                                                                                             ACCEPTED
                                                                                         13-14-00687-CR
          FILED                                                          THIRTEENTH COURT OF APPEALS
IN THE 13TH COURT OF APPEALS                                                    CORPUS CHRISTI, TEXAS
  CORPUS CHRISTI - EDINBURG                                                         6/22/2015 5:43:09 PM
                                                                                  CECILE FOY GSANGER
                                                                                                  CLERK
        6/22/15
                               Appellate Cause No. 13-14-00687-CR
CECILE FOY GSANGER, CLERK
BY DTello
                ********************************************************
                                                            RECEIVED IN
                                                         13th COURT OF APPEALS
                                                      CORPUS CHRISTI/EDINBURG, TEXAS
                                 IN THE COURT OF APPEALS6/22/2015 5:43:09 PM
                               THIRTEENTH JUDICIAL DISTRICTCECILE FOY GSANGER
                                 AT CORPUS CHRISTI, TEXAS        Clerk


                ********************************************************
                                JOHNY RAY HARGROVE,

                                             Appellant.

                                                    v.

                                    THE STATE OF TEXAS,

                                                 Appellee.

               **********************************************************
                         Appeal from Cause Numbers A-14-5081-2-CR
                               In the 36th Judicial District Court
                                   of Aransas County, Texas
               **********************************************************

                                  AMENDED ANDER’S BRIEF

               **********************************************************
        CORETTA T. GRAHAM
        Attorney at Law
        SBN 50511851
        Graham Legal Services
        3206 Reid Drive, suite 105
        Corpus Christi, TX 78404
        (361) 723-1530 office
        (361) 723-1531 fax
        grahamlegalservices@yahoo.com (E-mail)

        COUNSEL FOR APPELLANT

                                                                                pg. 1
                  IDENTITY OF PARTIES AND COUNSEL


Appellant                       JOHNY RAY HARGROVE TDC#01973074
                                TDCJ – WILLACY UNIT
                                1695 South Buffalo Drive
                                Raymondville, TX 78580

Counsel for Appellant (Trial)   At the Trial, the defendant was represented by:
                                RICHARD ZAPATA
                                SBN 24037766
                                P.O. BOX 867
                                Sinton, TX 78387
                                Phone: 361-364-1775
                                Fax: 361-364-1778

Counsel for Appellant (Appeal) On Appeal, the defendant is represented by:
                               CORETTA T. GRAHAM
                               SBN 50511851
                               3206 Reid Drive Suite 105
                               Corpus Christi, Texas 78404
                               Phone: 361-723-1530
                               Fax: 361-723-1531

Counsel for Appellee            The Honorable Michael Welborn
                                36th Judicial District Attorney Office
                                PO BOX 1393
                                Sinton TX 78387
                                Phone: 361-364-9390
                                Fax: 361-364-9490




                                                                              pg. 2
                                         TABLE OF CONTENTS
Item                                                                                                       Page

Identity of the Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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

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

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-6

Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

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

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

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-12

Prayer/Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14




                                                                                                                   pg. 3
                          INDEX OF AUTHORITIES

United States Supreme Court                             Cited at Page

Anders v. California, 386 U.S. 738 (1967)                     6, 8


Court of Appeals/ Court of Criminal Appeals             Cited at Page

Kelly v. State, PD-0702-13, 2014 WL 2865901, at **1–4
              (Tex. Crim. App. June 25, 2014)                 6, 8

In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008)         8

Hawkins v. State, 112 S.W.3d 340
            (Tex. App.—Corpus Christi 2003, no pet.)          9




                                                                        pg. 4
                        STATEMENT OF THE CASE

      On or about February 29, 2013, Johny Ray Hargrove (“Hargrove”) requested

counsel per inmate request forms. [CR, Pg. 13-14] Defendant was then appointed

counsel. [CR, Pg. 11-12] On May 27, 2014, Hargrove was indicted along with Eric

Ochoa for one count of Possession of Heroin with intent to deliver, a second

degree felony. [CR, Pg. 5-6] On June 24, 2014, Counsel for Hargrove filed several

motions including a motion to suppress evidence and a motion for competency and

insanity evaluations. [CR, Pg. 16-39] Orders for a competency evaluation and for

an insanity evaluation were signed on July 9, 2014. [CR, Pg. 59-60] A psychiatric

(competency) evaluation was completed and submitted to the court on or about

September 23, 2014 [CR, Pg. 46-53] A competency (insanity) evaluation was

completed and submitted to the court on or about September 16, 2014. [CR, Pg.

54-58]

      On October 9, 2014, Hargrove with Counsel signed written admonishments,

a judicial confession and stipulations, without a plea agreement with the State of

Texas. [CR, Pg. 61-122] Hargrove entered a plea of guilty. [CR, Pg. 61] Hargrove

applied for deferred adjudication probation [CR, Pg. 123] On or about November

20, 2014, at sentencing, Hargrove’s application for community supervision was

denied and he was given a sentence of ten years at the Texas Department of

                                                                            pg. 5
Criminal Justice, Institutional Division (“TDC-ID”). [CR, Pg. 129] Also, the trial

court certified Hargrove’s right to appeal. [CR, Pg. 124] A notice of appeal was

filed on November 24, 2014. [CR, Pg. 126] Counsel was appointed for Hargrove’s

appeal. [CR, Pg. 127]

              STATEMENT REGARDING ORAL ARGUMENT

      I am not requesting oral argument. Further, I have filed a motion to

withdraw as counsel and have filed this brief pursuant to Anders v. California, 386

U.S. 738 (1967) and Kelly v. State, PD-0702-13, 2014 WL 2865901, at **1–4

(Tex. Crim. App. June 25, 2014). After meeting with the appellant, doing careful

study of the record including the competency and insanity evaluations, and

reviewing the applicable law, I believe that this case presents no appealable issues.



                              ISSUES PRESENTED

      My review of the record reveals no issues which can be advanced in good

faith. Any arguable points that could exist were waived by Hargrove during his

open plea agreement. Thus, the questions raised in this Anders appeal are:

      I.       Whether the trial court committed reversible error with Hargrove’s
               plea?; and
      II.      Whether the trial court committed reversible error with Hargrove’s
               sentence?

                                                                                pg. 6
                           STATEMENT OF FACTS

      On October 9, 2014, a hearing was held to consider Hargrove’s plea. [RR

Vol. 2, Pg. 1 Ln 15-23] The court confirmed Hargrove’s identity and reviewed the

range of punishment. [RR Vol 2, Pg. 2 Ln 10-20] The court considered Hargrove’s

competency to enter a plea. [RR Vol. 2, Pg. 4 Ln 1-25] Without objection from

defense counsel, Hargrove was found competent to proceed with his plea. [RR

Vol.2 Pg. 5 Ln 1-6] The court reviewed the waiver of rights form, and the “court’s

written admonishments” form; and Hargrove waived his right to a jury trial. [RR

Vol.2, Pg. 5 Ln 4-25] Then Hargrove was asked about the stipulation and judicial

confession that he signed. [RR Vol. 2, Pg. 6 Ln 9-25] Hargrove acknowledged that

he signed the documents to admit his guilt. [RR Vol. 2, Pg. 7 Ln 9-11]

      Hargrove also pled guilty in open court. [RR Vol. 2, Pg. 7 Ln 17-18] The

court reviewed the voluntariness of his plea. [RR Vol. 2, Pg. 7 Ln 19-23] The court

acknowledged his application for community supervision as part of an open plea to

the court. [RR Vol. 2, Pg. 8 Ln 5-16] The case was set for a sentencing on

November 20, 2014. [RR Vol. 2, Pg. 8 Ln 23-24] On November 20, 2014, after

hearing testimony, the trial court sentenced Hargrove to ten years TDC-ID. [CR

Pg. 136] This Anders appeal arises from Hargrove’s plea and/or the subsequent

sentencing.

                                                                             pg. 7
                      SUMMARY OF THE ARGUMENT

      I have submitted this brief in accordance with Anders v. California, 386 U.S.

738 (1967) and Kelly v. State, PD-0702-13, 2014 WL 2865901, at **1–4 (Tex.

Crim. App. June 25, 2014). After having carefully examined this record and after

having researched relevant case law, I have concluded that Hargrove’s appeal

concerning the involuntariness of his plea cannot be substantiated. Therefore, I

request the Court's permission to withdraw as attorney of record and to allow

Appellant Johny Ray Hargrove to file any further briefs he deems necessary.


                                     ARGUMENT


I. Whether the trial court committed reversible error with Hargrove’s plea?

                                     Analysis

      Pursuant to Anders v. California, 386 U.S. at 744, and Kelly v. State, PD-

0702-13, 2014 WL 2865901, at **1–4, the Court must evaluate whether Counsel’s

brief meets the requirements of Anders as it presents a professional evaluation

demonstrating why there are no arguable grounds to advance on appeal. See In re

Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (“In Texas, an Anders

brief need not specifically advance. . . arguable points of error if counsel finds

none, but it must provide record references to the facts and procedural history and


                                                                              pg. 8
set out pertinent legal authorities.”) (citing Hawkins v. State, 112 S.W.3d 340, 343-

44 (Tex. App.—Corpus Christi 2003, no pet.));

      Appellate counsel has reviewed the court records in detail concerning

Hargrove’s assertions that his plea was involuntary, and counsel has identified no

action or inaction on the district court’s part or defense counsel’s part that would

suggest harmful or reversible error. This case is pending in this Thirteenth Court of

Appeals from the 36th Judicial District Court in Aransas County, Texas. Counsel

has not identified any aspect of the plea hearing that would suggest Hargrove’s

plea was involuntary. In fact, the record affirmatively suggests Hargrove was

evaluated for competency and evaluated for insanity prior to the plea hearing. [CR,

Pg. 46-58] At the hearing, the trial court reviewed the issue of competency. [RR

Vol. 2 Pg. 4 Ln 2-25] Hargrove’s plea of guilty was voluntarily made. [RR Vol. 2

Pg. 7 Ln 17-18] Counsel on appeal has reviewed the appellant records concerning

Hargrove’s plea as follows:


                          GUILTY PLEA REVIEW

 I. Sufficiency of the indictment or misdemeanor information - CR, Pg. 5
 II. Any adverse pretrial rulings, including but not limited to rulings on motions to
 suppress, motions to quash, and motions for speedy trial – No adverse pretrial
 ruling exist; Motion to Suppress filed but waived; An order granting competency
 and insanity evaluation granted – CR, Pg.59-60


                                                                               pg. 9
III. Advising of the Defendant with written Admonishments in compliance with
Texas Code of Criminal Procedure 26.13
(A) risk of perjury                                        CR, Pg. 115
(B) right to plead not guilty                                   CR, Pg. 116
(C) right to a jury trial                                       CR, Pg. 116
(D) right to counsel at trial and every other stage             CR, Pg. 116
(E) the range punishment range TCCP 26.13(a)(1)                 CR, Pg. 115, 121
(F) nature of the charge                                        CR, Pg. 115
 (G) recommendation of punishment not binding on the court      CR, Pg. 115
 TCCP 26.13 (a)(2)
 (H) if punishment does not exceed plea bargain, trial court    CR, Pg. 116, 117,
 must give permission to appeal. TCCP 26.13 (a)(3)              119
 (I) admonishment on effect of plea on citizenship TCCP         CR, Pg. 116
 26.13(a)(4)
 (J) no plea accept unless defendant is mentally competent to   CR, Pg. 116, 118
 accept plea TCCP 26.13 (b)
 (K) court compliance with review of written                    CR, Pg. 120
 admonishments for defendant TCCP 26.13 (c & d)
 (L) inquire into victim statement (if applicable) TCCP         N/A
 26.13(e) (1)                                                   N/A
 (M) inquiry into notice to victim (if applicable) TCCP 26.13
 (e) (2)                                                        N/A
 (N) inquiry on registration requirement of Chapter 62 (if
 applicable) TCCP 26.13 (a)(5) & (h)
IV. Trial Court proceedings

(A) Whether the issue of competency was raised prior to         RR Vol. 2 Pg. 4 Ln
   sentencing; inquiry into a plea bargain.                     2-25
(B) defendant’s waiver of trial rights                          RR Vol 2 Pg.5 Ln
                                                                23-25; Pg. 6 Ln 1-5
(C) nature of the charge                                        RR Vol 2 Pg. 3
                                                                Ln10-12
(D) Whether appellant was mentally competent when the           RR Vol. 2, Pg. 4 Ln
court accepted the plea                                         1-25

                                                                              pg. 10
 (E) the range punishment range                                RR Vol 2 Pg. 3
                                                               Ln14-20
 (F) applicable fines                                          CR, Pg. 125
 (G) any applicable forfeiture                                 N/A
 (H) any applicable restitution                                   RR Vol 2 Pg.8 Ln 1-
                                                                  5
 V. Voluntariness of Plea                                         RR  Vol 2 Pg. 7 Ln
                                                                  15-23
 VI. Any adverse rulings during the sentencing hearing on objections or motions -
none
 VII. Any failure on the part of appellant's trial counsel to object to fundamental
error. - none
 VIII. Whether the sentence imposed was within the applicable range of
punishment. CR, Pg. 129, 136
 IX. Factual Basis for the Plea                                   CR, Pg. 88-89

 X. Judicial Consideration of Plea Agreement (advisory to defendant on the type
 of plea considered) - court informed appellant on open plea. RR Vol 2 Pg.5 Ln 5
 XI. Accepting Plea Agreement (informing defendant that, toRR Vol 2 Pg.6 Ln 8-
 the extent agreement is of specified type, the agreed10; Pg. 7 Ln 9-16;
 disposition will be in the judgment)                         Pg. 7 Ln 24-25
 XII. Whether the written judgment accurately reflects the sentence that was
imposed and whether any credit was properly applied. CR, Pg. 129-132

 XIII. Whether the appellant was denied effective assistance of counsel. - No
evidence found on ineffective assistance of counsel.


II. Whether the trial court committed reversible error with Hargrove’s

sentence?

                                     Analysis

      Appellate counsel has reviewed the court records for Hargrove’s sentencing

and has detected no error, clear or harmless. In this cause, Hargrove was indicted
                                                                               pg. 11
on a second degree felony. [RR Vol. 2 Pg. 3 Ln 10-14] The range of punishment

for second degree felony is two years up to twenty years in the Institutional

Division of the Texas Department of Criminal Justice. [CR, Pg. 121] Hargrove

submitted an application for community supervision as part of an open plea to the

court with his trial counsel. [RR Vol. 2 Pg. 8 Ln 6-15] A hearing was held and the

trial court imposed a ten year sentence. [CR, Pg. 136] Hargrove was given time

credits toward his sentence. [CR, Pg. 132]



                                 CONCLUSION

      In accordance with Anders v. California and Kelly v. State, I have examined

the record for issues which might arguably support an appeal. In my opinion, there

are none. Consequently, I respectfully move to withdraw from this case in

accordance with Anders and ask the Court to rule on this appeal accordingly.


                                             Respectfully submitted,

                                             _/s/Coretta T. Graham____________
                                             CORETTA T. GRAHAM
                                             Attorney at Law
                                             SBN 50511851
                                             Graham Legal Services
                                             3206 Reid Drive, suite 105
                                             Corpus Christi, TX 78404
                                             (361) 723-1530 office
                                             (361) 723-1531 fax

                                                                               pg. 12
                                           grahamlegalservices@yahoo.com (E-mail)
                                           COUNSEL FOR APPELLANT


                     CERTIFICATE OF COMPLIANCE

      I, CORETTA GRAHAM, certify that there are 2724 words in the document

per the word count of the computer program used to prepare the document.

                                     _/s/Coretta T. Graham____________
                                     CORETTA T. GRAHAM




                                                                            pg. 13
                          CERTIFICATE OF SERVICE

      I, CORETTA GRAHAM, certify that, a copy of this Amended Anders brief

for Appellant Johny Ray Hargrove was served upon following parties on or about

June 22, 2015 via fax and certified mail:

The Honorable Michael Welborn
36th Judicial District Attorney Office
PO BOX 1393
Sinton TX 78387
Phone: 361-364-9390
Fax: 361-364-9490

JOHNY RAY HARGROVE TDC#01973074
TDCJ – WILLACY UNIT
1695 South Buffalo Drive
Raymondville, TX 78580



                                         Respectfully Submitted,

                                         _/s/Coretta T. Graham____________
                                         CORETTA T. GRAHAM
                                         Attorney at Law
                                         SBN 50511851
                                         Graham Legal Services
                                         3206 Reid Drive, suite 105
                                         Corpus Christi, TX 78404
                                         (361) 723-1530 office
                                         (361) 723-1531 fax
                                         grahamlegalservices@yahoo.com (E-mail)

                                         COUNSEL FOR APPELLANT



                                                                           pg. 14
