                                                                           ACCEPTED
                                                                       14-15-00118-CR
                                                       FOURTEENTH COURT OF APPEALS
                                                                    HOUSTON, TEXAS
                                                                   7/8/2015 1:13:36 PM
                                                                 CHRISTOPHER PRINE
                                                                                CLERK

          NO. 14-15-00118-CR
      IN THE COURT OF APPEALS
FOR THE FOURTEENTH DISTRICT OF TEXAS                   FILED IN
                                                14th COURT OF APPEALS
                                                   HOUSTON, TEXAS
                                                 7/8/2015 1:13:36 PM
      CHRISTOPHER RASHAD FRAZIER                CHRISTOPHER A. PRINE
               Appellant                                 Clerk


                      v.

           THE STATE OF TEXAS
                   Appellee


  On Appeal from Cause Number 1410778
 228th District Court of Harris County, Texas
      Honorable Marc Carter, Presiding



           BRIEF FOR APPELLANT


                                ALEXANDER BUNIN
                                Chief Public Defender
                                Harris County, Texas

                                CHERI DUNCAN
                                Assistant Public Defender
                                Texas Bar No. 06210500
                                1201 Franklin, 13th Floor
                                Houston, Texas 77002
                                Phone: (713) 368-0016
                                Fax: (713) 368-9278
                                cheri.duncan@pdo.hctx.net
                                Counsel for Appellant
               IDENTITY OF PARTIES AND COUNSEL


APPELLANT:                            Christopher Rashad Frazier
                                      TDCJ# 01977867
                                      Garza West Unit, TDCJ
                                      4250 Highway 202
                                      Beeville, TX 78102-8982

TRIAL PROSECUTOR:                     Paul Fortenberry
                                      Assistant District Attorney
                                      Harris County, Texas
                                      1201 Franklin, Suite 600
                                      Houston, TX 77002

DEFENSE COUNSEL AT TRIAL:             Joseph Philip Scardino
                                      Attorney at Law
                                      1004 Congress, 2nd Floor
                                      Houston, TX 77002

PRESIDING JUDGE:                      Hon. Marc Carter
                                      228th District Court
                                      Harris County, TX
                                      1201 Franklin 16th Floor
                                      Houston, TX 77002

COUNSEL ON APPEAL FOR APPELLANT:      Cheri Duncan
                                      Assistant Public Defender
                                      Harris County, TX
                                      1201 Franklin, 13th Floor
                                      Houston, TX 77002




                              ii
                                                  TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................................................ II

TABLE OF CONTENTS ..........................................................................................................III

INDEX OF AUTHORITIES ..................................................................................................... V

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

ISSUE PRESENTED ................................................................................................................. 1

          COURT-APPOINTED COUNSEL BELIEVES THE APPEAL IN THIS CASE
          IS FRIVOLOUS, SINCE THEREARE NO ARGUABLE GROUNDS FOR
          APPEAL FROM THE TRIAL COURT’S ADJUDICATION OF GUILT AND
          IMPOSITION OF SENTENCE.

STATEMENT OF FACTS.......................................................................................................... 1

SUMMARY OF THE ARGUMENT ............................................................................................ 2

ARGUMENT ............................................................................................................................ 2

          1. SUFFICIENCY OF THE INDICTMENTS OR MISDEMEANOR INFORMATION....... 3

          2. ANY ADVERSE PRETRIAL RULINGS, INCLUDING BUT NOT LIMITED TO RULINGS
             ON MOTIONS TO SUPPRESS, MOTIONS TO QUASH, AND MOTIONS FOR SPEEDY
             TRIAL ..................................................................................................................... 3

          3. COMPLIANCE WITH TEX. CODE CRIM. PROC. ART. 26.13 AND PADILLA...... 4

          4. WHETHER THE ISSUE OF COMPETENCY WAS RAISED BEFORE SENTENCING SO
             AS TO WARRANT AN INQUIRY BY THE COURT, AND WHETHER APPELLANT WAS
             COMPETENT WHEN COURT ACCEPTED THE PLEA ............................................ 5

          5. WHETHER APPELLANT’S PLEA WAS FREELY AND VOLUNTARILY MADE ........ 5

          6. ANY ADVERSE RULINGS DURING THE SENTENCING HEARING ON OBJECTIONS
             OR MOTIONS ......................................................................................................... 5

          7. ANY FAILURE OF TRIAL COUNSEL TO OBJECT TO FUNDAMENTAL ERROR .... 6
                                                                   iii
          8. ANY ADVERSE RULINGS DURING PUNISHMENT PHASE ................................... 6


          9. WHETHER THE SENTENCE WAS WITHIN THE APPLICABLE PUNISHMENT
             RANGE ................................................................................................................... 6

          10. WHETHER THERE IS SUFFICIENT EVIDENCE TO SUPPORT A GUILTY PLEA IN A
             FELONY CASE........................................................................................................ 7

          11. WHETHER DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL8

          12. OTHER MATTERS INVESTIGATED AND FOUND TO LACK MERIT .................... 9

PRAYER .................................................................................................................................. 9

CERTIFICATE OF SERVICE .................................................................................................. 10

CERTIFICATE OF COMPLIANCE ......................................................................................... 10




                                                                     iv
                                               INDEX OF AUTHORITIES

   Cases

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

Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002) ............................................................. 8

Ex parte Varelas, 45 S.W.3d 627 (Tex. Crim. App. 2001) ...................................................... 8

In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008) ........................................................ 2

Lackey v. State, 2010 WL 307912 *2 (Tex. App. – Houston [14th Dist.]) (mem. op., not
 designated for publication) .................................................................................................... 8

Padilla v. Kentucky, 559 U.S. 356 (2010) .................................................................................... 4

Strickland v. Washington, 466 U.S. 668 (1984) .......................................................................... 8


   Statutes

TEX. CODE CRIM. PROC. ART. 1.051 ........................................................................................ 8

TEX. CODE CRIM. PROC. ART. 26.13 ........................................................................................ 4

TEX. PENAL CODE § 12.32........................................................................................................ 6

TEX. PENAL CODE § 29.03(a) ................................................................................................... 3

TEX. PENAL CODE § 29.03(b)................................................................................................... 6




                                                                  v
                              STATEMENT OF THE CASE

      Christopher Rashad Frazier was indicted for aggravated robbery after he

confessed to being a party to a robbery in the parking lot of the apartment complex

where he lived.

      The trial court sentenced Mr. Frazier to twenty-five years in prison after a

presentence investigation, and entered judgment on January 12, 2015 (CR at 28). The

judgment erroneously reflected that Mr. Lopez waived his right to appeal. However,

the trial court entered a second Trial Court’s Certification of Defendant’s Right of

Appeal that correctly said this was not a plea-bargain case and Mr. Frazier had the right

to appeal (CR at 36).

                                  ISSUE PRESENTED

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


                                STATEMENT OF FACTS

      The presentence report said that Mr. Frazier and his co-actor, Keith Dillingham

agreed to commit a robbery, and took air guns to use. During the offense, however, Mr.

Dillingham found a real gun in the glovebox of the complainant’s car. He took it as

they fled. When the complainant chased the two men, Mr. Dillingham fired the real gun

several times at the complainant. The complainant died as a result of his injuries (RR 2

at PSI page 3).

                                           1
                                SUMMARY OF THE ARGUMENT

      Counsel has thoroughly reviewed the record and concluded that there are no

meritorious grounds for appeal from the judgment against Mr. Frazier. Therefore,

counsel seeks leave to withdraw from representing him. Counsel has filed, along with

this brief, a motion to withdraw.

                                    ISSUE PRESENTED

      Court-appointed counsel believes that the appeal in this case is
      frivolous, since there are no arguable grounds for appeal from
      the appellant’s adjudication of guilt.


                                      ARGUMENT

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

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

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

frivolous, her obligation to her client is to seek leave to withdraw. Anders v. California,

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

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

been done and that the request to withdraw is well-founded. Id.

      Counsel has evaluated the record in this case in light of this Court’s Anders

Guidelines.




                                            2
1.     Sufficiency of the indictment or misdemeanor information

       An indictment needs to be sufficient to confer subject-matter jurisdiction on the

trial court. This one was. It charged Mr. Frazier with aggravated robbery with a deadly

weapon, a first-degree felony offense. The elements of this offense are:

       1.   A person
       2.   in the course of committing theft
       3.   with intent to obtain or maintain control of the property
       3.   intentionally, knowingly, or recklessly
       4.   uses or exhibits a deadly weapon.

TEX. PENAL CODE § 29.03(a).

       The indictment alleged: “(I)n Harris County, Texas, CHRISTOPHER RASHAD

FRAZIER … on or about August 6, 2012, did then and there unlawfully, while in the

course of committing theft of property owned by Alexander Segura, and with intent to

obtain and maintain control of the property, intentionally and knowingly cause bodily

injury to Alexander Segura, and the Defendant did then and there use and exhibit a

deadly weapon, namely a firearm.” (CR at 11). The indictment, then, described each

element of the alleged offense with sufficient specificity to invoke subject-matter

jurisdiction in the felony district court.

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

       Trial counsel did not file any pretrial motions, except a motion for community

supervision (CR at 10). Mr. Frazier signed a Waiver of Constitutional Rights, Agreement

to Stipulate, and Judicial Confession (CR at 15). He agreed to plead guilty without a


                                             3
recommended sentence (CR at 16). Mr. Frazier was under arrest and warned of his

rights before making a statement to police. His statement appears to have been freely

and voluntarily given. No other evidence appears to have been illegally obtained, or

otherwise subject to suppression. The record does not appear to support a motion to

suppress.

      There were no limitations or speedy trial issues. The offense occurred on August

6, 2012 (CR at 5). The case was indicted on December 6, 2013 (CR at 5). The Appellant

pleaded guilty on August 5, 2014 (CR at 16).

3.    Compliance with TEX. CODE CRIM. PROC. ART. 26.13 and Padilla

      The plea hearing is not on the record, but Mr. Frazier signed a written

admonishment form which included the following:

      ●      An explanation that the range of punishment was “a term of life or
             any term of not more than 99 years or less than 5 years…”

      ●      Explanations that any recommendation of the prosecuting attorney
             is not binding on the court; that if there is any plea bargain
             agreement, the court will inform the defendant in open court
             whether it will follow the agreement; that the court will permit the
             defendant to withdraw his plea if it rejected any plea bargain
             agreement;

      ●      An explanation that if the court’s punishment does not exceed the
             plea agreement, the court must give permission for an appeal,
             except for matters raised by the defendant in written pretrial
             motions;

      ●      An explanation that if the defendant is not a citizen of the United
             States, a plea of guilty for this offense may result in his deportation

                                            4
             or his exclusion from admission to this county [sic], or his denial of
             naturalization under federal law.

(CR at 19). Nothing in the record suggests that the trial court did not properly admonish

him about his rights.

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

      The record does not show any motions for competency evaluation, nor any sua

sponte court order for a competency evaluation. Mr. Frazier initialed the box on the

admonishment form that said he was mentally competent and understood the nature

of the charge against him and the trial court’s admonishments (CR at 19). His counsel

signed a statement on the plea form that he believed him competent to stand trial (CR

at 16). The trial judge affirmed that he ascertained that he appeared to be mentally

competent (CR at 16). Based on this record, and Mr. Frazier’s apparent competency at

the punishment hearing, during which he testified briefly, appellate counsel cannot

argue that there was any potential competency issue below.

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

      Mr. Frazier’s counsel said that he believed Mr. Frazier executed the plea of guilty

knowingly and voluntarily (C.R. at 16). The trial judge also signed a statement that he

ascertained that Mr. Frazier entered the plea knowingly and voluntarily after discussing




                                           5
the case with his attorney (C.R. at 16). Nothing in the record suggests that the plea was

not made freely and voluntarily.

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

       Mr. Frazier filed a motion for community supervision (C.R. at 25). He had never

been convicted of a felony, nor placed on community supervision for a felony. At

sentencing, however, the court did not place Mr. Frazier on community supervision.

Instead, the judge imposed a 25-year prison sentence (1 RR at 9). This was within the

court’s discretion.

7.     Any failure by trial counsel to object to fundamental error

       Appellate counsel has combed the record for fundamental error, but has found

none. There was nothing for trial counsel to object to.

8.     Whether sentence was within the applicable punishment range

       Aggravated robbery with a deadly weapon is a first-degree felony. TEX. PENAL

CODE § 29.03(b). This made the punishment range 5-99 years or life and a fine not to

exceed $10,000.00. See TEX. PENAL CODE § 12.32. Therefore, the twenty-five-year

punishment Mr. Frazier received was within the applicable range of punishment.

Further, it was half as long as the 50-year sentence his co-defendant received after

pleading guilty (2 RR at 7). Additionally, the trial court received three victim impact

statements from family members of the complainant. All asked the court to impose the

maximum sentence (2 RR at 25).


                                           6
9.    Whether the written judgment accurately reflects the sentence imposed
      and whether any credit was properly applied

      The written judgment accurately reflects a conviction for aggravated robbery

with a deadly weapon and describes the offense as a first-degree felony (CR at ). The

judgment reflects the twenty-five-year sentence the judge announced at the hearing. It

also reflects that Mr. Frazier was to be credited for time served from December 5, 2013

to January 12, 2015 (C.R. at 28).

      Although the offense occurred on Aug 6, 2012, police did not arrest anyone until

October 25, 2012, when they arrested Mr. Dillingham after touch DNA taken from one

of the air soft pistols at the scene was matched to his DNA (2 RR at PSI page 6). On

October 18, 2013, Mr. Dillingham was set for trial. Instead, he agreed to give a full

confession and implicate Mr. Frazier (2 RR at PSI page 7). A court issued a warrant for

Mr. Frazier’s arrest. Then, on December 6, 2013, police learned that Mr. Frazier had

been arrested on an unrelated drug charge the previous day, and brought him in for

questioning on this offense (2 RR at PSI page 8).

      Based on this record, it appears that the trial court properly applied credit for jail

time to Mr. Frazier’s judgment and sentence from the date of his arrest to the date of

sentencing.

10.   Whether there is sufficient evidence to support a guilty plea in a felony
      case

      A guilty plea is some evidence, for purposes of determining whether there is a

complete lack of evidence to support a conviction. See Nix v. State, 65 S.W.3d 664, 668

                                            7
(Tex. Crim. App. 2001). Mr. Frazier’s signed Waiver of Constitutional Rights,

Agreement to Stipulate, and Judicial Confession provided sufficient evidence to support

his guilty plea to the offense of aggravated robbery with a deadly weapon. The

presentence investigation report, which was admitted as an exhibit at the punishment

hearing, included summaries of confessions by Mr. Frazier and his co-defendant, who

implicated him in the incident. Mr. Frazier did not object to the PSI in general, or to

any statements within it. It must be assumed, then, that the summaries were accurate.

11.   Whether defendant was denied effective assistance of counsel

      The standard of review for evaluating claims of ineffective assistance of counsel

is set forth in Strickland v. Washington, which dictates that a defendant is entitled to

“reasonably effective assistance.” 466 U.S. 668, 687 (1984). Allegations of

ineffectiveness of counsel must be firmly rooted in the record. See Bone v. State, 77

S.W.3d 828, 833 & n. 13 (Tex. Crim. App. 2002). When the record is silent, a reviewing

court may not speculate to find trial counsel ineffective. See Ex parte Varelas, 45 S.W.3d

627, 632 (Tex. Crim. App. 2001).

      Court-appointed counsel must represent the client in all adversary proceedings

that could possibly result in confinement. TEX. CODE CRIM. PROC.          ART.   1.051. Mr.

Frazier was represented by counsel when he entered his guilty plea, and at the

punishment hearing. There were no other adversary proceedings in this case. During

the hearing, counsel gave a brief closing argument and asked the court for leniency in

light of his client’s remorse, work history, and secondary role in the offense (1 RR at 8).
                                            8
      There is no evidence that counsel erroneously advised Mr. Frazier to plead guilty.

See Lackey v. State, 2010 WL 307912 *2-3 (Tex. App. – Houston [14th Dist.], Jan. 28,

2010, no pet.) (mem. op., not designated for publication). Even if there had been

evidence about counsel’s advice to his client, the State’s evidence included a confession

from Mr. Frazier, in addition to Mr. Dillingham’s statement implicating Mr. Frazier (2

RR at PSI page 8). Given this, appellate counsel cannot argue that Mr. Frazier should

not have entered a plea of guilty. It does not appear from the record that trial counsel

was ineffective.

12. Other matters investigated and found to lack merit

      After reviewing the record and conferring with Mr. Frazier, appellate counsel

could identify no other matters to investigate.

                                        PRAYER

      Counsel prays that she be allowed to withdraw from representing Mr. Frazier in

this case, and that Mr. Frazier be given the opportunity to file his own brief.


                                                  Respectfully submitted,

                                                  Alexander Bunin
                                                  Chief Public Defender
                                                  Harris County Texas
                                                  /s/ Cheri Duncan
                                                  ______________________________
                                                  Cheri Duncan
                                                  Assistant Public Defender
                                                  Texas Bar No. 06210500
                                                  1201 Franklin, 13th floor

                                            9
                                                   Houston Texas 77002
                                                   (713) 368-0016 telephone
                                                   (713) 437-4318 e-fax
                                                   cheri.duncan@pdo.hctx.net




                              CERTIFICATE OF SERVICE

      I certify that a copy of this brief was served electronically on the Harris County

District Attorney’s Office on July 8, 2015.

                                                    /s/ Cheri Duncan
                                                   ______________________________
                                                   Cheri Duncan



                           CERTIFICATE OF COMPLIANCE

I certify that this brief complies with Rule 9.2, TEX. R. APP. PROC. It was prepared on

a computer using 14-point Garamond type. It contains 1,958 words that are subject to

the limits imposed by Rule 9.2.

                                                   /s/ Cheri Duncan
                                                   _____________________________
                                                   Cheri Duncan




                                              10
