                                                                                            ACCEPTED
                                                                                        03-15-00299-CR
                                                                                                7087951
                                                                             THIRD COURT OF APPEALS
                                                                                        AUSTIN, TEXAS
                                                                                   9/24/2015 3:42:19 PM
September 29, 2015                                                                    JEFFREY D. KYLE
                                                                                                 CLERK
                       No. 03-15-00298-CR & 03-15-00299-CR

                           IN THE COURT OF APPEALS

                 FOR THE THIRD SUPREME JUDICIAL DISTRICT

                                      OF TEXAS


                                                                      RECEIVED IN
                                                                 3rd COURT OF APPEALS
                                                                     AUSTIN, TEXAS
                       JAMES BRADLEY WARDEN,           Appellant 9/24/2015 3:42:19 PM
                                                                   JEFFREY D. KYLE
                                          VS.                            Clerk


                          THE STATE OF TEXAS, Appellee




                            From the 33rd District Court of
                                Burnet County, Texas,
                     the Honorable Judge J. Allan Garrett, presiding


               BRIEF PURSUANT TO ANDERS v. CALIFORNIA
          SUPPORTING COUNSEL’S CONCLUSION THAT THE RECORD
                   CONTAINS NO REVERSIBLE ERROR


                                                Ken Mahaffey
                                                Counsel for Appellant
                                                P. O. Box 684585
                                                Austin, Texas 78768
                                                (512) 444-6557
                                                St. Bar No. 12830050
                                                Ken Mahaffey@yahoo.com
                                    TABLE OF CONTENTS


TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

IDENTITY OF JUDGE, PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . iii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

DISCUSSION OF RULES GOVERNING FRIVOLOUS APPEALS. . . . . . . . . . . 2

LEGAL ISSUE EXAMINED NUMBER ONE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

        Did the indictment for possession of methamphetamine vest the trial
        court with jurisdiction by properly charging Appellant with an
        offense?

LEGAL ISSUE EXAMINED NUMBER TWO. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

        Did the indictment for possession of evading arrest vest the trial
        court with jurisdiction by properly charging Appellant with an
        offense?

LEGAL ISSUE EXAMINED NUMBER THREE. . . . . . . . . . . . . . . . . . . . . . . . . . 7

        Was the evidence sufficient to show possession of methamphetamine
        less than one gram?

LEGAL ISSUE EXAMINED NUMBER FOUR. . . . . . . . . . . . . . . . . . . . . . . . . . . 9

        Was the evidence legally sufficient to support the conviction for
        evading arrest or detention?


                                                     i
LEGAL ISSUE EXAMINED NUMBER FIVE. . . . . . . . . . . . . . . . . . . . . . . . . . . 11

        Does the record show ineffective assistance of trial counsel for
        failing to object to the defective indictment ?


LEGAL ISSUE EXAMINED NUMBER SIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

        Does the lack of evidence, i.e., fingerprints, showing Appellant was
        the same person listed on the judgments of conviction render the
        evidence proving the enhancements insufficient?


PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

CERTIFICATE OF SERVICE AND WORD COUNT COMPLIANCE. . . . . . . 17




                                                     ii
              IDENTITY OF JUDGE, PARTIES AND COUNSEL

      The following is a list of all parties to the trial court’s final judgment and their

counsel in the trial court:

   1. Trial Judge                 J. Allan Garrett
                                  33rd District Court
                                  1701 E. Polk, Suite 74
                                  Burnet, TX 78611

   2. Appellant:                  James Bradley Warden
                                  Bradshaw Unit
                                  01994759
                                  P.O. Box 9000
                                  Henderson, TX 75653-9000

   3. Defense Counsel:            Michelle Moore
                                  Attorney at Law
                                  1008 Water St.
                                  Burnet TX 78611

   4. The State of Texas:         R. Blake Ewing
                                  Burnet Co. D. A.’s Office
                                  1701 E. Polk Ste 24
                                  Burnet, TX 78611

                                  Richard Crowther
                                  Burnet Co. D. A.’s Office




                                           iii
                              INDEX OF AUTHORITIES

CASES:

State Cases:

    Adames v. State, 353 S.W.3d 854 (Tex. Crim. App. 2011),
         cert. denied, 132 S.Ct. 1763 (2012). . . . . . . . . . . . . . . . . . . . . . . . . 2, 3

    Beck v. State, 719 S.W.2d 205 (Tex. Crim. App. 1986).. . . . . . . . . . . . . . . 15

    Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . 13

    Cain v. State, 958 S.W.2d 404 (Tex. Crim. App. 1997).. . . . . . . . . . . . . . 8, 9

    Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crim. App. 1992). . . . . . . . . . 12

    Duron v. State, 551 S.W.2d 547 (Tex. Crim. App. 1997). . . . . . . . . . . . . 4, 5

    Flowers v. State, 220 S.W.3d 919 (Tex. Crim. App. 2007). . . . . . . . . . . . . 16

    Garcia v. State, 57 S.W.3d 436 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . 12

    Griffin v. State, 181 S.W.3d 818 (Tex. App. -
           Houston [14th Dist.] 2005, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . 16

    Griffin v. State, 866 S.W.2d 754 (Tex. App. - Tyler 1993, pet. ref’d). . . . . 15

    High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). . . . . . . . . . . . . . . . 3

    Johnson v. State, 885 S.W.2d 641 (Tex. App. --
          Waco 1994, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3

    Lancon v. State, 253 S.W.3d 699 (Tex. Crim. App. 2008). . . . . . . . . . . 8, 10

    Littles v. State, 726 S.W.2d 26 (Tex. Crim. App. 1987).. . . . . . . . . . . . . . . 14


                                                 iv
    Lopez v. State, 415 S.W.3d 495 (Tex. App. -
          San Antonio 2013, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

    Maysonet v. State, 91 S.W.3d 365 (Tex. App. -
         Texarkana 2002, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

    Mitchell v. State, 68 S.W.3d 640 (Tex. Crim. App. 2002). . . . . . . . . . . . . . 12

    Moff v. State, 131 S.W.3d 485 (Tex. Crim. App. 2004) . . . . . . . . . . . . . . . 14

    Perez v. State, 429 S.W.3d 639 (Tex. Crim. App. 2014). . . . . . . . . . . . . . . 14

    Phynes v. State, 828 S.W.2d 1 (Tex. Crim. App. 1992). . . . . . . . . . . . . . . . . 2

    Rylander v. State, 101 S.W.3d 107 (Tex. Crim. App. 2003). . . . . . . . . . . . 13

    Smith v. State, No. 05-13-00704-CR, (Tex. App. -
          Dallas July 7, 2014, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

    Valencia v. State, 946 S.W.2d 81 (Tex. Crim. App. 1997). . . . . . . . . . . . . 12

    Zimmer v. State, 989 S.W.2d 48 (Tex. App. -
         San Antonio 1998, pet. ref'd). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15




Federal Cases:

    Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781,
          61 L.Ed.2d 360 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9

    Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2025,
           80 L.Ed.2d 674 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15




                                                 v
Constitutional Provisions:

 Federal Constitution:

      6th Amend. U.S. CONST.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13



 State Constitution:

      Art. I Sec. 10, TEX. CONST.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

      Art. V, §12, TEX. CONST.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9



Statutes:

      Art. 28.10, Tex. Code Crim. Proc. (2012).. . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

      Art. 44.02, Tex. Code of Crim. Proc. (1979). . . . . . . . . . . . . . . . . . . . . . . . 12

      Sec. 481. 115, Tex. Health and Safety Code. Ann. (2014). . . . . . . . . . . . . 4, 5

      Sec. 481.102, Tex. Health and Safety Code. Ann. (2013). . . . . . . . . . . . . 4, 5

      Sec. 545.352, Tex. Transp. Code. Ann. (2013).. . . . . . . . . . . . . . . . . . . . . . 16



Rules:

      Rule 25.2, Tex. R. App. Proc. (West 2003). . . . . . . . . . . . . . . . . . . . . . . . . 12

      Rule 3.03, Texas Rules of Prof. Conduct. . . . . . . . . . . . . . . . . . . . . . . . . . . 16




                                                   vi
                 STATEMENT OF PROCEDURAL HISTORY

      James Bradley Warden was indicted for two offenses in Burnet County, Texas.

The first was possession of methamphetamine less than one gram in trial court cause

number 41100. The second was evading arrest, enhanced by two prior convictions,

in cause number 41101. Both offenses were alleged to have been committed on

November 16, 2013. Appellant entered a plea of not guilty. After a trial before a jury,

Appellant was convicted and sentenced to eight years for Evading arrest and one year

for possession of methamphetamine. On April 15, 2015, Appellant perfected an

appeal to this Court.

      On June 29, 2015, new counsel was appointed on appeal. Counsel received and

reviewed the Clerk’s and Reporter’s Records. After this review, counsel determined

that the record does not support any legal argument that could convince an appellate

court to reverse the judgment of conviction or order a new hearing on punishment.

      The reporters record shows both cases were heard together and the record was

filed with this Court as a single proceeding. Because there were two different cause

numbers, the trial court clerk filed separate clerk’s records in cause numbers 41100

and 41101. For the purposes of this brief, trial cause number 41100 charging

possession of methamphetamine, bearing this court’s cause number 03-15-00298-CR,

is referred to as “(CR-41100).” Trial court cause number 41101 charging evading

                                          vii
arrest, bearing this court’s cause number 03-15-00299-CR, is referred to as “(CR-

41101).”

      Because counsel could find no meritorious issues to argue in this appeal, he has

filed a Motion to Withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.Ed.2d 493 (1967). This brief is presented to support counsel’s conclusion

that this record shows no reversible error. Appellant was personally served by

certified mail with a copy of the motion, this supporting brief and instructions on how

to obtain the record and file a pro se brief. A copy of the letter and evidence

demonstrating notice to Appellant is attached to the Motion to Withdraw. A

certificate of counsel attesting to these facts was also filed with this Court.




                                          viii
                            STATEMENT OF FACTS

I. Overview.

      This is an evading arrest with a vehicle case where Appellant was also found

in possession of less than one gram of methamphetamine. An officer determined

Appellant was speeding and gave chase. Appellant made a turn and continued to drive

for some time. He eventually stopped in the driveway of his son’s home. In a search

incident to arrest a matchbox with methamphetamine was found in his shirt pocket.

Two enhancement paragraphs raised the evading arrest punishment level a third

degree felony and Appellant was sentenced to eight years confinement on that

offense. He received one year in the state jail for the possession offense.



II. Evading Arrest.

      Jeff White was a Burnet Sheriff’s deputy with special operations and narcotics.

(RR2 126). On November 16, 2012, he was monitoring traffic on State Highway 29.

(RR2 127). He received a report that a red pick up truck was speeding on that road.

(RR2 128).

      Deputy White testified that when Appellant’s red truck passed his location, his

radar recorded the truck was traveling at 69 miles per hour in a 65 mile per hour zone.

(RR2 128 - 129). White then pursued in a marked car and activated his lights. (RR2

                                          ix
129). When Appellant did not stop, White activated his siren. (RR2 130). Appellant

continued to drive on and eventually pulled into a rural driveway and stopped. (RR2

131). Other officers arrived and Appellant was arrested. (RR2 133).


III. Possession of Methamphetamine.

        In a search incident to arrest, officers found a match box in Appellant’s shirt

pocket. (RR2 135). They also discovered a marijuana cigarette in the truck. (RR2

140). A chemist testified that the substance found in the match box contained .79

grams of methamphetamine. (RR2 166).


IV. Defensive Evidence.

        Appellant testified. He explained he did not initially believe the officer was

pursuing him because he did not think he was speeding. (RR2 179, 193). Appellant

did not pull over immediately because it was a narrow road and he thought it best to

continue to his son’s property. (RR2 179). He stated he had just found the match box

in the bed of his truck that morning and just put in his pocket without looking inside.

(RR2 183 - 184). He denied both possession of a controlled substance and evading

arrest. (RR2 186). Appellant also admitted to prior felony convictions. (RR2 185,

187).




                                           x
V. Verdict.

      The jury resolved all fact issues against Appellant. They found him guilty of

both evading arrest with a vehicle and possession of methamphetamine. (RR2 29 -

30). The jury then heard punishment evidence.


VI. Punishment.

      The State joined issue by reading two enhancement paragraphs to the jury. The

State alleged Appellant was previously convicted of intoxication assault on March

30, 2007. (RR3 33). They also alleged that on the same day Appellant was convicted

of the felony offense of possession of a controlled substance. (RR3 34). Appellant

entered pleas of not true. (RR3 34).

      The State then offered certain certified copies judgments of conviction for a

James Bradley Warden into evidence. (RR3 37 - 38). These were admitted without

objection. (RR3 39; SX 9, 10, 11, 12, 13, 14, & 15).

      Appellant called his former wife who testified Appellant had struggled with

addiction in the past but had turned his life around in recent years. (RR3 49). She also

testified Appellant regularly paid child support and was taking care of his children.

(RR3 47).




                                          xi
VII. Punishment Assessed.

      The jury found the enhancement paragraphs true. (RR3 68 - 67). They also

assessed punishment at one year in the State Jail for possession of methamphetamine

and eight years for felony evading arrest. (RR3 68). The trial court imposed sentence

accordingly ordering the sentences be served concurrently. (RR3 68) (CR-41100, p.

49; CR-41101 p. 55).




                                         xii
                        IN THE COURT OF APPEALS

            FOR THE THIRD SUPREME JUDICIAL DISTRICT

                                   OF TEXAS


                    JAMES BRADLEY WARDEN, Appellant

                                       VS.

                       THE STATE OF TEXAS, Appellee


         BRIEF PURSUANT TO ANDERS v. CALIFORNIA
    SUPPORTING COUNSEL’S CONCLUSION THAT THE RECORD
             CONTAINS NO REVERSIBLE ERROR


TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      COMES NOW, Ken Mahaffey, appointed counsel for Appellant, James

Bradley Warden, and respectfully submits this Brief in support of his Motion to

Withdraw.

     STATEMENT OF THE CASE AND SUMMARY OF ARGUMENT

      This is an appeal from a conviction for Evading arrest and Possession of

methamphetamine less than one gram. Counsel has reviewed both the Clerk’s and

Reporter’s records. Counsel did not find a meritorious issue to for reversal. Under

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), an



                                        1
appointed appellate counsel who finds no reversible error in the record must move to

withdraw from representation. Counsel has moved to withdraw and this brief is filed

in support of that motion.


     DISCUSSION OF RULES GOVERNING FRIVOLOUS APPEALS

      There is no Federal or State constitutional right of appeal. Phynes v. State, 828

S.W.2d 1, 2 (Tex. Crim. App. 1992). Texas criminal defendants do have statutory

appellate rights. Art. 44.02, Tex. Code of Crim. Proc. (1979); Rule 25.2, Tex. R. App.

Proc. (West 2003). These statutory rights include a constitutional right to counsel.

Stafford v. State, 813 S.W.2d 503, 509 (Tex. Crim. App. 1991). Not all appeals

contain reversible errors or meritorious issues. Anders v. California, 386 U.S. 738,

744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967).

      “[A] defendant’s right to assistance of counsel does not include the right to

have an attorney urge frivolous or unmeritorious claims.” Johnson v. State, 885

S.W.2d 641, 645 (Tex. App. - Waco 1994, no pet.). An attorney also has a duty to

disclose contrary authority to the court. Rule 3.03, Texas Rules of Prof. Conduct, Vol.

3A, Tex. Gov’t Code Ann. (1998). It is also improper for an attorney to make a

misleading or unsupported argument. Id.

      Before determining that an appeal is frivolous, counsel must thoroughly review


                                          2
the record and research any issues that may have merit. Johnson v. State, 885 S.W.2d

at 645. If appellate counsel is unable to find any issue that could “conceivably”

persuade a reviewing court to reverse, then counsel has a duty to withdraw. Id.

      Appellate counsel has two additional duties. First, he must file a brief

discussing the record and detailing why each cognizable issue does not constitute

reversible error. Anders, 87 S.Ct at 1400; High v. State, 573 S.W.2d 807, 808 (Tex.

Crim. App. 1978). Second, he must notify Appellant of the right to file a pro-se brief.

Anders, 87 S.Ct at 1400; Johnson, 885 S.W.2d at 646. This notice must also include

a copy of the Anders brief and instructions on how to gain access to the appellate

record. Id. A copy of the certified letter sent to Appellant is attached as an exhibit to

the “Motion to Withdraw” filed along with this brief. A certificate of counsel

attesting those facts was also filed with this Court.

      The appellate court also has a duty to independently review the case. Johnson,

885 S.W.2d at 647. This includes determining that appellate counsel conducted a

diligent search of the record for any arguable claims. Id. The reviewing court must

also conduct its own “. . .full examination of all the proceedings. . .” to ensure the

appeal is indeed devoid of any meritorious issues. Id., quoting Anders, 87 S.Ct. at

1400. If the court finds an arguable claim, new counsel should be appointed. Stafford,

813 S.W.2d at 511. If no meritorious issues are found, then the conviction must be

                                           3
affirmed.



                LEGAL ISSUES EVALUATED BY COUNSEL


LEGAL ISSUE EXAMINED NUMBER ONE:

      Did the indictment for possession of methamphetamine vest the trial court
      with jurisdiction by properly charging Appellant with an offense?


                       ARGUMENT AND AUTHORITIES

      An indictment vests the court with jurisdiction if it “. . .accuses someone of a

crime with enough clarity and specificity to identify the penal statute under which the

State intends to prosecute. . .” Duron v. State, 956 S.W.2d 547, 550 - 551(Tex. Crim.

App. 1997); Art. V, §12, TEX. CONST. Here, the indictment charges an offense

under Sec. 481. 115 (a), Tex. Health and Safety Code. Ann. (2014). Possession of less

than one gram is a state jail felony. Id. (b). The indictment states a date within the

applicable limitation period, identifies Appellant and tracks the statutory language.

(CR-41100 p. 4). Counsel could not identify any legitimate legal argument from the

record that could convince an appellate court to reverse based on the possession of

methamphetamine indictment. (CR-41100 p. 4 ).




                                          4
LEGAL ISSUE EXAMINED NUMBER TWO:

      Did the indictment for possession of evading arrest vest the trial court with
      jurisdiction by properly charging Appellant with an offense?


                      ARGUMENT AND AUTHORITIES

      As stated above an indictment vests a court with jurisdiction if states an

accused committed a crime with enough specificity to identify a penal statute. Duron

v. State, 956 S.W.2d 547, 550 - 551(Tex. Crim. App. 1997); Art. V, §12, TEX. CONST.

Here, the indictment charges an offense under Sec. 38.04, Tex. Penal Code Ann.

(Supp. 2013). It states a date within the applicable limitation period, identifies

Appellant and tracks the statutory language. (CR-41100 p. 4).

      However, the indictment only charges a misdemeanor. This because it omits

the required allegation that Appellant had been previously convicted or used a vehicle

necessary to make the offense a felony. (CR-41101 p. 4). Therefore, the question is

whether a misdemeanor indictment can vest jurisdiction in the felony district court.

      The language of the indictment charges an offense under Sec. 38.04, Tex. Penal

Code Ann. (Supp. 2013). Unless the actor has either been previously convicted of the

same offense or uses a vehicle in the commission of the offense, the offense is not a

felony. Sec. 38.04 (b) (1) (A) & (B), Tex. Penal Code Ann. (Supp. 2013). Here, the

State’s evidence shows that the State intended to prove use of a vehicle but the

                                          5
indictment contains no such allegation. (CR-41101 p. 4 ).

       The issue was considered in Teal v. State, 230 S.W.3d 172 (Tex. Crim. App.

2007). In Teal, supra, like the instant case, the indictment filed in district court

charged only a misdemeanor offense. Id. at 173. The Court of Criminal Appeals

decided that, despite the omission of an essential element necessary to charge a

felony, a charging instrument that states an identifiable offense was sufficient to vest

the district court with jurisdiction. Id. at 180. As a result, the Appellant in Teal, supra,

was required to object to the indictment prior to trial. Id. at 181; accord Studer v.

State, 799 S.W.2d 263 (Tex. Crim. App. 1990) (Art. 1.14, Tex. Code Crim. Proc.

requires all complaints about the form or substance be raised prior to trial).

       Because there was no pre-trial or trial objection to this omission, counsel must

concede that the law does not support any argument that would convince an appellate

court to reverse. Teal, 230 S.W.3d at 181. The indictment charges Appellant with an

offense and vested the trial court with jurisdiction under Article V, § 12 of the Texas

Constitution. Duron, supra, 956 S.W.2d at 550 - 55. Counsel could not identify any

legitimate legal argument from the record that could convince an appellate court to

reverse based on the evading arrest indictment.




                                             6
LEGAL ISSUE EXAMINED NUMBER THREE:

      Was the evidence sufficient to show possession of methamphetamine less
      than one gram?
                    ARGUMENT AND AUTHORITIES

I. Elements of the Offense.

      In trial court cause number 41100, Appellant was charged with Possession of

methamphetamine in an amount less than one gram. (CR-41100 p. 4 ). The elements

of the offense, under the penal code and the indictment, are as follows:

      1.    Appellant;
      2.    knowing or intentionally;
      3.    possesses;
      4.    a controlled substance;
      5.    listed in Penalty Group 1.

See Sec. 481. 115 (a), Tex. Health and Safety Code. Ann. (2014).

“Methamphetamine” is listed in Penalty Group 1. Sec. 481.102 (6), Tex. Health and

Safety Code. Ann. (2013).


II. Standard of Review.

      When determining “legal sufficiency,” appellate courts view the evidence in

the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 319, 99

S.Ct. 2781, 2789, 61 L.Ed.2d 360 (1979); Adames v. State, 353 S.W.3d 854, 860

(Tex. Crim. App. 2011), cert. denied, 132 S.Ct. 1763 (2012). The evidence must


                                         7
support a finding of guilt beyond a reasonable doubt on each element of the offense.

Jackson, 99 S.Ct. at 2789. The jury, as fact finder, is the sole judge of the credibility

of the witnesses. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). The

fact-finder may choose to believe all, some, or none of the testimony presented. Id.

at 407, nt.5.


III. Evidence at Trial.

       Appellant had a match box in his pocket when arrested. (RR2 135). A chemist

testified that the substance found in the match box contained .79 grams of

methamphetamine. (RR2 166). Appellant’s defense was that he found the box in the

back of his truck, did not open it, and was unaware of the contents such that he did

not have knowing possession. (RR2 183 - 184). The jury was authorized to reject

Appellant’s testimony that he did not know the box contained methamphetamine.

Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008) (as “sole trier of fact”

the jury “may choose to believe some testimony and disbelieve other testimony.”).

see also Smith v. State, No. 05-13-00704-CR, (Tex. App. - Dallas July 7, 2014, no

pet.)(trier of fact could reject defendant’s testimony that he was wearing another’s

shorts in which methamphetamine found). Counsel could identify no legal argument

that could convince an appellate court to reverse for insufficient evidence.


                                           8
LEGAL ISSUE EXAMINED NUMBER FOUR:

       Was the evidence legally sufficient to support the conviction for evading
       arrest or detention?


                        ARGUMENT AND AUTHORITIES

I. Elements of the Offense.

       In trial court cause number 41101, Appellant was charged with evading arrest.

(CR-41101 p. 4). The elements of the offense, under the penal code and the

indictment, are as follows:

       1.     Appellant;
       2.     knowing or intentionally;
       3.     flees;
       4.     from a person he knows is a peace officer;
       5.     attempting to lawfully arrest or detain him; and
       6.     the actor uses a vehicle . . . while in flight.

See Sec. 38.04, Tex. Penal Code Ann. (Supp. 2013).


II. Standard of Review.

       As detailed above, legal sufficiency is determined under Jackson v. Virginia,

443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 360 (1979); Adames v. State, 353

S.W.3d 854, 860 (Tex. Crim. App. 2011), cert. denied, 132 S.Ct. 1763 (2012). The

jury, as fact finder, is the sole judge of the credibility of the witnesses. Cain v. State,

958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997).

                                            9
III. Evidence Presented at Trial.

      Burnet Sheriff’s Deputy, Jeff White, testified he observed Appellant commit

an offense by driving 69 miles per hour in a 65 miles per hour zone. (RR2 128 - 129).

This testimony describes an offense under Texas law. Sec. 545.352, Tex. Transp.

Code. Ann. (2013). A peace officer may lawfully detain a person for offense

committed within his view. Art. 14.01, Tex. Code Crim. Proc. (2012); Sec. 543.001,

Tex. Transp. Code. Ann. (2013); see also Maysonet v. State, 91 S.W.3d 365, 368

(Tex. App. - Texarkana 2002, pet. ref’d)(stop proper for driving 74 in 70 mile per

hour zone).

      White also testified he activated his lights and siren and that they were visible

to Appellant. (RR2 130). Appellant continued to drive on and accelerated away from

the officer. (RR2 129 - 130). Because the jury was the sole trier of witness credibility,

it could have accepted the officer’s testimony and rejected Appellant’s. Lancon v.

State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008) When viewed in the light most

favorable to the verdict, the evidence is legally sufficient to support the conviction.

See Lopez v. State, 415 S.W.3d 495, 497 (Tex. App. - San Antonio 2013, no

pet.)(“From the officers’ testimony that their lights and siren were activated for 0.6

miles or approximately one and one-half minutes, the jury could reasonably infer that

Lopez was aware the officers were attempting to detain him but intended to flee to the

                                           10
driveway of his house.”). Counsel could identify no legal argument that could

convince an appellate court to reverse for insufficient evidence.



LEGAL ISSUE EXAMINED NUMBER FIVE:

      Does the record show ineffective assistance of trial counsel for failing to
      object to the defective indictment ?


                      ARGUMENT AND AUTHORITIES

I. Introduction.

      The record shows the indictment omitted the allegation that Appellant used a

vehicle and, as such, charged only a misdemeanor. The question is whether the failure

to object to the indictment could cause an appellate court to reverse for ineffective

assistance of counsel. The undersigned counsel has concluded that first, the record

is insufficient to entertain the claim, and second, the omission would have be

considered harmless error.


II. Standard of Review.

      Actions by trial counsel can deny a criminal defendant the constitutional right

to counsel. 6th Amend., U.S. CONST.; 14th Amend., U.S. CONST.; Art. I Sec. 10, TEX.

CONST. A cause will be reversed for ineffective assistance of counsel if:


                                         11
      1) the representation fell below an objective standard of reasonableness;
      and

      2) it so prejudiced his defense such that there was reasonable probability
      that the result of the proceeding could have been different.


Strickland v. Washington, 466 U.S. 688, 690, 104 S.Ct. 2025, 2064, 80 L.Ed.2d 674

(1984); Valencia v. State, 946 S.W.2d 81, 83 (Tex. Crim. App. 1997).


III. Record Insufficient to Evaluate the Claim.

      It is important to note that there is a strong presumption that actions of counsel

are based on legitimate trial strategy. Delrio v. State, 840 S.W.2d 443, 447 (Tex.

Crim. App. 1992). “The reasonableness of counsel’s choices often involves facts that

do not appear in the appellate record.” Mitchell v. State, 68 S.W.3d 640, 642 (Tex.

Crim. App. 2002).

      The appropriate vehicle to record facts concerning defense counsel’s actions

is a hearing on application for writ of habeas corpus. Mitchell v. State, 68 S.W.3d at

642. Reversal for ineffective assistance based on the trial record alone is permitted

only where there could be no plausible professional reason for a specific act or

omission. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2002).

      This record does not contain sufficient information to evaluate the reasons for

why trial counsel did not object to the indictment or the subsequent jury charge which

                                          12
permitted conviction for use of a vehicle to evade. This is because trial counsel

should “. . . be afforded the opportunity to explain his actions before being

denounced as ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App.

2003). Without a record showing the facts underlying trial counsel’s decisions,

neither appellate counsel nor a reviewing court can determine if the representation fell

below prevailing professional norms. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim.

App. 2002). As a result, counsel must conclude there is nothing in this record that

would persuade an appellate court to reverse based on ineffective assistance of

counsel.


IV. Harmless Error.

      Counsel is mindful of the fact that Texas permits indictments to be amended

by the State with relative ease. See Art. 28.10, Tex. Code Crim. Proc. (2012)(“After

notice to the defendant, a matter of form or substance in an indictment or information

may be amended at any time before the trial on the merits commences.”). This means

that upon being informed prior to trial that the indictment failed to allege a necessary

felony element, the State could have requested an amendment without returning to the

grand jury. Id. Reviewing courts have not found error from such alterations so long

as the defendant was not deprived of notice concerning the charges preferred against


                                          13
him. See Perez v. State, 429 S.W.3d 639, 643 (Tex. Crim. App. 2014)(even when not

actually physically interlined on the face of the indictment, defendant had notice of

proposed changes). From the evidence produced at trial, it was clear to both the

accused and the State that use of a vehicle was part of the case against Appellant and

there is no indication of lack of notice.



LEGAL ISSUE EXAMINED NUMBER SIX:

      Does the lack of evidence, i.e., fingerprints, showing Appellant was the
      same person listed on the judgments of conviction render the evidence
      proving the enhancements insufficient?


                       ARGUMENT AND AUTHORITIES


I. Standard of Review for Enhancement is Beyond a Reasonable Doubt.

      The State must prove any enhancement allegation beyond a reasonable doubt.

Littles v. State, 726 S.W.2d 26, 28 (Tex. Crim. App. 1987). The evidence must show

not only that a conviction exists, but also that the accused is indeed the person

previously convicted. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007).

Evidence proving a prior conviction is only sufficient if a rational trier of fact could

have found all elements beyond a reasonable doubt. Moff v. State, 131 S.W.3d 485,

490 (Tex. Crim. App. 2004) (citing Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct.

                                            14
2781, 2789, 61 L.Ed.2d 560 (1979)). Appellant entered a plea of not true to the

allegations. (RR3 34).


II. State Only Offered Certified Judgments and Not Identification Evidence.

      In the punishment, phase below, the trial court admitted two certified copies

showing prior convictions under the name James Bradley Warden. There was no

other evidence showing Appellant was the same James Bradley Warden listed in

those judgments. The question arises whether this properly proved the enhancement

allegations.


III. Judgments with the Same Name as the Accused are Insufficient.

      A judgment bearing the same name as the accused is insufficient by itself to

connect the accused to that conviction. Beck v. State, 719 S.W.2d 205, 210 (Tex.

Crim. App. 1986) (“even if the name on the judgment and sentence in the pen packet

is the same as the defendant in trial” that does not demonstrate it was the same person

beyond a reasonable doubt). The State must show by “other independent evidence

that the defendant is the same person convicted.” Griffin v. State, 866 S.W.2d 754,

756 (Tex. App. - Tyler 1993, pet. ref’d). The failure to show by fingerprints, or any

other method, that the accused is actually the same person previously convicted

renders the evidence in sufficient. See Zimmer v. State, 989 S.W.2d 48, 52 (Tex.

                                          15
App. - San Antonio 1998, pet. ref'd) (State failed to introduce evidence proving one

of two prior convictions required for felony DWI). Here, the State only introduced

certified judgments and presented no other evidence with the same name to prove it

was Appellant.


IV. Collective Proof Sufficient if Appellant Admitted the Convictions.

      The standard for reviewing proof of identity is the “totality of the evidence.”

Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). Here, Appellant

testified during the guilt innocence stage and admitted he had been previously

convicted of offenses bearing the same titles. (RR2 185, 187). Because he bore the

same name as listed in the judgments, and had admitted previous convictions in the

same county, there appears to be no legal argument that could convince an appellate

court to reverse on this basis. Griffin v. State, 181 S.W.3d 818 (Tex. App. - Houston

[14th Dist.] 2005, pet. ref’d) (evidence sufficient because defendant acknowledged

conviction during hist testimony in guilt-innocence phase of trial). Counsel can find

no good faith argument to raise concerning this issue based on current law.




                                         16
                             PRAYER FOR RELIEF

      WHEREFORE, PREMISES, CONSIDERED, the undersigned counsel

respectfully requests that he be permitted to withdraw from representation in this

appeal and that the Court independently review the record to determine if indeed

there are no arguable points to raise in this appeal and, if an issue is found, appoint

new counsel for Appellant.

                                                     Respectfully Submitted,




                                                     Ken Mahaffey
                                                     Counsel for Appellant
                                                     P.O. Box 684585
                                                     Austin, Texas 78768
                                                     Phone & Fax (512) 444-6557
                                                     St. Bar. No. 12830050
                                                     Ken Mahaffey@yahoo.com


    CERTIFICATE OF SERVICE AND WORD COUNT COMPLIANCE

      The above signature certifies that on September 24, 2015, this document was

sent by electronic service to the Burnet County D.A.’s Office, 1701 E. Polk Ste 24,

Burnet, TX 78611 and, by certified mail, to James Bradley Warden, TDCJ No.

01994759, Bradshaw Unit, P.O. Box 9000, Henderson, TX 75653-9000. The above


                                          17
signature also certifies that this document contains 5188 words in compliance with

Rule 9.4, Tex. R. App. Proc. (2015)(not to exceed 15,000 words).




                                       18
                                                                                                  ACCEPTED
                                                                                              03-15-00299-CR
                                                                                                      7088019
                                                                                   THIRD COURT OF APPEALS
                                                                                              AUSTIN, TEXAS
                                                                                         9/24/2015 3:44:20 PM
                                                                                            JEFFREY D. KYLE
                                                                                                       CLERK
                     No. 03-15-00298-CR & 03-15-00299-CR

JAMES BRADLEY WARDEN                      )         IN THE COURT OF APPEALS

V.                                        )           FOR THE THIRD SUPREME

STATE OF TEXAS                            )      JUDICIAL DISTRICT OF TEXAS

                         CERTIFICATE OF COUNSEL

      In compliance with the requirements of Anders v. California, 386 U.S. 378

(1967), I, Ken Mahaffey, court-appointed counsel for appellant, James Bradley

Warden, in the above referenced appeal(s), do hereby verify, in writing, to the Court

that I have:

      1. notified appellant that I filed a motion to withdraw as counsel with an
      accompanying Anders brief, and provided a copy of each to appellant;

      2. informed appellant of his right to file a pro se response identifying
      what he believes to be meritorious grounds to be raised in his appeal,
      should he so desire;

      3. advised appellant of his right to review the appellate record, should
      he wish to do so, preparatory to filing that response;

      4. explained the process for obtaining the appellate record, provided a
      Motion for Pro Se Access to the Appellate Record lacking only
      appellant's signature and the date, and provided the mailing address for
      this Court; and

      5. informed appellant of his right to seek discretionary review pro se




                                          1
should this Court declare his appeal frivolous.


                                             Respectfully Submitted,



                                             Ken Mahaffey
                                             Counsel for Appellant
                                             P.O. Box 684585
                                             Austin, Texas 78768
                                             Phone & Fax (512) 444-6557
                                             St. Bar. No. 12830050
                                             Ken Mahaffey@yahoo.com




                                   2
