Brady Alan Daniel v. State ( 2015 )

ACCEPTED
03-15-00058-CR
6567047
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/19/2015 3:16:14 PM
JEFFREY D. KYLE
CLERK
No. 03-15-00058-CR
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
FOR THE THIRD JUDICIAL DISTRICT OF TEXAS
8/19/2015 3:16:14 PM
JEFFREY D. KYLE
BRADY ALAN DANIEL, Clerk
APPELLANT
VS.
THE STATE OF TEXAS,
APPELLEE
APPELLANT'S BRIEF
On appeal from Cause Number 3029
35" District Court
Mills County, Texas
The Honorable Stephen Ellis, Presiding
Emily Miller, Lawyer
Woodley and Dudley, Lawyers
707 Center Avenue
Brownwood, Texas 76801
emily@woodleydudley.net
Attorneyfor Appellant
IDENTITIES OF PARTIES AND COUNSEL
Pursuant to the provisions of Rule 38.1(a), Texas Rules of Appellate
Procedure, a complete list of the names of all parties to this action and counsel are
as follows:
Parties: Mr. Brady Alan Daniel, Appellant
State of Texas, Appellee
Attorneys for the Appellant: Ms. Emily Miller
Woodley and Dudley, Lawyers
707 Center Avenue
Brownwood, Texas 76801
(On Appeal Only)
Mr. Patrick Howard
Attorney at Law
101 South First Street
Bangs, Texas 76823
(Trial Attorney)
Attorneys for Appellee: The Honorable Micheal Murray
District Attorney, 35th Judicial,
Brown and Mills Counties, Texas
200 South Broadway Street
Brownwood, Texas 76801
The Honorable Sam C. Moss*
First Assistant District Attorney
35th Judicial District
Brovm and Mills Counties, Texas
200 South Broadway Street
Brownwood, Texas 76801
* Mr. Moss assumed the bench of
Brown County Court at Law effective
January, 2015
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TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL ii
INDEX OF AUTHORITIES iv
STATEMENT OF THE CASE 1
ISSUES PRESENTED 2
SUMMARY OF ARGUMENT 2
ISSUE ONE: The evidence is legally insufficient 4
to support a conviction based solely on a guilty plea by Appellant.
ISSUE TWO: The evidence is legally insufficient 1
to support enhancement ofthe indicted offensefrom a second
to a first degreefelony.
PRAYER FOR RELIEF 11
CERTIFICATE OF SERVICE 12
CERTIFICATE OF COMPLIANCE 13
III
INDEX OF AUTHORITIES
Arizona v. Fulminante, 499 U.S. 279 (1991) 4
Baggett V. State^ 342 S.W.Sd 172 (Tex.App.-Texarkana 2011, pet. refd) 5
Blanks v. State, 172 S.W.Sd 673 (Tex.App.-San Antonio 2005, no pet.) 7, 8
Brooks V. State, 957 S.W.2d 30 (Tex.Crim.App. 1997) 7
Crawford v. 278 S.W.2d 845 (1955) 4
Dinnery v. 592 S.W.2d 343 (Tex.Crim.App. 1980) 5
Flowers v. 220 S.W.Sd 919 (Tex.Crim.App.2007) 8
Jackson v. Virginia, 443 U.S. 307 (1979) 4, 7
V. S'to/e, 373 S.W.Sd 790 4
(Tex.App.-Houston [14^ Dist] 2012, no pet.)
Lyles V. State, 745 S.W.2d 567 4
(Tex.App.-Houston [1st Dist.] 1988, pet. refd)
McClain v. State, 730 S.W.2d 739 (Tex.Cr.App. 1987) 5
Mendez v. State, 138 S.W.Sd 334, 340 (Tex.Crim.App.2004) 5
Menefee v. State, 287 S.W.Sd 9 (Tex.Crim.App.2009) 5
Stringer v. State, 241 S.W.Sd 52 (Tex.Crim.App.2007) 4
Thornton v. State, 601 S.W.2d 340, 344 (Tex.Crim.App. 1980) 4
Washington v. State, 893 S.W.2d 107 (Tex.App.-Dallas 1995, no pet.) 5
Wilson V. State, 671 S.W.2d 524 (Tex.Crim.App. 1984) 8
STATUES AND RULES
Tex.Penal Code §12.42 8,7
Tex.Penal Code §22.02 9
Tex.Code Crim.Proc., Art. 1.15 4
Tex.R.App.Pro. §38 ii, 1
IV
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
COMES NOW, Brady Alan Daniel, Appellant in this cause, by and through
his attorney of record, Emily Miller, and pursuant to the provisions of
Tex.R.App.Pro. 38, etseq., files this brief on appeal.
STATEMENT OF THE CASE
This is an appeal from appellant's guilty plea and sentencing hearing.
Appellant was charged with the Second Degree felony offense of Aggravated
Assault occurring on February 8, 2014. Appellant was indicted for the offense on
June 11,2014. The indictment contained an enhancement paragraph for one prior
felony offense, which raised the punishment range for the offense to that of a First
Degree felony. (CR: p. 11 Appellant entered what is commonly referred to as
an open guilty plea on November 17, 2014, wherein he pled guilty to the offense
and selected the Judge to assess his punishment. (Vol. 3, p. 20). Appellant was
convicted of the offense and sentenced by the court to thirty five (35) years. (CR:
p. 48). The trial court certified Appellant's right of appeal. Appellant gave timely
notice of appeal. Counsel for appellant was appointed on January 9, 2015 (CR: p.
58). This brief is due on or before August 17,2015.
"^CR" Refers to Clerk'sRecord. The Reporter's Record is referenced by volume and page number.
1
ISSUES PIIESENTBD
ISSUE ONE: The evidence is legally insufficient to support a
conviction based solely on a guilty plea by Appellant.
ISSUE TWO: The evidence is legally insufficient to support
enhancement of the indicted offense from a second to a
first degreefelony.
SUMMARY OF ARGUMENT
Appellant's conviction of Aggravated Assault was entered without sufficient
evidence to support his guilty plea. Prior to a finding of guilt or the announcement
of a "unitary" trial, the court found the Appellant guilty. At the time the trial court
pronounced Appellant's guilt, the State had failed to offer any evidence to
substantiate Appellant's guilt. The failure of the State to offer and the trial court to
admit any evidence prior to a finding of guilt means the essential elements of the
offense of Aggravated Assault were not met. Appellant's signed "Written
Admonitions to the Defendant for Plea to Court" were not admitted until after the
court had pronounced Appellant's guilt, during the punishment phase of the
proceedings. Only after the pronouncement of Appellant's guilt, did the court
announce the court was proceeding in a unified manner. Even in a 'unitary trial',
there must be some evidentiary basis for the court's corroboration of a defendant's
plea of guilt. Without the introduction of some evidence before the court's
pronouncement of guilt, in the light most favorable to the verdict, no rational trier
of fact could have met every element of the offense charged. Appellant's
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conviction should be reversed and a judgment of acquittal should be entered, or the
case remanded to the trial court for a new trial.
Appellant further maintains the evidence is legally insufficient to support
enhancement ofthe offense charged from a second to a first degree felony. The
indictment contained a paragraph alleging Appellant had a prior felony conviction
for Tampering with or Fabricating Evidence from 2007 While the State filed
notice to introduce the felony convictions and several other extraneous offenses, at
no point did Appellant indicate he pled true to any enhancement, prior conviction,
or extraneous offense. The State failed to meet its required burden showing
Appellant's prior convictions were final, and proving Appellant was the person
previously convicted. Because Appellant did not enter a plea to the enhancement
paragraph at trial, and the State offered no additional evidence to support the
enhancement, the State's burden was not met. Therefore, no rational trier of fact
could find the enhancement issue beyond a reasonable doubt. On this basis.
Appellant's conviction of a first degree felony conviction should be reversed and a
judgment of acquittal should be entered, or remanded to the trial court for a new
trial. In the alternative. Appellant's first degree felony conviction should be
reformed to confirm to a second degree felony with the applicable range of
punishment.
ISSUE ONE
In his first point of error, Appellant alleges the evidence is legally
insufficient to support the conviction for Aggravated Assault. This Court views
the evidence with deference to the trial court and in the light most favorable to the
judgment. Jackson v. Virginia, 443 U.S. 307, 319 (1979). When a guilty plea is
entered, "the evidence does not have to establish the defendant's guilt beyond a
reasonable doubt but must embrace every element of the offense charged. Jones v.
State, 373 S.W.3d 790, 793 (Tex.App.-Houston [14" Dist.] 2012, no pet). A
statutory procedural safeguard is established by Article 1.15 of the Code of
Criminal Procedure requiring sufficient evidence for a guilty plea, stating:
"...it shall be necessaryfor the state to introduce evidence into the
record showing the guilt ofthe defendant and said evidence shall be
accepted by the court as the basisfor its judgment and in no event
shall a person charged be convicted upon his plea without sufficient
evidence to support the same. " Tex.Code Crim.Proc. ART 1.15
Article 1.15 applies only to the guilt stage. Stringer v. State, 241 S.W.3d 52,
59 (Tex.Crim.App.2007). It ensures no one will be convicted of a felony on a
guilty plea without the introduction of sufficient evidence of guilt. Lyles v. State,
745 S.W.2d 567, 567 (Tex.App.-Houston [1st Dist.] 1988, pet. refd), (citing
Crawford v. State, 278 S.W.2d 845 (1955)). Article 1.15 effectively maintains the
burden of proof on the State, even where a defendant has entered a plea of guilt,
Thornton v. State, 601 S.W.2d 340, 344 (Tex.Crim.App.1980). A court may not
"render a conviction in a felony case" unless evidence was presented supporting
the defendant's guilt. Menefee v. State, 287 S.W.3d, 9, 13. A stipulation of
evidence or judicial confession which fails to establish every element ofthe
offense charged will not authorize the trial court to convict. Dinnery v. State^ 592
S.W.2d 343,352 (Tex.Crim.App.1980). By its plain terms, it requires evidence in
addition to, and independent of, the plea itself to establish the defendant's guilt.
Menefee at 15.
The statutory directive of Article 1.15 is an absolute or systemic requirement
and "in no event" shall a person be convicted without sufficient evidence to
support it. Baggett v. State, 342 S.W.3d 172, 174 (Tex.App.-Texarkana 2011, pet.
refd). The failure to comply with any of the requirements of Article 1.15 will lead
to an automatic reversal. McClain v. State, 730 S.W.2d 739 (Tex.Cr.App.l987).
In rare instances, an error is of such magnitude that it cannot be evaluated for
harm; these errors are structural ones which affect the framework within which the
trial proceeds, rather than simply an error in the trial process. Mendez v. State, 138
S.W.3d 334, 340 (Tex.Crim.App.2004) {citmg Arizona v. Fulminante, 499 U.S.
279, 309, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991)). A structural error defies a
harm analysis and requires reversal without a harm analysis. Id., Baggett, at 176.
When a person enters a plea of guilty, the proceeding properly becomes a
unitary proceeding. Washington v. State, 893 S.W.2d 107, 108 (Tex.App.-Dallas
5
1995, no pet.). Here, Appellant was not advised of nor questioned about a unitary
proceeding until after the court found him guilty. Instead, the court found guilt and
the State immediately began its evidence for punishment. Well into the direct
examination of the state's first punishment witness, (Vol. 3, p.36), the court
interjected the following:
THE COURT: Let me ask one question. I didn't get it clarified. I
should have done it earlier. Are we doing this in a unifiedproceeding
where both guilt-innocence andpunishment evidence comes in at one
time? Is that right?
MR. MOSS: Yes, sir, with the guilty plea, that was part ofour -
THE COURT: Do you agree?
MR. HOWARD: Absolutely.
THE COURT: That'sfine. You may proceed.
Appellant's election to proceed in a unitary fashion did not occur prior to his
entry of a guilty plea. Rather, it occurred during the questioning of the state's first
punishment witness. Here, every element of the offense of Aggravated Assault
was not "embraced" prior to the court's finding of guilt. Guilt and punishment
were procedurally handled separately. The trial court erred by rendering a
conviction in a felony case where no evidence was presented supporting the
defendant's guilt by reason of his plea.
Appellant entered, and the trial court accepted, a guilty plea without any testimony
or stipulated evidence to substantiate his plea. This lack of "embracing" evidence
is fatal to the State's case of guilt and violates Appellant's rights under the statute.
The state, moreover, failed to offer its "Written Admonitions to the Defendant for
Plea to Court" until the punishment phase of the proceedings (Vol. 3, p. 24). Even
at this late hour, the document fails to establish even a skeletal framework of the
charged offense. The statutory requirements for satisfying guilt in a felony case
have not been satisfied. Because Appellant's plea was supported by insufficient
evidence. Appellant's conviction should be reversed and a judgment of acquittal
should be entered, or remanded to the trial court for a new trial.
ISSUE TWO
In his second point of error. Appellant alleges the evidence is legally
insufficient to support enhancement of the indicted offense from a second to a first
degree felony. Here, the Court must view the evidence in the light most favorable
to the judgment and determine whether any rational trier of fact could have found
the enhancement issue beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307,319(1979).
A defendant is entitled to receive notice of the prior convictions the State
intends to use as enhancement. Brooks v. State, 957 S.W.2d 30, 33
(Tex.Crim.App. 1997). When the State seeks to enhance a defendant's punishment
range, the State has the burden of proof to show the defendant's prior conviction
was a final conviction and the appellant was the person previously convicted.
Wilson V. State, 671 S.W.2d 524 (Tex.Crim.App.1984). If a defendant pleads true
to the enhancement paragraph, the State's burden of proof is satisfied. Id. Citing
Blanks v. State, 172 S.W.3d 673, 675 (Tex.App.-San Antonio 2005, no pet.), the
Court in Flowers v. State, 220 S.W.3d 919, 921-22 (Tex.Crim.App.2007) found:
"yf prior conviction may be proven by certified copies of a
judgment and sentence and authenticated copies of records from the
Texas Department of Corrections or other correctional institution,
including fingerprints, supported by expert testimony matching them
to the defendant. However, this is not the only method by which the
State may prove a prior conviction. The State may also offer: (1)
testimonyfrom a witness who personally knows the defendant and the
fact ofhis prior conviction; (2) the defendant's stipulations orjudicial
admissions; or (3) the defendant's photograph in a penitentiarypacket
or other official record!''
Appellant was charged with Aggravated Assault under Tex.Penal Code §
22.02, which states:
Sec. 22.02. AGGRAVATED ASSAULT, (a) A person
commits an offense if the person commits assault as defined in Sec.
22.01 and the person:
(1) causes serious bodily injury to another, including
the person's spouse; or
(2) uses or exhibits a deadly weapon during the
commission of the assault.
The indictment included a repeat offender enhancement under
Tex.Penal Code §12.42, which states:
Sec. 12.42. PENALTIES FOR REPEAT AND HABITUAL FELONY
OFFENDERS ON TRIAL FOR FIRST, SECOND, OR THIRD DEGREE
FELONY.
(b) Except as provided by Subsection (c)(2) or (c)(4), if it is
shown on the trial of a felony of the second degree that the
defendant has previously been finally convicted of a felony
other than a state jail felony punishable under Section 12.35(a\
on conviction the defendant shall be punished for a felony of
the first degree.
Appellant received notice of one offense in the form of the indictment (CR:
p. 11), and of several additional alleged offenses and convictions in the Notice of
Intent to Offer Evidence of Prior Convictions and Extraneous Offenses. (CR: p.
19-21). The trial court advised Appellant of the enhancement allegation during his
plea. Appellant was aware ofthe State's intention to increase his charge from a
second- to first-degree felony and the increased range of punishment. (Vol. 3,
p.21).
Appellant's prior convictions were entered in evidence during punishment
proceedings (Vol. 3, p. 145). The final reference to the enhancement was at the end
of the punishment proceeding where the court finds Appellant pled "guilty" to the
indictment, which included the enhancement. (Vol. 4, p. 181). The court further
states:
THE COURT: / find true to the repeat offender allegations that are
also made part of the Indictment, finding he is the same person that
was previously convicted ofafelony offense in the 355" District Court
ofHood County, Texas, in the case as alleged and on the date alleged
in the Indictment, of the felony offense of tampering or fabricating
physical evidenced (Vol. 4, p. 185).
The "Written Admonishments to the Defendant for Plea to the Court"
contain a boilerplate sentence which states "All enhancement and habitual
allegations as set forth in the indictment are true and correct, except those waived
by the state." (Vol. 5, p. 24). This is not a plea bargained matter, as evidenced by
the court's certification of Appellant's right to appeal (CR, p. 48).
Although Appellant pled guilty to the charge of Aggravated Assault on the
record (Vol. 3, p. 20-24), nowhere in the record or in discussion of the guilty plea
is there an independent plea to the enhancement. The Appellant did not plead true
to the enhancement when he pled guilty to the offense charged. Therefore, the
State's burden of proof is not satisfied through Appellant's testimony. The State
failed to offer other evidence to meet its burden of proof showing the Appellant's
prior convictions were final, and Appellant was the person previously convicted.
Based on this lack of evidence, no rational trier of fact could find the enhancement
10
issue beyond a reasonable doubt. Therefore, Appellant's conviction of a first
degree felony conviction should be reversed and a judgment of acquittal should be
entered, or remanded to the trial court for a new trial. In the alternative.
Appellant's first degree felony conviction should be reformed to a second degree
felony with the applicable range of punishment for a second degree felony.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays
his conviction in the above entitled and numbered cause be reversed and the case
be remanded to the trial court for an entry of an order of acquittal, or remanded to
the trial court for a new trial. In the alternative. Appellant's first degree felony
conviction should be reformed to a second degree felony with the applicable range
of punishment. Appellant prays for any additional reliefto which he should be
entitled.
✓Respectfullysi^mitt'ed,
Qmjj&A-MAi
Emily Miller
Woodley and Dudley, Lawyers
707 Center Avenue
Brownwood, Texas 76801
Telephone: (325) 646-7685
Facsimile: (325) 646-7688
Email: emilv@woodlevdudlev.net
ATTORNEY FOR APPELLANT BRADY ALAN DANIEL
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CERTIFICATE OF SERVICE
By affixing my signature above, I hereby certify a true and correct copy of
the foregoing APPELLANT'S BRIEF, was delivered via electronic and personal
service to:
The Honorable Micheal Murray
District Attorney, 35th Judicial
District, Brown and Mills Counties,
Texas
200 South Broadway Street
Brownwood, Texas 76801
On this day, Wednesday, August 19, 2015
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CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of Tex, R. App. P.
9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
point for text and 12-point for footnotes. This document also complies with the
word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains
2465 words, excluding parts exempted by Tex. R. App. P. 9.4(i)(l).
/s/ Emily Miller
EMILY MILLER
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