                                                                                         ACCEPTED
                                                                                     14-15-00075-CR
                                                                     FOURTEENTH COURT OF APPEALS
                                                                                  HOUSTON, TEXAS
                                                                                7/16/2015 2:55:14 PM
                                                                               CHRISTOPHER PRINE
                                                                                              CLERK

                           NO. 14-15-00075-CR

             IN THE FOURTEENTH COURT OF APPEALS OF     FILED IN
                       THE STATE OF TEXAS        14th COURT OF APPEALS
                                                    HOUSTON, TEXAS
                                                           7/16/2015 2:55:14 PM
                                                           CHRISTOPHER A. PRINE
                                                                    Clerk
                          CASEY HOLMES DYER
                                Appellant

                                    v.

                          THE STATE OF TEXAS
                                Appellee


                  On Appeal in Cause Number 1367335
           From the 351st District Court of Harris County, Texas
                  Hon. Mark Kent Ellis, Judge Presiding


             BRIEF   IN SUPPORT OF MOTION TO WITHDRAW




ORAL ARGUMENT WAIVED                     ALEXANDER BUNIN
                                         Chief Public Defender
                                         Harris County, Texas

                                         BOB WICOFF
                                         Assistant Public Defender
                                         Bob.Wicoff@pdo.hctx.net
                                         1201 Franklin, 13th floor
                                         Houston, Texas 77002
                                         Phone: (713) 368-0016
                                         Fax: (713) 368-9278

                                         COUNSEL FOR APPELLANT
                      IDENTITY OF PARTIES AND COUNSEL



Appellant                                    Casey Holmes Dyer
                                             TDCJ # 01976820
                                             Hamilton Unit
                                             200 Lee Morrison Lane
                                             Bryan, Texas 77807


Presiding Judge                              Hon. Mark Kent Ellis
                                             351st District Court
                                             Harris County, Texas
                                             1201 Franklin Street
                                             14th floor
                                             Houston, Texas 77002


Trial Prosecutor                             Brittany Aaron
                                             Assistant District Attorney
                                             Harris County, Texas
                                             1201 Franklin Street
                                             6th floor
                                             Houston, Texas 77002


Defense Counsel at Trial                     Joseph Varela Aguirre
                                             Attorney at Law
                                             2500 East T.C. Jester
                                             Suite 247
                                             Houston, Texas 77008


Defense Counsel on Appeal                    Bob Wicoff
                                             Assistant Public Defender
                                             Harris County, Texas
                                             1201 Franklin Street
                                             13th floor
                                             Houston, Texas 77002


                                     i
                                   Table of Contents

                                                                       Page

Identity of Parties and Counsel:                                        i

Table of Contents:                                                      ii

Index of Authorities:                                                   iii

Statement of the Case:                                                  v

Issue Presented:                                                        v

Court-appointed counsel believes that the appeal in this case is
frivolous, since there are no arguable grounds for appeal from the
trial court’s adjudication of guilt and assessment of a fifteen-year
sentence

Statement of Facts:                                                     1

Summary of the Argument:                                                2

Argument:                                                               3

Prayer:                                                                 16

Certificate of Service:                                                 16

Certificate of Compliance:                                              17




                                           ii
                                         Index of Authorities

Cases                                                                                                   Page

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

Bledsoe v. State, 178 S.W.3d 824 (Tex. Crim. App. 2005) ...................................................... 5

Cook v. State, 240 S.W.3d 906 (Tex. Crim. App. 2007) ...................................................... 14

Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974)....................................................... 4

Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997) ................................................... 15

Garner v. State, 300 S.W.3d 763 (Tex. Crim. App. 2009) ..................................................... 5

High v. State, 573 S.W.3d 807 (Tex. Crim. App. 1978) ......................................................... 4

In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008)..................................................... 3

Manuel v. State, 994 S.W.2d 658 (Tex. Crim. App. 1999) ..................................................... 6

McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 438 n.10 (1988) .............................. 3

Mitchell v. State, 193 S.W.3d 153 (Tex.App.-Houston [1st Dist.] 2006, no pet.) ................ 5

Nix v. State, 65 S.W.3d 664 (Tex. Crim. App. 2001) ......................................................... 5-7

Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)……                                 10

Rickles v. State, 202 S.W.3d 759 (Tex. Crim. App. 2006)...................................................... 8

Sowells v. State, 45 S.W.3d 690 (Tex. App.-Waco 2001, no pet.)……………………. 3

Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991)................................................. 4, 5

Stephens v. State, 35 S.W.3d 770 (Tex. App.-Houston [1st Dist.] 2000, no pet.)............... 15

Ulloa v. State, 370 S.W.3d 766 (Tex. App.-Houston [14th Dist.] 2011, pet. ref'd)……..6



                                                      iii
                       Index of Authorities (cont'd)


Statutes

TEX. PENAL CODE ANN., sec. 12.42(b)                      12
TEX. CODE CRIM. PROC. ANN., art. 26.13                  10
TEX. CODE CRIM. PROC. ANN., art. 42.12, sec. 5(b)         8
TEX. HEALTH & SAFETY CODE, sec. 481.102(3)(D)          v, 12
TEX. HEALTH & SAFETY CODE, sec. 481.112(d)             v, 12




                                    iv
                             STATEMENT OF THE CASE

       The Appellant was indicted for the first-degree felony offense of possession

with intent to deliver a controlled substance (cocaine), weighing more than four grams

and less than 200 grams, the offense alleged to have occurred on or about November

7, 2012 (C.R. at 11); Tex. Health & Safety Code Ann., secs. 481.102(3)(D); 481.112(d).

On April 10, 2014, the Appellant entered into a plea bargain whereby he was placed

on deferred adjudication for five (5) years (C.R. at 31-32, 41-45). On October 7, 2014,

the State filed a Motion to Adjudicate Guilt, followed by an Amended Motion to

Adjudicate Guilt that was filed on January 13, 2015 (C.R. at 52-53). After a hearing on

January 15, 2015, the trial court adjudicated the Appellant guilty, and assessed his

punishment at fifteen (15) years confinement (C.R. at 54). There was no motion for

new trial.

                                  Issue Presented

       Court-appointed counsel believes that the appeal in this case is
       frivolous, since there are no arguable grounds for appeal from the
       trial court’s adjudication of guilt and assessment of a fifteen-year
       sentence




                                          v
                                   STATEMENT OF FACTS

       A hearing was held on the First Amended Motion to Adjudicate Guilt on

January 15, 2015. In its motion, the State alleged both new law violations and

technical violations (C.R. at 52). The Appellant pleaded “not true” to most of the

allegations, but pleaded “true” to the allegation that he failed to obtain suitable

employment for the months of July, August and September of 2014 (1 R.R. at 6). 1

       Michelle Estrada, the probation officer in charge of the Appellant’s

supervision, testified that during the period of his probation, the Appellant:

       1) tested positive for marijuana and admitted to her that he was “using” (1
          R.R. at 11);

       2) told her he lost his job in July-August of 2014, was requested to find new
          employment, but never obtained employment (1 R.R. at 13);

       3) was behind on various required fees (1 R.R. at 13);

       4) failed to undergo drug or alcohol evaluation (1 R.R. at 14-15); and

       5) failed to attempt completion of his GED (1 R.R. at 15-16).

       Houston Police Department Officer Justin Hayes testified that on October 2,

2014, at about 1:00 a.m., he stopped a car in which the Appellant was a passenger. A

strong odor of marijuana emanated from the interior of the vehicle (1 R.R. at 25-26).

Twenty-three tablets of the drug Ecstasy were found between the passenger seat

(where the Appellant sat) and the center console (1 R.R. at 27, 33). Hayes testified that
1
  Although counsel for the Appellant tried to withdraw the Appellant’s plea of true to such
allegation, the trial court wouldn’t allow it, stating: “Yeah. Well, he already pled true” (1 R.R.
at 8).
                                              -1-
his partner, Officer Aranzeta, noticed as they approached the vehicle that the

Appellant was “moving around his lap area as if trying to hide something prior to us

getting up there” (1 R.R. at 27). Officer Aranzeta testified to essentially the same facts

as Officer Hayes before him, adding that the drugs that had been found field-tested

positive for methamphetamine (1 R.R. at 41).

       Angelica Noyola, a lab analyst of the Houston Forensic Science Center,

testified that the drugs that were found in the car tested positive for

methamphetamine (1 R.R. at 51).

       The trial court found all of the allegations in the First Amended Motion to

Adjudicate Guilt to be true except for number 2 (failure to avoid injurious or vicious

habits by using marijuana), and adjudicated the Appellant guilty (1 R.R. at 58).

       Both the Appellant’s mother and sister then testified briefly in possible mitigation of

punishment (1 R.R. at 58-65). After arguments of counsel, the trial court assessed the

Appellant’s punishment at fifteen years confinement (1 R.R. at 67).


                                SUMMARY OF THE ARGUMENT

       The undersigned has thoroughly reviewed the record and concluded that there

are no meritorious grounds for appeal from trial court’s the adjudication of guilt and

assessment of a fifteen (15) year sentence. Therefore, the undersigned moves to

withdraw from representing the Appellant and has filed, simultaneously with this

brief, a motion to withdraw.


                                            -2-
                                 ISSUE PRESENTED

      Court-appointed counsel believes that the appeal in this case is
      frivolous, since there are no arguable grounds for appeal from
      the trial court’s adjudication of guilt and assessment of a fifteen-
      year sentence.

                                      Argument

                              A. Anders briefs generally

      An attorney has an ethical obligation to refuse to prosecute a frivolous appeal.

In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008). If an appointed attorney

finds, following a professional, conscientious evaluation of the record, that a case is

wholly frivolous, his obligation to his client is to seek leave to withdraw. Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel’s obligation to

the appellate court is to assure it, through an Anders brief, that a complete review of

the record has been undertaken and that the request to withdraw is well-founded. Id.

      A wholly frivolous appeal is one that “lacks any basis in law or in fact.” See

McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 438 n.10 (1988). A reviewing court

must resolve doubtful issues in the appellant’s favor. Id. In the brief which

accompanies his motion to withdraw, counsel must make references to the appellate

record as well as to any applicable statutes, rules, and cases that lead counsel to the

conclusion that the appeal is frivolous. Sowels v. State, 45 S.W.3d 690, 691 (Tex.App.-

Waco 2001, no pet.). The brief must contain references to anything in the record that

might arguably support the appeal, even though counsel believes that the appeal is


                                          -3-
frivolous. Anders v. California, supra; Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App.

1991).

         Counsel is not required to make arguments that would not be made on behalf

of a client who has retained counsel for the appeal; counsel is not required to make

arguments for which there is no merit. Currie v. State, 516 S.W.2d 684 (Tex. Crim.

App. 1974). If counsel concludes that there are no arguable grounds for appeal, then

counsel should so state and should make references to the record, statutes, and cases

which support that conclusion. Stafford v. State, supra; High v. State, 573 S.W.2d 807

(Tex. Crim. App. 1978). When discussing the record, counsel must discuss the

evidence introduced at trial and must provide the appellate court “with ready

references to the record.” Stafford v. State, supra at 510 n.3; High v. State, supra.

Conclusory statements in the brief are insufficient. Anders v. California, supra; High v.

State, supra; Currie v. State, supra.

         Counsel must furnish a copy of the motion to withdraw and a copy of the brief

to appellant and must advise appellant of his right to review the record and to file a

pro se brief. Counsel must certify or otherwise show the appellate court that appellant

has been furnished with a copy of the motion and brief and that appellant has been

advised of his right to obtain the record and to file a pro se brief.

         After appellant has himself raised the points that he wishes to raise, or the time

has passed for him to do so, the appellate court must conduct an independent

examination of the proceedings and determine whether the appeal is wholly frivolous.
                                            -4-
Anders v. California, supra; Mitchell v. State, 193 S.W.3d 153 (Tex.App.-Houston [1st

Dist.] 2006, no pet.). If the court finds that the appeal is wholly frivolous and that

there are no arguable grounds for appeal, it will grant the motion to withdraw and

affirm the judgment of the trial court. Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim.

App. 2009). Although a reviewing court may issue an opinion explaining why the

appeal lacks arguable merit, it is not required to do so. Id., at 767. If the court

determines that there are arguable grounds, it will abate the appeal and remand the

cause to the trial court with instructions that the trial court appoint new and different

counsel to represent appellant on appeal to present those arguable grounds, as well as

any others that new counsel might wish to present. See Bledsoe v. State, 178 S.W.3d 824,

826–27 (Tex. Crim. App. 2005). The appellate court does not make a decision on the

merits of any issue, except to determine whether an appeal is wholly frivolous and that

there either are or are not arguable grounds for appeal. Anders v. California, supra;

Stafford v. State, supra. An appellant may challenge a holding that there are no arguable

grounds for appeal by filing a petition for discretionary review in the Court of

Criminal Appeals. See Bledsoe, supra, at 827-828, fn 6.

                 B. Appeals from an adjudication of guilt are limited

       A defendant on deferred adjudication may raise issues relating to the original

plea proceeding only in appeals taken when community supervision is first imposed,

with two exceptions: 1) the void judgment exception; and 2) the habeas corpus

exception. See Nix v. State, 65 S.W.3d 664, 667-68 (Tex. Crim. App. 2001); Manuel v.
                                           -5-
State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999); Ulloa v. State, 370 S.W.3d 766,

769 (Tex. App.-Houston [14th Dist] 2011, pet. ref’d).

      In Nix, the Court of Criminal Appeals explained the “void judgment”

exception as follows:

             A judgment of conviction for a crime is void when (1) the
      document purporting to be a charging instrument (i.e. indictment,
      information, or complaint) does not satisfy the constitutional requisites
      of a charging instrument, thus the trial court has no jurisdiction over the
      defendant, (2) the trial court lacks subject matter jurisdiction over the
      offense charged, such as when a misdemeanor involving official
      misconduct is tried in a county court at law, (3) the record reflects that
      there is no evidence to support the conviction, or (4) an indigent
      defendant is required to face criminal trial proceedings without
      appointed counsel, when such has not been waived, in violation of
      Gideon v. Wainwright. While we hesitate to call this an exclusive list, it is
      very nearly so. Id., at 668.

      The void judgment exception does not apply in this case. The indictment which

was returned against the Appellant on January 22, 2013 properly alleged the first-

degree felony offense of possession of cocaine with intent to deliver, weighing more

than four grams and less than 200 grams, the offense alleged to have occurred two

months earlier, on or about November 7, 2012 (C.R. at 11). The trial court, a district

court, clearly had jurisdiction over a first-degree felony such as this. There was

evidence to support the conviction, as the Appellant signed a judicial confession at the

time of his guilty plea, which is sufficient evidence to support a conviction (C.R. at

31); Nix v. State, 65 S.W.3d at 668, n.14. Finally, the Appellant had counsel when he

entered his guilty plea on April 10, 2014 (C.R. at 32).

                                           -6-
       In Nix, the Court of Criminal Appeals also explained the “habeas corpus”

exception as follows:

       The habeas corpus exception essentially involves the litigation of a writ
       of habeas corpus at the probation revocation proceedings. Because
       probation is not considered to be a “final” conviction, an application for
       writ of habeas corpus filed during the pendency of revocation
       proceedings would be returnable to the trial court, whose ruling would
       be reviewable by a court of appeals and, ultimately, subject to a petition
       for discretionary review from this Court. Had the application been filed
       separately, then, the same trial court would be responsible for resolving
       both the habeas application and the revocation proceedings, and these
       two proceedings would follow the same appellate path. We have held
       that, in the interest of judicial economy, the probationer need not file a
       separate writ application but may mount his attack during the revocation
       hearing. To invoke the habeas corpus exception on appeal, the
       defendant must show: (a) that the claim is cognizable on a writ of habeas
       corpus and (b) that the defendant attempted to litigate the claim at the
       revocation proceeding. Id., at 669-670

       There was no habeas application filed in this case, nor were issues that would
                                                                                                     2
have been cognizable on habeas raised at the motion to adjudicate hearing.

Therefore, any appeal in this case is limited to errors, if any, that occurred in the

adjudication hearing or with respect to the sentence that was imposed.

                            C. The appeal in this case is frivolous

       The undersigned has evaluated the record from this case with the help of the

useful “Anders Guidelines” posted on the website of the Fourteenth Court of

Appeals. See http://www.14thcoa.courts.state.tx.us/pdf/AndersGuidelines.pdf. In
2
 As an aside, although Nix is still cited regularly to support the rule that the “void judgment” and
“habeas corpus” exceptions are the only instances in which a litigant may challenge the original plea
putting him on deferred or regular probation, once that community supervision is revoked, it is
unclear that the habeas corpus exception still applies. See Jordan v. State, 54 S.W.3d 783 (Tex. Crim.
App. 2001). In any event, the question does not present itself in this case.
                                                -7-
this case, the Appellant pleaded “not true” to the allegations in the First Amended

Motion to Adjudicate, so some of the categories normally relevant to an Anders review

are not relevant here.

       As a threshold matter, a determination to proceed with an adjudication of guilt

is reviewable on appeal in the same manner as a revocation hearing in a regular

probation case. See Tex. Code Crim. Proc. Ann., art. 42.12 § 5(b)(West 2012).

Appellate review of an order revoking probation is limited to abuse of discretion.

Rickles v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). In determining questions

regarding sufficiency of the evidence, the burden of proof is by a preponderance of

the evidence, that is, the greater weight of the credible evidence that would create a

reasonable belief that the defendant has violated a condition of his probation. Id. at

764.

       The evidence was clearly sufficient to prove by a preponderance of the

evidence that the Appellant violated at least one of the conditions of his community

supervision. As stated above, in adjudicating the Appellant guilty, the trial court found

ten (10) allegations in the First Amended Motion to Adjudicate Guilt to be true (1

R.R. at 58). The Appellant provided no evidence to refute most of the allegations, e.g.,

admitting to his probation officer that he used marijuana, and providing no evidence

to counter the allegations that he had not been employed as required (1 R.R. at 13),

was behind on various required fees (1 R.R. at 13), failed to undergo drug or alcohol



                                          -8-
evaluation (1 R.R. at 14-15), and failed to attempt completion of his GED (1 R.R. at

15-16).

1.    Sufficiency of the indictment or misdemeanor information

      As explained supra, the indictment in the instant case alleges each element

prescribed by the statute (C.R. at 11), and properly vested jurisdiction in the district

court which deferred the adjudication of guilt and subsequently adjudicated the

Appellant guilty.

2.   Any adverse pretrial rulings, including but not limited to rulings on
motions to suppress, motions to quash, and motions for speedy trial

      The Clerk’s Record does not contain any motions relative to the First

Amended Motion to Adjudicate Guilt, but it is unclear what motions would have

been appropriate in this scenario. The only possible motion, a motion to suppress

evidence, was not ostensibly in order. Officer Justin Hayes testified that he stopped

the vehicle in which the Appellant was a passenger for not having a front license plate

and failing to turn from a driveway into the first available lane of traffic, either of

which would be a legitimate reason for the traffic stop (1 R.R. at 25). A strong odor of

marijuana emanated from the vehicle (1 R.R. at 26). Drugs were found adjacent to the

Appellant after he had been observed by Officer Aranzeta to be making furtive

movements toward the center console where the drugs were then found (1 R.R. at

39). There was no apparent motion to suppress to be filed, and the motion would not

have impacted several of the other alleged violations anyway.

                                          -9-
3. Compliance with Texas Code of Criminal Procedure 26.13 and, if
appropriate, Padilla v. Kentucky, 130 S.Ct. 1473 (2010)

      In Padilla v. Kentucky, the U.S. Supreme Court held that the Sixth Amendment

requires defense counsel to provide affirmative, competent advice to noncitizen

defendants regarding immigration consequences of guilty pleas and that absence of

such advice may be a basis for a claim of ineffective assistance of counsel. Padilla v.

Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).

      With respect to Tex. Code Crim. Proc. Ann., article 26.13 (“Plea of Guilty”),

pertaining to admonishments to be given when guilty pleas are entered, these

admonishments were not relevant to the hearing held on the motion to adjudicate.

Those admonishments had already been given at the time the Appellant pleaded guilty

and was placed on deferred adjudication. Complaints concerning improper or

inadequate admonishments at the time the Appellant pleaded guilty could not be

raised in an appeal from the adjudication of guilt, for the reasons explained supra.

4. Whether the issue of competency was raised prior to sentencing, so as to
warrant any inquiry by the court, and whether appellant was mentally
competent when the court accepted the plea.

      The Appellant’s competency was not raised in this case. There is nothing from

the record that suggests that his competency was an issue.




                                          - 10 -
5. Whether the appellant’s plea was freely and voluntarily made.

      This Anders factor generally pertains to guilty pleas or pleas of true. In this case,

the Appellant, with the assistance of his counsel, pleaded “not true” to the allegations

in the First Amended Motion to Adjudicate Guilt. There is nothing to suggest that his

“not true” plea was involuntarily entered, i.e., that the Appellant had wanted to plead

true but was coerced into having a hearing. For example, there is no interlineation on

a reset form indicating the possibility of a lower plea bargain offer in exchange for a

plea of “true,” or any suggestion that the Appellant was not informed of an existing

plea bargain offer. In any case, if such issue did exist, it would not be apparent from

the existing record and would be more suitable for habeas later.

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

      During the hearing that was held pursuant to the motion to adjudicate, counsel

objected on hearsay, denial of confrontation, and violation of Texas Rules of

Evidence 702, 703 and 705, when the Appellant’s probation officer testified that the

Appellant tested positive for marijuana (1 R.R. at 11). The trial court overruled the

objection (1 R.R. at 11).

      Whatever merit there may have been to that objection, the same testimony was

then admitted without objection (1 R.R. at 11). Moreover, the probation officer

testified that the Appellant admitted to her that he used marijuana (1 R.R. at 11). As a

result, if there was any error by the trial court regarding the admission of evidence that



                                          - 11 -
the Appellant had tested positive for marijuana, such error would have been rendered

harmless by the admission of the same evidence immediately thereafter.

      Additionally, the trial court found the allegation concerning whether the

Appellant had tested positive for marijuana to be not true (1 R.R. at 58).

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

      It is unclear what “fundamental error” could have existed in this case. The

undersigned has certainly not detected any errors to which an objection should have

been posed, either in the hearing held pursuant to the First Amended Motion to

Adjudicate or otherwise.

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

      The Appellant was on deferred adjudication for the first-degree felony offense

of possession with intent to deliver a controlled substance (cocaine), weighing more

than four grams and less than 200 grams (C.R. at 11). See Tex. Health & Safety Code

Ann., secs. 481.102(3)(D); 481.112(d). The punishment range was therefore 5-99 years

and the possibility of a fine not to exceed $10,000.00. See Tex. Penal Code Ann., §

12.42(b). Therefore, the fifteen (15) year punishment which was assessed was within

the applicable range of punishment.




                                         - 12 -
9. Whether the written judgment accurately reflects the sentence that was
imposed and whether any credit was properly applied.

      The written judgment accurately reflects a conviction for “possession with

intent deliver cocaine 4-200 grams,” and properly lists such offense as a first-degree

felony (C.R. at 90). This is accurate. The judgment reflects the 15-year sentence. As

to credit for time served, the judgment reflects that the Appellant was to be credited

for the time period of 11/07/2012 until 11/23/2012. This is consistent with the

Appellant’s having been arrested on the day of the offense in 2012, and being credited

for all time spent until and including the date that he originally posted bail. See Docket

Sheet (C.R. at 63). The judgment also reflects that the Appellant was to be credited

for the time period of 10/08/2013 until 10/10/2013, which comports with what the

docket sheet reflects as a surrender by his bail bondsman, followed by a posting of a

new bond two days later, all while the original charge was pending. See Docket Sheet

(C.R. at 64). Finally, the judgment reflects that the Appellant was to be credited for

the time period of 10/02/2014 until 01/15/2015, which comports with the time the

Appellant spent following the filing of the motion to adjudicate guilt in October of

2014 through the hearing held on the First Amended Motion to Adjudicate Guilt,

held on January 15, 2015. See Docket Sheet (C.R. at 65).

10. Examination of the record to determine if the appellant was denied
effective assistance of counsel.

      There is no suggestion from the record that counsel’s performance was

deficient in a manner that can be raised on direct appeal. As explained, supra, two
                                          - 13 -
witnesses were offered by the defense at punishment. It is not known whether

counsel undertook the required investigation into other possible mitigation, but there

is nothing in the record to suggest that he was ineffective in such manner, or that he

failed to provide reasonably effective assistance in any other aspect of the case.

10. Other possible issues.

      Notice of appeal was filed the day that the Appellant was sentenced, January

15, 2015 (1 C.R. at 59). The docket sheet indicates that on the same date, trial counsel

Joseph Varela moved to withdraw from representing the Appellant (1 C.R. at 65).

However, the trial court apparently did not act on any request to withdraw until April

21, 2015, when it appointed the undersigned pursuant to an Abatement Order by this

Court (Supp. C.R. at 3). Thus, the new attorney was not appointed to represent the

Appellant within the time limit for filing a motion for new trial and a question arises

as to whether the Appellant was unrepresented during such critical stage of the

proceedings or understood that he had a right to file a motion for new trial. Cook v.

State, 240 S.W.3d 906, 911 (Tex. Crim. App. 2007).

      However, even if the Appellant could establish that he was deprived counsel

during this critical stage of the proceedings, any arguable deprivation during such

period appears to be harmless beyond a reasonable doubt, as the undersigned has

detected nothing that could have been raised in a motion for new trial.




                                          - 14 -
  D. The Appellant has been provided with a copy of the complete appellate
               record and a copy of the motion to withdraw

       A copy of the entire appellate record (which consists of two volumes of the

Reporter’s Record, as well as one volume of the Clerk’s Record and one volume of

the Supplemental Clerk’s Record) has been sent to the Appellant at his current

address, which is:

                            Casey Holmes Dyer
                            TDCJ # 01976820
                            Hamilton Unit
                            200 Lee Morrison Lane
                            Bryan, Texas 77807

The undersigned has also sent a letter with the copy of the record, explaining further

the import of this brief and how the Appellant might pursue issues on an 11.07 writ

that cannot be raised on direct appeal. A copy of this brief is also being sent to the

Appellant, as is the attached Motion to Withdraw. See Anders v. California, 386 U.S.

738, 87 S.Ct. 1396, 18 L.Ed. 2d 493 (1967) and Stephens v. State, 35 S.W.3d 770, 771

(Tex. App.-Houston [1st Dist.] 2000, no pet.)(motion to withdraw pursuant to Anders

brief is properly directed to the appellate court, not the trial court).

       Should this Court grant the undersigned’s Motion to Withdraw, the

undersigned will inform the Appellant of the result of her appeal and will also inform

the Appellant that she may, on her own, pursue discretionary review in the Court of

Criminal Appeals. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).




                                           - 15 -
                                        PRAYER

      For the reasons stated above, the undersigned prays that he be allowed to

withdraw from representing the Appellant in this case, and that the Appellant be

given the opportunity to file his own brief.

                                                   Respectfully submitted,

                                                   Alexander Bunin
                                                   Chief Public Defender
                                                   Harris County Texas

                                                   /s/Bob Wicoff
                                                   Bob Wicoff
                                                   Assistant Public Defender
                                                   Harris County Texas
                                                   1201 Franklin, 13th floor
                                                   Houston Texas 77002
                                                   (713) 274-6781
                                                   TBA No. 21422700


                              CERTIFICATE OF SERVICE

      A true and correct copy of the foregoing brief was sent through the efile

system to the Harris County District Attorney’s Office on the 16th of July, 2015.



                                               /s/ Bob Wicoff
                                               Bob Wicoff




                                          - 16 -
                           CERTIFICATE OF COMPLIANCE

       The undersigned certifies that this brief complies with the length requirements

of Tex. R. App. P. 9.4(i). Specifically, the foregoing brief contains a total of 3,970

words, which is the total word count excluding those matters listed in Tex. R. App. P.

9.4(i)(1).

                                                 /s/ Bob Wicoff
                                                 Bob Wicoff




                                        - 17 -
