                                                                                 ACCEPTED
                                                                             05-18-00253-CR
                                                                   FIFTH COURT OF APPEALS
                                                                             DALLAS, TEXAS
                                                                           5/31/2018 2:31 PM
                                                                                  LISA MATZ




                                                                                                    5th Court of Appeals
                                                                                      CLERK




                                                                                                     FILED: 06/04/2018
                                                                                 Lisa Matz, Clerk
                      IN THE COURT OF APPEALS
                       FOR THE FIFTH DISTRICT
                           DALLAS, TEXAS                     FILED IN
                                                      5th COURT OF APPEALS
                                                          DALLAS, TEXAS
                                                      5/31/2018 2:31:26 PM
Johnathon Ramey                         §                   LISA MATZ
     Appellant                          §                     Clerk
                                        §
VS.                                     §     APPEAL NUMBERS
                                        §       05-18-00253-CR
                                                           RECEIVED IN
State of Texas                          §             5th COURT OF APPEALS
      Appellee                          §                 DALLAS, TEXAS
                                                      5/31/2018 2:31:26 PM
                                                            LISA MATZ
                                                              Clerk
            On Appeal from the 363rd Judicial District Court of
                          Dallas County, Texas
                             No F-17-35063

                 Appellant Counsel’s Anders Brief




                                  RONALD L. GORANSON
                                  3838 Oak Lawn Avenue, Ste. 1124
                                  Dallas, Texas 75219
                                  (214) 651.1122
                                  (214) 871-0640 (fax)
                                  State Bar No. 08195000

                                  ATTORNEY FOR APPELLANT
                                  RAMEY
                          Identity of Parties and Counsel

Appellant                               Johnathon C. Ramey
                                        TDJC # 2182808
                                        John Middleton Unit
                                        13055 FM 3522
                                        Abilene, TX 79601

      Appellant’s Counsel               Ronald L. Goranson
                                        3838 Oak Lawn, Ste. 1124
                                        Dallas, Texas 75219
                                        (214) 651.1122
                                        (214) 871-0620 (facsimile)
                                        SBOT No. 08195000

      Appellant’s Trial Counsels        Mr. Clayton C. Smith
                                        3300 Oak Lawn Avenue, Ste. 600
                                        Dallas, Texas 75219
                                        SBOT NO. 24050002
                                        214) 774-1125



State of Texas                          Faith Johnson,
                                        District Attorney
                                        SBOT No. 00794284
                                        Dallas County, Texas

             Appellate Attorney         Lori Ordiway
                                        SBOT No. 12327300
             Trial Attorneys            Maxim Ternosky
                                        SBOT No. 24088516
                                        Assistant District Attorneys
                                        Frank Crowley Courts Building, LB 19
                                        133 N. Riverfront Boulevard
                                        Dallas, Texas 75207
                                        214-653-3600
                                        214-653-5774 (facsimile)




Appellant Ramey’s Anders Appeal Brief                                Page ii
                                      TABLE OF CONTENTS

PRELIMINARY STATEMENT ............................................................................... 1

STATEMENT OF THE CASE ................................................................................. 2

POTENTIAL POINT OF ERROR ............................................................................ 3

STATEMENT OF THE FACTS ............................................................................... 4

    • EVIDENCE ..................................................................................................... 4

SUMMARY ............................................................................................................... 9

    APPELLANT COUNSEL'S ANALYSIS OF THE CASE ................................ 10

         A. INDICTMENT ......................................................................................... 10

         B. PLEA PAPERS ........................................................................................ 12

         C. JUDGMENT ADJUDICATING GUILT ................................................. 16

         D. POTENTIAL GROUND OF ERROR ..................................................... 18

CONCLUSION ........................................................................................................ 26

CERTIFICATE OF SERVICE ................................................................................ 26

CERTIFICATE OF SERVICE - APPELLANT ...................................................... 27

CERTIFICATE OF COMPLIANCE ....................................................................... 27




Appellant Ramey’s Anders Appeal Brief                                                                 Page iii
                                    TABLE OF AUTHORITIES

CASES:

Agbogwe v. State, 414 S.W.3d 820, 840 (Tex.App.— Houston [1st Dist.] 2013, no

  pet.) ....................................................................................................................... 11

Anders v. California, 386 U.S. 738, 744 (1967).............................................. 1, 9, 27

Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) .... 22

Davis v. State, 533 S.W.3d 498 (Tex.App. 2017, pdr ref’d) ................................... 11

Edwards v. State, 921 S.W.2d 477, 480 (Tex.App.--Houston [1st Dist.] 1996, no

  pet.) ....................................................................................................................... 21

Ex parte Williams, 703 S.W.2d 674, 682 (Tex.Crim.App. 1986) ........................... 22

Fisher v. State, 887 S.W.2d 49, 54-55 (Tex.Crim.App.1994) ................................. 12

Fryar v. State, ___ S.W.3d, ___, (Tex. App. – Dallas, 05-14-01255-CR,

  02/02/2015) ............................................................................................................ 2

Garner v. State, 300 S.W.3d 763 (Tex.Crim.App. 2009) .......................................... 9

Jeffery v. State, 903 S.W.2d 776, 779 (Tex.App.-Dallas 1995, no pet.) ................... 9

Kelly v. State, 436 S.W.3d 313 (Tex.Crim.App. 2014) ........................................ 2, 9

Lawal v. State, ,368 S.W.3d 876, 885 (Tex.App.--Houston [14th Dist.] 2012, no

  pet.) ....................................................................................................................... 24

Marshall v. State, 479 S.W.3d 840, 842 (Tex.Crim.App. 2016) ………….. 11, 12

McGill v. State, 200 S.W.3d 325, 330 (Tex.App.--Dallas 2006, no pet.) ............... 23


Appellant Ramey’s Anders Appeal Brief                                                                        Page iv
Mendez v. State, 138 S.W.3d 334, 344 (Tex.Crim.App. 2004) .............................. 23

Menefee v. State, 287 S.W.3d 9, 14 (Tex.Crim.App.2009) .................................... 22

Moon v. State, 572 S.W.2d 681 (Tex. Crim. App. 1978).................................. 20, 21

O'Brien v. State, 154 S.W.3d 908, 910 (Tex. App.-Dallas 2005, no pet.) .............. 22

Simpson v. State, 67 S.W.3d 327, 329 (Tex. App.-Texarkana 2001, no pet.) ........ 24

Solis v. State, 945 S.W.2d 300, 303 (Tex.App.--Houston [1st Dist.] 1997, pet.

  ref'd)...................................................................................................................... 21

Studer v. State, 799 S.W.2d 263, 268, 273 (Tex.Crim.App.1990).......................... 12

Valle v. State, 747 S.W.2d 541, 546 (Tex.App. —Fort Worth 1988, no pet.) ....... 24




Appellant Ramey’s Anders Appeal Brief                                                                         Page v
STATUTES:

Texas Penal Code

Tex. Pen. Code § 22.01 (a)(1) and (b)(2)(A) ........................................................... 10

Tex. Pen. Code § 22.01 (b)(2) ............................................................................. 2, 11

Tex. Pen. Code § 22.01 (b)(2)(A) .............................................................................. 2

Texas Code of Criminal Procedure

Tex. Code Crim. Proc. Ann art. 1.14(b) .................................................................. 12

Tex. Code Crim. Proc. Ann art. 1.15 ....................................................................... 22

Tex. Code Crim. Proc. Ann art. 21.01 through 21.17 ............................................. 12

Tex. Code Crim. Proc. Ann art. 21.19 ..................................................................... 12

Tex. Code Crim. Proc. Ann art. 42.01 ..................................................................... 16

Tex. Code Crim. Proc. Ann art. 44.02 ....................................................................... 3

Texas Rules of Appellate Procedure

Tex. R. App. Pro. Rule 9.4(i)(1) .............................................................................. 27

Tex. R. App. Pro. Rule 9.4(i)(3) .............................................................................. 27

Tex. R. App. Pro. Rule 25.2 ...................................................................................... 3

Constitutions

Art. V of the Texas Constitution.............................................................................. 12




Appellant Ramey’s Anders Appeal Brief                                                             Page vi
                         IN THE COURT OF APPEALS
                          FOR THE FIFTH DISTRICT
                              DALLAS, TEXAS


Johnathon Ramey                                      §
     Appellant                                       §
                                                     §
VS.                                                  §      APPEAL NUMBERS
                                                     §        05-18-00253-CR
State of Texas                                       §
      Appellee                                       §


            On Appeal from the 363rd Judicial District Court of
                          Dallas County, Texas
                             No F-17-35063

               Appellant Counsel’s Anders Brief

To the Honorable Justices of the Court of Appeals:

Preliminary Statement:

       Counsel for Appellant is appointed in this case. Counsel has

determined that there are no legal or factual issues that arguably could be

raised for appellate review in this case. 1 Counsel has determined that that

this appeal is wholly frivolous and without merit. Counsel has filed a

motion to withdraw. This brief presents an evaluation of the record showing

why there are no arguable grounds to advance. A copy of the motion to

1
        This appeal brief is identical to the brief filed contemporaneously in Ramey v.
State, #05-18-00253-CR except for several page number references.


Appellant Ramey’s Anders Appeal Brief                                               Page 1
withdraw, this brief, the trial court’s record and the statement of facts are

being sent to Appellant at his last known address with a letter advising him

of his right to respond to this brief or file his own Appellant’s Brief. See

Kelly v. State, 436 S.W.3d 313, 315, 319-320 (Tex.Crim.App. 2014); Fryar

v. State, ___ S.W.3d, ___, (Tex. App. – Dallas, 05-14-01255-CR,

03/06/2015).

Statement of the Case:

       Appellant Johnathon Ramey was charged in two indictments with

separate cases of felony assault – family violence. 2 In F-17-35063 (05-18-

00253-CR) he was charged with a third-degree felony assault on November

5, 2017, contrary to Tex. Penal Code, §22.01(b)(2)(A). (R-253, p. 7). In F-

17-35064 (05-18-00254), he was charged with second-degree felony assault

on November 7, 2017, contrary to Tex. Penal Code §22.01(b-2). (R-254, p.

7) The complainant in each case was the same person. On February 6, 2018

Appellant waived his right to a jury trial and pled guilty. The plea was an

“open plea.” (SF, pp. 5-7) In other words, there was no plea bargain with

reference to the sentence. After a hearing on punishment, the trial court


2
        The matters were tried together and the issues raised are identical. Counsel will
identify the Clerk’s record in each case by the letter “R” and the last three digits of the
Appeal number. In other words, one clerk’s record will be identified as “R-253” and the
other as “R-254.” The case was tried together so there will only be one designation for
the statement of facts – “SF.”


Appellant Ramey’s Anders Appeal Brief                                                Page 2
assessed a sentence of six years on each case (R 253, p. 29-30; R-254, p. 23-

24; SF, p. 84)

      The Appellant timely filed a notice of appeal in each case. (R 253, p.

40; R254, p. 39) The Trial Court’s Certification of Defendant’s Right of

Appeal indicates each case was not a plea bargain case and the

Defendant/Appellant had a right to appeal. (R253, p. 20; R254, p. 27)

      This jurisdiction of this Court is invoked pursuant to Art. 44.02 of the

Texas Code of Criminal Procedure and Rule 25.2 of the Texas Rules of

Appellate Procedure. This Brief is due on May 30, 2018. The cause is

properly before this Court of Appeals.

Potential Points of Error

      The trial court should have sua sponte entered a plea of not guilty

after the Appellant denied committing any of the facts necessary to state an

offense of family violence.




Appellant Ramey’s Anders Appeal Brief                                    Page 3
Statement of Facts:

      Evidence:

      On February 6, 2018 Appellant pled guilty in both cases. (SF Vol. 2,

p. 6) The State introduced without objection Appellant’s judicial

confession. (SF Vol. 2, p. 6). Stephanie Parker testified on punishment.

She identified the Appellant. (SF Vol. 2, p. 9) She stated they began dating.

She stated the Appellant lied about everything – his job, his house, his car.

(SF Vol 2, pp. 9-10) She described two incidents that were not the subject

of the indictments. (SF Vol. 2, pp. 12 and 13) After a while she called

things off because of a drinking problem, drugs, selling drugs and his

behavior was getting more violent. (SF Vol. 2, p. 13) When Appellant got

out of prison she allowed him to stay for a few weeks so he could help her

with recovery from surgery. (SF Vol. 2, p. 13) After being out with friends,

she came home and found several suit cases in her living room. (SF Vol 2,

p. 14) Appellant was intoxicated. (SF Vol 2, p. 15) She then described

several incidents of assault, including choking (SF Vol 2. pp. 15-21) The

State offered State’s Exhibits 1-10 – photos taken by the police that evening

showing her injuries (St Ex. 1-4) and the scene (St. Exs. 5-10). The defense

had no objection and the photos were admitted (SF Vol 2, p.21; Vol 3, pp. 7-

16). At one point the Appellant left the room and she went into her


Appellant Ramey’s Anders Appeal Brief                                     Page 4
bathroom, locked the door and called 911. (SF Vol 2, p. 23) The State then

offered the 911 tape. The defense had no objection and the tape was

admitted and played. (SF Vol 2, pp. 24-25) During the 911 call she stated

Appellant broke into the bathroom. She terminated the call. He slapped her

one time on the leg, grabbed his backpack and left. (SF Vol 2, p. 25) She

found the phone and called 911 again. (SF Vol 2, p; 25). This portion of the

tape was played for the court. (SF Vol 2, p. 26).

      After the police left, Appellant began texting her. (SF Vol 2, p. 28)

Copies of the texts were identified as State Exhibits 17-19. The exhibits

were admitted with no objection by the defense. (SF Vol 2, pp. 29)

She testified that he convinced her ex-husband and her to sit down and have

a conversation. She stated that Appellant convinced them it was a one-time

drinking problem, it would never happen again and that he needed help. She

stated “we” agreed to help him and allowed him back. (SF Vol 2, p. 29). In

one of the text’s (State’s Exhibit 19) she testified that Appellant tried to

convince her to lie to the police about the incident. (SF Vol. 2, p. 30) She

stated that she and her ex-husband met with Appellant at a restaurant.

Appellant told her that he had not drank in almost a year, he did not realize

the effect it had on him and that it would never happen again. He asked for

help. She agreed to get him in with their church and with AA and get him to



Appellant Ramey’s Anders Appeal Brief                                      Page 5
a safe place. (SF Vol 2, p. 31) Ms. Parker testified that Appellant came

back to her residence that night. She went to work the next morning. She

started getting strange text messages from him while at work. The State

introduced the text messages as State’s Exhibits 20-26 (SF Vol. 2, p. 32; SF

Vol 3, pp. 20-32). There was no objection to the exhibits. (SF Vol 2, p. 32).

The text messages stated Appellant was going to flee, move to Galveston,

get a new identity, and move to Thailand forever. (SF Vol 2, pp. 32-33)

The texts continued, getting weirder and weirder. (SF Vol 2, p. 34) Ms.

Parker left work early and returned home. She called her ex-husband and

left him on the line. (SF Vol. 2, p. 37) When she tried to open the door,

there appeared to be another key in the lock. (SF Vol 2, p. 37) Appellant

opened the door. As soon as she walked in, he attacked her, slamming her

against the door. (SF Vol 2, p. 37) The Appellant appeared to be

intoxicated. (SF Vol 2, p. 38) She went to the bathroom. When Appellant

left the room, she asked her ex-husband to call 911. (SF Vol 2, p. 38)

Appellant came into the bathroom and slammed into her. HE slammed her

against the vanity and her head against the sink. She bolted for the front

door, but he slammed it shut. He had an electric razor in his hand. “[T]his

time he really strangled [her].” (SF Vol 2, p. 38) He kept saying he was not

going back to prison. (SF Vol. 2, p. 39) Ms. Parker’s ex-husband arrived



Appellant Ramey’s Anders Appeal Brief                                    Page 6
and calmed things down. Appellant was convinced to leave. While getting

his things together, she testified he attacked her again, jumped on top of her,

pushing and screaming at her. (SF Vol 2, p. 42) State’s Exhibits 11-15 were

introduced and admitted without objection. (SF Vol 2, p. 42) The exhibits

showed the damage to the bathroom door and the electric razor that was used

to cut her neck. (SF Vol 2, pp. 43-44) She also identified a piece of paper

with her name and address that was covered in blood. The exhibit was

introduced into evidence without objection. (SF Vol 2, pp. 46-47)

      The Appellant testified. (SF Vol 2, pp. 52-81) He acknowledged he

had the option for a negotiated plea to prison, a jury trial or an open plea, but

he and defense counsel “decided to do an open plea and ask for mercy from

the Court.” (SF Vol 2, p. 52) He stated he grew up in foster care – 21 foster

homes, 13 high schools. He also stated he attended two colleges. (SF Vol 2,

p. 53) He stated he had been to State Jail before, but not to prison. He

stated that he was willing to do any of the programs recommended after a

CATS evaluation. He stated that he had enrolled in a BIPP program for

about ten weeks. He stated he had an alcohol program and was going to an

AA program. (SF Vol 2, pp. 54-55) He explained how he and Ms. Parker

cut their hands on the mirror and the bloody envelope (SF Vol 2, pp. 58-59).

The following then occurred:



Appellant Ramey’s Anders Appeal Brief                                      Page 7
      Q      Do you have anything else to tell the Court at this time?

      A      I just want to say that a lot of this stuff that -- that was
      said in those affidavits and by Ms. Parker isn't all -- all the
      truth. A lot of that stuff was -- was – was blown kind of out of
      proportion.

      THE COURT:           Why don't you tell me what happened. (SF
      Vol. 2, p. 60)

The Appellant then testified that although he and Ms. Parker argued, he did

not assault her – he did not slam her up against anything, he never twisted

her arm, punched her in the stomach or choked her. (SF Vol 2, p. 61) When

asked by the court why she would make all that up, he stated she wanted his

Facebook passwords and they argued about that. She immediately stated he

was being shady. He knew she had trust issues, but he never thought she

would try to get him thrown into prison. (SF Vol 2, pp. 61-62)

      On cross-examination Appellant again denied that he punched Ms.

Parker, he never choked her, never slammed her against the wall, he did

nothing physical from his end. (SF Vol. 2, p. 66). He denied taking the

phone from her while she was calling 911. (SF Vol 2, p. 67) He stated she

made up the allegations about choking and punching her on the second

incident. (SF Vol 2, p. 68) The State then reviewed his criminal record.

(SF Vol 2, pp. 71-76)



Appellant Ramey’s Anders Appeal Brief                                       Page 8
      On re-direct Appellant stated he did not want a jury trial, that he was

pleading guilty and that he was asking for probation. (SF Vol 2, pp. 77-78)

Summary

      Under Anders, a court-appointed attorney may not raise an issue in an

appeal if he makes a conscientious examination of the case and finds the

appeal wholly frivolous. Anders v. California, 386 U.S. 738, 744 (1967).

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

State, 436 S.W.3d 313 (Tex.Crim.App. 2014) and Jeffery v. State, 903

S.W.2d 776, 779 (Tex.App.-Dallas 1995, no pet.). An appointed attorney

must withdraw from a frivolous appeal by filing a motion to withdraw and a

brief in support of the motion. Id. The brief is commonly known as an

Anders brief. Id. The purpose of an Anders brief is to show counsel

performed a conscientious examination of the record and the appeal is so

frivolous that the indigent appellant should be denied his right to appointed

counsel on appeal. Id. After the appellant is given an opportunity to respond,

the court makes a full examination of the record to detect whether the case is

frivolous. Anders, 386 U.S. at 744. Appellant’s counsel has reviewed the

transcript, the sentence received by Appellant, and the factual basis for the

sentence. As set forth below, there are no non-frivolous issues.




Appellant Ramey’s Anders Appeal Brief                                    Page 9
APPELLANT COUNSEL’S ANALYSIS OF THE
CASE

      A.     Indictment:

             The offense of assault family violence as applied in this case is

defined in Texas Penal Code § 22.01(a)(1) and (b)(2)(A):

      § 22.01. Assault

      (a)    A person commits an offense if the person:

             (1) intentionally, knowingly, or recklessly causes bodily
             injury to another, including the person's spouse;

      (b) An offense under Subsection (a)(1) is a Class A misdemeanor,
      except that the offense is a felony of the third degree if the offense is
      committed against:

             (2) a person whose relationship to or association with the
             defendant is described by Section 71.0021(b), 71.003, or
             71.005, Family Code, if:

                    (A) it is shown on the trial of the offense that the
                    defendant has been previously convicted of an offense
                    under this chapter, Chapter 19, or Section 20.03, 20.04,
                    21.11, or 25.11 against a person whose relationship to or
                    association with the defendant is described by Section
                    71.0021(b), 71.003, or 71.005, Family Code;

      Section 22.01(b)(2) enhances the offense of assault causing bodily

injury from a class A misdemeanor to a third-degree felony. Agbogwe v.


Appellant Ramey’s Anders Appeal Brief                                    Page 10
State, 414 S.W.3d 820, 840 (Tex.App.— Houston [1st Dist.] 2013, no pet.)

(citing Tex. Penal Code Ann. § 22.01(b)(2)(A)). As relevant here, the

offense is a third-degree felony if it is committed against “a person whose

relationship to or association with the defendant is described by Section ...

71.005 [defining household], Family Code” and if “it is shown on the trial

of the offense that the defendant has been previously convicted of an offense

under this chapter ... against a person whose relationship to or association

with the defendant is described by Section 71.0021(b), 71.003, or 71.005,

Family Code.” Tex. Penal Code Ann. § 22.01(b)(2).

     “Under a hypothetically correct jury charge, the State was required to

prove (1) appellant (2) intentionally, knowingly, or recklessly (3) caused

bodily injury to the complainant (4) who is a member of appellant’s

household, and (5) had previously been convicted of an assault involving

family violence.” Davis v. State, 533 S.W.3d 498 (Tex.App. 2017, pdr

ref’d)

         The indictment in this case tracks the statutory language. It alleges

that the Appellant intentionally, knowingly and recklessly caused bodily

injury to Stephanie Parker by various means and that prior to the incident he

had been previously convicted of an assault against a family member in a

specified case in Denton County, Texas. (R 253, p. 7).



Appellant Ramey’s Anders Appeal Brief                                     Page 11
      No objections were made to the indictment. The failure to object to

the form or substance of the indictment prior to trial constitutes a waiver of

the error, if any. See Tex.Const. art. V, § 12(b); Tex.Code Crim.Proc.Ann. §

1.14(b); Fisher v. State, 887 S.W.2d 49, 54-55 (Tex.Crim.App.1994); Studer

v. State, 799 S.W.2d 263, 268, 273 (Tex.Crim.App.1990). The indictment

contains all the requisites as required by Arts. 21.01 through 21.17 of the

Code of Criminal Procedure. There are no defects of form or substance in

the allegations in the indictment that prejudice the substantial rights of the

Appellant. See Art. 21.19, Tex. Code Cr. Proc.

B.    Plea Papers

      A document titled Plea Agreement was filed in this case. (R 253, p.

32-35) The first part states that the defendant will plead guilty, and it will be

an “open plea.” (R253, p. 32). The document included a section titled

“Court’s Admonitions to Defendant” where the trial court stated Appellant

was charged with the offense of “Assault FV (enh)” and the punishment

range for a third degree felony at 2-10 years and an optional fine up to

$10,000. (R 253, p.33). The document includes admonitions about the

Appellant’s right to a jury trial, to confront and cross-examine witnesses and

his right to testify in his own behalf if he chooses to. (R 253, p. 33). The

court also advised that the prosecutor’s recommendation on punishment was


Appellant Ramey’s Anders Appeal Brief                                      Page 12
not binding on the court, and if the court rejected the plea bargain, the

Appellant would be permitted to withdraw his plea of guilty. (R 253, p. 33)

The court then stated that if the punishment was not greater than the plea

bargain, the Appellant would not be able to appeal the case with certain

exceptions not applicable in this case. (R 253, p. 33). The court then

advised the Appellant about certain time limits he and his counsel had to

prepare. (R 253, p. 33). The trial court then stated that if the Appellant

received unadjudicated community supervision and violated the conditions

of probation, Appellant would be subject to arrest and a hearing to determine

if guilt should be adjudicated. If guilt was adjudicated, then the full range of

punishment would be open to the court. (R 253, p. 33).

      The plea agreement document continued with a section titled

“Defendant’s Statements and Waivers.” (R 253, p. 33). The Appellant

stated that he was the accused and was mentally competent, that he

understood the nature of the accusation, the range of punishment and the

consequences of a plea of guilty or nolo contender. (R 253, p. 33). He stated

that he knew he had an absolute right to a jury trial, a right to remain silent,

that anything he said could and would be used against him, that he had the

right to confront and cross-examine the witnesses against him and the right

to be tried upon an indictment returned by the Grand Jury. (R 253, p. 33)



Appellant Ramey’s Anders Appeal Brief                                       Page 13
After acknowledging immigration issues not relevant to his case, he waived

his right to be tried upon an indictment returned by the Grand jury, any

defects in the indictment, the right to a jury trial and the right to remain

silent. (R 253, p. 33) He also waived arraignment, the reading of the

indictment. He waived the appearance (R 253, p. 33), confrontation and

cross-examination of witnesses, his right to ten days to prepare for trial after

the appointment of counsel and the preparation of a pre-sentence report, (R

253, p. 34) The next paragraph includes a judicial confession where the

Appellant admits that he committed the offense of “Assault FV (enh) on

__________ exactly as alleged” in the indictment. (R 253, p. 34) He

affirmed that his plea and judicial confession were freely and voluntarily

made and not influenced by any consideration of fear, persuasion or delusive

hope of pardon or parole. (R 253, p. 34) He stated he understood the

admonitions regarding unadjudicated community supervision. (R 253, p.

34) He stated he understood his rights under the Uniform Extradition Act.

He stated he understood he did not have a right to appeal the plea if the

Court followed the terms of the State’s recommendation as to sentencing.

(R 253, p. 34) Appellant signed the plea agreement stating that his attorney

explained the document to him, that he understood it and that the plea, his

statements and waivers were knowingly, freely and voluntarily made with



Appellant Ramey’s Anders Appeal Brief                                     Page 14
full understanding of the consequences. He asked the trial court to accept

his plea. (R 253, p. 34)

      The Appellant, his defense counsel, the prosecutor and the trial judge

signed the document and it was filed with the court clerk. (R 253, p. 34)

      A document entitled “Judicial Confession was introduced into

evidence as State Exhibit 1. (R 253, p. 36-37; SF, p. 6) The document

signed by the Appellant and his counsel states that the Appellant consents to

the stipulation of evidence and waives the appearance, confrontation and

cross-examination of witnesses and that he consents to the introduction of

the “Judicial Confession.” (R 253, pp. 36-37; SF-Plea Vol. 2, pp. 6; State’s

Exhibit 1 – hereinafter cited as “ST Ex 1”). The “Judicial Confession” then

states that, after waiving his state and federal constitutional rights against

self-incrimination, and after being sworn, upon oath, committed the offense

as detailed in the indictment:




Appellant Ramey’s Anders Appeal Brief                                     Page 15
C.    Judgment Adjudicating Guilt

      The Judgment Adjudicating Guilt (R. 29-31) appears to be proper and

states each of the applicable requirements of Art. 42.01 of the Code of

Criminal Procedure. The Judgment was signed by the trial court and entered

of record. It reflects:

      1.     The title and number of the case;

      2.     That the case was called and the parties appeared, naming the

      attorney for the state, the defendant, and the attorney for the

      defendant;

      3.     The plea of true to the offense charged;

      4.     The submission of the evidence;

      6.     The verdict or findings of the court;

      7.     That the defendant was adjudged guilty of the offense as found

      by the finding of the court, and that the defendant be punished in

      accordance with the court's finding as to the proper punishment;

      8.     That the defendant was sentenced a term of confinement;

      9.     The county and court in which the case was tried;

      10.    The offense for which the defendant was convicted;

      11.    The date of the offense and degree of offense for which the

      defendant was convicted;


Appellant Ramey’s Anders Appeal Brief                                     Page 16
      14.    The term of sentence;

      15.    The date judgment was entered;

      16.    The date sentence was imposed;

      17.    The date sentence was to commence and any credit for time

served;

      18.    The terms of any order entered pursuant to Article 42.08 Texas

      Code of Criminal Procedure that the defendant's sentence is to run

      concurrently with another sentence or sentences;

      19.    The terms of any plea bargain (The record indicates that this

      case did not have a plea bargain on the issue of sentence (R 253, p.

      32; SF- Vol. 2, pp. 6, 52);

      20.    The defendant's thumbprint was taken in accordance with

      Article 38.33 of the code of criminal procedure (Article 38.33 of the

      Code of Criminal Procedure requires that the defendant’s right

      thumbprint be rolled legibly on the judgment or docket sheet in the

      case. This was not done, but the Judgment states: “Thumbprint

      Certificate attached.” (R 253. 31). In the Record on Appeal is a

      document titled “Judgment Certificate of Thumbprint.” (R. 59). The

      document appears to comply with the requirements of the statute.

      Further there is nothing in the record to indicate that the fingerprint is



Appellant Ramey’s Anders Appeal Brief                                    Page 17
      for anyone other than the Appellant. No objection was lodged below

      to the failure of the Judgment or the docket sheet to include a rolled

      fingerprint of the Appellant’s right thumbprint.);

      21.    The trial court did not order the defendant to repay a reward or

      part of a reward under Articles 37.073 and 42.152 of the code of

      criminal procedure;

      22.    The trial court did not order restitution to be paid to the victim;

      23.    The Appellant was not required to register as a sex offender;

      24.    The Appellant’s state identification number was entered; and

      25.    The state incident number was entered.

D.    Potential Ground of Error

      During the hearing on punishment the Appellant clearly testified that

he was not guilty. (See pages 10-11 above and SF Vol 2, pp. 61, 63-64, 66,

67, 68, 69). However after making the initial statement to the trial court on

direct examination, the following occurred:

      Q (BY MR. SMITH) Now, Mr. Ramey -- now, we basically --
      we are doing an open plea here; do you understand that?

      A Yes, sir.

      Q And you entered a plea of guilty?

      A Yes.


Appellant Ramey’s Anders Appeal Brief                                     Page 18
      Q And we gave up our right to a jury trial?

      A Yes, sir.

      THE COURT: I'm a little bit confused. If you didn't do any of
      the things that she says, that she has testified that you did, why
      are you pleading guilty?

      THE DEFENDANT: I guess I know how the court system
      works. I know -- I know how I look. I know how she looks. I
      know that it doesn't look good for me. I just -- I really want to
      get back out there
      to my kids. She -- she has no reason to fear me whatsoever. She
      -- like I said, she'll never see me again for -- for -- for the rest of
      her life and the rest of my life. I -- the only thing I want to do is
      get back to my children. My relationship with my daughter was
      very, very close one, and she hasn't seen her father now in over
      a year and a half. And my son is two-years-old and I've been
      locked away for almost a year now. (SF Vol 2, pp. 64-65)

After his cross-examination, the following occurred:

      Redirect Examination by Mr. Smith:

      Q Johnathon, do you want to have a jury trial?

      A No, sir.

      Q All right. Are you pleading guilty?

      A Yes, sir.

      Q And, again, you're asking for a chance at probation to prove
      to the Court you -- you can do it?

Appellant Ramey’s Anders Appeal Brief                                       Page 19
       A Yes, sir. And I -- I also enrolled in the BIPP class. I've done
       ten weeks and I plan to continue after I get out of here.

       Q And you're asking for a chance at the felony domestic
       violence specialty court program?

       A Yes, sir.

       Q IOP?

       A Yes, sir.

       Q High-risk caseload?

       A Yes, sir.

       Q Anything -- anything, but for prison, is what we're asking for
       here?

       A Yes, sir. I'm asking for the chance to get out there and be able
       to be a father to my children and lead by example. (SF Vol 2,
       pp. 77-78)

       Prior to 1978 the trial court would have been required to withdraw

Appellant’s plea and set the case for a trial. See Moon v. State, 572 S.W.2d

681 (Tex. Crim. App. 1978). 3 The trial court is not required to withdraw a


3
       In a long line of authorities the Court of Criminal Appeals has held that when the
evidence introduced makes evident the innocence of the accused or which reasonably and
fairly raises an issue as to such fact and such evidence is not withdrawn, the trial court is
required on its own motion to withdraw the defendant's guilty plea or nolo contendere
plea and enter a not guilty plea for the defendant. E. G. Harris v. State (76 Tex.Cr.R.
126), 172 S.W. 975 (Tex.Cr.App.1915); Edwards v. State (134 Tex.Cr.R. 153), 114


Appellant Ramey’s Anders Appeal Brief                                                Page 20
defendant's plea of guilty sua sponte and enter a plea of not guilty when a

defendant enters a plea of guilty before the trial court after waiving a jury,

even if evidence is presented that either makes the defendant's innocence

evident or reasonably and fairly raises an issue as to his guilt. See id. at 682.

The Moon decision reasoned that it is the trial court's duty to consider the

evidence submitted and, as the trier of facts, the court may find the

defendant guilty of the crime charged or a lesser offense or it may acquit the

defendant. Thus, no valid purpose would be served to require a trial court to

withdraw a guilty plea. See Moon, supra, at 682; Solis v. State, 945 S.W.2d

300, 303 (Tex.App.--Houston [1st Dist.] 1997, pet. ref'd); Edwards v. State,

921 S.W.2d 477, 480 (Tex.App.--Houston [1st Dist.] 1996, no pet.).

       The entry of a valid guilty plea “has the effect of admitting all

material facts alleged in the formal criminal charge.” Ex parte Williams, 703

S.W.2d 572 (Tex.Cr.App.1938); Navarro v. State (141 Tex.Cr.R. 196), 147 S.W.2d 1081
(Tex.Cr.App.1941); Rayson v. State (160 Tex.Cr.R. 103), 267 S.W.2d 153
(Tex.Cr.App.1954); Fite v. State (163 Tex.Cr.R. 279), 290 S.W.2d 897
(Tex.Cr.App.1956); Richardson v. State (164 Tex.Cr.R. 500), 300 S.W.2d 83
(Tex.Cr.App.1957); Edworthy v. State, 371 S.W.2d 563 (Tex.Cr.App.1963); Reyna v.
State, 434 S.W.2d 362 (Tex.Cr.App.1968); Swanson v. State, 447 S.W.2d 942
(Tex.Cr.App.1969); Hays (Hayes) v. State, 484 S.W.2d 922 (Tex.Cr.App.1972); Lee v.
State, 503 S.W.2d 244 (Tex.Cr.App.1974); Lewis v. State, 529 S.W.2d 550
(Tex.Cr.App.1975); Gates v. State, 543 S.W.2d 360 (Tex.Cr.App.1976); Woodberry v.
State, 547 S.W.2d 629 (Tex.Cr.App.1977); Malone v. State, (548) S.W.2d (908)
((Tex.Cr.App 1977). This rule has been recognized and applied even when a jury has
been waived and the plea is before the court without a jury. Burks v. State (145 Tex.Cr.R.
15), 165 S.W.2d 460 (Tex.Cr.App.1942); Gonzales v. State, 480 S.W.2d 663
(Tex.Cr.App.1972); Faz v. State, 510 S.W.2d 922 (Tex.Cr.App.1974); Trevino v. State,
519 S.W.2d 864 (Tex.Cr.App.1975); Cooper v. State, 537 S.W.2d 940
(Tex.Cr.App.1976); Sanchez v. State, 543 S.W.2d 132 (Tex.Cr.App.1976).


Appellant Ramey’s Anders Appeal Brief                                             Page 21
S.W.2d 674, 682 (Tex.Crim.App. 1986). In a trial before the court, once a

defendant enters a valid guilty plea, no constitutional “fact questions”

remain for the purposes of his constitutional right to a factual sufficiency

review of the evidence used to convict him. The State is no longer required

to prove his guilt beyond a reasonable doubt. See id. In fact, for the purposes

of federal due process, a plea of guilty is itself a conviction awaiting only

determination of punishment. See Boykin v. Alabama, 395 U.S. 238, 242, 89

S.Ct. 1709, 23 L.Ed.2d 274 (1969); see also O'Brien v. State, 154 S.W.3d

908, 910 (Tex. App.-Dallas 2005, no pet.) (holding no federal due process

right to factual sufficiency review). In Texas, however, the State is also

bound by statute to support the plea with sufficient evidence. See Tex. Code

Crim. Proc. Ann. art. 1.15. Under Article 1.15, Texas Code of Criminal

Procedure, the State is required to introduce evidence demonstrating the

defendant's guilt. Tex.Code Crim. Proc. Ann. art. 1.15. A judicial

confession alone is usually sufficient to satisfy the requirements of Article

1.15 “so long as it embraces every constituent element of the charged

offense.” Menefee v. State, 287 S.W.3d 9, 14 (Tex.Crim.App.2009).

      A defendant relinquishes his right to complain about the State's proof

of his guilt beyond a reasonable doubt when he voluntarily enters his guilty

plea. McGill v. State, 200 S.W.3d 325, 330 (Tex.App.--Dallas 2006, no



Appellant Ramey’s Anders Appeal Brief                                      Page 22
pet.) Due process is not denied by a conviction based on a plea of guilty

accompanied by a strong factual basis for the plea and a defendant's clearly

expressed desire to enter it despite his professed innocence. McGill v. State,

supra; Mendez v. State, 138 S.W.3d 334, 344 (Tex.Crim.App. 2004) (citing

North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162

(1970)). The number of cases in which defendants change their mind about

the waiver of their right to plead not guilty is small, the appearance of

evidence inconsistent with guilt is unpredictable to the court, and cases are

common in which there is some evidence in the defendant's favor but he has

validly chosen to plead guilty after weighing the advantage of such a plea

against the chance of acquittal. See Mendez, 138 S.W.3d at 350. After a trial

court has implemented the constitutional rights entailed in the entry of a

guilty plea, it is "appropriate that the defendant be required to take some

affirmative action to don the armor again" if he wants an appellate court to

review the factual sufficiency of the evidence against him. See id.

      If a guilty-pleading defendant decides mid-trial that he wants to

compel the trial court to evaluate the evidence under the reasonable doubt

standard, he must seek to withdraw the plea of guilty. McGill v. State, supra

If he fails to do so, he is precluded from having an appellate court review the

evidence against him under the traditional legal and factual sufficiency



Appellant Ramey’s Anders Appeal Brief                                       Page 23
analyses. McGill v. State, supra ; Simpson v. State, 67 S.W.3d 327, 329

(Tex. App.-Texarkana 2001, no pet.).

      In Valle v. State, 747 S.W.2d 541, 546 (Tex.App. —Fort Worth

1988, no pet.) the Appellant further testified as to the reasons he pled guilty.

The Court stated:

      “The fact that appellant entered a plea of guilty in hope of
      escaping the possibility of a higher sentence does not invalidate
      the plea. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160,
      27 L.Ed.2d 162 (1970); Hill v. Estelle, 653 F.2d 202 (5th
      Cir.1981), cert. denied, 454 U.S. 1036, 102 S.Ct. 577, 70
      L.Ed.2d 481 (1981). This is not fear of bodily harm, improper
      inducements or ‘terror’ which the statute is meant to
      circumvent. See Boykin, 395 U.S. at 243, 89 S.Ct. at 1712; see
      also Jones v. Estelle, 584 F.2d 687 (5th Cir.1978).”

      In Lawal v. State, ,368 S.W.3d 876, 885 (Tex.App.--Houston [14th Dist.]

2012, no pet.) the Houston Court of Appeals stated:

             “A defendant may withdraw his plea as a matter of right,
      without assigning a reason, until judgment is pronounced or the
      case is taken under advisement by the trial court. Jackson v.
      State, 590 S.W.2d 514, 515 (Tex.Crim.App.1979); Jagaroo v.
      State, 180 S.W.3d 793, 802 (Tex.App.-Houston [14th Dist.]
      2005, pet. ref'd). If, however, a defendant desires to withdraw
      his guilty plea after the court has taken the case under
      advisement, withdrawal of the plea is within the sound
      discretion of the court. Jackson, 590 S.W.2d at 515; Jagaroo,
      180 S.W.3d at 802. After a trial court has admonished a
      defendant, received the plea and evidence, and passed the case
      for pre-sentence investigation, the case has been taken under


Appellant Ramey’s Anders Appeal Brief                                      Page 24
      advisement. DeVary v. State, 615 S.W.2d 739, 740
      (Tex.Crim.App.1981); Jagaroo, 180 S.W.3d at 802.[1] Because
      Lawal did not seek to withdraw his plea until the case had been
      taken under advisement, he could not withdraw the plea as a
      matter of right.
                                      ***
             Nevertheless, because the judge is free to make any
      finding based on the evidence regardless of the plea, withdrawal
      of a guilty plea is not required even when evidence in a PSI
      raises an issue of a defendant's innocence. Fisher v. State, 104
      S.W.3d 923, 924 (Tex.App.-Houston [14th Dist.] 2003, no
      pet.); Graves v. State, 803 S.W.2d 342, 346 (Tex.App.-Houston
      [14th Dist.] 1990, pet. ref'd). Proper admonishments by a trial
      court establish prima facie proof that a guilty plea was entered
      knowingly and voluntarily. Martinez v. State, 981 S.W.2d 195,
      197 (Tex.Crim.App.1998); Houston v. State, 201 S.W.3d 212,
      217 (Tex.App.-Houston [14th Dist.] 2006, no pet.). The burden
      then shifts to the defendant to show he pleaded guilty without
      understanding the consequences of his plea and, consequently,
      suffered harm. Houston, 201 S.W.3d at 217. A defendant has a
      “heavy burden” to prove in a subsequent hearing that he entered
      the plea involuntarily. Id.”

      In the present case there is absolutely no indication that Appellant

wished to withdraw his plea of guilty. The transcripts clearly shows that

although the Appellant denied doing the acts alleged in the indictments, he

clearly wished to continue with his plea of guilty and try to get a probated

sentence. Without some hint the Appellant wished to withdraw his plea,

counsel on appeal cannot make an effort to raise the issue on direct appeal.




Appellant Ramey’s Anders Appeal Brief                                   Page 25
                                Conclusion

      Based on the review of the Clerk’s Record and the Statement of Facts

it is counsel’s belief that there are no arguable grounds of error to present to

this Court of Appeals.

                                        Respectfully submitted,
                                        /s/ Ronald L. Goranson
                                        RONALD L. GORANSON
                                        3838 Oak Lawn Avenue, Ste. 1124
                                        Dallas, Texas 75219
                                        (214) 651.1122
                                        (214) 871.0620 (fax)
                                        State Bar No. 08195000
                                        Email – rlgatty@aol.com
                                        ATTORNEY FOR APPELLANT

                    CERTIFICATE OF SERVICE

      I, the undersigned, do hereby certify that a true and correct copy of the

Appellant's Brief was delivered to Ms. Lori Ordiway, Assistant District

Attorney, Appellant Division, Dallas County District Attorney’s Office, 133

N. Riverfront Blvd, 10th floor, Dallas, Texas, 75207 this May 31, 2018.

                                        /s/Ronald L. Goranson
                                        RONALD L. GORANSON




Appellant Ramey’s Anders Appeal Brief                                     Page 26
              CERTIFICATE OF SERVICE - APPELLANT

      I certify that the above Appellant’s Anders Brief was placed in an

envelope properly addressed and mailed to:

                            Johnathon C. Ramey
                              TDJC # 2182808
                            John Middleton Unit
                              13055 FM 3522
                             Abilene, TX 79601

on this May 31, 2018. I further certify that a copy of the Statement of Facts

and the Appellate Record have been forwarded to Appellant at the above

address, along with a letter advising him of his right to file an appeal brief

and the address of this Court of Appeals. Also enclosed was a copy of a

motion requesting an extension of time within which to file him brief.

                                        /s/Ronald L. Goranson
                                        RONALD L. GORANSON


                        Certificate of Compliance

      Pursuant to Rule 9.4(i)(3), Texas Rules of Appellate Procedure,

counsel for Appellant certifies that there are 6368 words in this document

pursuant to the inclusions and exclusions required by Rule 9.4(i)(1), Texas

Rules of Appellate Procedure.

                                        /s/Ronald L. Goranson
                                        RONALD L. GORANSON



Appellant Ramey’s Anders Appeal Brief                                     Page 27
