: June 18, 2015