                                                                      ACCEPTED
                                                                   061500047CR
                                                       SIXTH COURT OF APPEALS
                                                            TEXARKANA, TEXAS
                                                            4/6/2015 12:00:00 AM
                                                                 DEBBIE AUTREY
                                                                          CLERK

              NO. 06-15-0047-CR

                                                 FILED IN
                                          6th COURT OF APPEALS
                                            TEXARKANA, TEXAS
     IN THE SIXTH COURT OF APPEALS        4/6/2015 10:53:00 AM
         SIXTH DISTRICT OF TEXAS              DEBBIE AUTREY
                                                  Clerk
              AT TEXARKANA


              MELTON GRIGGS,
                APPELLANT

                      V.

              STATE OF TEXAS,
                 APPELLEE

   On Appeal from the County Court at Law #1
             of Hunt County, Texas
        Trial Cause Number CR1401075
     Honorable Timothy S. Linden Presiding


BRIEF IN SUPPORT OF MOTION TO WITHDRAW



                                   Jessica Edwards
                                   P.O. Box 9318
                                   Greenville, TX 75404
                                   903.513.0150
                                   fax 903.200.1359
                            jessicaedwardslaw@gmail.com

                       ORAL ARGUMENT NOT REQUESTED
                              IDENTITIES OF PARTIES

Appellant:                                       Milton Griggs

Defense Counsel at Trial                         Jack Paris
                                                 P.O. Box 8277
                                                 Greenville, TX 75404

Appellant's Attorney on Appeal                   Jessica Edwards
                                                 P.O. Box 9318
                                                 Greenville, TX 75404

Appelle's Attorney at Trial                      Jeffery Kovach
                                                 Asst. Hunt County Attorney
                                                 P.O. Box 1097
                                                 Greenville, TX 75403

Trial Judge                                      Hon. Timothy S. Linden
                                                 County Court at Law #1
                                                 2507 Lee Street, 4th Floor
                                                 Greenville, TX 75401




                                        2
                                               TABLE OF CONTENTS

Identities of Parties and Counsel.................................................................................2

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

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

Statement of the Case.................................................................................................6

Certificate of Counsel.................................................................................................7

Special Statement to the Court...................................................................................7

Statement of the Facts.................................................................................................8

Issue and Authorities...................................................................................................9

         Charging Instrument and Jurisdiction......................................................9
         Assistance of Counsel.....................................................................................10
         Competence.....................................................................................................10
         Limitations......................................................................................................11
         Jeopardy..........................................................................................................11
         Presence of Defendant....................................................................................11
         Presentence Investigation...............................................................................12
         Punishment......................................................................................................12
         Back Time........................................................................................................13
         Written Judgment...........................................................................................13
         Sentencing Procedure: Allocution.................................................................13
         Finger Prints...................................................................................................14
         Summary.........................................................................................................14

Prayer..........................................................................................................................14

Certificate of Service..................................................................................................15

Certificate of Compliance with Rule 9.4....................................................................16



                                                                   3
                                     INDEX OF AUTHORITIES

FEDERAL CASES:

Anders v. California, 386 U.S. 738 (1976).....................................................................7

Strickland v. Washington, 466 U.S. 668 (1984)............................................................10

STATE CASES:

Fluellen v. State, 71 S.W.3d 870 (Tex. App.-Texarkana 2002, pet. ref'd)....................13

Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969)............................................7

Hidalgo v. State, 983 S.W.2d 746 (Tex. Crim. App. 1999)...........................................10

Howlett v. State, 994 S.W.2d 663 (Tex. Crim. App. 1999)............................................11

Jackson v. State, 989 S.W.2d 842 (Tex. App.-Texarkana 1999, no pet.).......................13

Jordan v. State, 495 S.W.2d 949 (Tex. Cro,. App. 1973)..............................................13

Latham v. State, 20 S.W.3d 63 (Tex. App.-Texarkana 2000, pet. ref'd).......................13

McGowin v. State, 912 S.W.2d 837 (Tex.App.- Dallas 1995, no pet.)..........................11

Mizell v. State, 119 S.W.3d 804 (Tex. Crim. App. 2003)..............................................12

Proctor v. State, 967 S.W.2d 840 (Tex. Crim. App. 1998)............................................11

Studer v. State, 799 S.W.2d 263 (Tex. Crim. App. 1989)...............................................9

STATE STATUTES:
TEX. CODE CRIM. PROC. ANN. ART. 1.14 (b)...................................................................9

TEX. CODE CRIM. PROC. ANN. ART. 12.02.....................................................................11

TEX. CODE CRIM. PROC. ANN. ART. 37.06....................................................................11

TEX. CODE CRIM. PROC. ANN. ART. 38.33....................................................................14
                                                        4
TEX. CODE CRIM. PROC. ANN. ART. 42.01(23)...............................................................14

TEX. CODE CRIM. PROC. ANN. ART. 42.03.....................................................................14

TEX. CODE CRIM. PROC. ANN. ART. 42.07.....................................................................14

TEX. CODE CRIM. PROC. ANN. ART. 42.12 sec 9(b)(2)..................................................12

TEX. CODE CRIM. PROC. ANN. ART. 46B.003................................................................11

TEX. PENAL CODE ANN. 38.02....................................................................................9,13

TEX. R. APP. P. 33.1(a)................................................................................................14




                                                              5
                                  NO. 06-15-0047CR



                       IN THE SIXTH COURT OF APPEALS
                           SIXTH DISTRICT OF TEXAS
                                AT TEXARKANA


                                 MELTON GRIGGS,
                                   APPELLANT

                                             V.

                                 STATE OF TEXAS,
                                    APPELLEE

                    On Appeal from the County Court at Law #1
                              of Hunt County, Texas
                         Trial Cause Number CR1401075
                      Honorable Timothy S. Linden Presiding


          ANDERS BRIEF IN SUPPORT OF MOTION TO WITHDRAW


TO THE HONORABLE COURT OF APPEALS:

      NOW COMES Counsel for Appellant and respectfully submits this brief pursuant

to the Texas Rules of Appellate Procedure.

                            STATEMENT OF THE CASE

      This is an appeal of the judgment an sentence in a criminal case in the County

Court at Law #1 of Hunt County, Texas. Appellant was charged with the misdemeanor

offense of failure to ID, fugitive from justice. On February 13, 2015, Appellant plead

                                             6
guilty and elected to have the Court assess punishment. The Court assessed punishment

at 300 days in the Hunt County Jail. Notice of Appeal was filed on February 19, 2015.

The Clerk's Record was filed on March 10, 2015. The Reporter's Record was filed on

March 27, 2015.

                            CERTIFICATE OF COUNSEL

      In compliance with the requirements of Anders v. California, 386 U.S. S.Ct. 1396,

19 L. Ed 2d 493 (1966) and Gainous v. State,436 S.W.2d 137, 138 (Tex. Crim. App.

1969), the undersigned appointed attorney on appeal for Milton Griggs states that she

has diligently reviewed the entire record and the law applicable thereto and, in her

opinion, the appeal is without merit and wholly frivolous in that the record reflects no

reversible error. It is also the opinion of the undersigned appointed attorney on appeal

that there are no grounds of error upon which an appeal can be predicated. The

undersigned appointed attorney on appeal has served a copy of this brief, clerk's record,

and reporter's record on Appellant.

      At that time, the undersigned attorney informed Appellant in person that, in her

professional opinion, the appeal was without merit. The undersigned attorney also

explained that Appellant has the right to review the record and file a pro se brief if he so

desires. Appellant has also been informed by the undersigned attorney that he may

request an extension of time from this Honorable Court for the filing of a pro se brief.

                      SPECIAL STATEMENT TO THE COURT

                                              7
      After diligent search, the undersigned attorney, appointed as counsel for Appellant

on appeal, has determined that the appeal is frivolous and without merit, and further, that

the record contains nothing upon which an appeal can be predicated.

      The record in this cause reflects that Appellant's rights were protected at every

stage of the proceedings. He was represented by competent counsel at all critical stages

of the trial process. Notice of Appeal was filed on February 19, 2015, within Appellant's

thirty day time limit for filing an appeal. (CR Vol. 1, p. 43).

                                STATEMENT OF FACTS

      On February 13, 2015, the trial court called Appellant's case for trial. (RR Vol. 1,

p.5). At the time of trial, Appellant had three cases pending before the trial court; the

present case on appeal, a Motion to Revoke in cause number CR1301005, and a

harassment charge in cause number CR 1301393. (RR Vol. 1, p 5-6). The parties had

reached a partial agreement which was announced to the court. The State abandoned

paragraph one of the Motion to Revoke, which was the same allegation as the

harassment charge in cause number CR 1301393, and the State dismissed the

harassment charge. (RR Vol. 1, p. 5-6) Appellant agreed to plead true to the remaining

paragraphs in the Motion to Revoke and to plead guilty to the failure to id, fugitive from

justice charge. (RR Vol. 1, p. 5-6). There was no agreement between the parties as to

punishment for either the Motion to Revoke or the failure to id case. (RR Vol. 1, p. 6).

      Appellant, along with his trial counsel, signed a document which waived many of

                                              8
his substantive rights, judicially confessed his guilt, and requested the court to assess his

punishment. (CR Vol. 1, p. 36).

      The trial court first conducted the open-plea hearing on the Motion to Revoke, in

which the trial court found that Appellant had violated his probation and sentenced him

to 100 days in the county jail. (RR Vol.1 p. 36).

      The trial court then held the open-plea hearing in the case at bar. (RR Vol. 1, p.

37). The trial court went over the the waiver of rights and judicial confession that

Appellant signed to ensure that Appellant understood and voluntarily waived his rights.

(RR Vol. 1, p. 37-38). Appellant was allowed an opportunity to present evidence for the

court to consider in assessing punishment. The trial court then assessed Appellant's

punishment at 300 days in the county jail, to run concurrent with his other sentence.

(RR Vol. 1, p. 41-42).

                                  ISSUES AND AUTHORITIES

                 CHARGING INSTRUMENT AND JURISDICTION

      The information in this case alleges and contains all elements of the offense as

prescribed by Texas Penal Code Section 38.02. (CR Vol. 1, p. 14). The information

conferred jurisdiction upon the trial court. Studer v. State, 799 S.W.2d 263, 273 (Tex.

Crim. App. 1989). There is no objection or complaint on the record regarding the

information, therefore nothing is present or preserved for appellate review. TEX. CODE

CRIM. PROC. ANN. ART. 1.14(b) (O'Connor's 2014).

                                           9
                          ASSISTANCE OF COUNSEL

      A complete review of the record reflects that Appellant was represented by

counsel at all critical stages of the proceedings as required by the Texas and U.S.

Constitutions, and that his counsel joined in all decisions required by law. Hidalgo v.

State, 983 S.W.2d , 750 (Tex. Crim. App. 1999). Counsel is ineffective only if his

representation of Appellant falls below a minimum standard for representation and his

errors undermine the reliability of the result to the Appellant. Strickland v. Washington,

466 U.S. 668, 687 (1984). In this case, trial counsel negotiated with the state to have

one of the three charges against Appellant dismissed. (RR Vol. 1, p. 5-6) Although

Appellant plead guilty, it was clear from the record that Appellant had mitigating facts

that he wanted the court to know before assessing punishment. Trial Counsel called

Appellant as a witness and presented those facts to the court. (RR Vol. 1, p. 15-29).

Trial counsel made sure Appellant had the opportunity to say everything he wished to

say to the Court. (RR Vol. 1, p. 28-29). Nothing in the record reflects that trial counsel's

representation of Appellant fell below the minimum standard.

                                 COMPETENCE

      “A person is incompetent if he lacks either (1) sufficient present ability to consult

with his lawyer with a reasonable degree of rational understanding; or (2) a rational as

well as a factual understanding of the proceedings against him. A person is presumed

competent to stand trial and shall be found competent to stand trial unless proved

                                          10
incompetent by a preponderance of the evidence.” TEX. CODE CRIM. PROC. ANN. ART.

46B.003 (O'Connor's 2014); see McGowin v. State, 912 S.W.2d 837, 840 (Tex. App.--

Dallas 1995, no pet.).

      A complete review of the record discloses sufficient information to determine that

Appellant was competent to stand trial.

                                  LIMITATIONS

      The offense was alleged to have been committed on or about August 4, 2014 as

reflected in the information. (CR Vol. 1, p. 14). This is within the two year limitation

for misdemeanors in TEX. CODE CRIM. PRO. ANN. ART. 12.02 (O'Connor's 2014).

Furthermore Appellant did not make any challenge to the charging instrument on the

basis of expiration of the statute of limitations. Limitations is a defensive issue, and must

be raised by defendant or it is waived. Proctor v. State, 967 S.W.2d 840, 844 (Tex. Crim.

App. 1998); Howlett v. State, 944 S.W.2d 663, 667 (Tex. Crim. App. 1999).

                                    JEOPARDY

      There is no jeopardy argument because Appellant was charges and prosecuted in

the case and nothing in the record suggests that Appellant had previously been charged

with and tried for the same offense.

                         PRESENCE OF DEFENDANT

      The record reflects that Appellant was present when the verdict was pronounced

as required by TEX. CODE CRIM. PRO. ANN. ART. 37.06 (O'Connor's 2014).

                                          11
                      PRE SENTENCE INVESTIGATION

      Article 42.12 sec. 9 requires that a per-sentence investigation be completed before

the Court passes judgment, unless certain circumstances are present. A per-sentence

investigation is not required if the court finds there is sufficient information in the record

to permit the meaningful exercise of sentencing discretion. TEX. CODE CRIM PRO. ANN.

ART. 42.12 sec. 9 (b)(2). Article 42.12 sec. 9(b)(2) requires that the court make that

finding on the record. The trial court did not make that finding on the record in this case

and trial counsel did not object. However, the record does not reflect that any

substantive rights of Appellant were impacted by the trial court's failure to explain this

finding on the record. The record contains ample evidence to substantiate such a

finding, even absent the trial court's explanation. Appellant had just been revoked from

probation minutes before the Court heard this case. (RR Vol. 1, p. 36). Appellant's

criminal history was also introduced in to evidence. (RR Vol. 1 p. 69-81). Clearly the

trial court found there was sufficient information in the record to permit the meaningful

exercise of sentencing discretion.

                                      PUNISHMENT

      A sentence outside the maximum or minimum range of punishment is

unauthorized by law and therefore illegal. Mizell v. State, 119 S.W.3d 804, 806 (Tex.

Crim. App. 2003). Appellant was charged with a Failure to ID, Fugitive from Justice,

which is a class A misdemeanor. Appellant was sentenced by the court to 300. (CR 29).

                                              12
This sentence is within the statutory range of punishment for the offense. TEX. PENAL

CODE § 38.02 (d)(2).

      In Texas, the courts have traditionally held that as long as the punishment assessed

is within the range prescribed by the Legislature in a valid statue, the punishment is not

excessive, cruel or unusual. Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App.

1973). Yet, in Jackson v. State, 989 S.W.2d 842, 845 (Tex. App.-Texarkana 1999, no

pet.), this Court recognized that a prohibition against grossly disproportionate

punishment survives under the Eight Amendment to the United States Constitution apart

for any consideration of whether the punishment is within the range established by the

Legislature. Fluellen v. State, 71 S.W. 3D 870, 873 (Tex. App.-Texarkana 2002, pet.

ref'd); Latham v. State, 20 S.W.3d 63, 68-69 (Tex. App.-Texarkana 2000, pet. ref'd).

                                      BACK TIME

      The trial court gave appellant 16 days credit on his sentence (CR Vol. 1, p. 29).

Appellant was credited with all back time, as reflected in the judgment, accurately

calculated, as required by law.

                                  WRITTEN JUDGMENT

      The written judgment conforms to the court's oral pronouncements of judgment

and sentence as required by law. (CR Vol. 1, p. 29 ); (RR Vol. 1, p. 41-42).

                   SENTENCING PROCEDURE: ALLOCUTION

      Article 42.07 of the Texas Code of Criminal Procedure requires that: “Before

                                            13
pronouncing sentence, the defendant shall be asked whether he has anything to say why

the sentence should not be pronounced against him.” TEX CODE CRIM. PRO. ANN. ART.

42.07 (O'Connor's 2014). The trial court in this case did make that inquiry and trial

counsel responded that there was no reason why sentence should not be passed. (RR Vol.

1, p. 42). The trial court properly pronounced sentence in Appellant's presence as

required by TEX. CODE CRIM. PROC. ANN. ART. 42.03 (Vernon's 2014).

                                    FINGERPRINTS

      The record reflects that Appellant's right thumb prints were taken as required by

TEX. CODE CRIM. PROC. ANN. ART. 42.01(23) and TEX. CODE CRIM. PROC. ANN. ART.

38.33 (Vernon's 2014). (CR Vol. 1, p. 29).

                                       SUMMARY

      The undersigned attorney has reviewed the entire record to determine if any

objections were made on Appellant's behalf which would support a point of error on

appeal. TEX. R. APP. P. 33.1(a) (O'Connor's 2014). In counsel's professional opinion, the

trial court displayed no prejudice toward either side. For above reasons, appellate

counsel found no arguable grounds on which to appeal the instant conviction, and

Appellant should receive the opportunity to file a pro se brief.

                    CONCLUSION AND PRAYER FOR RELIEF

      WHEREFOR, PREMISES CONSIDERED, the undersigned counsel being of the

earnest opinion that no arguable points of error appear in the record at the plea or

                                             14
sentencing stages of the case, Counsel prays that this Honorable Court will grant her

Motion for Counsel to Withdraw and afford Appellant the opportunity to file a pro se

brief asserting all grounds of which he knows to revers the judgment of the trial court

below and render judgment of acquittal or, alternatively, remand the cause to the trial

court for further proceedings.

                                             Respectfully Submitted,

                                             _/s/ Jessica Edwards__________
                                             Jessica Edwards
                                             SBN: 24000994
                                             P.O. Box 9318
                                             Greenville, TX 75404
                                             903.513.0150
                                             Fax: 903.200.1359
                                             jessicaedwardslaw@gmail.com



                            CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the Anders Brief in Support of Motion to
Withdraw was served on the Honorable Joel Littlefiled, Hunt County Attorney, by hand
delivery on April 6, 2015.

     I further certify that a true and correct copy of the Anders Brief in Support of
Motion to Withdraw was served on Milton Griggs by hand delivery on April 6, 2015.


                                                   /s/ Jessica Edwards
                                                   Jessica Edwards




                                            15
               CERTIFICATE OF COMPLIANCE WITH RULE 9.4

      Pursuant to Texas Rule of Appellate Procedure 9.4 this certifies that this document
complies with the type volume limitations because it is computer generated and does not
exceed 15,000 words. Using the word count feature of OpenOffice Writer, the
undersigned certifies that this document contains 2,701 words in the entire document.
This document also complies with the typeface requirements as it has been prepared in a
proportionally spaced typeface using Times New Roman 14 point font.


                                                  /s/ Jessica Edwards
                                                  Jessica Edwards




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