recognizing the presumption of regularity of judgments and plea proceedings absent a showing to the contrary
How later courts described this case
- recognizing the presumption of regularity of judgments and plea proceedings absent a showing to the contrary
Written by the judges who cited it.
The opinion
ACCEPTED
06-14-00233-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
1/23/2015 3:58:10 PM
DEBBIE AUTREY
CLERK
No. 06-14-00233-CR
IN THE COURT OF APPEALS FILED IN
6th COURT OF APPEALS
FOR THE SIXTH DISTRICT OF TEXAS TEXARKANA, TEXAS
AT TEXARKANA, TEXAS 1/26/2015 3:58:10 PM
DEBBIE AUTREY
Clerk
TRAVIS SHANE BROWN,
Appellant
vs.
THE STATE OF TEXAS,
Appellee
On appeal from Criminal District Court No. 3
of Dallas County, Texas
In Cause No. F14-18343-J
BRIEF IN SUPPORT OF MOTION TO WITHDRAW
Counsel of Record:
Lynn Richardson Julie Woods
Chief Public Defender Assistant Public Defender
Dallas County, Texas State Bar No. 24046173
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-2
Katherine A. Drew Dallas, Texas 75207-4399
Chief, Appellate Division (214) 653-3550 (phone)
Dallas County Public Defender’s Office (214) 653-3539 (fax)
Julie.Woods@dallascounty.org
Attorneys for Appellant
LIST OF PARTIES
APPELLANT
Travis Shane Brown
DEFENSE COUNSEL AT TRIAL
Pamela Segura-Muhammad
Dallas County Public Defender’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-2
Dallas, Texas 75207-4399
STATE’S ATTORNEY AT TRIAL
Dewey Mitchell
Dallas County District Attorney’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399
APPELLANT’S ATTORNEY ON APPEAL
Julie Woods
Dallas County Public Defender’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-2
Dallas, Texas 75207-4399
STATE’S ATTORNEY ON APPEAL
Susan Hawk (or her designated representative)
Dallas County District Attorney’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399
ii
TABLE OF CONTENTS
LIST OF PARTIES ................................................................................................... ii
INDEX OF AUTHORITIES.................................................................................... iv
STATEMENT OF THE CASE ..................................................................................1
CERTIFICATE OF COUNSEL ................................................................................2
SPECIAL STATEMENT TO THE COURT .............................................................3
CONCLUSION ..........................................................................................................6
CERTIFICATE OF SERVICE ..................................................................................7
CERTIFICATE OF COMPLIANCE .........................................................................7
iii
INDEX OF AUTHORITIES
Cases
Anders v. California,
386 U.S. 738 (1966) ...............................................................................................2
Cevalles v. State,
513 S.W.2d 865 (Tex. Crim. App. 1974) ...............................................................5
Davenport v. State,
858 S.W.2d 1 (Tex. App.—Dallas 1993, no pet.) ..................................................5
Davis v. State,
130 S.W.3d 519 (Tex. App.—Dallas 2004, no pet.) ..............................................1
Dinnery v. State,
592 S.W.2d 343 (Tex. Crim. App. 1979) ...............................................................5
Ex parte Wilson,
716 S.W.2d 953 (Tex. Crim. App. 1986) ...............................................................1
Gainous v. State,
436 S.W.2d 137 (Tex. Crim. App. 1969) ...............................................................2
Harmelin v. Michigan,
501 U.S. 957 (1991) ...............................................................................................6
Harris v. State,
656 S.W.2d 481 (Tex. Crim. App. 1983) ...............................................................6
Hernandez v. State,
726 S.W.2d 53 (Tex. Crim. App. 1986) .................................................................5
Hopkins v. State,
No. 05-07-01697-CR, 2009 Tex. App. LEXIS 3133 (Tex. App.—Dallas May 7,
2009, pet. ref’d) (not designated for publication) ..................................................1
Jeffery v. State,
903 S.W.2d 776 (Tex. App.—Dallas 1995, no pet) ...............................................3
Parks v. State,
960 S.W.2d 234 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) .....................1
Strickland v. Washington,
466 U.S. 668 (1984) ...............................................................................................5
iv
Studer v. State,
799 S.W.2d 263 (Tex. Crim. App. 1989) ...............................................................3
Villela v. State,
564 S.W.2d 750 (Tex. Crim. App. 1978) ...............................................................1
Statutes
TEX. CODE CRIM. PROC. art. 1.13 ..............................................................................3
TEX. CODE CRIM. PROC. art. 1.14(b)..........................................................................3
TEX. CODE CRIM. PROC. art. 1.15 ..............................................................................4
TEX. CODE CRIM. PROC. art. 26.13 ............................................................................4
TEX. CODE CRIM. PROC. art. 26.13(b)........................................................................4
TEX. PENAL CODE § 22.01 ..........................................................................................3
Constitutional Provisions
TEX. CONST. art. I, § 13..............................................................................................5
TEX. CONST. art. V, § 12 ............................................................................................3
U.S. CONST. art. VIII..................................................................................................5
v
TO THE HONORABLE COURT OF APPEALS:
The undersigned attorney submits this brief in support of the motion to
withdraw. This is an appeal from a conviction for assault on a public servant in
Criminal District Court No. 3, Dallas County, Texas, the Honorable Gracie Lewis,
Judge presiding.
STATEMENT OF THE CASE
A grand jury indicted Appellant for assault on a public servant. (CR: 7).
Appellant pleaded guilty and judicially confessed to the charge. (CR: 24-27, 33;
RR2: 6-7; State’s Ex. 1). He went “open” to the judge for punishment. (CR: 24-27;
RR2: 5). The judge accepted Appellant’s guilty plea and sentenced Appellant to
five years’ imprisonment.1 (CR: 28-31; RR2: 23). Appellant timely filed his notice
1
Although the judge did not orally pronounce a specific finding of guilt, the judge’s assessment
of Appellant’s sentence at the conclusion of the open plea hearing necessarily implied a finding
of guilt. See Villela v. State, 564 S.W.2d 750, 751 (Tex. Crim. App. 1978); see also Hopkins v.
State, No. 05-07-01697-CR, 2009 Tex. App. LEXIS 3133, at *7-8 (Tex. App.—Dallas May 7,
2009, pet. ref’d) (not designated for publication) (finding no error in the trial court’s failure to
orally pronounce guilt because the judge fully admonished the defendant, accepted his guilty
plea, received evidence from the State and the defendant, and assessed punishment). The written
judgment in Appellant’s case reflects that the judge found Appellant guilty of the charged
offense. (CR: 29); see Ex parte Wilson, 716 S.W.2d 953, 956 (Tex. Crim. App. 1986)
(recognizing the presumption of regularity of judgments and plea proceedings absent a showing
to the contrary); Davis v. State, 130 S.W.3d 519, 522 (Tex. App.—Dallas 2004, no pet.). Based
on the record in Appellant’s case, the absence of oral pronouncement of guilt does not render the
judgment void and, therefore, is not reversible error. Parks v. State, 960 S.W.2d 234, 238 (Tex.
App.—Houston [1st Dist.] 1997, pet. ref’d) (finding that the absence of an express oral
pronouncement of guilt did not render the written judgment void).
1
of appeal.2 (CR: 36-38).
CERTIFICATE OF COUNSEL
In compliance with the requirements of Anders v. California, 386 U.S. 738
(1966) and Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969), the
undersigned appointed attorney states that she has diligently reviewed the entire
record in this cause and the law applicable thereto and, in her opinion, this 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
on Appellant. At that time, the undersigned attorney informed Appellant by letter
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 to file
a pro se brief if he so desires. The undersigned attorney has provided a copy of the
record to Appellant. 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 if he so desires.
2
Appellant’s open plea hearing also included a revocation hearing in two other cases (Trial
Cause Nos. F11-47375-J and F12-27749-J). (RR2: passim). The two revocation cases are not on
appeal.
2
The undersigned attorney has also filed a Motion to Withdraw as mandated
by this Court’s opinion in Jeffery v. State, 903 S.W.2d 776 (Tex. App.—Dallas
1995, no pet).
SPECIAL STATEMENT TO THE COURT
The record in this case clearly reflects that Appellant entered an open plea of
guilty to the indictment. (CR: 24-27; RR2: 5-7). The indictment contained all of
the elements of the offense as proscribed by TEX. PENAL CODE § 22.01. The
indictment conferred jurisdiction upon the trial court. TEX. CONST. art. V, § 12;
Studer v. State, 799 S.W.2d 263, 273 (Tex. Crim. App. 1989). No complaint,
either in the form of an objection or a motion, was made to the indictment; hence,
nothing is presented for appellate review. TEX. CODE CRIM. PROC. art. 1.14(b).
The undersigned attorney has searched the record for any pretrial motions
which might support a point of error. No pretrial motions were filed. (CR:
passim). Thus, there is nothing for appellate review.
Appellant properly waived his right to a jury trial in accordance with the
terms of TEX. CODE CRIM. PROC. art. 1.13. The waiver was signed by all parties
and received the consent and approval of the trial court, as required by Art. 1.13.
(CR: 24-27, 29).
3
Prior to accepting Appellant’s plea, the court inquired as to the voluntariness
of the plea and Appellant’s understanding of the consequences of his plea. (RR2:
4-7). Appellant entered his plea freely and voluntarily. (CR: 26-27, 29; RR2: 7).
The trial court inquired as to Appellant’s competency and found that Appellant
was competent to enter his plea. (CR: 25, 27, 29; RR2: 6). After a complete
review of the record, the undersigned attorney is satisfied that Appellant was
competent to enter his plea and that this plea was made both freely and voluntarily.
TEX. CODE CRIM. PROC. art. 26.13(b).
The record indicates that Appellant signed paperwork containing written
admonishments in accordance with the terms of TEX. CODE CRIM. PROC. art. 26.13.
(CR: 24-27). Additionally, Appellant was orally admonished by the trial court;
those admonishments were in substantial compliance with Article 26.13. (RR2: 4-
7). The undersigned attorney is satisfied that, in the case at bar, these
admonishments were sufficient to substantially comply with Article 26.13.
The State introduced evidence sufficient to substantiate Appellant’s plea of
guilty. TEX. CODE CRIM. PROC. art. 1.15. Appellant signed a judicial confession
and a stipulation of evidence. (CR: 33). His judicial confession was admitted as
State’s Exhibit 1. (RR2: 7). His judicial confession, standing alone, is sufficient
evidence to support Appellant’s conviction. Dinnery v. State, 592 S.W.2d 343,
4
353 (Tex. Crim. App. 1979); Cevalles v. State, 513 S.W.2d 865, 866 (Tex. Crim.
App. 1974); Davenport v. State, 858 S.W.2d 1, 3 (Tex. App.—Dallas 1993, no
pet.). In addition to his judicial confession, Appellant testified that he pushed the
officer. (RR2: 9). He explained that at the time of the offense he had recently lost
his job and was struggling with the accompanying stress. (RR2: 9). He admitted
that he “overreacted” and “made a mistake” that day. (RR2: 15, 19). Appellant’s
testimony and his judicial confession are sufficient evidence to support his guilty
plea.
The undersigned attorney has reviewed the record to determine if any
objections were made on Appellant’s behalf which would support an issue on
appeal. No objections were made. Nor does the record reflect any opportunity
where a proper objection could have been interposed on Appellant’s behalf.
The undersigned attorney has reviewed the performance of trial counsel. The
record reflects that Appellant received reasonably effective assistance of trial
counsel, based on the standards of Strickland v. Washington, 466 U.S. 668, 687
(1984) and Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986).
The punishment assessed is within the range established by the Legislature,
and, as such, does not violate the constitutional prohibitions against cruel and
unusual punishment under either U.S. CONST. art. VIII or TEX. CONST. art. I, § 13;
5
Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983). Nor does the
undersigned attorney discern anything in the record to suggest that the punishment
assessed is grossly disproportionate to the crime. See Harmelin v. Michigan, 501
U.S. 957, 1001-05 (1991). Additionally, no objection was made to the punishment
assessed at trial.
In the undersigned attorney’s professional opinion, Appellant received a fair
trial free from reversible error.
CONCLUSION
After full review of the record, the undersigned attorney is of the opinion
that the appeal in this cause is frivolous and without merit.
Respectfully submitted,
/s/ Julie Woods
Lynn Richardson Julie Woods
Chief Public Defender Assistant Public Defender
Dallas County, Texas State Bar No. 24046173
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-2
Katherine A. Drew Dallas, Texas 75207-4399
Chief, Appellate Division (214) 653-3550 (phone)
Dallas County Public Defender’s Office (214) 653-3539 (fax)
Julie.Woods@dallascounty.org
6
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing brief was served on the
Dallas County Criminal District Attorney’s Office (Appellate Division), 133 N.
Riverfront Blvd., 10th Floor, Dallas, Texas 75207, by eServe on January 23, 2015.
I hereby certify that a true copy of the foregoing brief was served on Travis
Shane Brown, TDCJ #01958914 Hutchins State Jail 1500 East Langdon Road
Dallas, Texas 75241, by placing a copy of the brief in the United States mail on
January 23, 2015.
/s/ Julie Woods
Julie Woods
CERTIFICATE OF COMPLIANCE
I certify that the word count in this document, which was prepared in
Microsoft Word 2010, is 1,985.
/s/ Julie Woods
Julie Woods
7