                                                                                  ACCEPTED
                                                                               06-17-0104-CR
                                                                    SIXTH COURT OF APPEALS
                                                                          TEXARKANA, TEXAS
                                                                           12/22/2017 4:45 PM
                                                                             DEBBIE AUTREY
                                                                                       CLERK
                        CASE NO. 06-17-00104-CR

                       IN THE COURT OF APPEALS
                                                             FILED IN
                                                      6th COURT OF APPEALS
                 SIXTH APPELLATE DISTRICT OF      TEXAS TEXARKANA, TEXAS
                                                      12/22/2017 4:45:09 PM
                          TEXARKANA, TEXAS
                                                           DEBBIE AUTREY
                                                               Clerk

                          ********************

                     TORRY JAMAL REED, Appellant

                                   v.

                     THE STATE OF TEXAS, Appellee

                         *********************

                    Appealed from the 124th District Court
                            Gregg County, Texas
                          Trial Court No. 41, 786-A
________________________________________________________________________

                     ANDERS BRIEF IN SUPPORT OF
                 MOTION TO WITHDRAW AS COUNSEL
________________________________________________________________________


                                   Respectfully submitted,

                                   Gerald J. Smith, Sr.
                                   State Bar No. 24039316

                                   The Law Office of G.J. Smith, Sr., PLLC
                                   P. O. Box 200395
                                   Arlington, Texas 76006
                                   Telephone: (817) 635-3100
                                   Fax:        (817) 635-3104
                                   attorney@gjsmithlaw.com
                                   ATTORNEY FOR APPELLANT
                               NO. 06-17-00104-CR

                        TORRY JAMAL REED, Appellant

                                         v.

                        THE STATE OF TEXAS, Appellee



                  IDENTITY OF THE PARTIES AND COUNSEL
                          Pursuant to T.R.A.P. 38.1(a)

Appellant:             Torry Jamal Reed, Inmate #02122873
                       12120 Savage Drive, Midway, Texas 75852

Trial Counsel:         J. Scott Novy, Attorney At Law
                       505 E. Maggrill St., Longview, TX 75601

State’s Trial          Stacey L. Brownlee, Assistant District Attorney, Gregg County,
Counsel:               101 E. Methvin, Longview, Texas 75601

Trial Judge:           Honorable Alfonso Charles, District Judge, 124th Judicial
District,
                       101 E. Methvin, Ste. 447, Longview, Texas 75601
                       Texas

Appellant’s Counsel:   Gerald J. Smith, Sr., Law Office of G. J. Smith, Sr., PLLC,
                       P. O. Box 200395, Arlington, TX 76006

State’s Counsel        John Roberts, Assistant District Attorney; Gregg County,
on Appeal:             101 E. Methvin St., Ste. 333, Longview, TX 75601




                                     Page 1 of 18
                    TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL………………………………………1

TABLE OF CONTENTS ……………………………………………………………2

INDEX OF AUTHORITIES ………………………………………………………..3

STATEMENT OF THE CASE ……………………………………………………..6

CERTIFICATION OF COUNSEL …………………………………………………6

STATEMENT OF FACTS …………………………………………………………7

CHANGE OF PLEA FROM NOT GUILTY TO GUILTY ………………………...14

POSSIBLE ISSUE NO. ONE ………………………………………………………16

    Did the defendant voluntarily changed his plea of not-guilty to guilty?

SUMMARY OF THE ARGUMENT……………………………………………16

ARGUMENT AND AUTHORITIES……………………………………………17

PRAYER…………………………………………………………………………19

CERTIFICATE OF COMPLIANCE ……………………………………………19

CERTIFICATE OF SERVICE………………………………………………….19




                                  Page 1 of 18
                              TABLE OF AUTHORITIES

Cases

Anders v. California, 386 U.S. 738 (1967) ... . . . . . . . . . . . . . . . . . . . . . . . . . . .…..6

High v. State, 573 S.W. 2d 807 (Tex. Crim. App. 1978)…………………………..6

Stafford v. State, 813 S.W.2d 503 (Tex.Crim.App. 1991)……………………………...6



Statutes

Tex.Code Crim. P., Art.21…………………………………………………………17

Tex.Code Crim. P., Art. 26.13…………………………………………………………18

Tex.Code Crim. P., Art. 42…………………………………………………………17
                          STATEMENT OF THE CASE

      This is an appeal from a conviction for Murder. (CR-168). Appellant entered

a plea of guilty following two days of jury trial. (RR 12, Pg. 10), and requested that

the jury assess punishment. (RR 9, Pg. 10) The jury assessed punishment at

confinement for a term of 75 years and a fine of $10,000. (RR 9, Pg. 106)

For clarity, THE STATE OF TEXAS will be referred to as “the State”, and

TORRY JAMAL REED will be referred to as “DEFENDANT” or

“APPELLANT”.

                         CERTIFICATE OF COUNSEL

      The Attorney’s role as an advocate on appeal for his client requires that the

attorney support the client’s appeal to the best of the attorney’s ability; however,

no attorney is required to pursue on appeal any matter which is frivolous, without

merit, or not supported by law or the introduced evidence as shown within the

Clerk’s Record and Reporter’s Record. See, Anders v. California, 386 U. S. 738;

87 S. Ct. 1396; 18 L.Ed. 2d 493 (1967); Stafford v. State, 813 S.W.2d 503

(Tex.Crim.App. 1991) and High v. State, 573 S.W.2d 807, 807, 810-811

(Tex.Crim.App. 1978).

      I, Gerald J. Smith, Sr., the retained attorney on appeal for Appellant Torry

Jamal Reed, do hereby state that I have diligently searched both the Clerk’s Record

and the Reporter’s Record and the exhibits in cause no. 41, 786-A of the 124th



                                          5
Judicial District Court of Gregg County, Texas. I have thoroughly reviewed and

examined the facts and researched the applicable law of Texas and the United

States, and I have painstakingly searched for any arguable issue. It is my

professional opinion that, except as indicated within the Appellant’s Brief prepared

by me, no preserved error, no fundamental error, no harmful error and no

reversible error occurred in this case. In conformity with the law applicable to

appeals like this, I shall set forth written argument, authorities, and record

references, in support of my legal opinion on the issues which could arguable

sustain an appeal in this case.

                             STATEMENT OF FACTS

                            TRIAL ON THE MERITS

      Appellant was originally arrested for the charged of murder and assigned court

appointed attorney J. Scott Novy. The State called nine witnesses in its case in chief.

Dennis Phillips

      Dennis Phillips testified for the State. He was employed as a Police Sergeant

with the City of Longview Police Department. (RR Vol 9, Pg. 21) He testified that

he responded to a call coded as a police shooting or shots fired at the Signal Hill

Apartments. (RR Vol 9, Pg. 25) He had a description of the possible actor’s vehicle;

an orange Eclipse. (RR Vol 9, Pg. 25) He spoke to several witnesses but nobody

actually witnessed the shooting. (RR Vol 9, Pg. 32)



                                           6
Benny Cooks

      Benny Cooks testified for the State. He was employed as a patrolman with the

City of Longview Police Department. (RR Vol 9, Pg. 36) He had a description of

the possible actor’s vehicle; a red or orange Mitsubishi. (RR Vol 9, Pg. 38) He

located a dead guy (Deaundry Rossum) inside the car. (RR Vol 9, Pg. 41) Cooks

secured one witness, Marcus Davis, in his police car. (RR Vol 9, Pg. 42)

Franceshell Nelson

      Franceshell Nelson testified for the State. She and witness Marcus Davis lived

in the Signal Hills apartment complex where shooting occurred. (RR Vol 9, Pg. 48)

She heard gunshots as she went inside her apartment. (RR Vol 9, Pg. 53) She called

911. (RR Vol 9, Pg. 48)      She saw an “old school” car speed away from the

apartments. (RR Vol 9, Pg. 59)

Marcus Davis

      Marcus Davis testified for the State. While removing his son from a car seat

in back seat of their car, although he never saw any shooter, he heard eight or nine

gunshots. (RR Vol 9, Pg. 79) He did here someone say, “Y’all shot me.” (RR Vol

9, Pg. 76) He heard a car burn out. (RR Vol 9, Pg. 82)

Don Robert Perry Jr

      Don Robert Perry Jr. testified for the State. He was roommates with the

deceased Rossum. (RR Vol 9, Pg. 95) The deceased and Brendan Douglas had a



                                         7
conversation about buying drugs. (RR Vol 9, Pg. 107) The deceased drove with

Douglas and two others into Shreveport to buy drugs. (RR Vol 9, Pg. 116) But,

returned to the Signal Hills apartment complex at 9:00 pm without a purchase. (RR

Vol 9, Pg. 122) Two people come from around a building and walk past the car

where they sat. (RR Vol 9, Pg. 127) Douglas shakes hands with the two men then

takes off running. (RR Vol 9, Pg. 127) Then the gunfire starts. (RR Vol 9, Pg. 127)

Perry sees the deceased Rossum fall, then he sees somebody go in his [sic] pockets.

(RR Vol 9, Pg. 136) One of the men looks up and looks into Perry’s face. (RR Vol

9, Pg. 140) Perry had never seen Defendant Torry Reed before the day of his

testimony. (RR Vol 9, Pg. 178)

Elginn Jackson

      Elginn Jackson testified for the State. Jackson was present at the time of the

shooting. (RR Vol 9, Pg. 182) Testified that he, the deceased, Douglas and another

left McDonald’s to go purchase marijuana and cocaine. (RR Vol 9, Pg. 192) The

deceased had over one thousand dollars.       (RR Vol 9, Pg. 193)      Traveled to

Shreveport then traveled back to Longview without drugs and returned to Signal

Hills apartment complex so Douglas could purchase weed. (RR Vol 9, Pg. 200-201)

While Douglas went upstairs, the deceased Rossum stood by the driver’s side door

while Jackson and Perry Jr. sat in the deceased car awaiting Douglas’ return. (RR

Vol 9, Pg. 204) He noticed two guys coming from the wooded area. (RR Vol 9, Pg.



                                         8
204) He heard men talking before he hears a single gunshot; causing him to

immediately take off running. (RR Vol 9, Pg. 208) He does not remember the

number of gunshots but he remembers getting shot four times. (RR Vol 9, Pg. 209)

As he lay fallen to the ground behind the car, he heard the deceased say, “Man, you

shot me.” (RR Vol 9, Pg. 211) Then he remembers someone going through his

pockets. (RR Vol 9, Pg. 213) He recalls them running to, getting inside and leave in

a light colored car that looked like a Lincoln. (RR Vol 9, Pg. 215)

Brandon Thornton

      Brandon Thornton testified for the State. He was employed in the traffic

division with the City of Longview Police Department. (RR Vol 9, Pg. 242) Worked

off-duty for Good Shepherd Medical Center assigned to the ER area. (RR Vol 9,

Pg. 243) Found four black males in the hospital parking lot smoking cigarettes,

standing around a parked SUV. (RR Vol 9, Pg. 247-248)

Billy Richardson

      Billy Richardson testified for the State. While in the parking lot smoking a

cigarette, a man whom he did not know jumped into his car with him. (RR Vol 9,

Pg. 255) He left and dropped the guy off at the graveyard by Good Shepherd as

requested. (RR Vol 9, Pg. 257) He never knew his name. (RR Vol 9, Pg. 258)

Gabrina Ward




                                         9
      Garbina Ward testified for the State. There was a time when she owned a

light colored Lincoln. (RR Vol 9, Pg. 265) There was one occasion whereas she

allowed Korvarsia Skinner to drive the Lincoln. (RR Vol 9, Pg. 265) On a separate

occasion, [May 15th, (RR Vol 9, Pg. 272) Skinner took her Lincoln without her

permission. (RR Vol 9, Pg. 266) Either Brendan Douglas or Korvarsia Skinner

called her back and said they were on their way back with her car. (RR Vol 9, Pg.

269) Later on, Skinner, Douglas and two other people were at her apartment. (RR

Vol 9, Pg. 275)

      John A. Stash, D.O. – testified for the State. Worked as a Forensic Pathologist

for Forensic Medical Management Services in Tyler. (RR Vol 10, Pg. 17) He

performed an autopsy on Deaundry Rossum. (RR Vol 10, Pg. 19) Found two

gunshot wounds; right cheek area and right side of face. (RR Vol 10, Pg. 22)

Korvarsia Skinner

      Korvarsia Skinner testified for the State. His attorney, John Moore, was

present during his testimony. (RR Vol 10, Pg. 34) He knows Torry Reed from

Johnson Apartments. (RR Vol 10, Pg. 41) He knows Torry Red’s brother, Deion

Reed. (RR Vol 10, Pg. 42) Testified that Gabrina Ward gave him the keys to her

Lincoln to retrieve his CD out. (RR Vol 10, Pg. 45) States that Brendan Douglas

walked up. (RR Vol 10, Pg. 46) They go up to Gabrina Ward’s (aka Sabrina)

apartment. (RR Vol 10, Pg. 47) Inside the apartment are, Deion [Reed], Little B



                                         10
[Brendan Douglas], Thrill [Leonard Mitchell] and Sabrina. (RR Vol 10, Pg. 47)

Deion Reed came in after they entered Sebrina’s apartment. (RR Vol 10, Pg. 48) He

heard Deion and Douglas talking about a lick they had. (RR Vol 10, Pg. 49)

      Skinner took Gabrina’s car keys to the Lincoln and drove Douglas to his

house. (RR Vol 10, Pg. 48-249) Deion and Trill rode with them. (RR Vol 10, Pg.

50) Douglas tells him to drop him off behind McDonalds. (RR Vol 10, Pg. 51) As

Douglas gets out of the Lincoln, he instructs them to go to Signal Hills apartment.

(RR Vol 10, Pg. 52) It was still daylight. (RR Vol 10, Pg. 53) They park behind the

building. (RR Vol 10, Pg. 54) They leave and ride to Deion’s house. (RR Vol 10,

Pg. 59) Torry Reed is there. (RR Vol 10, Pg. 59)

      Skinner texts Douglas from Torry Reed’s phone. (RR Vol 10, Pg. 59) While

in the car, Torry tapped Skinner on the shoulder and stated that he wanted Torry to

come get him from behind E-Z Mart. (RR Vol 10, Pg. 69) They pull from there to

the Signal Hills Apartments. (RR Vol 10, Pg. 71) Back to the spot they were parked

earlier that day. (RR Vol 10, Pg. 71) Torry and Deion get out of the car. (RR Vol

10, Pg. 74) At the base of the staircase, he [Torry] gets on his phone. (RR Vol 10,

Pg. 74) He gets off the phone and walks around to the front of the building. (RR

Vol 10, Pg. 75) About a minute and a half, gunshots; hear like six or seven gunshots.

(RR Vol 10, Pg. 75) He sees Douglas running from the car. (RR Vol 10, Pg. 77)

Douglas gets into the Lincoln. (RR Vol 10, Pg. 77) Douglas had been shot. (RR Vol



                                         11
10, Pg. 78) Torry and Deion run up to the car and Skinner stops the car and they get

inside. (RR Vol 10, Pg. 79) He let Torry and Deion out at the soccer fields on Estes.

(RR Vol 10, Pg. 81) Douglas handed one of them the gun. (RR Vol 10, Pg. 83) It

was a Hi-Point 9-millimeter. (RR Vol 10, Pg. 85) They drive Douglas to Good

Shepherd Hospital. (RR Vol 10, Pg. 86)

Paul Penick

      Paul Penick testified for the State. He formally was employed as a patrol

officer for Longview Police Department. (RR Vol 10, Pg. 142) While looking for a

suspect matching the description of Brandon Brown, during a pat down search,

found a gun in his right pants pocket. (RR Vol 10, Pg. 143) It was a Hi-Point 9-

millimeter. (RR Vol 10, Pg. 146). The magazine had both .380 cal and 9 millimeter

bullets. (RR Vol 10, Pg. 148-149).

Jimmie Redmon

      Jimmie Redmon testified for the State. He worked as a Physical Evidence

Specialist for the Longview Police Department. (RR Vol 10, Pg. 150) He found

and identified shell casings for both Winchester .380 and a Federal .380 (RR Vol 10,

Pg. 174-175), and also, 9-millimeter cartridge casings. (RR Vol 10, Pg. 177)

Dan Reigstad

      Dan Reigstad testified for the State. He worked as a Senior Crime Scene

Detective and Senior Latent Print Examiner for the Longview Police Department.



                                         12
(RR Vol 10, Pg. 211) He performed a search at 104 Vesta under a search warrant.

(RR Vol 10, Pg. 213) Found an AMT .380 Kurz pistol (RR Vol 10, Pg. 219) loaded

with .380 caliber round in the chamber. (RR Vol 10, Pg. 220) located under the

cushions of the couch in the living room. (RR Vol 10, Pg. 226) Collected a live

Winchester .380-caliber round in the magazine. (RR Vol 10, Pg. 221) He compared

fingerprints collected to Rossum, Torry Reed, Deion Reed, Brendon Douglas,

Dashun Taylor, Korvarsia Skinner, Elginn Jackson, and Leonard Mitchell. (RR Vol

10, Pg. 231)

Chris Taylor

      Chris Taylor testified for the State. He worked as a Physical Evidence

Specialist for the Longview Police Department. (RR Vol 10, Pg. 241) He works part

time for Good Shepherd Hospital in a role to maintain security and officer presence.

(RR Vol 10, Pg. 242) He photographed the Lincoln Town Car located in the parking

lot. (RR Vol 10, Pg. 244) Compared latent fingerprints taken from the vehicles and

known prints. (RR Vol 10, Pg. 246) Positive comparisons were made with Dashun

Taylor, Korvarsia Skinner, and Brendon Douglas. (RR Vol 10, Pg. 246)

           CHANGE OF PLEA FROM NOT GUILTY TO GUILTY

      Following the State resting in its case-in-chief, in open court Appellant

changed his plea of not guilty to a plea of guilty, with the jury to assess punishment.

A plea offer had been rejected by Appellant and subsequently withdrawn by the State



                                          13
following the expiration of a deadline. (RR Vol. 5, Pg. 4) After entering a plea of

guilty, the trial court found Appellant guilty, and the following was recorded:

             Q. Is your name Torry Reed?
             A. Yes, sir

             Q. And to make a long story short, you; Mr. Cobb, the
             investigator; and myself; and your mom and sisters
             have had a long discussions in the last – yesterday and
             this morning; is that correct?

             A. Yes, sir.

             Q. And we’ve advised you about the advantages and
             disadvantages about entering a plea of “guilty” now.
             Have we – have we done that?

             A. Yes, sir.

             Q. And do you want to enter a plea of “guilty” now, do
             you want to continue, what do you want to do? And
             you know the advantages of entering a plea now, don’t
             you? Did we discuss that with you?

             A. Uh-huh, yes, sir.

             Q. Okay. And it – it’s crucial that we kind of know, for
             time purposes, what do you want to do. So if you want
             to do that, the Judge would admonish you about doing
             that. And then we – I told you how we would proceed
             after that, didn’t we?

             A. Yes, sir.

             Q. Or we can still continue with the trial. So do you
             want – do you want to enter a plea and move on to
             punishment?

             A. Yes, sir.

                                         14
             Q. Okay.


(RR Vo. 12. Pg. 7-8)

      Subsequently, the trial court found Appellant guilty and the jury heard

punishment evidence before assessing punishment within the legal range of

punishment. (RR Vo. 12. Pg. 106) Appellant requested that an appeal be filed.

                        POSSIBLE ISSUE NUMBER ONE

      Did the defendant voluntarily changed his plea of not-guilty to guilty?

                        SUMMARY OF THE ARGUMENT

      Careful review of the reporter’s record indicate that no errors were made in

the failure to completely and properly admonish Appellant, and there was no

showing on the record of harm as would be required to reverse the conviction and

sentence. The trial court receive a plea of guilty, and later conducted a contested

proceeding

      The trial court received a plea of guilty, and later conducted a contested

punishment proceeding. The transcript and judgment also reveal that Appellant

was sentenced within the statutory guidelines for the charged offense and

Appellant was given credit for any time he was entitled to receive. (RR 12, Pg.

109). Accordingly, counsel believes any record-based argument that the

sentences did not comply with constitutional and statutory mandates or that the



                                        15
sentencing proceeding was conducted outside the parameters of Article 42 of the

Texas Code of Criminal Procedure would be wholly without merit and frivolous.

                 ARGUMENT AND AUTHORITIES

      Counsel for Appellant has reviewed the complaint and indictment to the

underlying case. It appears to be compliant with Chapter 21 of the Texas Code of

Criminal Procedure and all other relevant provisions. Likewise, it is counsel’s

position that this complaint, once formally pled to, is beyond the subsequent

challenge as to any deficiencies. In this case Appellant was charged with murder

and aggravated robbery, both first degree felonies and subsequently pled guilty to

the murder charge and sentenced within the punishment range for that offense. In

exchange for the plea of guilty to murder the state no longer pursued the aggravated

robbery charge. (RR Vol. 12, Pg. 13) Certainly, Appellant is entitled to a fair and

impartial jury trial and counsel at said trial, as well as a change of plea, following

and with the advice of counsel, of which, was received from Mr. J. Scott Novy. J.

Scott Novy represented Appellant through the jury trial and later at the hearing

changing his plea, then at the punishment phase of the case. (RR 12, Pg. 105)

      Here, there is no record-based evidence to indicate that Appellant was

unaware of the consequences of his plea, or that he was misled or harmed by the

failure of the trial court to fully and completely admonish him or secure written

waivers. Mr. Reed did acknowledge on the record that he desired to enter a plea


                                         16
of guilty, and was doing so because he was guilty and for no other reason. (RR

12, Pg. 15)

      After careful analysis and consideration of the transcript of the trial court's

admonishments, Appellate counsel can find that the record demonstrates no

harm was caused by deficiencies or challenges to the voluntariness of the

original guilty plea. It is Appellate counsel's position that harm cannot be

demonstrated, on the record pursuant to Article 26.13 of the Texas Code of

Criminal Procedure.

      After accepting Appellant's original plea, the jury sentenced the Appellant

to serve 75 years in the Texas Department of Criminal Justice and a fine of

$10,000 for the crime of murder. (RR Vol. 12, Pg. 106).

      After complete examination of the entire record counsel can find no

meritorious record-based challenges to the underlying original plea or the

punishment assessed at that hearing. For these reasons, counsel believes any

appeal in the instant case would be frivolous and without merit.

      Accordingly, based on the entire record as presented to this court,

Appellant can demonstrate no harm regarding any complaint about the

underlying guilty plea or the sentence imposed herein. Although Appellant may

disagree with the sentence of the trial court, there is no legal, record-based,


                                         17
reason to reverse or remand.

                                      PRAYER

      Wherefore, premises considered, Appellant counsel respectfully requests

that his motion to withdraw be granted

                                        Respectfully submitted,

                                        The Law Office of G.J. Smith, Sr., PLLC
                                        P. O. Box 200395
                                        Arlington, Texas 76006
                                        Telephone: (817) 635-3100
                                        Fax:        (817) 635-3104

                                        /s/GERALD J. SMITH, SR.
                                        Gerald J. Smith, Sr.
                                        State Bar No. 24039316

                                        ATTORNEY FOR APPELLANT

                        CERTIFICATE OF COMPLIANCE
      I certify that this brief contains 3634 words according to the computer
program used to prepare the document.

                                        /s/GERALD J. SMITH, SR.
                                        Gerald J. Smith, Sr.

                          CERTIFICATE OF SERVICE

       I hereby certify that the foregoing has been served on all counsel of record
and all pro se litigants by transmitting a true copy of same to such persons via first
class mail, properly addressed, or via fax pursuant to the TEXAS RULES OF
APPELLATE PROCEDURE and TEXAS RULES OF CIVIL PROCEDURE on
this date, September 12, 2017.


                                                     /s/ Gerald J. Smith, Sr.
                                                        Gerald J. Smith, Sr.

                                          18
