Milton Edward Griggs v. State ( 2015 )

ACCEPTED
061500047CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
4/6/2015 12:00:00 AM
DEBBIE AUTREY
CLERK
NO. 06-15-0047-CR
FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
IN THE SIXTH COURT OF APPEALS 4/6/2015 10:53:00 AM
SIXTH DISTRICT OF TEXAS DEBBIE AUTREY
Clerk
AT TEXARKANA
MELTON GRIGGS,
APPELLANT
V.
STATE OF TEXAS,
APPELLEE
On Appeal from the County Court at Law #1
of Hunt County, Texas
Trial Cause Number CR1401075
Honorable Timothy S. Linden Presiding
BRIEF IN SUPPORT OF MOTION TO WITHDRAW
Jessica Edwards
P.O. Box 9318
Greenville, TX 75404
903.513.0150
fax 903.200.1359
jessicaedwardslaw@gmail.com
ORAL ARGUMENT NOT REQUESTED
IDENTITIES OF PARTIES
Appellant: Milton Griggs
Defense Counsel at Trial Jack Paris
P.O. Box 8277
Greenville, TX 75404
Appellant's Attorney on Appeal Jessica Edwards
P.O. Box 9318
Greenville, TX 75404
Appelle's Attorney at Trial Jeffery Kovach
Asst. Hunt County Attorney
P.O. Box 1097
Greenville, TX 75403
Trial Judge Hon. Timothy S. Linden
County Court at Law #1
2507 Lee Street, 4th Floor
Greenville, TX 75401
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TABLE OF CONTENTS
Identities of Parties and Counsel.................................................................................2
Table of Contents........................................................................................................3
Index of Authorities....................................................................................................4
Statement of the Case.................................................................................................6
Certificate of Counsel.................................................................................................7
Special Statement to the Court...................................................................................7
Statement of the Facts.................................................................................................8
Issue and Authorities...................................................................................................9
Charging Instrument and Jurisdiction......................................................9
Assistance of Counsel.....................................................................................10
Competence.....................................................................................................10
Limitations......................................................................................................11
Jeopardy..........................................................................................................11
Presence of Defendant....................................................................................11
Presentence Investigation...............................................................................12
Punishment......................................................................................................12
Back Time........................................................................................................13
Written Judgment...........................................................................................13
Sentencing Procedure: Allocution.................................................................13
Finger Prints...................................................................................................14
Summary.........................................................................................................14
Prayer..........................................................................................................................14
Certificate of Service..................................................................................................15
Certificate of Compliance with Rule 9.4....................................................................16
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INDEX OF AUTHORITIES
FEDERAL CASES:
Anders v. California, 386 U.S. 738 (1976).....................................................................7
Strickland v. Washington, 466 U.S. 668 (1984)............................................................10
STATE CASES:
Fluellen v. State, 71 S.W.3d 870 (Tex. App.-Texarkana 2002, pet. ref'd)....................13
Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969)............................................7
Hidalgo v. State, 983 S.W.2d 746 (Tex. Crim. App. 1999)...........................................10
Howlett v. State, 994 S.W.2d 663 (Tex. Crim. App. 1999)............................................11
Jackson v. State, 989 S.W.2d 842 (Tex. App.-Texarkana 1999, no pet.).......................13
Jordan v. State, 495 S.W.2d 949 (Tex. Cro,. App. 1973)..............................................13
Latham v. State, 20 S.W.3d 63 (Tex. App.-Texarkana 2000, pet. ref'd).......................13
McGowin v. State, 912 S.W.2d 837 (Tex.App.- Dallas 1995, no pet.)..........................11
Mizell v. State, 119 S.W.3d 804 (Tex. Crim. App. 2003)..............................................12
Proctor v. State, 967 S.W.2d 840 (Tex. Crim. App. 1998)............................................11
Studer v. State, 799 S.W.2d 263 (Tex. Crim. App. 1989)...............................................9
STATE STATUTES:
TEX. CODE CRIM. PROC. ANN. ART. 1.14 (b)...................................................................9
TEX. CODE CRIM. PROC. ANN. ART. 12.02.....................................................................11
TEX. CODE CRIM. PROC. ANN. ART. 37.06....................................................................11
TEX. CODE CRIM. PROC. ANN. ART. 38.33....................................................................14
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TEX. CODE CRIM. PROC. ANN. ART. 42.01(23)...............................................................14
TEX. CODE CRIM. PROC. ANN. ART. 42.03.....................................................................14
TEX. CODE CRIM. PROC. ANN. ART. 42.07.....................................................................14
TEX. CODE CRIM. PROC. ANN. ART. 42.12 sec 9(b)(2)..................................................12
TEX. CODE CRIM. PROC. ANN. ART. 46B.003................................................................11
TEX. PENAL CODE ANN. 38.02....................................................................................9,13
TEX. R. APP. P. 33.1(a)................................................................................................14
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NO. 06-15-0047CR
IN THE SIXTH COURT OF APPEALS
SIXTH DISTRICT OF TEXAS
AT TEXARKANA
MELTON GRIGGS,
APPELLANT
V.
STATE OF TEXAS,
APPELLEE
On Appeal from the County Court at Law #1
of Hunt County, Texas
Trial Cause Number CR1401075
Honorable Timothy S. Linden Presiding
ANDERS BRIEF IN SUPPORT OF MOTION TO WITHDRAW
TO THE HONORABLE COURT OF APPEALS:
NOW COMES Counsel for Appellant and respectfully submits this brief pursuant
to the Texas Rules of Appellate Procedure.
STATEMENT OF THE CASE
This is an appeal of the judgment an sentence in a criminal case in the County
Court at Law #1 of Hunt County, Texas. Appellant was charged with the misdemeanor
offense of failure to ID, fugitive from justice. On February 13, 2015, Appellant plead
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guilty and elected to have the Court assess punishment. The Court assessed punishment
at 300 days in the Hunt County Jail. Notice of Appeal was filed on February 19, 2015.
The Clerk's Record was filed on March 10, 2015. The Reporter's Record was filed on
March 27, 2015.
CERTIFICATE OF COUNSEL
In compliance with the requirements of Anders v. California, 386 U.S. S.Ct. 1396,
19 L. Ed 2d 493 (1966) and Gainous v. State,436 S.W.2d 137, 138 (Tex. Crim. App.
1969), the undersigned appointed attorney on appeal for Milton Griggs states that she
has diligently reviewed the entire record and the law applicable thereto and, in her
opinion, the appeal is without merit and wholly frivolous in that the record reflects no
reversible error. It is also the opinion of the undersigned appointed attorney on appeal
that there are no grounds of error upon which an appeal can be predicated. The
undersigned appointed attorney on appeal has served a copy of this brief, clerk's record,
and reporter's record on Appellant.
At that time, the undersigned attorney informed Appellant in person that, in her
professional opinion, the appeal was without merit. The undersigned attorney also
explained that Appellant has the right to review the record and file a pro se brief if he so
desires. Appellant has also been informed by the undersigned attorney that he may
request an extension of time from this Honorable Court for the filing of a pro se brief.
SPECIAL STATEMENT TO THE COURT
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After diligent search, the undersigned attorney, appointed as counsel for Appellant
on appeal, has determined that the appeal is frivolous and without merit, and further, that
the record contains nothing upon which an appeal can be predicated.
The record in this cause reflects that Appellant's rights were protected at every
stage of the proceedings. He was represented by competent counsel at all critical stages
of the trial process. Notice of Appeal was filed on February 19, 2015, within Appellant's
thirty day time limit for filing an appeal. (CR Vol. 1, p. 43).
STATEMENT OF FACTS
On February 13, 2015, the trial court called Appellant's case for trial. (RR Vol. 1,
p.5). At the time of trial, Appellant had three cases pending before the trial court; the
present case on appeal, a Motion to Revoke in cause number CR1301005, and a
harassment charge in cause number CR 1301393. (RR Vol. 1, p 5-6). The parties had
reached a partial agreement which was announced to the court. The State abandoned
paragraph one of the Motion to Revoke, which was the same allegation as the
harassment charge in cause number CR 1301393, and the State dismissed the
harassment charge. (RR Vol. 1, p. 5-6) Appellant agreed to plead true to the remaining
paragraphs in the Motion to Revoke and to plead guilty to the failure to id, fugitive from
justice charge. (RR Vol. 1, p. 5-6). There was no agreement between the parties as to
punishment for either the Motion to Revoke or the failure to id case. (RR Vol. 1, p. 6).
Appellant, along with his trial counsel, signed a document which waived many of
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his substantive rights, judicially confessed his guilt, and requested the court to assess his
punishment. (CR Vol. 1, p. 36).
The trial court first conducted the open-plea hearing on the Motion to Revoke, in
which the trial court found that Appellant had violated his probation and sentenced him
to 100 days in the county jail. (RR Vol.1 p. 36).
The trial court then held the open-plea hearing in the case at bar. (RR Vol. 1, p.
37). The trial court went over the the waiver of rights and judicial confession that
Appellant signed to ensure that Appellant understood and voluntarily waived his rights.
(RR Vol. 1, p. 37-38). Appellant was allowed an opportunity to present evidence for the
court to consider in assessing punishment. The trial court then assessed Appellant's
punishment at 300 days in the county jail, to run concurrent with his other sentence.
(RR Vol. 1, p. 41-42).
ISSUES AND AUTHORITIES
CHARGING INSTRUMENT AND JURISDICTION
The information in this case alleges and contains all elements of the offense as
prescribed by Texas Penal Code Section 38.02. (CR Vol. 1, p. 14). The information
conferred jurisdiction upon the trial court. Studer v. State, 799 S.W.2d 263, 273 (Tex.
Crim. App. 1989). There is no objection or complaint on the record regarding the
information, therefore nothing is present or preserved for appellate review. TEX. CODE
CRIM. PROC. ANN. ART. 1.14(b) (O'Connor's 2014).
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ASSISTANCE OF COUNSEL
A complete review of the record reflects that Appellant was represented by
counsel at all critical stages of the proceedings as required by the Texas and U.S.
Constitutions, and that his counsel joined in all decisions required by law. Hidalgo v.
State, 983 S.W.2d , 750 (Tex. Crim. App. 1999). Counsel is ineffective only if his
representation of Appellant falls below a minimum standard for representation and his
errors undermine the reliability of the result to the Appellant. Strickland v. Washington,
466 U.S. 668, 687 (1984). In this case, trial counsel negotiated with the state to have
one of the three charges against Appellant dismissed. (RR Vol. 1, p. 5-6) Although
Appellant plead guilty, it was clear from the record that Appellant had mitigating facts
that he wanted the court to know before assessing punishment. Trial Counsel called
Appellant as a witness and presented those facts to the court. (RR Vol. 1, p. 15-29).
Trial counsel made sure Appellant had the opportunity to say everything he wished to
say to the Court. (RR Vol. 1, p. 28-29). Nothing in the record reflects that trial counsel's
representation of Appellant fell below the minimum standard.
COMPETENCE
“A person is incompetent if he lacks either (1) sufficient present ability to consult
with his lawyer with a reasonable degree of rational understanding; or (2) a rational as
well as a factual understanding of the proceedings against him. A person is presumed
competent to stand trial and shall be found competent to stand trial unless proved
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incompetent by a preponderance of the evidence.” TEX. CODE CRIM. PROC. ANN. ART.
46B.003 (O'Connor's 2014); see McGowin v. State, 912 S.W.2d 837, 840 (Tex. App.--
Dallas 1995, no pet.).
A complete review of the record discloses sufficient information to determine that
Appellant was competent to stand trial.
LIMITATIONS
The offense was alleged to have been committed on or about August 4, 2014 as
reflected in the information. (CR Vol. 1, p. 14). This is within the two year limitation
for misdemeanors in TEX. CODE CRIM. PRO. ANN. ART. 12.02 (O'Connor's 2014).
Furthermore Appellant did not make any challenge to the charging instrument on the
basis of expiration of the statute of limitations. Limitations is a defensive issue, and must
be raised by defendant or it is waived. Proctor v. State, 967 S.W.2d 840, 844 (Tex. Crim.
App. 1998); Howlett v. State, 944 S.W.2d 663, 667 (Tex. Crim. App. 1999).
JEOPARDY
There is no jeopardy argument because Appellant was charges and prosecuted in
the case and nothing in the record suggests that Appellant had previously been charged
with and tried for the same offense.
PRESENCE OF DEFENDANT
The record reflects that Appellant was present when the verdict was pronounced
as required by TEX. CODE CRIM. PRO. ANN. ART. 37.06 (O'Connor's 2014).
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PRE SENTENCE INVESTIGATION
Article 42.12 sec. 9 requires that a per-sentence investigation be completed before
the Court passes judgment, unless certain circumstances are present. A per-sentence
investigation is not required if the court finds there is sufficient information in the record
to permit the meaningful exercise of sentencing discretion. TEX. CODE CRIM PRO. ANN.
ART. 42.12 sec. 9 (b)(2). Article 42.12 sec. 9(b)(2) requires that the court make that
finding on the record. The trial court did not make that finding on the record in this case
and trial counsel did not object. However, the record does not reflect that any
substantive rights of Appellant were impacted by the trial court's failure to explain this
finding on the record. The record contains ample evidence to substantiate such a
finding, even absent the trial court's explanation. Appellant had just been revoked from
probation minutes before the Court heard this case. (RR Vol. 1, p. 36). Appellant's
criminal history was also introduced in to evidence. (RR Vol. 1 p. 69-81). Clearly the
trial court found there was sufficient information in the record to permit the meaningful
exercise of sentencing discretion.
PUNISHMENT
A sentence outside the maximum or minimum range of punishment is
unauthorized by law and therefore illegal. Mizell v. State, 119 S.W.3d 804, 806 (Tex.
Crim. App. 2003). Appellant was charged with a Failure to ID, Fugitive from Justice,
which is a class A misdemeanor. Appellant was sentenced by the court to 300. (CR 29).
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This sentence is within the statutory range of punishment for the offense. TEX. PENAL
CODE § 38.02 (d)(2).
In Texas, the courts have traditionally held that as long as the punishment assessed
is within the range prescribed by the Legislature in a valid statue, the punishment is not
excessive, cruel or unusual. Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App.
1973). Yet, in Jackson v. State, 989 S.W.2d 842, 845 (Tex. App.-Texarkana 1999, no
pet.), this Court recognized that a prohibition against grossly disproportionate
punishment survives under the Eight Amendment to the United States Constitution apart
for any consideration of whether the punishment is within the range established by the
Legislature. Fluellen v. State, 71 S.W. 3D 870, 873 (Tex. App.-Texarkana 2002, pet.
ref'd); Latham v. State, 20 S.W.3d 63, 68-69 (Tex. App.-Texarkana 2000, pet. ref'd).
BACK TIME
The trial court gave appellant 16 days credit on his sentence (CR Vol. 1, p. 29).
Appellant was credited with all back time, as reflected in the judgment, accurately
calculated, as required by law.
WRITTEN JUDGMENT
The written judgment conforms to the court's oral pronouncements of judgment
and sentence as required by law. (CR Vol. 1, p. 29 ); (RR Vol. 1, p. 41-42).
SENTENCING PROCEDURE: ALLOCUTION
Article 42.07 of the Texas Code of Criminal Procedure requires that: “Before
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pronouncing sentence, the defendant shall be asked whether he has anything to say why
the sentence should not be pronounced against him.” TEX CODE CRIM. PRO. ANN. ART.
42.07 (O'Connor's 2014). The trial court in this case did make that inquiry and trial
counsel responded that there was no reason why sentence should not be passed. (RR Vol.
1, p. 42). The trial court properly pronounced sentence in Appellant's presence as
required by TEX. CODE CRIM. PROC. ANN. ART. 42.03 (Vernon's 2014).
FINGERPRINTS
The record reflects that Appellant's right thumb prints were taken as required by
TEX. CODE CRIM. PROC. ANN. ART. 42.01(23) and TEX. CODE CRIM. PROC. ANN. ART.
38.33 (Vernon's 2014). (CR Vol. 1, p. 29).
SUMMARY
The undersigned attorney has reviewed the entire record to determine if any
objections were made on Appellant's behalf which would support a point of error on
appeal. TEX. R. APP. P. 33.1(a) (O'Connor's 2014). In counsel's professional opinion, the
trial court displayed no prejudice toward either side. For above reasons, appellate
counsel found no arguable grounds on which to appeal the instant conviction, and
Appellant should receive the opportunity to file a pro se brief.
CONCLUSION AND PRAYER FOR RELIEF
WHEREFOR, PREMISES CONSIDERED, the undersigned counsel being of the
earnest opinion that no arguable points of error appear in the record at the plea or
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sentencing stages of the case, Counsel prays that this Honorable Court will grant her
Motion for Counsel to Withdraw and afford Appellant the opportunity to file a pro se
brief asserting all grounds of which he knows to revers the judgment of the trial court
below and render judgment of acquittal or, alternatively, remand the cause to the trial
court for further proceedings.
Respectfully Submitted,
_/s/ Jessica Edwards__________
Jessica Edwards
SBN: 24000994
P.O. Box 9318
Greenville, TX 75404
903.513.0150
Fax: 903.200.1359
jessicaedwardslaw@gmail.com
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the Anders Brief in Support of Motion to
Withdraw was served on the Honorable Joel Littlefiled, Hunt County Attorney, by hand
delivery on April 6, 2015.
I further certify that a true and correct copy of the Anders Brief in Support of
Motion to Withdraw was served on Milton Griggs by hand delivery on April 6, 2015.
/s/ Jessica Edwards
Jessica Edwards
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CERTIFICATE OF COMPLIANCE WITH RULE 9.4
Pursuant to Texas Rule of Appellate Procedure 9.4 this certifies that this document
complies with the type volume limitations because it is computer generated and does not
exceed 15,000 words. Using the word count feature of OpenOffice Writer, the
undersigned certifies that this document contains 2,701 words in the entire document.
This document also complies with the typeface requirements as it has been prepared in a
proportionally spaced typeface using Times New Roman 14 point font.
/s/ Jessica Edwards
Jessica Edwards
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