Kenneth L. Brown v. State ( 2015 )


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  •                                                                                             ACCEPTED
    01-15-00357-CR
    FIRST COURT OF APPEALS
    HOUSTON, TEXAS
    11/9/2015 1:57:38 PM
    CHRISTOPHER PRINE
    CLERK
    NO. 01-15-00357-CR
    IN THE FIRST COURT OF APPEALS                  FILED IN
    OF THE STATE OF TEXAS               1st COURT OF APPEALS
    HOUSTON, TEXAS
    11/9/2015 1:57:38 PM
    CHRISTOPHER A. PRINE
    Clerk
    KENNETH L. BROWN
    Appellant
    v.
    THE STATE OF TEXAS
    Appellee
    On Appeal in Cause Number 1389982
    From the 177th District Court of Harris County, Texas
    Hon. Ryan Patrick, Judge Presiding
    BRIEF   FOR   APPELLANT
    ORAL ARGUMENT WAIVED                       ALEXANDER BUNIN
    Chief Public Defender
    Harris County, Texas
    BOB WICOFF
    Assistant Public Defender
    State Bar of Texas No. 21422700
    1201 Franklin, 13th floor
    Houston, Texas 77002
    Phone: (713) 368-0016
    Fax: (713) 368-9278
    bob.wicoff@pdo.hctx.net
    Counsel for Appellant
    i
    Identity of Parties and Counsel
    Appellant                                        Kenneth L. Brown
    TDCJ # 01995117
    Garza West Unit
    4250 Highway 202
    Beeville, Texas 78102-8982
    Presiding Judge                                  Hon. Ryan Patrick
    177th District Court
    1201 Franklin
    19th floor
    Houston, Texas 77002
    Trial Prosecutor                                 Tammy Massa
    Assistant District Attorney
    Harris County, Texas
    1201 Franklin
    Houston, Texas 77002
    Defense Counsel in Trial Court                   Ricardo Gonzalez
    Attorney at Law
    8876 Gulf Freeway
    Houston, Texas 77017
    Defense Counsel on Appeal                        Bob Wicoff
    Assistant Public Defender
    Harris County, Texas
    1201 Franklin, 13th floor
    Houston, Texas 77002
    i
    Table of Contents
    Page
    Identity of Parties and Counsel:                                           i
    Table of Contents:                                                        ii
    Index of Authorities:                                                     iii-iv
    Statement of the Case:                                                    v
    Issue Presented:                                                          v
    Court-appointed counsel believes that the appeal in this case is
    frivolous, since there are no arguable grounds for appeal from the
    conviction and sentence following the appellant’s open plea of guilty,
    followed by a pre-sentence investigation and hearing before the trial
    court.
    Statement of Facts:                                                       1
    Summary of the Argument:                                                  3
    Argument:                                                                 4
    Prayer:                                                                   18
    Certificate of Service:                                                   18
    Certificate of Compliance:                                                19
    ii
    Index of Authorities
    Cases                                                                                                   Page
    Anders v. California, 
    386 U.S. 738
    , 
    87 S. Ct. 1396
    , 
    18 L. Ed. 2d 493
    (1967) ................. passim
    Bledsoe v. State, 
    178 S.W.3d 824
    (Tex. Crim. App. 2005)...................................................... 6
    Buchanan v. State, 
    68 S.W.3d 136
    (Tex. App.-Texarkana 2001, no pet.)……..                                    15
    Coleman v. State, 
    577 S.W.2d 486
    (Tex. Crim. App. 1979) ................................................... 8
    Currie v. State, 
    516 S.W.2d 684
    (Tex. Crim. App. 1974)....................................................... 5
    Ex parte Wilson, 
    956 S.W.2d 25
    (Tex. Crim. App. 1997) ................................................... 17
    Garner v. State, 
    300 S.W.3d 763
    (Tex. Crim. App. 2009) ..................................................... 6
    Guevera v. State, 
    985 S.W.2d 590
    (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd)                           9
    High v. State, 
    573 S.W.3d 807
    (Tex. Crim. App. 1978) ......................................................... 5
    In re Schulman, 
    252 S.W.3d 403
    (Tex. Crim. App. 2008)...................................................... 4
    Jenkins v. State, No. 14-97-00121-CR, 
    1998 WL 802439
    (Tex. App.-Houston .............. 12
    [14th Dist.] November 19, 1998, no pet.)(not designated for publication)
    McCoy v. Court of Appeals of Wisconsin, 
    486 U.S. 429
    , 438 n.10 (1988) .............................. 4
    Mitchell v. State, 
    193 S.W.3d 153
    (Tex.App.-Houston [1st Dist.] 2006, no pet.) ................ 5
    Prado v. State, 
    626 S.W.2d 775
    (Tex. Crim. App. 1982)...................................................... 11
    Randon v. State, 
    178 S.W.3d 95
    (Tex. App.-Houston [1st Dist.] 2005, no pet.)…….. 16
    Rhoades v. State, 
    934 S.W.2d 113
    (Tex. Crim. App. 1996) .................................................. 14
    Robinson v. State, 
    240 S.W.3d 919
    (Tex. Crim. App. 2007)................................................... 9
    Sanchez v. State, 
    120 S.W.3d 359
    (Tex. Crim. App. 2003) .................................................... 8
    iii
    Index of Authorities (cont'd)
    Cases                                                                                                              Page
    Solem v. Helm, 
    463 U.S. 277
    (1983)....................................................................................... 14
    Sowels v. State, 
    45 S.W.3d 690
    (Tex. App.-Waco 2001, no pet.)……………………… 4
    Stafford v. State, 
    813 S.W.2d 503
    (Tex. Crim. App. 1991)............................................. 4, 5, 6
    Stephens v. State, 
    35 S.W.3d 770
    (Tex. App.-Houston [1st Dist.] 2000, no pet.)............... 17
    Temple v. State, 
    342 S.W.3d 572
    (Tex. App.-Houston [14th Dist.] 2010)                                                   11
    Wood v. State, 
    260 S.W.3d 146
    (Tex. App.-Houston [1st Dist.] 2008, no pet.)                                             16
    Statutes                                                                                                           Page
    TEX. PENAL CODE ANN., sec. 12.42(d)                                                                                  v, 14
    TEX. PENAL CODE ANN., sec. 29.03(a)(2)                                                                                v, 7
    iv
    STATEMENT OF THE CASE
    Kenneth Brown (hereafter “Appellant”) was indicted in cause number 1389982
    for the first-degree felony offense of Aggravated Robbery, which was alleged to have
    occurred on June 1, 2013 (C.R. at 13); See Tex. Penal Code, § 29.03(a)(2). The
    indictment contained two enhancement paragraphs, thereby subjecting the Appellant
    to 25-99 years in prison upon conviction (C.R. at 13); Tex. Penal Code, § 12.42 (d).
    The Appellant was found guilty of aggravated robbery as charged in the indictment
    (C.R. at 80). After the punishment hearing, the jury assessed the Appellant’s
    punishment at thirty-eight (38) years confinement (C.R. at 87). The judgment contains
    an affirmative finding of a deadly weapon, namely, a firearm (C.R. at 95). No motion
    for new trial was filed.
    ISSUE PRESENTED
    Court-appointed counsel believes that the appeal in this case is
    frivolous, since there are no arguable grounds for appeal from
    the appellant’s plea of guilty followed by a pre-sentence
    investigation.
    v
    STATEMENT OF FACTS
    Brittany Spates and Curley Carter went out to celebrate Brittany’s birthday with
    friends on the evening of June 1, 2013 (4 R.R. at 59-60, 108). Afterward, they drove
    back to the apartment complex where they both lived. Upon arriving back at the
    complex, as the two of them got out of the car, another car pulled up, a black Toyota
    Camry (4 R.R. at 69). As Spates and Carter were walking to their apartment, two men
    ran up to them, one of them with a gun drawn, telling them to get down on the
    ground (4 R.R. at 70-71, 118). The assailants demanded that Carter and Spates hand
    over their belongings (4 R.R. at 71, 118). Spates gave the robbers everything she had,
    and both she and Carter gave the men their cell phones (4 R.R. at 74-76, 122). The
    two men then ran away and Spates and Carter ran to a neighbor’s apartment, where
    the neighbor called 9-1-1 (4 R.R. at 77).
    Houston Police Department Officer Ollie Thibeaux responded to the call
    within five to ten minutes (3 R.R. at 12, 18; 4 R.R. at 78, 125). Upon arriving,
    Thibeaux encountered Spates and Carter, whom he described as “visibly shaking,
    nervous” (3 R.R. at 21). They told Officer Thibeaux that two black males driving a
    Toyota Camry had stolen an iPhone (3 R.R. at 24). Thibeaux asked Spates if her
    phone was an iPhone. They asked her to log into her “find my iPhone” app, which
    allowed the police to determine the location of the phone (4 R.R. at 79). In short
    order, Officer Thibeaux told Spates and Carter that they needed to go with him to a
    second location, where they had located the black Toyota Camry (4 R.R. at 79, 127).
    1
    Thibeaux drove Spates and Carter to the location where one of the two
    suspects was being detained, which was at another nearby apartment complex (3 R.R.
    at 27). Thibeaux testified that upon arriving at the black Toyota Camry, he let Spates
    and Carter walk up to the vehicle and look through the window at the property lying
    inside (3 R.R. at 28). They identified the iPhones inside the car as theirs, in each case
    because of the photographs that were on the phones (3 R.R. at 30-31; 4 R.R. at 80,
    131-132). The two phone were recovered from the black Toyota Camry, but other
    items that were stolen were not recovered (3 R.R. at 43).
    After identifying the phones, Spates and Carter were put into the back seat of
    a patrol car, where they were asked to look at a suspect to see if they could identify
    him (4 R.R. at 81-82). A suspect was then brought in front of the police car with the
    headlights shining on him (3 R.R. at 37-38). Spates testified that the man whom she
    had identified at the scene as being the robber was the Appellant (3 R.R. at 38-39; 4
    R.R. at 84-85). She added that the Appellant had been the man who held the gun
    during the robbery (4 R.R. at 85). Carter had not been able to get a good look at the
    man wielding the gun (4 R.R. at 131). Spates estimated that the total elapsed time
    from the point of being robbed to the identification of the Appellant as the robber
    was 30 to 45 minutes (4 R.R. at 86).
    Rafael Fuentes lived at the second apartment complex, where the Appellant
    was arrested. On the morning that the Appellant was arrested, Fuentes was taking a
    bag of trash to the dumpster when he found a gun lying in the grass (3 R.R. at 64).
    2
    Houston Police Department Officer Matama Roberson responded to the call
    regarding the gun, and took it into custody (3 R.R. at 69).
    Houston Police Department Officer Tanika Miller testified that she was
    working patrol the morning of the robbery. At about 4:30 am, she observed a vehicle
    matching the description of the vehicle involved in the robbery (3 R.R. at 82). She
    followed the car to the entrance of an apartment complex, where two black males
    exited the car (3 R.R. at 86). Once the men walked away from the car, leaving it
    running, Officer Miller approached the car, where she could see cell phones lying
    inside (3 R.R. at 88; 4 R.R. at 8).
    Miller radioed a description of the suspects and the direction they had headed,
    and within ten minutes a suspect was detained (3 R.R. at 89-90). She drove her patrol
    car to the location where the suspect was being detained and saw that it was the same
    person she had seen getting out of the car a few minutes earlier (3 R.R. at 91). She
    testified that the Appellant was the man who had gotten out of the driver’s side of the
    car and who had been detained (3 R.R. at 92-93).
    SUMMARY OF THE ARGUMENT
    The undersigned has thoroughly reviewed the record and concluded that there
    are no meritorious grounds for appeal from the appellant’s plea of guilty followed by a
    pre-sentence investigation. Therefore, the undersigned moves to withdraw from
    representing the Appellant and has filed, simultaneously with this brief, a motion to
    withdraw.
    3
    ARGUMENT
    A. Anders briefs generally
    An attorney has an ethical obligation to refuse to prosecute a frivolous appeal.
    In re Schulman, 
    252 S.W.3d 403
    , 407 (Tex. Crim. App. 2008). If an appointed attorney
    finds, following a professional, conscientious evaluation of the record, that a case is
    wholly frivolous, his obligation to his client is to seek leave to withdraw. Anders v.
    California, 
    386 U.S. 738
    , 
    87 S. Ct. 1396
    , 
    18 L. Ed. 2d 493
    (1967). Counsel’s obligation to
    the appellate court is to assure it, through an Anders brief, that such a complete review
    of the record has been undertaken and that the request to withdraw is well-founded.
    
    Id. A wholly
    frivolous appeal is one that “lacks any basis in law or in fact.” See
    McCoy v. Court of Appeals of Wisconsin, 
    486 U.S. 429
    , 438 n.10 (1988). A reviewing court
    must resolve doubtful issues in the appellant’s favor. 
    Id. In the
    brief which
    accompanies his motion to withdraw, counsel must make references to the appellate
    record as well as to any applicable statutes, rules, and cases that lead counsel to the
    conclusion that the appeal is frivolous. Sowels v. State, 
    45 S.W.3d 690
    , 691 (Tex.App.-
    Waco 2001, no pet.). The brief must contain references to anything in the record that
    might arguably support the appeal, even though counsel believes that the appeal is
    frivolous. Anders v. California, supra; Stafford v. State, 
    813 S.W.2d 503
    (Tex. Crim. App.
    1991).
    4
    Counsel is not required to make arguments that would not be made on behalf
    of a client who has retained counsel for the appeal; counsel is not required to make
    arguments for which there is no merit. Currie v. State, 
    516 S.W.2d 684
    (Tex. Crim.
    App. 1974). If counsel concludes that there are no arguable grounds for appeal, then
    counsel should so state and should make references to the record, statutes, and cases
    which support that conclusion. Stafford v. 
    State, supra
    ; High v. State, 
    573 S.W.2d 807
    (Tex. Crim. App. 1978). When discussing the record, counsel must discuss the
    evidence introduced at trial and must provide the appellate court “with ready
    references to the record.” Stafford v. 
    State, supra
    at 510 n.3; High v. 
    State, supra
    .
    Conclusory statements in the brief are insufficient. Anders v. California, supra; High v.
    
    State, supra
    ; Currie v. 
    State, supra
    .
    Counsel must furnish a copy of the motion to withdraw and a copy of the brief
    to appellant and must advise appellant of his right to review the record and to file a
    pro se brief. Counsel must certify or otherwise show the appellate court that appellant
    has been furnished with a copy of the motion and brief and that appellant has been
    advised of his right to obtain the record and to file a pro se brief.
    After appellant has himself raised the points that he wishes to raise, or the time
    has passed for him to do so, the appellate court must conduct an independent
    examination of the proceedings and determine whether the appeal is wholly frivolous.
    Anders v. California, supra; Mitchell v. State, 
    193 S.W.3d 153
    (Tex.App.-Houston [1st
    Dist.] 2006, no pet.). If the court finds that the appeal is wholly frivolous and that
    5
    there are no arguable grounds for appeal, it will grant the motion to withdraw and
    affirm the judgment of the trial court. Garner v. State, 
    300 S.W.3d 763
    , 766 (Tex. Crim.
    App. 2009). Although a reviewing court may issue an opinion explaining why the
    appeal lacks arguable merit, it is not required to do so. 
    Id., at 767.
    If the court
    determines that there are arguable grounds, it will abate the appeal and remand the
    cause to the trial court with instructions that the trial court appoint new and different
    counsel to represent appellant on appeal to present those arguable grounds, as well as
    any others that new counsel might wish to present. See Bledsoe v. State, 
    178 S.W.3d 824
    ,
    826–27 (Tex. Crim. App. 2005). The appellate court does not make a decision on the
    merits of any issue, except to determine whether an appeal is wholly frivolous and that
    there either are or are not arguable grounds for appeal. Anders v. California, supra;
    Stafford v. 
    State, supra
    . An appellant may challenge a holding that there are no arguable
    grounds for appeal by filing a petition for discretionary review in the Court of
    Criminal Appeals. See 
    Bledsoe, supra, at 827-828
    , fn 6.
    B. The appeal in this case is frivolous
    The undersigned has evaluated the record from this case with the help of the
    useful “Anders Guidelines” posted on the website of the Fourteenth Court of
    Appeals. See http://www.txcourts.gov/media/883046/andersguidelines-revised-post-
    kelly-.pdf.
    6
    1. Sufficiency of the indictment or misdemeanor information.
    The elements of aggravated robbery under Tex. Penal Code § 29.03 are:
    (a) A person commits an offense if he commits robbery as defined in § 29.02;
    and
    (2) uses or exhibits a deadly weapon; or
    Under Tex. Penal Code § 29.02, a robbery is committed if, in the course of
    committing theft and with intent to obtain or maintain control of the property, the
    defendant intentionally or knowingly threatens or places another in fear of imminent
    bodily injury or death.
    The indictment charging the Appellant with aggravated robbery alleges the
    necessary elements under § 29.03(a)(2). Specifically, the indictment tracks the statutory
    language by alleging the Appellant, while in the course of committing the theft of
    property, and with the intent to obtain and maintain control of the property, did
    intentionally and knowingly threaten and place the complainant in fear of imminent
    bodily injury and death, adding the allegation that he used and exhibited a deadly
    weapon, a firearm (C.R. at 13). There is nothing which seems amiss with the
    aggravated robbery indictment, or which would suggest that it should have been
    challenged in the trial court by counsel.
    The two enhancement paragraphs in the indictment each allege that the
    Appellant was convicted of the felony conviction of “assault family violence.” The
    first enhancement alleges a conviction in 2009 that occurred prior to the commission
    of the charged offense in this case. The second enhancement alleges a conviction in
    7
    2012 that also took place prior to the date that the offense in this case was committed
    (which was June of 2013), and further alleges that it took place after the conviction in
    the first enhancement paragraph had become final. Thus, the enhancement
    paragraphs alleged the sequence of prior convictions necessary to enhance the
    Appellant’s punishment under section 12.42(d) of the Texas Penal Code.
    The purpose of an enhancement allegation is to provide the accused with
    notice of the prior conviction relied upon by the State. Coleman v. State, 
    577 S.W.2d 486
    , 488 (Tex. Crim. App. 1979). Because the enhancement paragraphs in this case
    described the prior convictions by date, cause number, county, and offense, sufficient
    notice was provided and a motion to quash would have been futile. 
    Id. No motion
    to
    quash appears in the record for either indictment. Therefore, any defects of form,
    substance, want of notice, or any other claim other than fundamental defect is waived.
    See Tex. Code Crim. Proc. art. 1.14(b); Sanchez v. State, 
    120 S.W.3d 359
    , 367 (Tex.
    Crim. App. 2003). However, no such motion was called for, as the indictment was
    sufficient in all respects.
    2. Any adverse pretrial rulings, including but not limited to rulings on motions
    to suppress, motions to quash, and motions for speedy trial
    The following motions were filed by the defense in this case:
    1) Defendant’s Motion for the Appointment of an Investigator and Request
    for Funds for an Investigator (C.R. at 21)(motion was granted);
    2) Motion for Discovery and Inspection of Evidence (C.R. at 27)(motion was
    not ruled on);
    3) Motion for Disclosure and Production of Evidence Favorable to Defendant
    (pro se)(C.R. at 29)(motion was not ruled on);
    8
    4) Request for Notice Under Texas Rules of Criminal Evidence 404 and 609
    and Texas Code of Criminal Procedure Article 37.07 (pro se)(C.R. at 33)
    (motion was not ruled on);
    5) Motion to Dismiss Court Appointed Attorney and Appoint New Counsel
    to Act on Behalf of Defendant (pro se)(C.R. at 36)(motion was not ruled
    on);
    6) Defendant’s Motion in Limine (C.R. at 60)(motion was not ruled on);
    7) Motion for Hearing on Admissibility of Any Statement by Defendant
    Whether Written or Oral or Evidence Resulting from Same (C.R. at 62)
    (motion was not ruled on).
    “The State filed a Notice of Intention to Use Evidence of Prior Convictions
    and Extraneous Offenses,” so although the Appellant’s motion (number 4 above) was
    not presented to the trial court for a ruling, the information sought in such motion
    was provided nonetheless. For the remainder of the above listed motions, the record
    does not reflect a ruling by the trial court. Motions must be “presented” to the trial
    court to preserve a complaint for appellate review, and presentment means more than
    mere filing. Guevara v. State, 
    985 S.W.2d 590
    , 592 (Tex. App.-Houston [14th Dist]
    1999, pet. refd). The movant must make the trial judge aware of the motion by calling
    the judge's attention to it in open court and requesting a ruling thereon. 
    Id. Because trial
    counsel did not obtain a ruling on the above listed motions (absent the motion
    requesting a fee for an investigator) nothing is preserved for appellate review.
    As for the Defendant’s pro se motions, because a defendant does not have a
    right to hybrid representation, the trial court is free to disregard any pro se motions
    presented by a defendant who is represented by counsel. See Robinson v. State, 
    240 S.W.3d 919
    , 922 (Tex. Crim. App. 2007). Thus, no point of error would be properly
    9
    predicated on the Appellant’s pro se motions. In any case, these were boilerplate
    motions which, even if adversely ruled on, would not have lent themselves to issues
    on appeal. Appellate counsel has detected no other pre-trial motions that were
    advisable in this case but not filed. Specifically, there were no grounds to file a motion
    to suppress, motion to quash, or motion for speedy trial.
    3. Any adverse rulings during trial on objections or motions, including
    objections to admission or exclusion of evidence, objections premised on
    prosecutorial or judicial misconduct, and motions for mistrial.
    Although there were sporadic objections by defense counsel during the
    presentation of evidence, none could be said to have involved hotly contested issues.
    For example, defense counsel objected periodically to questions that called for hearsay
    responses (3 R.R. at 30, 31, 32, 38, 77), or to the form of the question (4 R.R. at 25-
    26, 27, 87), but the objections were sustained or the prosecutor rephrased the
    question or the objection was properly overruled.
    At one point, defense counsel objected to the State’s attempt to introduce a
    gun into evidence, and the trial court sustained the objection (3 R.R. at 74-75).
    Counsel also objected that the chain of custody had not been proven as to some
    clothing the State attempted to introduce, but the trial court sustained that objection
    as well (3 R.R. at 94). At times, the State objected to defense questions, and defense
    counsel merely rephrased his question (4 R.R. at 12, 16).
    10
    Suffice it to say, the objections posed by each lawyer at trial were as to matters
    of form rather than substance. None of the objections that resulted in adverse rulings
    resulted in arguable issues on appeal.
    Defense counsel also objected to the following portion of the State's closing
    argument:
    [The State]: And today is the day for you to do your job. Justice
    cannot be done alone. The community has to come together to fight for
    what is right and to fight against what is bad and evil in this world and
    this event should not be occurring in Harris County and if it does…
    [The Defense]: Objection as to improper argument, Your Honor.
    [Trial Court]: Overruled. (4 R.R. at 180-181).
    It is unclear whether defense counsel’s objection was sufficiently specific. In
    any event, a point of error based on the trial court’s ruling would be frivolous. Even
    when a jury argument exceeds the approved areas, it will not constitute reversible
    error unless the argument is extreme or manifestly improper, violative of a mandatory
    statute, or injects new facts harmful to the accused into the trial proceeding. Temple v.
    State, 
    342 S.W.3d 572
    , 602-603 (Tex. App.-Houston [14th Dist] 2010). Error in
    allowing improper argument is generally nonconstitutional error that must be
    disregarded unless it affects the defendant's substantial rights. 
    Id. The State’s
    comment
    that “[T]he community has to come together to fight for what is right and to fight
    against what is bad and evil in this world” is not inflammatory, extreme, or manifestly
    improper. Although it is improper to argue that the community desires a certain
    result, the argument in this case was instead a proper plea for law enforcement. Cf.
    Prado v. State, 
    626 S.W.2d 775
    , 776 (Tex. Crim. App. 1982) with Jenkins v. State, No. 14-
    11
    97-00121-CR, 
    1998 WL 802439
    (Tex. App.-Houston [14th Dist.] November 19, 1998,
    no pet.)(not designated for publication).
    4. Any adverse rulings on post-trial motions (e.g., motion for new trial or post-
    judgment verdict of acquittal)
    There were no post-trial motions, nor were any called for.
    5. Potential errors during jury selection
    Both sides were allowed to conduct voir dire without interference from the trial
    court. There were no objections posed by either lawyer to the other’s questions during
    jury selection. No challenges for cause were denied. The trial court granted each side’s
    challenges. No objections were lodged by either side to the empaneling of the jury (2
    R.R. at 158).
    6. Potential errors regarding jury instructions
    The jury instructions in this case were standard instructions for an aggravated
    robbery case. They included instructions on the law of parties (C.R. at 74), as well as
    an application paragraph applying the law of parties to the facts of the case, with the
    other, unapprehended robber listed as an “unknown person.” (C.R. at 75). There were
    no defensive issues with regard to this case. It was simply a matter of whether the
    Appellant was indeed one of the robbers. Therefore, the jury charge did not call for
    any unusual instructions. Neither side presented any objections to the charge (4 R.R.
    at 152), and there do not appear to be any objections that would have been
    appropriate.
    12
    7. Sufficiency of the evidence.
    A legal sufficiency challenge to the Appellant’s conviction would be fruitless. In
    regards to the aggravated robbery charge, the State was required to prove that the
    Appellant, in the course of committing theft, and with the intent to obtain and
    maintain control of the property of another, intentionally or knowingly threatened or
    placed another in fear of imminent bodily injury or death. (C.R. at 13). Tex. Penal
    Code, sec. 29.03(a)(2).
    Evidence was introduced at the guilt-innocence phase of the trial supporting
    each of these elements. Simply, the evidence was not seriously in dispute. Spates and
    Carter were robbed at gunpoint by two men in a black Toyota at the first apartment
    complex. By tracking Spates’s cell phone, police were quickly able to locate the black
    Toyota at another nearby complex. A police officer saw two men, one of whom she
    later identified as the Appellant get out of a black Toyota. Shortly afterward, the
    Appellant was arrested and Spates identified him as the robber who took hers and
    Carter’s property at gunpoint less than an hour earlier. Cell phones belonging to both
    Carter and Spates were found in the black Toyota. The entire episode, from robbery
    to identification of the Appellant as one of the robbers, took less than an hour. The
    apprehension of the Appellant in the early morning hours stood less chance of being
    mistaken given the absence of very many people on the street, and was buttressed by
    the identification by the complainants and Officer Miller. Therefore, the evidence was
    13
    legally sufficient to convict and a legal sufficiency challenge in this case would have
    been pointless.
    8. Fundamental error.
    There was no fundamental error in this case.
    9. Reasonableness of the sentence imposed.
    The Appellant entered a plea of true to both enhancement paragraphs of the
    indictment (5 RR. at 12). A plea of “true” to an enhancement paragraph constitutes
    evidence and is sufficient proof to support the enhancement allegation. Wilson v. State,
    
    671 S.W.2d 524
    , 526 (Tex. Crim. App. 1984). Thus, the punishment range in his case
    was enhanced to 25-99 years in prison upon conviction. Tex. Penal Code, § 12.42(d).
    Prison sentences are subject to a proportionality analysis under the Eighth
    Amendment of the federal constitution. Solem v. Helm, 
    463 U.S. 277
    , 289 (1983).
    Additionally, the Texas Constitution prohibits “cruel or unusual punishment.” Tex.
    Const, art. 1, § 13. To preserve for appellate review a complaint that a sentence is
    grossly disproportionate, constituting cruel and unusual punishment, a defendant
    must present to the trial court a timely request, objection, or motion stating the
    specific grounds for the ruling desired. Rhoades v. State, 
    934 S.W.2d 113
    , 119-20 (Tex.
    Crim. App. 1996). No objection was made by the defense to the sentence assessed.
    Thus, any claim under the Eighth Amendment and Texas Constitution was waived (8
    R.R. at 29-31).
    14
    In any case, with a minimum punishment of 25 years and the maximum
    punishment at 99 years or life, a sentence of thirty-eight (38) years falls closer to the
    minimum end of the available range. In any case, the sentence was within the
    prescribed statutory range for the offense the Appellant was convicted of, with two
    enhancements. “Texas courts have traditionally held that as long as the punishment is
    within the range prescribed by the Legislature in a valid statute, the punishment is not
    excessive, cruel, or unusual.” Buchanan v. State, 
    68 S.W.3d 136
    , 141 (Tex. App.-
    Texarkana 2001, no pet.).
    10. Whether the written judgment accurately reflects the sentence that was
    imposed and whether any credit was properly applied.
    The written judgment accurately reflects a conviction for “aggravated robbery-
    deadly weapon,” and lists such offense as a first-degree felony (C.R. at 95). This is
    accurate. The judgment reflects the thirty-eight (38) year sentence. As to credit for
    time served, the judgment reflects that the Appellant was to be credited for the time
    period of 6/01/2013 until the date of sentencing, 4/17/2015. This is consistent with
    the Appellant’s having been arrested on the date of the offense, 6/01/2013, and being
    credited for all time spent until and including the date of sentencing on 4/17/2015.
    11. Examination of the record to determine if the appellant was denied
    effective assistance of counsel.
    There is no suggestion from the record that counsel’s performance was
    deficient in a manner that can be raised on direct appeal. The Appellant complained
    to the trial court that his lawyer had not filed any the written motions he had thought
    15
    appropriate (5 R.R. at 7-8), but it is unclear what motions were called for. See section
    
    2, supra
    . Defense counsel offered a sheriff’s office employee to prove that the clothing
    the Appellant was arrested in did not match the clothing described as being worn by
    the robber (4 R.R. at 153-154). He also called the Appellant’s mother, Rene Prince, as
    a character witness at punishment (5 R.R. at 21).
    As has been frequently noted, the record on direct appeal in ineffective
    assistance of counsel cases rarely provides the reviewing court an opportunity to
    conduct a fair evaluation of the merits. Randon v. State, 
    178 S.W.3d 95
    , 102 (Tex. App.-
    Houston [1st Dist.] 2005, no pet.). A reviewing court cannot speculate to find trial
    counsel ineffective when the record is silent on counsel’s reasoning or strategy. See
    Wood v. State, 
    260 S.W.3d 146
    , 148 (Tex. App.-Houston [1st Dist.] 2008, no pet.).
    Thus, any claimed ineffectiveness in this case would be better raised in a post-
    conviction writ proceeding.
    12. Conclusion
    Although this case presents a substantial sentence with aggravated time, it was
    nonetheless a straightforward case for the prosecution, with little opportunity for
    missteps by the State and not much that could have been done in defending it. The
    lack of substantive issues left a record without any non-frivolous grounds to argue.
    16
    C. The Appellant has been provided with a copy of the complete appellate
    record and a copy of the motion to withdraw
    A copy of the entire appellate record (which consists of one volume of the
    Reporter’s Record, as well as six volumes of the Clerk’s Record) has been sent to the
    Appellant at his current address, which is:
    Kenneth L. Brown
    TDCJ # 01995117
    Garza West Unit
    4250 Highway 202
    Beeville, Texas 78102-8982
    The undersigned has also sent a letter with the copy of the record, explaining
    further the import of this brief and how the Appellant might pursue issues on an
    11.07 writ that cannot be raised on direct appeal. A copy of this brief is also being
    sent to the Appellant, as is the attached Motion to Withdraw. See Anders v. California,
    
    386 U.S. 738
    , 
    87 S. Ct. 1396
    , 
    18 L. Ed. 2d 493
    (1967) and Stephens v. State, 
    35 S.W.3d 770
    , 771 (Tex. App.-Houston [1st Dist.] 2000, no pet.)(motion to withdraw pursuant
    to Anders brief is properly directed to the appellate court, not the trial court).
    Should this Court grant the undersigned’s Motion to Withdraw, the
    undersigned will inform the Appellant of the result of his appeal and will also inform
    the Appellant that he may, on his own, pursue discretionary review in the Court of
    Criminal Appeals. See Ex parte Wilson, 
    956 S.W.2d 25
    , 27 (Tex. Crim. App. 1997).
    17
    PRAYER
    For the reasons stated above, the undersigned prays that he be allowed to
    withdraw from representing the Appellant in this case, and that the Appellant be
    given the opportunity to file his own brief.
    Respectfully submitted,
    Alexander Bunin
    Chief Public Defender
    Harris County Texas
    /s/Bob Wicoff
    Bob Wicoff
    Assistant Public Defender
    Harris County Texas
    1201 Franklin, 13th floor
    Houston Texas 77002
    (713) 274-6781
    TBA No. 21422700
    CERTIFICATE OF SERVICE
    A true and correct copy of the foregoing brief was sent through the efile
    system to the Harris County District Attorney’s Office on the 9th of November,
    2015.
    /s/ Bob Wicoff
    Bob Wicoff
    18
    CERTIFICATE OF COMPLIANCE
    The undersigned certifies that this brief complies with the length requirements
    of Tex. R. App. P. 9.4(i). Specifically, the foregoing brief contains a total of 4,604
    words, which is the total word count excluding those matters listed in Tex. R. App. P.
    9.4(i)(1).
    /s/ Bob Wicoff
    Bob Wicoff
    19