                                                                     ACCEPTED
                                                                 12-15-00009-CR
                                                    TWELFTH COURT OF APPEALS
                                                                  TYLER, TEXAS
                                                            9/11/2015 5:05:04 PM
                                                                       Pam Estes
                                                                          CLERK

            ORAL ARGUMENT NOT REQUESTED

                   NO. 12-15-00009-CR            FILED IN
                                          12th COURT OF APPEALS
                                               TYLER, TEXAS
               IN THE COURT OF APPEALS    9/11/2015 5:05:04 PM
                 12TH JUDICIAL DISTRICT          PAM ESTES
                                                   Clerk
                       TYLER, TEXAS




                     JOE PITTMAN,
                      APPELLANT

                             VS.

                  THE STATE OF TEXAS,
                       APPELLEE




        ON APPEAL IN CAUSE NUMBER 114-1053-14
       FROM THE 114TH JUDICIAL DISTRICT COURT
              OF SMITH COUNTY, TEXAS
    HONORABLE CHRISTI KENNEDY, JUDGE PRESIDING


                  APPELLANT’S BRIEF

JAMES W. HUGGLER, JR.
100 E. FERGUSON, SUITE 805
TYLER, TEXAS 75702
903-593-2400
STATE BAR NUMBER 00795437
ATTORNEY FOR APPELLANT
             IDENTITY OF PARTIES AND COUNSEL

APPELLANT:
    Joe Pittman

APPELLANT’S TRIAL COUNSEL:
    LaJuanda Lacy
    2419 Cecil Avenue
    Tyler, Texas 75702
    903-592-8335

APPELLANT’S APPELLATE COUNSEL
    James Huggler
    100 E. Ferguson, Suite 805
    Tyler, Texas 75702
    903-593-2400
    903-593-3830 (fax)

APPELLEE
    The State of Texas

APPELLEE’S TRIAL COUNSEL
    Jacob Putman
    Lucas Machicek
    Smith County Criminal District Attorney’s Office
    100 N. Broadway, 4th Floor
    Tyler, Texas 75702
    903-590-1720
    903-590-1719 (fax)

APPELLEE’S APPELLATE COUNSEL
    Michael West
    Smith County Criminal District Attorney’s Office
    100 N. Broadway, 4th Floor
    Tyler, Texas 75702
    903-590-1720
    903-590-1719 (fax)
                                 ii
                                  TABLE OF CONTENTS
                                                                                              PAGE

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

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

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

PROFESSIONAL EVALUATION OF THE RECORD. . . . . . . . . . . . . . . 6

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . 12




                                                  iii
                                TABLE OF AUTHORITIES
CONST.
TEX. CONST. art. V, § 12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6


STATUTES
TEX. CODE CRIM. PROC. ANN. art. 4.05 (West 2013). . . . . . . . . . . . . . . . 6
TEX. PENAL CODE ANN. § 12.33 (West 2013).. . . . . . . . . . . . . . . . . . . . . . 7
TEX. PENAL CODE ANN. § 22.02 (West 2013).. . . . . . . . . . . . . . . . . . . . 1, 2


CASES
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396,
   18 L. Ed. 2d 493 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Bray v. State, 179 S.W.3d 725 (Tex. App.– Fort Worth 2005, no pet.). . 7
Duron v. State, 956 S.W.2d 547 (Tex. Crim. App. 1997). . . . . . . . . . . . . 6
Mays v. State, 904 S.W.2d 920 (Tex. App. – Fort Worth 1995, no pet.). 6
Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991).. . . . . . . . . . 10
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
   80 L. Ed. 2d 674 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999).. . . . . . . . . . 10



RULES
Tex. R. App. P. 9.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
TEX. R. APP. P. 38.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5




                                                   iv
                          NO. 12-15-00009-CR


JOE PITTMAN,                        ,§   IN THE COURT OF APPEALS
APPELLANT                           §
                                    §
VS.                                 §    12TH JUDICIAL DISTRICT
                                    §
THE STATE OF TEXAS,                 §
APPELLEE                            §    TYLER, TEXAS



                         APPELLANT’S BRIEF


TO THE HONORABLE COURT OF APPEALS AND THE JUSTICES
THEREOF:


      Comes now Joe Pittman (“Appellant”), by and through his attorney

of record, James Huggler, and pursuant to the provisions of TEX. R. APP.

PROC. 38, et seq., respectfully submits this brief on appeal.




                     STATEMENT OF THE CASE

      Appellant was charged by felony indictment in Smith County cause

number 114-1053-14 with the felony offense of aggravated arrest. TEX.


                                    1
PENAL CODE ANN. §22.02 (West 2013). I CR 41. Following evidence and

argument, a jury found Mr. Pittman guilty of the offense. I CR 81, VIII RR

225.2 The jury then heard evidence and argument during the punishment

phase and assessed a fifteen year sentence.                   I CR 91, IX RR 40-41.

Timely notice of appeal was filed on January 14, 2015. I CR 108. This

brief is timely filed on or before September 11, 2015.




                               ISSUES PRESENTED

                                           None




                          STATEMENT OF THE FACTS

       Appellant was charged by felony indictment in Smith County cause

number 114-1053-14 and charged with the felony offense of aggravated

assault. TEX. PENAL CODE ANN. §22.02(a)(2) and 22.01 (a)(2) (West 2013);

I CR 4. Appellant entered a plea of not guilty and had a jury trial. VIII
1
 References to the Clerk’s Record are made using “CR” with a roman numeral preceding “CR”
designating the correct volume and an arabic numeral following specifying the correct page.
2
 References to the Reporter’s Record are made using “RR” with a roman numeral preceding
designating the volume and an arabic numeral following designating the correct page.
                                               2
RR 11-12.    The indictment alleged that Mr. Pittman committed an

aggravated assault against Nancy Tito on July 13, 2014 by striking her

with his hand and kicking her with his foot while using or exhibiting a

deadly weapon. I CR 4. It also alleged that he threatened Ms. Tito with

imminent bodily injury by pointing a firearm at her. I CR 4. To prove the

case, the State called four witnesses. The complainant testified, as did her

neighbor who had called for assistance and two of the responding

deputies.

     Mr. William Yard testified that he was Ms. Tito’s neighbor in a rural

area of Smith County. VIII RR 123-24. He heard something that night

that woke him, he went to investigate outside and heard someone yelling

for help. VIII RR 126-27. He got a flashlight, went closer and recognized

Ms. Tito as the person calling for help. VIII RR 127. He saw what

appeared to be blood on her and was told “He’s got my stuff. He’s got a

gun.” VIII RR 129. He saw Mr. Pittman “waving” a gun around and kick

Ms. Tito hard several times. VIII RR 129, 132-33, 143, 146.

     Two witnesses were law enforcement officers who responded to the

scene. Deputy Jose Terrazas and Justin Stockwell testified regarding the
                                     3
events of that morning. VIII RR 23, 152. Upon approach to Ms. Tito’s

house, Terrazas was able to see her in the doorway and was able to have

her crawl to him. VIII RR 31-32. He also observed the injuries on Ms.

Tito. VIII RR 36. He was able to identify Ms. Tito as the complainant and

Mr. Pittman as the defendant. VIII RR 32, 40. Deputy Stockwell testifed

similarly, but after Mr. Pittman was taken into custody, he found the

firearm used. VIII RR 156, 157, 158.

     Ms. Tito testified that she previously had a relationship with Mr.

Pittman. VIII RR 30. On that night, he came to her home in the middle

of the night. VIII RR 30, 61. She described him as being high on drugs.

VIII RR 63. A further discussion of that testimony is included below. She

testified that Mr. Pittman gave her a black eye, pointed the gun at her

and said that he was going to kill her, kicked her, and kicked her with the

gun in his hand. VIII RR 65, 66, 70-71, 107, 120.

     Following all the evidence and argument of counsel, the jury found

Mr. Pittman guilty as charged in the indictment. VIII RR 225. Following

evidence and argument in the punishment phase of trial, the jury assessed

a fifteen year sentence with no fine. IX RR 40-41. Mr. Pittman was
                                     4
sentenced by the court formally the following day. X RR 5-6. This appeal

follows.




                     SUMMARY OF ARGUMENT

     Counsel has reviewed the record and has concluded that, in his

professional opinion, the record contains no reversible error or

jurisdictional defects. Anders v. California, 386 U.S. 738, 744, 87 S. Ct.

1396, 1400, 18 L. Ed. 2d 493 (1967). Thus, counsel must move for leave

to withdraw from the case.




                              ARGUMENT

     There is no argument to present to this Court; however, Counsel has

included this section to strictly comply with Texas Rule of Appellate

Procedure 38. Counsel has reviewed the record and has concluded that,

in his professional opinion, the record contains no reversible error or

jurisdictional defects. Anders v. California, 386 U.S. 738, 744, 87 S. Ct.

1396, 1400, 18 L. Ed. 2d 493 (1967). Therefore, counsel is including the

following explanatory section.
                                    5
           PROFESSIONAL EVALUATION OF THE RECORD

     When counsel contends that there are no arguable grounds for

reversal on appeal, counsel is required to present a professional

evaluation of the record supporting this assertion. See Mays v. State, 904

S.W.2d 920, 922-23 (Tex. App. – Fort Worth 1995, no pet.)

     The indictment conferred jurisdiction on the trial court and provided

Appellant with sufficient notice of the charged offense. See TEX. CONST.

art. V, § 12; Duron v. State, 956 S.W.2d 547, 550-51 (Tex. Crim. App.

1997). The trial court has jurisdiction over the case.     See TEX. CODE

CRIM. PROC. ANN. Art. 4.05 (West 2013) (stating that district courts shall

have original jurisdiction in felony criminal cases).

     The evidence admitted supports the finding of guilt in this case.

Given the testimony of Ms. Tito, Mr. Yard and Deputies Terrazas and

Stockwell, raising a claim that the evidence was legally insufficient would

be frivolous.

     Appellant's attorney confirmed that he was satisfied that Appellant

was competent and the State offered no evidence regarding competency.

I RR 16.

                                     6
       Counsel has found no error occurring in the final hearing and

assessment of punishment. At the sentencing hearing, the trial court

sentenced Appellant to fifteen years confinement in accord with the jury

decision. X RR 5-6; IX RR 40-41; I CR 91. The sentence assessed by the

trial court is within the punishment range provided for by law. See TEX.

PENAL CODE ANN. § 12.33 (West 2013).

       Moreover, the judgment does not contain any improper assessment

of fees. See Bray v. State, 179 S.W.3d 725 (Tex. App.--Fort Worth 2005, no

pet.). The bill of costs prepared appears to be accurate. I CR 119, 103-

104.

       Counsel is concerned about two specific areas, but after review finds

that they would be frivolous if raised .

       The first area relates to evidence placed before the jury regarding

Mr. Pittman’s use of drugs, prior to and that evening, his desire to use

drugs with Ms. Tito and her opinion that he was under the influence of

narcotics that evening. VIII RR 63-64, 94-97. However, this evidence was

admitted without objection.      Additionally, the court included a jury

instruction regarding extraneous offenses. I CR 75-76. Raising this issue


                                      7
would be frivolous.

     The second area of concern regards the request by defense counsel

during the trial regarding the necessity for a competency evaluation. VIII

RR 91-92. This arose following statements made by Mr. Pittman outside

the presence of the jury regarding his expressions during the testimony

of Ms. Tito. VIII RR 87, 88-90. The court sought assistance from Dr. Paul

Andrews who is a forensic psychologist qualified to perform a competency

examination under Texas law. Dr. Andrews was able to examine Mr.

Pittman during the trial, the evening of the request. IX RR 4. Dr.

Andrews determined that Mr. Pittman was competent. IX RR 4. The trial

court also proposed not having a formal sentencing of Mr. Pittman until

Dr. Andrews final report was prepared. IX RR 4. This was unobjected to

by either side. IX RR 4-5. Both parties received that report prior to

sentencing, did not object and the court sentenced Mr. Pittman in

accordance with the jury verdict. X RR 4-5. If the final determination had

been that Mr. Pittman was not competent, obviously there would be issues

to raise. The only questionable issue was that the court proceeded while

there was an issue as to competency with the trial including whether or

not Mr. Pittman should testify. VIII RR 175. Trial counsel is experienced
                                    8
enough if she had a doubt as to his competence beyond what was

expressed she would have argued that issue. XIII RR 175. Because the

evaluation concluded that Mr. Pittman was competent, raising this issue

would be frivolous.

     Because the sentence was within the range of punishment for a

second degree felony, there was no reversible error during the punishment

phase.

     Finally, the undersigned has reviewed the record and found no

arguable ground for ineffective assistance of counsel. Counsel is strongly

presumed to have rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment. Strickland

v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674

(1984).

     In the present case, trial counsel sought and used an investigator to

prepare, effectively cross-examined witnesses and argued effectively. She

was able to obtain an offer from the State for a five year sentence,

communicated the offer to Mr. Pittman who rejected the offer. IC RR 38.

The State sought a twenty year sentence from the jury. IX RR 17, 30, 36-


                                    9
37. Mr. Pittman received a fifteen year sentence. Considering the totality

of the representation of Appellant's trial counsel, the record contains

nothing that would indicate that counsel's performance was deficient. See

id. at 687, 104 S. Ct. at 2064; Thompson v. State, 9 S.W.3d 808, 812 (Tex.

Crim. App. 1999).




                              CONCLUSION

     Since counsel is unable to raise any arguable issues for appeal, he

is required to move for leave to withdraw. See Stafford v. State, 813

S.W.2d 503 (Tex. Crim. App. 1991).




                         PRAYER FOR RELIEF

     WHEREFORE, PREMISES CONSIDERED, Counsel respectfully

prays that this Court permit him to withdraw after this Court’s own

examination of the record in this cause and to afford Appellant his right

to file any pro se brief that he may wish to file.




                                     10
Respectfully submitted,


/s/ James Huggler
James W. Huggler, Jr.
State Bar Number 00795437
100 E. Ferguson, Suite 805
Tyler, Texas 75702
903-593-2400
903-593-3830 fax
ATTORNEY FOR APPELLANT




                             11
                      CERTIFICATE OF SERVICE

A true and correct copy of the foregoing Brief of the Appellant has been

forwarded to counsel for the State by electronic filing on this the 4th day

of September, 2015. And by regular mail to Mr. McLemore at the address

below.

Attorney for the State:
Mr. Mike West
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702


Mr. Joe Pittman
TDCJ #01977406
Bartlett Unit
1018 Arnold Drive
Bartlett, Texas 75611



                   CERTIFICATE OF COMPLIANCE
I certify that this Brief complies with Tex. R. App. P. 9.4, specifically
using 14 point Century font and contains 2,253 words as counted by
Corel WordPerfect version x6.


/s/ James Huggler
James W. Huggler, Jr.
                                     12
