Kody Lee Broxton v. State ( 2015 )

ACCEPTED
03-15-00040-CR
4802371
THIRD COURT OF APPEALS
AUSTIN, TEXAS
4/8/2015 10:10:01 AM
JEFFREY D. KYLE
CLERK
No. 03-15-0040-CR, 03-15-0041-CR & 03-15-0042-CR
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
FOR THE THIRD SUPREME JUDICIAL DISTRICT
4/8/2015 10:10:01 AM
JEFFREY D. KYLE
Clerk
OF TEXAS
KODY BROXTON, Appellant
VS.
THE STATE OF TEXAS, Appellee
From the 264th District Court of
Bell County, Texas,
the Honorable Judge Martha J. Trudo, presiding
BRIEF PURSUANT TO ANDERS v. CALIFORNIA
SUPPORTING COUNSEL’S CONCLUSION THAT THE RECORD
CONTAINS NO REVERSIBLE ERROR
Ken Mahaffey
Counsel for Appellant
P. O. Box 684585
Austin, Texas 78768
(512) 444-6557
St. Bar No. 12830050
Ken Mahaffey@yahoo.com
TABLE OF CONTENTS
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
IDENTITY OF JUDGE, PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . iii
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . vii
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
DISCUSSION OF RULES GOVERNING FRIVOLOUS APPEALS. . . . . . . . . . . 2
LEGAL ISSUE EXAMINED NUMBER ONE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
DID THE INDICTMENT VEST THE TRIAL COURT WITH
JURISDICTION BY PROPERLY CHARGING APPELLANT WITH
AN OFFENSE?
LEGAL ISSUE EXAMINED NUMBER TWO. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
WAS THE EVIDENCE LEGALLY SUFFICIENT TO SUPPORT THE
CONVICTION?
LEGAL ISSUE EXAMINED NUMBER THREE. . . . . . . . . . . . . . . . . . . . . . . . . . 7
DOES THE RECORD SHOW ANY IMPROPER EVIDENCE WAS
ADMITTED CONCERNING PUNISHMENT?
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
i
IDENTITY OF JUDGE, PARTIES AND COUNSEL
The following is a list of all parties to the trial court's final judgment and their
counsel in the trial court:
1. Trial Judge Martha J. Trudo
264th District Court
P.O. Box 324
Belton, Texas 76513
2. Appellant: Kody Broxton
Bartlett State Jail
01972710
1018 Arnold Drive
Bartlett TX 76511
3. Defense Counsel: Michael White
Attorney at Law
100 Kasber Dr
Temple TX 76502
4. The State of Texas: Fred Burns
Bell Co. D. A.'s Office
P.O. Box 540
Belton, Texas 76513
ii
INDEX OF AUTHORITIES
CASES:
STATE:
Adames v. State, 353 S.W.3d 854 (Tex. Crim. App. 2011),
cert. denied, 132 S. Ct. 1763 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Crawford v. State, 617 S.W.2d 925 (Tex. Crim. App. 1980) .. . . . . . . . . . . . 6
Duron v. State, 551 S.W.2d 547 (Tex. Cr. App. 1997).. . . . . . . . . . . . . . . . . 4
High v. State, 573 S.W.2d 807 (Tex. Cr. App. 1978). . . . . . . . . . . . . . . . . . . 3
Jackson v. State, 680 S.W.2d 809 (Tex. Crim. App. 1984). . . . . . . . . . . . . . 7
Johnson v. State, 885 S.W.2d 641 (Tex. App. --
Waco 1994, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3
Phynes v. State, 828 S.W.2d 1 (Tex. Cr. App. 1992). . . . . . . . . . . . . . . . . . . 2
Stafford v. State, 813 S.W.2d 503 (Tex. Cr. App. 1991). . . . . . . . . . . . . . 2, 3
FEDERAL:
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396,
18 L. Ed. 2d 493 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2
STATE CONSTITUTION:
Art. V, §12, TEX. CONST.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
iii
STATUTES:
Art. 4.05, Tex. Code of Crim. Proc. (Supp. 2015). . . . . . . . . . . . . . . . . . . . . 4
Art. 44.02, Tex. Code of Crim. Proc. (1979). . . . . . . . . . . . . . . . . . . . . . . . . 2
Sec. 12.35 (a) & (b), Tex. Penal Code Ann. (2013). . . . . . . . . . . . . . . . . . . . 7
Sec. 31.03 (a), Tex. Penal Code Ann. (2013). . . . . . . . . . . . . . . . . . . . . 4, 5, 7
RULES:
Rule 25.2, Tex. R. App. Proc. (West 2003). . . . . . . . . . . . . . . . . . . . . . . . . . 2
Rule 3.03, Texas Rules of Prof. Conduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
iv
STATEMENT OF PROCEDURAL HISTORY
Kody Broxton was indicted for Theft of property more than $1500 but less than
$20,000 in four cases in Bell County, Texas. Appellant entered an un-negotiated plea
of guilty to each offense. After a trial before a judge, Appellant was convicted and
sentenced to two years state jail, concurrently. On November 21, 2014, Appellant
perfected an appeal to this Court. The cases were assigned appellate cause numbers
03-15-0040-CR, 03-15-0041-CR, 03-15-0042-CR and 03-15-0043-CR.
New counsel was appointed on appeal. Appellate counsel received and
reviewed the Clerk’s and Reporter’s Records. After this review, counsel determined
that the record does not support any argument that could conceivably convince an
appellate court to reverse the judgment of conviction or order a new hearing on
punishment in appellate cause numbers 03-15-0040-CR, 03-15-0041-CR and 03-15-
0042-CR . An arguable issue was discovered in cause number 03-15-0043-CR and
a separate brief was filed in that cause.
Because counsel could find no meritorious issues to argue in the other causes
appeal, he has filed a Motion to Withdraw pursuant to Anders v. California, 386 U.S.
738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). This brief is presented to support
counsel's conclusion that this record shows no reversible error. Appellant was
personally served by certified mail with a copy of the motion, this supporting brief
v
and instructions on how to obtain the record and file a pro se brief. A copy of the
letter and evidence demonstrating notice to Appellant is attached to the Motion to
Withdraw.
vi
STATEMENT OF FACTS
I. Overview.
Appellant entered an un-negotiated plea of guilty to four indictments for theft
of metal. (RR2 6 - 7). The trial court heard evidence and sentenced appellant to two
years in all four cases running concurrently. Trial counsel filed notices of appeal in
each case. The only arguable issue discovered by counsel’s review of the record
concerns restitution ordered in cause number 71838 in which a separate brief has
been filed.
II. Facts of Offense.
For several months, Delta Centrifugal, a metal and machine shop in Bell
County, Texas, had been experiencing thefts of bulk metal from its storage yard.
(RR3 6 - 7). A hole had been cut in the fence surrounding the yard. (RR3 8). Just
before midnight on September 7, 3013, a manager for Delta Centrifugal, Kevin
Canfield, decided to make a security check of the yard. (RR3 8).
Canfield apprehended Appellant and two co-defendants taking metal from the
yard. (RR3 8). It appears appellant had once briefly worked for the company some
two years before the offense. (RR3 16, 27). Delta Centrifugal recovered stolen
materials from appellant’s truck. (RR3 10 - 11). Appellant took responsibility for this
vii
theft and also confessed to three other thefts from Delta Centrifugal on dates prior to
the date he was arrested. (RR3 28).
III. Restitution Amount.
Canfield testified Delta Centrifugal had lost $64,000 dollars worth of materials
over a several month period. (RR3 16). He was unable to attribute a specific amount
to any date other than the date appellant was arrested. (RR3 16, 18). The company did
recover $7000 dollars worth of materials from appellant’s truck at the time of his
arrest. (RR3 10 - 11). Canfield agreed he could not say appellant was responsible for
the other losses included in the $64,000 dollars. (RR3 17). He also agreed it would
be unfair to require appellant to make restitution for any materials he did personally
take. (RR3 17).
Delta Centrifugal’s president Robert Rose also testified. (RR3 21). Rose did
not give any figure concerning the lost materials. He stated insurance did not cover
the loss. (RR3 25 - 26).
Appellant testified that he believed he had taken materials worth from $15,000
to $20,000 dollars. (RR3 30 - 31). He also stated that “I'd say about 15 to 20 is what
we got from scrap, so possibly actual value maybe at the most 40, total. And that's
doubling.” (RR3 31). The trial court also asked him directly, “So you're thinking at
viii
least that you stole at least $40,000 from them, you want to pay it back.” (RR3 43).
To which appellant responded, “Yes, ma'am.” (RR3 43).
The trial court imposed sentences of two years state jail in each case to be
served concurrently. The only issue discovered by counsel's review concerns the
restitution order in cause number 03-15-0043-CR, in which a separate brief was filed.
Because no restitution was ordered in the remaining cause numbers and counsel has
discovered no arguable issues from a review of the record, counsel now tenders this
brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493
(1967).
ix
IN THE COURT OF APPEALS
FOR THE THIRD SUPREME JUDICIAL DISTRICT
OF TEXAS
KODY BROXTON, Appellant
VS.
THE STATE OF TEXAS, Appellee
BRIEF PURSUANT TO ANDERS v. CALIFORNIA
SUPPORTING COUNSEL’S CONCLUSION THAT THE RECORD
CONTAINS NO REVERSIBLE ERROR
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
COMES NOW, Ken Mahaffey, counsel for appellant, Kody Broxton, and
respectfully submits this Brief.
STATEMENT OF THE CASE
This is an appeal from three convictions for Theft of property more than $1500
but less than $20,000. Counsel has reviewed both the Clerk's and Reporter's records.
Counsel did not find a meritorious issue to for reversal. Under Anders v. California,
386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), an appointed appellate counsel
who finds no reversible error in the record must move to withdraw from
1
representation. Counsel has moved to withdraw and this brief is filed in support of
that motion.
DISCUSSION OF RULES GOVERNING FRIVOLOUS APPEALS
There is no Federal or State constitutional right of appeal. Phynes v. State, 828
S.W.2d 1, 2 (Tex. Cr. App. 1992). Texas criminal defendants do have statutory
appellate rights. Art. 44.02, Tex. Code of Crim. Proc. (1979); Rule 25.2, Tex. R. App.
Proc. (West 2015). These statutory rights include a constitutional right to counsel.
Stafford v. State, 813 S.W.2d 503, 509 (Tex. Cr. App. 1991). Not all appeals contain
reversible errors or meritorious issues. Anders v. California, 386 U.S. 738, 744, 87
S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967).
“[A] defendant’s right to assistance of counsel does not include the right to
have an attorney urge frivolous or unmeritorious claims.” Johnson v. State, 885
S.W.2d 641, 645 (Tex. App. -- Waco 1994, no pet.). An attorney also has a duty to
disclose contrary authority to the court. Rule 3.03, Texas Rules of Prof. Conduct, Vol
3A, Tex. Gov't Code Ann. (2015). It is also improper for an attorney to make a
misleading or unsupported argument. Id.
Before determining that an appeal is frivolous, counsel must thoroughly review
the record and research any issues that may have merit. Johnson v. State, 885 S.W.2d
2
at 645. If appellate counsel is unable to find any issue that could “conceivably”
persuade a reviewing court to reverse, then counsel has a duty to withdraw. Id.
Appellate counsel has two additional duties. First, he must file a brief
discussing the record and detailing why each cognizable issue does not constitute
reversible error. Anders, 87 S.Ct at 1400; High v. State, 573 S.W.2d 807, 808 (Tex.
Cr. App. 1978). Second, he must notify appellant of the right to file a pro-se brief.
Anders, 87 S.Ct at 1400; Johnson, 885 S.W.2d at 646. This notice must also include
a copy of the Anders brief and instructions on how to gain access to the appellate
record. Id. A copy of the letter sent to Appellant is attached as an exhibit to the
“Motion to Withdraw” filed along with this brief.
The appellate court also has a duty to independently review the case. Johnson,
885 S.W.2d at 647. This includes determining that the appellate attorney conducted
a diligent search of the record for any arguable claims. Id. The reviewing court must
also conduct its own “...full examination of all the proceedings...” to ensure the
appeal is indeed devoid of any meritorious issues. Id., quoting Anders, 87 S.Ct. at
1400. If the court finds an arguable claim, new counsel should be appointed. Stafford,
813 S.W.2d at 511. If no meritorious issues are found, then the conviction must be
affirmed.
3
LEGAL ISSUES EVALUATED BY COUNSEL
LEGAL ISSUE EXAMINED NUMBER ONE:
DID THE INDICTMENT VEST THE TRIAL COURT WITH JURISDICTION
BY PROPERLY CHARGING APPELLANT WITH AN OFFENSE?
ARGUMENT AND AUTHORITIES
An indictment vests the court with jurisdiction and charges a defendant with
an offense if it “. . .accuses someone of a crime with enough clarity and specificity to
identify the penal statute under which the State intends to prosecute. . .” Duron v.
State, 956 S.W.2d 547, 550 - 551(Tex. Cr. App. 1997); Art. V, §12, TEX. CONST.
Here, each indictment names appellant and specifically details certain acts allegedly
committed.
The language of the indictment charges an offense under Sec. 31.03 (a), Tex.
Penal Code Ann. (2013). It states a date within the applicable limitation period,
identifies Appellant and tracks the statutory language. (CR 03-15-0040-CR p. 4; CR
03-15-0041-CR p. 4; CR 03-15-0042-CR p. 4). District courts have felony
jurisdiction. Art. 4.05, Tex. Code of Crim. Proc. (2015). The record does not contain
any objections to the indictment. Because it charges appellant with an offense, it
vested the trial court with jurisdiction and is sufficient under Article V, § 12 of the
Texas Constitution. Duron, supra, 956 S.W.2d at 550 - 55. Counsel could not identify
4
any legitimate legal argument from the record that could convince an appellate court
to reverse based on the indictment.
LEGAL ISSUE EXAMINED NUMBER TWO:
WAS THE EVIDENCE LEGALLY SUFFICIENT TO SUPPORT THE
CONVICTION?
ARGUMENT AND AUTHORITIES
I. Elements of the Offense.
Appellant was charged with Theft of property more than $1500 but less than
$20,000. The elements of the offense, under the penal code and the indictment, are
as follows:
1. appellant;
2. knowing or intentionally;
3. unlawfully appropriated;
4. by acquiring and otherwise exercising control;
5. over property described as metal;
6. with a value over $1,500.00 or more but less than $20,000.00;
7. from Kevin Canfield, the owner thereof;
8. without the effective consent of the said owner; and
9. with intent to deprive the said owner of the property.
10.
See Sec. 31.03, Tex. Penal Code Ann. (2013); (CR 03-15-0040-CR p. 4; CR 03-15-
0041-CR p. 4; CR 03-15-0042-CR p. 4).
5
II. Standard of Review.
When determining “legal sufficiency,” appellate courts view the evidence in
the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 319, 99
S. Ct. 2781, 2789, 61 L. Ed. 2d 360 (1979); Adames v. State, 353 S.W.3d 854, 860
(Tex. Crim. App. 2011), cert. denied, 132 S. Ct. 1763 (2012). The evidence must
support a finding of guilt beyond a reasonable doubt on each element of the offense.
Jackson, 99 S. Ct. at 2789; Geesa, 820 S.W.2d at 161.
III. Plea of Guilty Supports Judgment.
Appellant plead guilty in open court. (RR2 6 - 7). Appellant also made a
judicial confession at the time he entered his plea. (RR2 8). Furthermore, in his
sentencing hearing appellant also testified he committed the offenses as alleged in the
indictments. (RR3 28). A plea of guilty admits all facts necessary to legally support
a conviction. Crawford v. State, 617 S.W.2d 925, 929 (Tex. Crim. App. 1980) . The
evidence is sufficient to support a judgment of conviction. Id.
LEGAL ISSUE EXAMINED NUMBER THREE:
DID THE TRIAL COURT ABUSE ITS DISCRETION BY IMPOSING THE
MAXIMUM TERM OF INCARCERATION?
ARGUMENT AND AUTHORITIES
The indictments alleged theft of property valued at more than $1,500 but less
6
than $20,000. Sec. 31.03, Tex. Penal Code Ann. (2013). These offenses are all state
jail felonies with a range of punishment of from 180 days to two years in the state jail
and a fine up to $10,000. Sec. 12.35 (a) & (b), Tex. Penal Code Ann. (2013).
Appellant entered a plea of guilty to each indictment. (RR2 6 - 7). When a
defendant pleads guilty without a State's recommendation as to punishment, the trial
court may impose a sentence anywhere within the statutory range of punishment. See
Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984)(“It is the general rule
that as long a sentence is within the proper range of punishment it will not be
disturbed on appeal.”). The only recommendation by the State was that all sentences
run concurrently. (RR2 7).
The trial court did grant concurrent sentences. (RR3 57).The trial court
sentenced appellant to two years in the state jail and did not impose a fine. (RR3 65).
These sentences are within the statutory range of punishment. Sec. 12.35 (a) & (b),
Tex. Penal Code Ann. (2013). Counsel cannot identify any issue that would convince
a reviewing court to reverse the sentences imposed in this case.
LEGAL ISSUE EXAMINED NUMBER THREE:
DOES THE RECORD SHOW ANY IMPROPER EVIDENCE WAS
ADMITTED CONCERNING PUNISHMENT?
7
ARGUMENT AND AUTHORITIES
The trial court heard evidence concerning the nature of the crime and the value
of the items taken. Appellant testified admitting he committed the offense in the
manner in which the State’s witnesses described it. (RR3 27 - 29). There was a
hearsay objection to a reference to the police report concerning the value of the
stolen property. (RR3 11). The trial court sustained that objection and does not appear
to have considered this inadmissible evidence. Id. This is shown by the trial court’s
reliance on appellant’s own testimony concerning the value of the stolen property.
(RR3 56). Counsel could discover nothing in the record that would support a proper
legal argument that any evidence was improperly admitted or considered.
8
PRAYER FOR RELIEF
WHEREFORE, PREMISES, CONSIDERED, the undersigned counsel
respectfully requests that he be permitted to withdraw from representation in this
appeal and that the Court independently review the record to determine if indeed
there are no arguable points to raise in these appeals and if an issue is found appoint
new counsel for appellant.
Respectfully Submitted,
Ken Mahaffey
Counsel for Appellant
P.O. Box 684585
Austin, Texas 78768
Phone & Fax (512) 444-6557
St. Bar. No. 12830050
Ken Mahaffey@yahoo.com
9
CERTIFICATE OF SERVICE
The above signature certifies that on April 3, 2015, this document was sent to
the Bell County D.A.’s Office, P.O. Box 540, Belton, Texas 76513 and to Kody
Broxton, 01972710, 1018 Arnold Drive, Bartlett State Jail, Bartlett TX 76511. The
above signature also certifies that this document contains 2863 words in compliance
with Rule 9.4, Tex. R. App. Proc. (2015)(not to exceed 15,000 words).
10
No. 03-15-0040-CR, 03-15-0041-CR & 03-15-0042-CR
KODY BROXTON ) IN THE COURT OF APPEALS
V. ) FOR THE THIRD SUPREME
STATE OF TEXAS ) JUDICIAL DISTRICT OF TEXAS
CERTIFICATE OF COUNSEL
In compliance with the requirements of Anders v. California, 386 U.S. 378 (1967), I, Ken
Mahaffey, court-appointed counsel for appellant, Kody Broxton, 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 his right to file a pro se response identifying what he believes to be
meritorious grounds to be raised in his appeal, should he so desire;
3. advised appellant of his right to review the appellate record, should he 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 his right to seek discretionary review pro se should this Court
declare his appeal frivolous.
Respectfully Submitted,
Ken Mahaffey
Counsel for Appellant
P.O. Box 684585
Austin, Texas 78768
Phone & Fax (512) 444-6557
St. Bar. No. 12830050
Ken Mahaffey@yahoo.com