                                                                                           ACCEPTED
                                                                                       06-14-00234-CR
                                                                            SIXTH COURT OF APPEALS
                                                                                  TEXARKANA, TEXAS
                                                                                  4/20/2015 3:02:54 PM
                                                                                      DEBBIE AUTREY
                                                                                                CLERK

                             NO. 06-14-00234-CR
                             NO. 06-14-00235-CR
                                                                      FILED IN
                      IN THE COURT OF APPEALS                  6th COURT OF APPEALS
                                                                 TEXARKANA, TEXAS
                   FOR THE SIXTH DISTRICT OF TEXAS
                                                               4/21/2015 9:40:00 AM
                            AT TEXARKANA
                                                                   DEBBIE AUTREY
                                                                       Clerk


                     MELVIN WAYNE RICHARDSON,
                                Appellant

                                         v.

                          THE STATE OF TEXAS,
                                   Appellee


                 On appeal from the 195TH Judicial District Court
                             of Dallas County, Texas
                    Cause No. F06-62371-N & F06-68662-N



           BRIEF IN SUPPORT OF MOTION TO WITHDRAW


                               Counsel of Record:

Lynn Richardson                                    Nanette Hendrickson
Chief Public Defender                              Assistant Public Defender
Dallas County, Texas                               State Bar No. 24081423
                                                   Frank Crowley Courts Building
                                                   133 N. Riverfront Blvd., LB-2
Katherine A. Drew                                  Dallas, Texas 75207-4399
Chief, Appellate Division                          (214) 653-3582 (phone)
Dallas County Public Defender’s Office             (214) 653-3539 (fax)
                                                   Nanette.Hendrickson@
                                                   dallascounty.org

                             Attorneys for Appellant
                               LIST OF PARTIES

APPELLANT
Melvin Wayne Richardson

APPELLANT’S ATTORNEYS
AT TRIAL:
Mr. George Ashford
325 N. St. Paul St.
Dallas, TX 75201

ON APPEAL:
Nanette Hendrickson
Assistant Public Defender
Dallas County Public Defender’s Office
State Bar Number: 24081423
Frank Crowley Courts Building
133 N. Industrial Blvd., LB 2
Dallas, Texas 75207-4399

STATE’S ATTORNEYS
AT TRIAL:
Danielle Uher
Assistant District Attorney

Andrew Anagnostis
Assistant District Attorney

ON APPEAL:
Susan Hawk
(or her designated representative)

Dallas County District Attorney’s Office
Frank Crowley Courts Building
133 N. Industrial Blvd., LB-19
Dallas, Texas 75207-4399




                                           ii
                                             TABLE OF CONTENTS

LIST OF PARTIES ................................................................................................... ii
INDEX OF AUTHORITIES..................................................................................... v
STATEMENT OF THE CASE ................................................................................. 1
CERTIFICATE OF COUNSEL ............................................................................... 2
SPECIAL STATEMENT TO THE COURT ............................................................ 3
         Objection to Hearsay .......................................................................................5
         Performance of Trial Counsel..........................................................................8
CONCLUSION ......................................................................................................... 9
CERTIFICATE OF SERVICE ............................................................................... 10
CERTIFICATE OF COMPLIANCE ...................................................................... 10




                                                         iii
                                     INDEX OF AUTHORITIES
Cases
Asberry v. State,
  813 S.W.2d 526 (Tex. App.—Dallas 1991, pet. ref’d) ..........................................1
Bigley v. State,
  865 S.W.2d 26 (Tex. Crim. App. 1993) .................................................................1
Cevalles v. State,
  513 S.W.2d 865 (Tex. Crim. App. 1974) ...............................................................4
Davenport v. State,
 858 S.W.2d 13 (Tex. App.—Dallas 1993, no pet.) ................................................4
Dinnery v. State,
  592 S.W.2d 343 (Tex. Crim. App. 1979) ...............................................................4
Harmelin v. Michigan,
 501 U.S. 957 (1991) ...............................................................................................9
Harris v. State,
 656 S.W.2d 481 (Tex. Crim. App. 1983) ...............................................................9
Hernandez v. State,
 726 S.W.2d 53 (Tex. Crim. App. 1986) .................................................................8
Jeffery v. State,
  903 S.W.2d 776 (Tex. App.—Dallas 1995, no pet.) ..............................................3
Motilla v. State,
 78 S.W.3d 352 (Tex. Crim. App. 2002) .................................................................6
Potier v. State,
  68 S.W.3d 657 (Tex. Crim. App. 2002) .............................................................6, 7
Strickland v. Washington, 466 U.S. 668 (1984) ........................................................8
Studer v. State,
  799 S.W.2d 263 (Tex. Crim. App. 1989) ...............................................................3
Taylor v. State,
  268 S.W.3d 571 (Tex. Crim. App. 2008) ...............................................................6
United States v. Lopez-Alvarez,
 970 F.2d 583 (9th Cir. 1992) ...................................................................................7
Statutes
TEX. CODE CRIM. PROC. art. 1.14(b)..........................................................................3


                                                         iv
TEX. CODE CRIM. PROC. art. 1.15 ..............................................................................4
TEX. CODE CRIM. PROC. art. 26.13 ......................................................................4
TEX. CODE CRIM. PROC. art. 26.13(b)........................................................................4
TEX. HEALTH AND SAFETY CODE § 481.112...........................................................1, 3
Rules
TEX. R. APP. P. 33.1....................................................................................................5
Tex. R. App. P. 43.2(b) ..............................................................................................1
TEX. R. APP. P. 44.2(b) ...........................................................................................6, 7
TEX. R. EVID. 801(d) ..................................................................................................5
TEX. R. EVID. 802 .......................................................................................................6
TEX. R. EVID. 802(1-24) .............................................................................................6
TEX. R. EVID. 802(4) ..................................................................................................6
Constitutional Provisions
TEX. CONST. art. I, § 13..............................................................................................9
TEX. CONST. art. V, §12 .............................................................................................3
U.S. CONST. art. VIII..................................................................................................9




                                                            v
TO THE HONORABLE COURT OF APPEALS:

       The undersigned attorney submits this brief in support of the motion to

withdraw. This is an appeal from two convictions for the offenses of unlawful

possession with intent to deliver a controlled substance in the 195th Judicial District

Court of Dallas County, Texas, the Honorable Don Metcalf, sitting for The

Honorable Fred Tinsley, Judge presiding.

                             STATEMENT OF THE CASE

       Appellant was charged in each case by indictment with unlawful possession

of controlled substance with intent to deliver: cocaine between 4g and 200g in

violation of TEX. HEALTH         AND   SAFETY CODE § 481.112. (CR1: 7; CR2: 91).

Appellant pursued a “slow plea” in which he entered pleas of guilty before the trial

court but elected that a jury assess his punishment. (RR2: 4-12). After hearing

evidence, the jury assessed punishment at 25 years’ imprisonment and a $420 fine

in trial case number F06-62371 and 40 years’ imprisonment and a $740 fine in

F06-686622. (CR1: 14, 29; CR2: 10, 26). On May 5, 2010, the trial court


1
  CR1 refers to the District Court Clerks record in trial case number F06-62371-N; CR2 refers to
the District Court Clerks record in F06-68662-H.
2
  Appellant notes that the fine amounts on the judgment in each case are incorrect. The judgment
in F06-68662-N says the fine is $420 when it should read $740. (CR2: 10; RR4: 24). The
judgment in F06-62371 states the fine is $740 and should read $420. (CR1: 14; RR4: 24). This
Court has the authority to correct the judgment of the court below to make the record speak the
truth when it has the necessary data and information to do so. Tex. R. App. P. 43.2(b); Bigley v.
State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30
(Tex. App.—Dallas 1991, pet. ref’d). Appellant requests this Court to reform the judgment to
speak the truth as reflected in the record.

                                               1
pronounced sentence and entered judgment. (CR1: 14, 29; CR2: 10, 26; RR4:24).

After filing an application for an 11.07 writ of habeas corpus with the Texas Court

of Criminal Appeals, that Court issued an opinion on November 19, 2014 granting

Appellant an appeal out of time. (CR1: 30-33; CR2: 36-37). Appellant

subsequently filed a timely notice of appeal. (CR1: 36; CR2: 38).

                            CERTIFICATE OF COUNSEL

      In compliance with the requirements of Anders v. California, 386 U.S. 738,

87 S.Ct. 1396, 18 L.Ed.2d 493 (1966) and Gainous v. State, 436 S.W.2d 137, 138

(Tex. Crim. App. 1969), the undersigned appointed attorney states that she has

diligently reviewed the entire record in this cause and the law applicable thereto

and, in her opinion, this 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

on Appellant. At that time, the undersigned attorney informed Appellant by letter

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 to file

a pro se brief if he so desires. The undersigned attorney has provided a copy of the

record to Appellant. Appellant has also been informed by the undersigned attorney



                                         2
that he may request an extension of time from this Honorable Court for the filing

of a pro se brief if he so desires.

       The undersigned attorney has also filed a Motion to Withdraw as mandated

by this Court’s opinion in Jeffery v. State, 903 S.W.2d 776 (Tex. App.—Dallas

1995, no pet.).

                   SPECIAL STATEMENT TO THE COURT

       The record in this case clearly reflects that Appellant entered pleas of guilty

to the indictments. (RR2: 4-12). The indictments contained all of the elements of

the offense as proscribed by TEX. HEALTH      AND   SAFETY CODE § 481.112. These

indictments conferred jurisdiction upon the trial court. TEX. CONST. art. V, §12;

Studer v. State, 799 S.W.2d 263, 273 (Tex. Crim. App. 1989). No complaint, either

in the form of an objection or a motion, was made to these indictments; hence,

nothing is presented for appellate review. TEX. CODE CRIM. PROC. art. 1.14(b).

       The undersigned attorney has searched the record for any pretrial motions

which might support a point of error. Appellant filed no motions upon which a

point of error could be predicated. As such, there is nothing presented for appellate

review.

       Prior to accepting Appellant’s plea, the court inquired as to the voluntariness

of the plea and Appellant’s understanding of the consequences of his plea. (RR2:

7-11). Appellant entered his plea freely and voluntarily. (RR: 7–8). After a



                                          3
complete review of the record, the undersigned attorney is satisfied that Appellant

was competent to enter his plea and that this plea was made both freely and

voluntarily. TEX. CODE CRIM. PROC. art. 26.13(b).

      Appellant was orally admonished by the trial court; those admonishments

were in substantial compliance with Article 26.13. (RR2: 7–11). The undersigned

attorney is satisfied that, in the case at bar, these admonishments were sufficient to

substantially comply with Art. 26.13.

      The State introduced evidence sufficient to substantiate Appellant’s plea of

guilty to the charged offenses and true to the enhancement paragraph. TEX. CODE

CRIM. PROC. art. 1.15. Appellant signed judicial confessions and stipulations of

evidence in each case which were introduced as State’s Exhibits 1 & 2. (State’s

Exhibits 1 & 2). The judicial confessions, standing alone, are sufficient evidence to

support Appellant’s convictions. Dinnery v. State, 592 S.W.2d 343, 353 (Tex.

Crim. App. 1979); Cevalles v. State, 513 S.W.2d 865, 866 (Tex. Crim. App. 1974);

Davenport v. State, 858 S.W.2d 13 (Tex. App.—Dallas 1993, no pet.).

Furthermore, Appellant entered stipulations to his prior conviction alleged in the

indictments which were admitted as State’s Exhibit 11. (State’s Exhibit 11).

      The undersigned attorney has reviewed the voir dire proceedings. There

were no objections during the voir dire. (RR2: 12-87). Neither the State nor

Appellant objected as to the jury seated. (RR2: 87-88). Thus, there is nothing



                                          4
presented for appellate review regarding the makeup of the jury. TEX. R. APP. P.

33.1. The undersigned attorney has reviewed the record to determine if any

objections were made on Appellant’s behalf which would support an issue on

appeal. The following objection was made during the punishment phase of

Appellant’s trial:

Objection to Hearsay

      Deputy Beggs testified regarding an assault Appellant made on her while in

the holdover at the courthouse on a separate case. (RR3: 91-103). Beggs testified to

her injuries and pictures of those injuries were admitted as State’s Exhibits 43 &

45. (RR3: 97). Beggs testified about severe headaches she suffered as a result of

the assault. (RR3: 98). In response to the question, “…have you learned new things

about your injuries or what is gonna be the progression of your injuries or the

lasting effects?” (RR3: 98). The officer responded, “At that time, they were

treating severe headaches. They thought they might get better. They said

somewhere between six and 12 months, the headaches will ease up and go away.”

(RR3: 98). Appellant objected to “hearsay as to medical testimony.” (RR3: 99).

The trial court overruled Appellant’s objection.

      Hearsay is a “statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” TEX. R. EVID. 801(d). Hearsay is inadmissible unless it falls under



                                           5
certain exceptions to the hearsay rule pursuant to Rule 802. TEX. R. EVID. 802(1-

24). Statements made for the purpose of medical diagnosis are an exception under

Rule 802, subsection 4. TEX. R. EVID. 802(4). However, the rule applies to

statements made by a patient to a medical professional or other person in the

interest of treatment or diagnosis of a medical condition. Taylor v. State, 268

S.W.3d 571, 577-578 (Tex. Crim. App. 2008). In the case at bar, the patient is

testifying to statements made to her by, presumably, the medical professionals she

spoke with regarding her injuries. (RR3: 98-99). Therefore, Rule 802 would not

allow admission of this statement. Furthermore, the statements do not appear to be

admissible under any other exception under Rule 802. TEX. R. EVID. 802. Thus, it

is possible the trial court erred by overruling Appellant’s objection. However, if

any error existed, it was harmless.

      The Court of Criminal Appeals has held that the admission of evidence does

not affect the substantial rights of the accused if, after looking at the record as a

whole, it did not influence the jury or had only a “slight affect.” Motilla v. State, 78

S.W.3d 352, 355 (Tex. Crim. App. 2002). Furthermore, the Court of Criminal

Appeals determined the erroneous admission of hearsay statements amounts to

non-constitutional error. Potier v. State, 68 S.W.3d 657, 663-664 (Tex. Crim. App.

2002); TEX. R. APP. P. 44.2(b). “Not every hearsay error amounts to a

constitutional violation. At a minimum, a defendant must demonstrate that the



                                           6
excluded evidence was important to his defense.” Potier, 68 S.W.3d at 663

(quoting United States v. Lopez-Alvarez, 970 F.2d 583, 588(9th Cir. 1992)).

Therefore, the error will be ruled harmless unless it affects Appellant’s substantial

rights. TEX. R. APP. P. 44.2(b).

      The admission of Begg’s hearsay statements was harmless. The statements

testified to by Beggs were made during punishment after Appellant had already

entered a guilty plea in front of the jury to unlawful possession with intent to

deliver cocaine on two separate occasions. Appellant also pled true to the

enhancement paragraph in the indictments making the range of punishment a

minimum of fifteen years and a maximum of 99 years, or life. Appellant received

concurrent sentences of 40 years’ incarceration in one case and 25 years’

incarceration in the other. (CR1: 29, CR2: 26). The evidence showed Appellant

was stopped in his vehicle on two separate occasions with cocaine and

paraphernalia used to prepare drugs for sale such as baggies and a razor blade.

(RR3: 19, 22, 29). In trial case number F06-68662-N, Appellant was sentenced to

40 year’s incarceration when Appellant’s teenage daughter was with him when he

was arrested with cocaine in his vehicle. (RR3: 42, 125, 131; CR2: 26). In trial

case number F06-62371, Appellant was sentenced to 25 year’s incarceration when

cocaine and a razor blade were on a plate on the passenger seat in addition to more

cocaine under the driver’s seat. (RR3: 22; CR1: 29).



                                         7
      The jury knew that prior to the case at bar, Appellant had already been tried

by a jury and convicted of the assault testified to by Deputy Beggs. (RR3: 98, 101-

102; State’s Exhibit 9). Furthermore, Appellant stipulated to the prior conviction

for assault on a public servant during the jury trial on punishment. (State’s Exhibit

11). Beggs had already testified to the assault Appellant inflicted on her as well as

other injuries, such as bruises. (RR3: 93-98). Further, the State showed the jury

pictures of Beggs’ injuries following the assault. (RR3: 97; State’s Exhibits 43 and

45). Moreover, Appellant stipulated to evidence of four other prior felony

convictions during Appellant’s jury trial on punishment. (State’s Exhibit 11). In

light of the evidence regarding the charged offenses and the extraneous offense

evidence admitted during the punishment trial, the admission of these statements

regarding when Beggs’ headaches would end did not affect the jury’s decision

regarding punishment or violate his substantial rights.

Performance of Trial Counsel

      The undersigned attorney has reviewed the performance of trial counsel. The

record reflects that Appellant received reasonably effective assistance of trial

counsel, based on the standards of Strickland v. Washington, 466 U.S. 668, 687,

104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984) and Hernandez v. State, 726

S.W.2d 53, 55 (Tex. Crim. App. 1986).




                                          8
        The undersigned attorney has reviewed the jury charge regarding

punishment. There is nothing in the record to indicate that the jury was improperly

charged. (CR: 56-62). Regardless, there was no objection to the charge. (RR4:

169).

        The punishment assessed is within the range established by the Legislature,

and, as such, does not violate the constitutional prohibitions against cruel and

unusual punishment under either U.S. CONST. art. VIII or TEX. CONST. art. I, § 13;

Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983). Nor does the

undersigned attorney discern anything in the record to suggest that the punishment

assessed is grossly disproportionate to the crime. See Harmelin v. Michigan, 501

U.S. 957, 111 S. Ct. 2680, 115 L.Ed.2d 836 (1991). Additionally, no objection was

made to the punishment assessed at trial.

        In the undersigned attorney’s professional opinion, Appellant received a fair

trial free from reversible error.

                                    CONCLUSION

        After full review of the record, the undersigned attorney is of the opinion

that the appeal in this cause is frivolous and without merit.




                                            9
                                              Respectfully submitted,

                                              Lynn Richardson
                                              Chief Public Defender

                                              /s/ Nanette Hendrickson
                                              Nanette Hendrickson
                                              Assistant Public Defender
                                              State Bar No. 24081423
                                              Frank Crowley Courts Building
                                              133 N. Riverfront Blvd., LB-2
                                              Dallas, TX. 75207-4399
                                              (214) 653-3550 (telephone)
                                              (214) 653-3539 (fax)

                         CERTIFICATE OF SERVICE

       I hereby certify that a true copy of the foregoing brief was served on the
Dallas County Criminal District Attorney’s Office (Appellate Division), 133 N.
Riverfront Blvd., LB-19, 10th Floor, Dallas, Texas, 75207, by hand delivery and
electronic service to Lori Ordiway at DCDAAppeals@dallascounty.org on the 20th
day of April, 2015.

                                              /s/ Nanette Hendrickson
                                              Nanette Hendrickson

                      CERTIFICATE OF COMPLIANCE

      I certify that the foregoing brief contains 2,617 words.

                                              /s/ Nanette Hendrickson
                                              Nanette Hendrickson




                                         10
