                                                                             ACCEPTED
                                                                         06-16-00061-CR
                                                              SIXTH COURT OF APPEALS
                                                                    TEXARKANA, TEXAS
                                                                   6/30/2016 12:18:29 PM
                                                                        DEBBIE AUTREY
                                                                                  CLERK


                     No. 06-16-00061-CR
                                                        FILED IN
                                                 6th COURT OF APPEALS
                             In The                TEXARKANA, TEXAS
                                                 6/30/2016 12:18:29 PM
                                                      DEBBIE AUTREY
                                                          Clerk
                       Court of Appeals

                     Sixth District of Texas

                       Texarkana, Texas

       MARION RAYMON CRENSHAW V. THE STATE OF TEXAS




                     Appellant’s Brief


           (Filed Pursuant To Anders v. California)



                                       Damara H. Watkins
                                       Attorney for Appellant
                                       1541 Princeton Drive
                                       Corsicana, Texas 75110
                                       Telephone(903)641-2595
                                       Facsimile (903)872-6456
                                       damarawatkins@gmail.com
                                       State Bar No. 00787740

BRIEF OF APPELLANT                               Page 1
                   IDENTITY OF PARTIES AND COUNSEL


Trial Judge:                     Hon. James Lagomarsino
                                 13th Judicial District Court
                                 Navarro County
                                 800 N. Main St.
                                 Corsicana, Texas 75110

Appellant:                       MARION RAYMON CRENSHAW



Appellant’s trial counsel:       Daniel Biltz
                                 Attorney at Law
                                 417 W. Collins
                                 Corsicana, Texas 75110

Appellants’ appellate counsel:   Damara H. Watkins
                                 Attorney at Law
                                 1541 Princeton Drive
                                 Corsicana, Texas 75110

State’s counsel:                 Will Thompson
                                 Asst. Criminal District Attorney
                                 Navarro County
                                 800 N. Main St.
                                 Corsicana, Texas 75110




BRIEF OF APPELLANT                                              Page 2
                     TABLE OF CONTENTS



Cover Page………………………….……………………………………..……….1

Identity of Parties……………….…………………………………………..……...2

Table of Contents………………………………………………………….….....…3

Index of Authorities……………………………………………………….……….4

Statement of the Case……………………….………………………………….…..6

Statement Regarding Oral Argument………………………………………………6

Issue Presented………………………………………………..…………….……...7

Statement of Facts…………………………………….……………………………7

Summary of the Argument…………………………………………………….…...8

Argument…………………………………………………………………….….....8

Prayer……………………………………………………………………………..18

Certificate of Compliance…..…………………………….……………………....18

Certificate of Service…..…………………………………………………………19

Appendix

    Anders Letter to Client….………………………………………………….20




BRIEF OF APPELLANT                        Page 3
                           INDEX OF AUTHORITIES

Adams v. State, 707 S.W.2d 900 (Tex. Crim. App. 1986)

Anders v. California, 386 U.S. 738(1967)

Beal v. State, 91 S.W.3d 794,795 (Tex.Crim.App. 2002)

Cartwright v. State, 833 S.W.2d 134, 135 (Tex.Crim.App. 1992)

Devine v. State, 786 S.W.2d 268, 270 (Tex.Crim. App. 1989)

Duran v. State, 956 S.W.2d 547, 550-51 (Tex. Crim. App. 1997).

Ex parte Gibauitch, 688 S.W.2d 868, 871 (Tex. Crim. App. 1985)

Ex Parte Rich, 194 S.W.3d 508, 513-514 (Tex.Crim.App. 2006)

Flowers v. State, 220 S.W.3d 919, 922 (Tex.Crim.App. 2007)

Hampton v. State, 165 S. W.3d 691, 693 (Tex.Crim.App. 2005)

Harmelin v. Michigan, 501 U.S. 957 (1991)

Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983)

Harrison v. State, 950 S. W.2d 419, 421 (Tex. App.- Houston [1st Dist.] 1997, pet. ref

‘d)

Harvey v. State, 611 S.W.2d 108, 111 (Tex.Crim.App. 1981 )

Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986)

High v. State, 573 S.W.2d 807(Tex. Crim. App. 1978)

Jackson v. Virginia, 443 U.S. 307, 319 (1979)


BRIEF OF APPELLANT                                                Page 4
Johnson v. State, 583 S.W.2d 399,403 (Tex.Crim.App [Panel Op.] 1979)

Knight v. State, 481 S.W.2d 143 (Tex.Crim.App. 1972)

Lugo v. State, 299 S. W.3d 445, 455-56 (Tex. App.- Fort Worth 2009, pet. ref’d )

Magic v. State, 217 S. W.3d 66, 70 (Tex. App.- Houston [1st Dist.] 2006, no pet.)

Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997)

Martinez v. State, 981 S.W.2d 195 (Tex. Crim. App.1998)

Mikel v. State, 167 S.W.3d 556 (Tex.App.- Houston [141h Dist.] no pet.).

Potts v. State, 571 S.W.2d 180 (Tex.Crim.App. 1978)

Sanchez v. State, 120 S.W.3d 359, 364 (Tex. Crim. App. 2003)

Sanders v. State, 785 S.W.2d 445 (Tex.App.- San Antonio 1990, no pet.) Sexton v.

State, 476 S.W.2d 320 (Tex.Crim.App. 1972)

Solo v. State, 456 S.W.2d 389 (Tex.Crim.App. 1970)

Sprinkle v. State, 456 S.W.2d 387 (Tex.Crim.App. 1970)

Strickland v. Washington, 466 U.S. 668, 687 (1984)

Waage v. State, 456 S.W.2d 388 (Tex.Crim.App. 1970)

Williams v. State, 209 S.W.3d 124 (Tex. App.- Texarkana 2010)

Wilson v. State, 671 S.W.2d 524,525 (Tex.Crim.App. 1984)

Young v. State, 14 S.W.3d 748,750 (Tex.Crim.App. 2000)




BRIEF OF APPELLANT                                              Page 5
Tex. Code Crim. Proc. Ann. art 21.02

Tex. Code Crim. Proc. Ann. art. 26.13(b)

Tex. Health & Safety Code 481.112(c)

TEX.R.APP. PROC. 33.1

TEX. CONST. Art. I, § 13

TEX. CONST. Art. V § 12

U.S. CONST. art. VIII

                         STATEMENT OF THE CASE

      Appellant was indicted for the offense of Possession of a Controlled Substance

with Intent to Deliver Over 1 gram under 4 grams in D36,179 in the 13th Judicial

District Court of Navarro County, Texas. (Clerk’s Record [CR] 13). On November 6,

2015, Appellant entered a plea of guilty (Reporter’s Record [RR] Volume 5) and went

open to the Court for punishment. (CR 44, 47). The Court ordered a Pre-Sentence

Investigation and recessed for the completion of that report. (5 RR 6). After a short

punishment hearing on December 18, 2015, the court sentenced Appellant to 6 years

TDCJ. The Judgement and Sentence was entered on December 23, 2015 (CR 53).

              STATEMENT REGARDING ORAL ARGUMENT

   No oral argument is requested.




BRIEF OF APPELLANT                                               Page 6
                               ISSUE PRESENTED

   Whether there are any grounds for appeal that are warranted by existing law or
by a good faith argument for the extension, modification or reversal of existing
law?

                            STATEMENT OF FACTS

   Appellant was indicted for the offense of Possession of a Controlled Substance with

Intent to Deliver Over 1 gram under 4 grams in D36,179 in the 13th Judicial District

Court of Navarro County, Texas. (CR 13). Appellant was found to be indigent and

Rhett Darby was appointed to represent him. (CR 9). Mr. Darby filed an Omnibus Pre-

trial Motion and a Motion to Suppress. (CR 15, 21). These Motions were set for a

hearing on July 1, 2015. (CR 15, 21). After a Motion to Continue filed by the

Appellant was granted, the Motion to Suppress came to be heard on July 7, 2015 and at

the hearing, the State requested a continuance on the hearing which was granted by the

court. (2 RR 3). Although not a part of the record, Mr. Darby passed away after this

hearing and new counsel was appointed. (CR 33). On November 6, 2015, Appellant

entered a plea of guilty (5 RR) and went open to the Court for punishment. (CR 44,

47). The Court ordered a Pre-Sentence Investigation and recessed for the completion

of that report. (5 RR 6). After a short punishment hearing on December 18, 2015, the

court sentenced Appellant to 6 years TDCJ. The Judgement and Sentence was entered

on December 23, 2015 (CR 53). Appellant filed a motion for new trial and general


BRIEF OF APPELLANT                                                Page 7
notice of appeal on January 19, 2016 and March 17, 2016 respectively. (CR 59, 65).

The court denied the Motion for New Trial on February 24, 2016 without a hearing.

(CR 64). The Trial Court’s Certification of the Defendant’s Right of Appeal filed with

at the time of the plea indicates that Appellant waived his right to appeal. However, a

new certification was filed upon appeal that corrects the error and indicates that this

was not a plea bargained case so Appellant has maintained the right to appeal. (CR46,

69). Finally, the Judgement reflects that Appellant is to be responsible for court

appointed attorney fees, but there is no new finding that the Appellant is not indigent.

(CR 53).

                           SUMMARY OF THE ARGUMENT

   After full examination of the record of the above-referenced case and conducting

legal research to determine the existence of any grounds for appeal that are warranted

by existing law or by a good faith argument for the extension, modification, or reversal

of existing law, the undersigned counsel has been unable to find any such grounds and

requests this Court to review the record to determine if reversible error has been

committed by the trial court in this case.

                                    ARGUMENT

   After full examination of the record of the above-referenced cases and conducting

legal research to determine the existence of any grounds for appeal that are warranted


BRIEF OF APPELLANT                                                 Page 8
by existing law or by a good faith argument for the extension, modification or reversal

of existing law, the undersigned has been unable to find any such grounds and

therefore is filing this Brief pursuant to the holdings in Anders v. California, 386 U.S.

738(1967). The undersigned requests this Court to review the record to determine if

any reversible error has been committed by the trial court in the above-referenced

cases.   The undersigned, court-appointed counsel, has conducted a thorough

examination of this case, including the reporter’s record, clerk’s record, relevant cases,

and statutes. After conscientious examination, however, she finds the appeal to be

wholly frivolous. Counsel is unable to identify an issue with sufficient merit to support

a meaningful argument for relief on appeal. Counsel therefore respectfully requests the

Court to fully examine the record on appeal for possible prejudicial error and to

determine whether counsel overlooked any issue, in accord with Anders v. California,

386 U.S. 738 (1967); High v. State, 573 S.W.2d 807(Tex. Crim. App. 1978).

   Counsel has sent a copy of this brief with a cover letter to Defendant by first class

mail. The cover letter advises Defendant of his right to file supplemental arguments on

his own behalf and provides him with the address of the court. Counsel has also

provided copies of the Clerk’s Record and the Reporter’s Record. A copy of the letter

is attached in the Appendix to this Brief. Counsel respectfully asks the Court grant

Defendant sufficient time to raise any points that he chooses in support of this appeal.


BRIEF OF APPELLANT                                                   Page 9
   In accordance with Anders, supra, counsel submits this brief to provide what

assistance she can to the Court reviewing this matter for possible error. Counsel directs

the court’s attention to the following issues that should be reviewed in any appeal after

a plea of guilty and other issues raised by trial counsel in the sentencing hearing.

   1.   Sufficiency of the indictment.

   The Texas Court of Criminal Appeals has held that an instrument is an indictment

"if it accuses someone of a crime with enough clarity and specificity to identify the

penal statute under which the State intends to prosecute, even if the instrument is

otherwise defective." Duran v. State, 956 S.W.2d 547, 550-51 (Tex. Crim. App. 1997).

Since the 1985 amendments to Article V, Section 12(b), of the Texas Constitution, and

Article 1.14(b) of the Texas Code of Criminal Procedure, an Appellant has had the

affirmative duty to object to any defect in the indictment before trial. Failure to do so

will prevent him from raising a claim of a defect for the first time on appeal. Sanchez v.

State, 120 S.W.3d 359, 364 (Tex. Crim. App. 2003). The only exception to this rule is

when there is a violation of a fundamental right, such as when the trial court lacked

jurisdiction on the face of the indictment. Id. at 365. When a trial court errs in

overruling a challenge to the indictment, such as through a motion to quash, a

conviction may nevertheless be affirmed so long as the defect did not prejudice the

defendant’s substantial rights. Adams v. State, 707 S.W.2d 900 (Tex. Crim. App.


BRIEF OF APPELLANT                                                   Page 10
1986), as cited in Sanchez at 365.

   Appellant was indicted for Possession of a controlled substance with intent to

deliver – penalty group 1 – over one gram under 4 grams by a Navarro County Grand

Jury. The indictment appears to be valid on its face and carries the signature of the

purported Foreperson of the Grand Jury. Tex. Code Crim. Proc. Art 21.02. The

language of the indictment is consistent with Section 481.112(c) of the Texas Health

and Safety Code and alleges all required elements of the offense as contained in that

statute. The indictment is sufficient and conferred jurisdiction upon the trial court.

TEX. CONST. Art. V § 12; Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App.

1989). (CR 16). There are no apparent grounds of appeal based on the indictment

language.

   2. Any adverse pretrial rulings affecting the course of the trial, including but not

      limited to rulings on motions to suppress, motions to quash, and motions for a

      speedy trial.

   Appellant’s first counsel filed an Omnibus Pre-Trial Motion and a Motion to

Suppress, and an Amended Motion to Suppress. (CR 15, 21, 27 ). However, these

motions were never heard or ruled upon. No other motions or objections were located

within the record. Further, Appellant waived all previously filed Motions and

objections when he entered his plea on November 6, 2015. (CR 47). Thus, there are no


BRIEF OF APPELLANT                                                Page 11
grounds for review based upon any adverse pretrial rulings.

   3. Whether the issue of competency was raised prior to sentencing, so as to warrant

      an inquiry by the court, and whether appellant was mentally competent when the

      court accepted the plea.

   There is no indication from the record that the issue of competency was raised prior

to sentencing so as to warrant an inquiry by the court. However, the court did inquire

of trial counsel as to whether Appellant had said or done anything to suggest that

incompetency might be an issue. Trial counsel answered in the negative. The trial

court affirmatively found Appellant competent. (5 RR 5).

   4. Whether appellant’s plea was freely and voluntarily made.

   5. Compliance with Texas Code of Criminal Procedure article 26.13 and, if

      appropriate, Padilla v. Kentucky, 130 S. Ct. 1473 (2010).

   Counsel recognizes the separate and distinct character of the possible arguments

stated in issues 4 and 5 above. However, because they are factually intertwined,

counsel will discuss these issues together. A plea of guilty must be entered voluntarily

and freely. Tex .Code. Crim. Proc. Ann. art. 26.13(b). In considering the voluntariness

of a guilty plea, the appellate court examines the record as a whole. Martinez v. State,

981 S.W.2d 195 (Tex. Crim. App.1998). A showing in the record that a defendant was

admonished by the trial court creates a prima facie showing that the plea was entered


BRIEF OF APPELLANT                                                 Page 12
knowingly and voluntarily. Id. The burden then shifts to the defendant to show that he

entered the plea without understanding the consequences of his action and was harmed

as a result. Ex parte Gibauitch, 688 S.W.2d 868, 871 (Tex. Crim. App. 1985). A

defendant who is properly admonished by the trial court bears the heavy burden of

proving that his plea was entered involuntarily. Martinez v. State, 981 S.W.2d 195

(Tex. Crim. App. 1998). Prior to accepting Appellant's plea of guilty, the court

inquired as to the voluntariness of the plea. (5 RR 3). Appellant replied that he was

entering his plea freely and voluntarily. (5 RR 3). The record contains written

admonishments pertaining to the consequences of his plea of guilty which substantially

comply with the terms of Tex. Code Crim. Proc. Ann. art. 26.13. These

admonishments were signed by Appellant. (CR 44). Additionally, Appellant was orally

admonished by the trial court as to the proper range of punishment and his right to a

trial by jury. (5 RR 4). After a complete review of the record, the undersigned attorney

is satisfied that Appellant was properly admonished and that this plea was made both

freely and voluntarily.

   6. Any adverse rulings during the sentencing hearing on objections or motions.

   7. Any failure on the part of appellant’s trial counsel to object to fundamental

      error.

   During the sentencing hearing, two witnesses were called to testify. Trial counsel


BRIEF OF APPELLANT                                                 Page 13
did not make any objections during this hearing. Further counsel has been unable to

locate any failure on the part of appellant’s trial counsel to object to fundamental error.

   8. Whether the sentence imposed was within the applicable range of punishment.

   Appellant was sentenced to 6 years TDCJ which is well within the 2 – 20 year range

for a second degree felony. (6 RR 40 ). 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; Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App.

1983). Nor does counsel 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 (1991). Appellant did not object to the Court’s imposing the sentence. Therefore,

he has failed to preserve error, if any, pursuant to TEX.R.APP. PROC. 33.1.

   9. Whether the written judgment accurately reflects the sentence that was imposed

      and whether any credit was properly applied.

   The written judgment accurately reflects the sentence that was imposed and there is

no indication in the record that Appellant did not received back time credit to which he

was entitled. (CR 53). However, the judgement does recite that Appellant is

responsible for court appointed attorney fees. This is improper in that there was an

initial finding of indigence, and there was no subsequent finding of ability to pay.


BRIEF OF APPELLANT                                                   Page 14
Counsel suggests that the judgement should be reformed by this court to delete this

requirement.

   10. Whether there is evidence to support a guilty plea in a felony case.

   This Anders brief must address two distinct issues concerning sufficiency of the

evidence - the sufficiency of the evidence to support the Appellant's conviction and the

sufficiency of the evidence with respect to the enhancement paragraph enhancing the

range of punishment. With regard to the conviction, the Appellant entered into a

judicial confession in which he admitted his guilt to the indicted offense. (CR 44).

Then, on the record and in open-court, the Appellant also voluntarily pleaded guilty to

the indicted offense. (5 RR 3). Neither the Reporter's Record nor the Clerk's Record

indicates any irregularities in the plea hearing from counsel's diligent and thorough

review of the complete records. A complete, diligent, and thorough review of the

record in this matter reveals that it is clear that there was sufficient evidence for the

trial court to find Appellant guilty of the offense.

          A. Standard of Review - Conviction

   In reviewing the sufficiency of the evidence to support a conviction, a court of

appeals reviews all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential elements of

the crimes beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);


BRIEF OF APPELLANT                                                  Page 15
Hampton v. State, 165 S. W.3d 691, 693 (Tex.Crim.App. 2005). So long as judicial

confessions or stipulations of evidence concerning guilt cover all of the statutory

elements of the charged offenses, they will suffice to support the guilty plea. See

Sprinkle v. State, 456 S.W.2d 387 (Tex.Crim.App. 1970); Waage v. State, 456 S.W.2d

388 (Tex.Crim.App. 1970); Solo v. State, 456 S.W.2d 389 (Tex.Crim.App. 1970);

Sexton v. State, 476 S.W.2d 320 (Tex.Crim.App. 1972); Knight v. State, 481 S.W.2d

143 (Tex.Crim.App. 1972); Potts v. State, 571 S.W.2d 180 (Tex.Crim.App. 1978).

Here, Appellant entered a judicial confession admitting guilt to the offense as alleged

in the indictment. The indictment for possession of a controlled substance tracks the

statutory language in the Texas Health and Safety Code constituting the legal elements

of the crime. The Appellant entered a guilty plea to the offense on the record and in

open-court. A claim of insufficient evidence to support the Appellant's conviction

would not prevail because the record reflects that the specific facts of the incident

giving rise to the Appellant's arrest, and later indictment, is legally sufficient to support

the Appellant's conviction, because the Appellant signed a judicial confession

admitting his guilt, and because the Appellant pleaded guilty to the offense on the

record in open-court, this Court has no rationale for finding the evidence of the

Appellant's conviction insufficient. As such, under controlling authority, a claim

against the sufficiency of the evidence in this regard is frivolous and would not prevail.


BRIEF OF APPELLANT                                                     Page 16
    Examination of the record to determine if the appellant was denied effective

assistance of counsel.

   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). Counsel did file a Motion for

New Trial based on Ineffective Assistance of Counsel. However, the trial court denied

this Motion without a hearing. The substance of that claim is that Appellant was

improperly advised that he would get probation. Counsel understands that upon this

record, the Court of Appeals would not have enough information to determine the

claim of Appellant without trial counsel being afforded the opportunity to explain or

refute the claims made by Appellant. Since no hearing was held, Appellant’s best

strategy is to save the ineffective assistance of counsel claim, if any, for a post-

conviction writ of habeas corpus.

   In conclusion, in the undersigned attorney's professional opinion, Appellant

received a fair trial free from reversible error. For this reason and for the further

reasons stated in this brief, counsel believes that an appeal in this case is without merit.




BRIEF OF APPELLANT                                                    Page 17
                        CERTIFICATE OF COMPLIANCE

    Appellant certifies that the above and foregoing Brief of Appellant filed in this case

on complies with the word-count limitations of Tex. R. App. P. 9.4(i) because it

contains 3503 words as calculated by the word-count feature of the software used to

prepare said document.

                                       PRAYER

      Wherefore, in accord with Anders, supra, the undersigned counsel respectfully

requests this court to review the entire record in this matter for possible error. Further,

counsel prays the court grant Appellant an adequate opportunity to prepare and present

any written arguments he wishes to make on his own behalf in light of counsel’s

inability to find a non-frivolous argument in this appeal. Counsel requests the Court

reform the judgment to delete the requirement for payment of court appointed attorney

fees. Finally, counsel prays this court grant the Motion to Withdraw as Appellate

Counsel filed in conjunction with this brief.

                                                 Respectfully submitted,
                                                 /s/
                                                 Damara H. Watkins
                                                 S.B.N. 00787740
                                                 1541 Princeton
                                                 Corsicana, Texas 75110
                                                 Phone: (903)641-2595
                                                 Facsimile: (903)872-6456
                                                 damarawatkins@gmail.com


BRIEF OF APPELLANT                                                    Page 18
                           CERTIFICATE OF SERVICE

      I hereby certify that a copy of the above and foregoing Appellant's Brief was
delivered to the all interested parties listed in this brief on the 30th day of June, 2016
by certified mail, return receipt requested.

                                                /s/
                                                Damara H. Watkins




BRIEF OF APPELLANT                                                   Page 19
