Karl Keith Noland v. State ( 2008 )

IN THE

TENTH COURT OF APPEALS

 

Nos. 10-07-00260-CR, 10-07-00261-CR, 10-07-00262-CR,

10-07-00263-CR, 10-07-00264-CR, 10-07-00265-CR,

10-07-00266-CR, 10-07-00267-CR, 10-07-00268-CR,

10-07-00269-CR and 10-07-00270-CR

Karl Keith Noland,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 85th District Court

Brazos County, Texas

Trial Court Nos. 05-04140-CRF-85, 05-04141-CRF-85,

05-04142-CRF-85, 05-04143-CRF-85, 05-04144-CRF-85,

05-04145-CRF-85, 05-04146-CRF-85, 05-04147-CRF-85,

05-04148-CRF-85, 05-04149-CRF-85, and 05-04150-CRF-85

ABATEMENT ORDER

            The legislature has given the trial court the responsibility and authority to appoint counsel to represent indigent defendants in criminal proceedings and to relieve appointed counsel of his duties or replace him with other counsel upon a finding of good cause.  Tex. Code Crim. Proc. Ann. art 26.04(j)(2) (Vernon Supp. 2007); Enriquez v. State, 999 S.W.2d 906, 907 (Tex. App.—Waco 1999, order) (construing predecessor to current statute; see Acts 1987, 70th Leg., ch 979 § 2, amended by Acts 2001, 77th Leg., ch 906, § 6). 

            The timely disposition of these proceedings has become stalled.  What follows is a chronicle of events that have occurred which has led us to this order and is provided to assist the trial court in making its required determination.

            Eleven trial court cases were tried in one proceeding against Karl Keith Noland.  A judgment of conviction was rendered in each trial court case.  A notice of appeal covering all eleven cases was filed by Noland.  Because a separate judgment was signed in each trial court case, this Court docketed the notice of appeal for each trial court case as a separate appellate case, appellate numbers 10-07-00260-CR through 10-07-00270-CR.  This was almost a year ago. 

            The reporter’s record in all eleven trial court case numbers was received by this Court on November 30, 2007.  The reporter’s record was, however, designated in case management as filed on December 4, 2007 only in appellate numbers 10-07-00264-CR through 10-07-00270-CR, and not in appellate numbers 10-07-00260-CR through 10-07-00263-CR.  The parties were, therefore, notified by this Court only that the reporter’s record in appellate numbers 10-07-00264-CR through 10-07-00270-CR was filed.  However, the reporter had notified the parties that she was sending the record in all eleven trial court case numbers to us.

            The filing of the record triggered the timetable for filing Noland’s brief.  The brief was due on January 3, 2008.  His appointed counsel, David Barron, failed to file a brief.  We sent a notice to him on January 8 about his failure to file a brief and gave him 14 days to respond with a brief or other satisfactory response.  The trial court also sent Barron a letter reminding him that a brief or other satisfactory response was due in this Court by January 23, 2008.  However, not until two days after the deadline, on January 25, 2008, did Barron fax a motion for extension of time to file Noland’s brief to this Court, requesting an extension of 60 days.  When requesting the extension of time to file his brief, Barron only referred to appellate numbers 10-07-00264-CR through 10-07-00270-CR, and did not alert the Court as to the lack of an entry of the reporter’s record in numbers 10-07-00260-CR through 10-07-00263-CR.  Barron’s request was granted and the due date for Noland’s brief was extended to March 3, 2008. 

            In early March of 2008 we discovered our error of not indicating in our case management system that the reporter’s record was also filed in 10-07-00260-CR through 10-07-00263-CR; and because there was only one reporter’s record for all eleven cases, the reporter’s record in appellate numbers 10-07-00260-CR through 10-07-00263-CR was entered into the Court’s case management system as having been received on November 30, 2007 and filed on December 4, 2007.  The parties were notified by letter dated March 4, 2008 that the record had actually been filed on December 4, 2007.

            By letter dated March 11, 2008, we notified the parties of our error in docketing the filing of the reporter’s record and informed Barron that a brief for Noland was due 30 days from the date of the letter, that due date being April 10, in all eleven appellate cases, those cases being 10-07-00260-CR, 10-07-00261-CR, 10-07-00262-CR, 10-07-00263-CR, 10-07-00264-CR, 10-07-00265-CR, 10-07-00266-CR, 10-07-00267-CR, 10-07-00268-CR, 10-07-00269-CR, and 10-07-00270-CR.  Again, Barron did not file a brief.  We sent Barron another letter, dated April 14, 2008, informing him that no briefs had been filed and gave him another 14 days to file a brief or other satisfactory response.  Again, two days past the deadline, on April 30, 2008, Barron faxed a motion for extension of time to file a brief in all eleven cases.  He requested another 60 days to file a brief.  A majority of this Court granted that request and extended the time to file a brief to June 9, 2008.  Barron never filed a brief in any of the appellate cases.

            We abated the eleven appeals on July 2, 2008 to the trial court to determine why no brief had been filed.  The trial court held a hearing on August 1, 2008.  By then, the briefs were past due by 53 days.  Barron testified that he improperly calendared the briefs due at 15 days past the actual due date.  By his accounts, this would have made the briefs due on June 24.  But Barron made no attempt to file the brief or request an extension by even this alleged erroneously calculated date.  When asked on August 1, 2008, by the trial judge if Barron had filed a brief, Barron replied, “No, sir. I will file it whenever the Court directs me to.”  When asked when he could have a brief filed, Barron replied “Fourteen days, Your Honor.”  He agreed that the date would be August 15, 2008.  The trial court then recommended to us that we grant an extension of time until August 15, 2008 for Barron to file Noland’s briefs.

            We reinstated the appeals, followed the trial court’s recommendation, and set the brief due date as August 15. Once again, Barron has not filed a brief or a request for an extension of time in any of the eleven appeals. 

            Accordingly, we abate the eleven appeals to the trial court and instruct the trial court to consider, within 14 days from the date of this order, whether the pattern of failures by Barron to timely file a brief in any of these eleven appeals is good cause for Barron’s removal as appointed counsel for Noland, and, if a finding of good cause is made, remove David Barron as appointed counsel from these appeals and appoint new counsel to represent Noland in each of his eleven appeals.  Upon taking such action, the trial court must sign a written order expressly removing David Barron as appointed counsel and appointing a new attorney to represent Noland. The written order must also include the basis for and the finding of good cause.  Tex. Code Crim. Proc. Ann. art 26.04(j)(2) (Vernon Supp. 2007).  Further, the order must also contain the name, mailing address, telephone number, fax number, if any, and State Bar Identification number of new counsel.  If the trial court determines there is not good cause to remove Barron, then the trial court must sign a written order evidencing the same and set a date certain when Noland’s briefs are due, regardless of whether this Court has yet reinstated the appeals.

            Within 7 days of signing the written order, the trial court must deliver the order to the trial court clerk who must prepare a clerk’s record which includes the order and file that record with the Clerk of this Court within 7 days of receiving the trial court’s order.

                                                                        PER CURIAM

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

Appeal abated

Order issued and filed September 10, 2008

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full range of punishment

In potential issue two, appellate counsel addresses whether the trial court failed to consider the full range of punishment.  He points to the following statements made by the trial court after sentence was imposed:

Mr. Powell, you may now look forward to the next 10,730 days of your life in anticipation of your eligibility for parole.  During those 257,496 hours, you will be able to consider what the world will be like when you have reached the age of 66 years, four months, and four days.  During those 15,449,760 minutes you can ponder what the decision of the Board of Pardons and Paroles might be in March of 2038.

You might wish to remember that Charles Manson and Sirhan Sirhan have had multiple parole hearings and remained confined.  The authorities in California have decided that they should remain where they are and not returned to society that they so cruelly terrorized. While I may not be here in 2038, I am sure our Board will make a fair and informed decision.

            Due process requires a neutral and detached hearing body or officer.  Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006).  Absent a clear showing of bias, a trial court’s actions will be presumed to have been correct.  Id.  Although Powell did not present this issue to the trial court, we need not determine whether it is preserved because the record does not suggest that the trial court entered a predetermined sentence.  See id; see also Booth v. State, No. 05-08-00622-CR, 2009 Tex. App. LEXIS 4248, at *7-8 (Tex. App.—Dallas June 16, 2009, no pet.) (not designated for publication).  The trial court’s comments were made after sentence was imposed and after the trial court had heard evidence of Powell’s crimes.  See Brumit, 206 S.W.3d at 645-46; see also Booth, 2009 Tex. App. LEXIS 4248, at *7-8.  This issue presents nothing for appeal.  

Excessiveness of punishment

In potential issue three, appellate counsel addresses whether Powell’s punishment is excessive.  Powell did not challenge his punishment at trial.  This issue is not preserved for appellate review.[3] See Wynn v. State, 219 S.W.3d 54, 61 (Tex. App.—Houston [1st Dist.] 2006, no pet.); see also Steadman v. State, 160 S.W.3d 582, 586 (Tex. App.—Waco 2005, pet. ref’d); Tex. R. App. P. 33.1(a).

Relevancy of items in vehicle

In potential issue four, appellate counsel addresses whether items found in Powell’s girlfriend’s vehicle were relevant.

Fallwell testified that a BJ Services uniform, blue latex gloves, and two serrated knives were found in the vehicle belonging to Powell’s girlfriend.  The State sought to introduce seven photographs of these items.  Trial counsel objected:

I’m not sure what connection the knives and gloves and what any other evidence that was found in that Ford Explorer connect to Mr. Powell.  I think the officer testified to his knowledge my client had no expectation of privacy in that particular vehicle, it was [the girlfriend’s], so I object to relevance to the assessment of punishment in this case.

The trial court overruled the objection, noting that it “goes more to the weight rather than the admissibility.”

            The State had previously offered and admitted eight other photographs of these items, without objection.  See Lasher v. State, 202 S.W.3d 292, 295 n.1 (Tex. App.—Waco 2006, pet. ref’d); see also Broussard v. State, 163 S.W.3d 312, 318 (Tex. App.—Beaumont 2005, no pet.).  Powell did not object to Fallwell’s testimony describing the objected-to photographs.  See Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996).  This issue has not been preserved for appellate review.[4] See Tex. R. App. P. 33.1(a).

admissible evidence

In potential issue five, appellate counsel addresses whether a question by the prosecutor amounts to inadmissible evidence.

During Lisa’s testimony, the State asked, “When you hear the way he talked to Detective Fallwell during that interview, did that sound to you in your mind like he recognized the gravity of what he had done?”  Trial counsel objected on grounds of speculation.  The trial court overruled the objection.  Lisa then testified that Powell did not appear to take responsibility and appeared to minimize what he did.

While a witness cannot possess personal knowledge of another’s mental state, he may possess personal knowledge of facts from which an opinion regarding mental state may be drawn.  Solomon v. State, 49 S.W.3d 356, 364 (Tex. Crim. App. 2001).  Having observed the videotape of Powell’s interview, Lisa could draw an opinion as to whether Powell appeared to take responsibility or minimize his actions.  See id.; see also Tex. R. Evid. 701.  We cannot say that her opinion would be “helpful to a clear understanding” of her testimony or the “determination of a fact in issue.”  Tex. R. Evid. 701.  Nevertheless, the trial court had also seen the videotape and could draw its own conclusions. Lisa’s opinion added little weight to her testimony.  See Solomon, 49 S.W.3d at 365.  Thus, we have a fair assurance that Lisa’s opinion did not influence the trial court’s punishment decision or had but a slight effect.  See id.; see also Tex. R. App. P. 44.2(b).  This issue presents nothing for appeal. 

Independent Review

Having conducted an independent review of the record, we find this appeal to be wholly frivolous.  We affirm the judgment.  Pursuant to Rule of Appellate Procedure 48.4, counsel must send Powell a copy of our decision by certified mail, return receipt requested, at Powell’s last known address.  Tex. R. App. P. 48.4. Counsel must also notify Powell of his right to file a pro se petition for discretionary review.[5] Id.; see also Ex parte Owens, 206 S.W.3d 670, 673-74 (Tex. Crim. App. 2006); Villanueva v. State, 209 S.W.3d 239, 249 (Tex. App.—Waco 2006, no pet.).

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

(Chief Justice Gray concurring with note)*

Affirmed

Opinion delivered and filed March 31, 2010

Do not publish

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*           (Chief Justice Gray concurs with the Court’s judgment to the extent that it affirms the trial court’s judgments.  He does not join the opinion.  A separate opinion will not issue.)

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[1]               This is true even where, as here, the defendant fails to object to the absence of findings.  See Urias v. State, 155 S.W.3d 141, 142 (Tex. Crim. App. 2004) (en banc).

[2] Appellate counsel contends that the record shows that Powell’s confession was voluntary; thus, abatement would be moot.  The law is clear that findings are necessary when a question is raised as to voluntariness of a confession and that abatement is the proper remedy.  See Tex. Code Crim. Proc. Ann. art. 38.22 §6 (Vernon 2005); see also Urias v. State, 155 S.W.3d 141, 142 (Tex. Crim. App. 2004) (en banc).

[3]               Even if error was preserved, each sentence is within the applicable statutory range.  See Buster v. State, 144 S.W.3d 71, 81 (Tex. App.—Tyler 2004, no pet.) (“[I]f the sentence falls within the limits prescribed by a valid statute, the punishment is not excessive, cruel, or unusual.”); see also Tex. Pen. Code Ann. § 22.021(e) (Vernon Supp. 2009) (Aggravated sexual assault); Tex. Pen. Code Ann. § 30.02(d) (Vernon 2003) (Burglary of a habitation); Tex. Pen. Code Ann. § 38.04(b) (Vernon Supp. 2009) (Evading arrest); Tex. Pen. Code Ann. § 38.06(c) (Vernon Supp. 2009) (Escape); Tex. Pen. Code Ann. § 15.01 (Vernon 2003) (Criminal attempt); Tex. Pen. Code Ann. § 12.32 (Vernon Supp. 2009) (First degree felony); Tex. Pen. Code Ann. § 12.33 (Vernon Supp. 2009) (Second degree felony); Tex. Pen. Code Ann. § 12.35(a) (Vernon Supp. 2009) (State jail felony); Tex. Pen. Code Ann. § 12.21 (Vernon 2003) (Class A misdemeanor).

[4]               Even if error was preserved, the record shows that Powell was employed by BJ Services, his uniform had loops on the sleeves, Lauren described loops on the sleeves of her assailant, and knives and blue latex gloves, like the ones found in the vehicle, were found at both crime scenes.  The trial court could reasonably conclude that these items connected Powell to the offenses.  See Franklin v. State, No. 05-08-01714-CR, 2010 Tex. App. LEXIS 639, at *9-10 (Tex. App.—Dallas Jan. 29, 2010, no pet. h.) (not designated for publication).

[5]               We typically grant counsel’s motion to withdraw, effective upon counsel’s compliance with the aforementioned notification requirement as evidenced by “a letter [to this Court] certifying his compliance.”  See Tex. R. App. P. 48.4. In this case, however, appellate counsel filed his motion to withdraw with the trial court in accordance with Sowels v. State, 45 S.W.3d 690, 692 (Tex. App.—Waco 2001, no pet.), overruled in part by Meza v. State, 206 S.W.3d 684, 689 (Tex. Crim. App. 2006).  The Court of Criminal Appeals has overruled this aspect of Sowels, and this Court has “jurisdiction and authority to grant a motion to withdraw that accompanies an Anders brief” if the Court determines that counsel has satisfied his professional obligations and that the appeal is frivolous.  Meza, 206 S.W.3d at 689; Alexander v. State, No. 10-07-00090-CR, 2008 Tex. App. LEXIS 7542, at *8 n.1 (Tex. App.—Waco Oct. 8, 2008, pet. dism’d) (not designated for publication).