                                                                                                  ACCEPTED
                                                                                              12-15-00151-CR
                                                                                 TWELFTH COURT OF APPEALS
                                                                                               TYLER, TEXAS
                                                                                         8/31/2015 2:24:13 PM
                                                                                                CATHY LUSK
                                                                                                       CLERK




                         NO. 12-15-00151-CR
                                                   RECEIVED IN
                                             12th COURT OF APPEALS
                   IN THE COURT OF APPEALS        TYLER, TEXAS
                                             8/31/2015 2:24:13 PM

              TWELFTH COURT OF APPEALS DISTRICT CATHY     S. LUSK
                                                      Clerk

                           TYLER, TEXAS
_________________________________________________________________
                                                              8/31/2015
                          ROLAND I. ODOM
                               Appellant

                                 V.

                          STATE OF TEXAS
                               State

_________________________________________________________________

              ANDERS/GAINOUS BRIEF OF APPELLANT
                       ROLAND I. ODOM

_________________________________________________________________
                            LAW OFFICE OF STEN M. LANGSJOEN
                            P.O. BOX 539
                            TYLER, TEXAS 75710-0539
                            TELEPHONE: (903) 531-0171
                            TELEFAX: (903) 531-0187
                            SBN: 11922800
                            e-mail: sten@langsjoenlaw.com

ORAL ARGUMENT NOT REQUESTED: Sten M.                Digitally signed by Sten M. Langsjoen
                                                    DN: cn=Sten M. Langsjoen, o, ou,
                                                    email=sten@langsjoenlaw.com, c=US
                                      Langsjoen     Date: 2015.08.31 13:28:43 -05'00'
                                  ________________________________
                                  STEN M. LANGSJOEN
                                  State Bar No. 11922800
                                  ATTORNEY FOR APPELLANT
                                             TABLE OF CONTENTS

Names of All Parties ...................................................................................................... iv

Index of Authorities ........................................................................................................ v

Index of Abbreviations.................................................................................................. vii

Introduction..................................................................................................................... 1

Preliminary Statement of the Nature of the Case............................................................ 2

Statement of Points of Error [Anders; Gainous] ............................................................. 3

Statement of Facts........................................................................................................... 4

Brief of the Argument ..................................................................................................... 4

Authority and Argument.................................................................................................. 4

WORD Count Certificate.............................................................................................. 11

Prayer............................................................................................................................ 12

Certificate of Service ................................................................................................... 13

Appendix...................................................................................................................... 14




                    iii
                              NAMES OF ALL PARTIES
Parties to this action are:

Appellant

      Roland I. Odom, Inmate No.: 00580038
      Joe F. Gurney Transfer Unit
      1385 FM 3328
      Palestine, Texas 75803

Counsel for Appellant

      Sten Langsjoen
      P.O. Box 539
      Tyler, Texas 757510-0539

Appellee

      State of Texas

Counsel for Appellee

      Rachael Patton, District Attorney for Cherokee County
      502 North Main
      Rusk, Texas 75785

Counsel for the parties before the Trial Court were:

Counsel for Defendant (Appellant)

      William Wilder
      P.O. Box 537
      Rusk, Texas 75785




             iv
Counsel for State of Texas

        Rachael Patton, District Attorney for Cherokee County
        502 North Main
        Rusk, Texas 75785



                                     INDEX OF AUTHORITIES

                                                Constitution

United States Constitution, 6th Amendment ................................................................... 8

United States Constitution, 14th Amendment ................................................................. 8

Texas Constitution, Article 1, Section 10....................................................................... 8

                                                     Cases

Adkinson v. v. State of Texas, 762 S.W.2d 255, 259
(Tex. App. – Beaumont 1988, pet. ref’d) ............................................................... 5

Anders v. California, 386 U.S. 738 (1967) .................................................................... 3

Ex Parte Bratchett, 513 S.W.2d 851 (Tex. Crim. App. 1974).......................................8

Ex Parte Burns, 601 S.W. 2d 370, 372 (Tex. Crim. App. 1980) ...................................8

Gainous v. State of Texas, 436 S.W.2d 137 (Tex. Crim. App. 1969)............................3

Garcia v. State, 57 S.W.3d at p. 436, 440 (Tex. Crim. App. 2001) ...............................9

Medeiros v. State of Texas,
733 S.W. 2d 605, 607 (Tex. App. – San Antonio 1987)................................................9


                  v
Strickland v. Washington, .............................................................................................. 8

                                                   Statutes/Rules

Tex. Code Crim. Proc, Art. 1.05 (Trial Rights)...................................................... 8

Tex. Code Crim. Proc, Art. 19.27 (GJ Challenge)......................................................5

Tex. Code Crim. Proc, Art. 21.02 (Indictment) ..........................................................5

Tex. Code Crim. Proc, Art. 26.02 (Arraignment) .......................................................5

Tex. Code Crim. Proc, Art. 26.13 (a) (Accepting Guilty Plea)..............................6, 7

Tex. Code Crim. Proc, Art. 26.13 (b) (Accepting Guilty Plea)............................... 6

Tex. Code Crim. Proc, Art. 28.10 (Amendment of Indictment) .............................. 5

Tex. Code Crim. Proc, Art. 42.01 (Judgment)........................................................ 7

Tex. Penal Code, Section, 12.32 (a) (First-Degree Prison Sentence Range)..................5

Tex. Penal Code, Section, 12.32 (b) (First-Degree Fine Range)....................................5

Tex. Penal Code, Section 12.42 (b) (Intox. Manslaughter 2nd Degree felony)...............2

Tex. Penal Code, Section 49.08 (a) (Offense Elements)............................................4, 5

Tex. Penal Code, Section 49.08 (b) (Offense Base Punishment) ...................................2

                                      INDEX OF ABBREVIATIONS


Clerk’s Record........................................................................................................... CR

Reporter’s Record, Volume I.................................................................................... RRI

                   vi
vii
                                 NO. 12-15-00151-CR

                           IN THE COURT OF APPEALS

                  TWELFTH COURT OF APPEALS DISTRICT

                           TYLER, TEXAS
_________________________________________________________________

                                 RONALD I. ODOM
                                    Appellant

                                          V.

                          STATE OF TEXAS
                                 State
_________________________________________________________________

                  ANDERS/GAINOUS BRIEF OF APPELLANT
                           RONALD I. ODOM


TO THE HONORABLE JUSTICES OF SAID COURT:

      NOW COMES ROLAND I. ODOM, Appellant in the above-styled and

numbered cause and Defendant in the Trial Court, and, by and through appointed

Counsel, files this Brief of Appellant and respectfully reports to the Court of Appeals

that no reversible errors were found to have been committed by the Trial Court relating

to pretrial and evidentiary rulings during trial in Cause Number 18672 in the 2nd

Judicial District Court of Cherokee County, Texas, before the Honorable Judge Bascon

Bentley, III, Judge Presiding.

              1
      PRELIMINARY STATEMENT OF THE NATURE OF THE CASE

      Appellant was charged by indictment for two counts of intoxication

manslaughter. CR, at pp. 6-7; Tex. Penal Code, § 49.08(a); Tab A. The indictment

included an enhancement paragraph alleging Appellant had a prior felony conviction

increasing the punishment into the first-degree felony range. Tex. Penal Code §§

12.32 (a)-(b); 12.42(b); Tab A. The indictment was amended thereafter to correct

the alleged date of the offense. CR, at pp. 16-8.

      Appellant’s defense attorney filed a Motion for Discovery (CR, at pp. 29-41);

Motion to Suppress Evidence of Blood Test (CR, at pp. 42-4); Motion to Suppress

Evidence Based on Illegal search and Seizure (CR, at pp. 68-70); and a Motion to

Quash the Indictment (CR, at pp. 132-3); and a Motion in Limine (CR, at pp. 167-

9).   The record reflects no rulings on these motions. CR, at pp. 203-6.    On

04-13-15, Appellant entered into a plea agreement with the State wherein Appellant

pled guilty and “true” to the enhancement paragraph and accepted a 20-year

sentence. CR, at pp. 173-4; Tab B.

      The Trial Court approved and accepted Appellant’s plea and followed the

recommendation of the State; a Judgment of Conviction by Court/Waiver of Trial

was signed by the Trial Court on each count on 04-13-15. RRIX, at pp. 6, 8; CR, at

pp. 177-8, 180-1; Tab C.
             2
      The Trial Court certified that Appellant could not seek appellate review and

had waived his rights of appeal (CR, at pp. 175-6; Tab D).

      Appellant timely filed a notice of appeal on 05-06-15 (CR, at p. 186; Tab E.)

                      STATEMENT OF POINTS OF ERROR

      No reversible points of error were identified following review of the record, and

this Brief is submitted in compliance with the tenants of Anders v. California, 386 U.S.

738 (1967) and Gainous v. State of Texas, 436 S.W.2d 137 (Tex. Crim. App. 1969).

Counsel believes, after a review of the record, the subject appeal is frivolous and should

be dismissed.




                3
                             STATEMENT OF FACTS

      On August 18, 2012, Appellant was operating a motor vehicle in Cherokee

County and was involved in a head-on collision with another vehicle resulting in the

death of two people. RRIX, at pp. 2-3, 7; CR, at p. 174 (Stipulation of Evidence et c.)

Tab B.

      Appellant was previously convicted of a felony. RRIX, at p. 3.

                           BRIEF OF THE ARGUMENT

      Following a review of the pre-trial proceedings, trial and judgment, no error, that

was more than harmless error, was found that could be presented for review to the

appellate court, and therefore, Appointed Counsel believes the subject appeal is

frivolous and without merit. Appointed Counsel seeks to withdraw here from and has

invited response hereto from the Appellant, as described hereinafter.

                        ARGUMENT AND AUTHORITY

Grand Jury & Indictment:

      Appellant was indicted on two counts of intoxication manslaughter with an

offense date of August 12, 2012 by a Cherokee Grand Jury on January 28, 2013.

CR, at p. 6-7; Tex. Penal Code, §49.08(a).            The indictment also carried an

enhancement paragraph accusing Appellant of having a prior felony conviction of

failure to register as a sex offender increasing the punishment into the first-degree

              4
range. Tex. Penal Code, §§ 12.32 (a)-(b); 49.08 (b); Tab A. The indictment was

amended on the motion of the State to correct the offense date in count two. CR, at

pp. 16-8. The indictment appears to be valid on its face and carries the signature of

the purported Foreperson of the Grand Jury. Id.; Tex. Code Crim. Proc., Art 21.02.

The record is silent as to any challenge to the composition of the Grand Jury

leaving nothing as to the indictment or grand jury for review. Tex. Code Crim.

Proc., Art. 19.27.

Arraignment:

       Appellant through Counsel confirmed knowledge of the charges, confirmed

correct spelling of his name, and entered a plea of not guilty. CR, at p. 15. The

waiver fixed the Appellant’s identity and allowed for the entry of his plea of “not

guilty”.   Id.; Tex. Code Crim. Proc., Art. 26.02.      The waiver was signed by

Appellant’s counsel and appears to be regular, and, since no objection was raised,

any error regarding deficiencies in the arraignment were waived. Adkinson v. State

of Texas, 762 S.W.2d 255, 259 (Tex. App. – Beaumont 1988, pet. ref’d). No point

of error was found.

Pre-Trial Motions:

       The State filed a motion to amend the indictment pursuant to Article 28.10.

Tex. Code Crim. Proc., Art. 28.10. The Motion sought to correct the offense date in

               5
count two of the indictment. The Trial Court signed an Order granting the Motion,

and the record does not reflect any objection to the motion. No error is found.

      Trial Counsel for Appellant filed five substantive pre-trial motion including a

comprehensive Motion for Discovery (CR, at pp. 29-41); Motion to Suppress (Id.,

at pp. 42-4); Motion to Suppress (Id., at pp. 68-70); Motion to Quash (Id., at pp.

132-3); and Motion in Limine (Id., at pp. 167-69). The record is silent as to the

disposition of any of these motions and no potential error was found.

Appellant’s Plea: Guilty:

      The record reflects that the Appellant, joined by his Trial Counsel, signed and

a Felony Agreed Plea Recommendation – No Appeal. CR, at pp. 173-4 Tab B.

Further, the “Felony Agreed Plea Recommendation – No Appeal” was marked as

State’s Exhibit # 1and offered into evidence without objection during the plea

hearing. RRIX, at pp. 4/16 – 5/17.

      Article 26.13 of the Texas Rules of Criminal Procedure sets forth that the

Trial Court must substantially comply with the directives in Article 26.13 (a). Tex.

Code Crim. Proc., Art. 26.13 (a) (1) through (6). Prior to accepting a plea of guilty

(pertinent to the case at bar), the Trial Court must advise in part of the range of

punishment; the nonbinding nature of the agreement as to the Trial Court; limited

appellate rights if the agreement is followed or improved upon; the effect of non-

             6
citizenship. Id. , Art. 26.13 (1) – (4). RRIX, at pp. 2/2 – 6/9. Further, the Trial

Court must be satisfied that the plea is free and voluntary and that the Defendant is

mentally competent. Id., at Art. 26.13 (b).

      At the plea hearing, Appellant entered a plea of “Guilty”, the plea was

accepted, Appellant’s Waivers of rights were approved, and no objection was made

by Appellant’s Trial Counsel. Id.

      There appears to be substantial compliance with Article 26.13, and no point

of error appears from the record.

      Appellant also pled “true” to the enhancement paragraph and the Trial Court

followed the plea recommendation.

Judgment:

      Pursuant to Article 42.01, Texas Code of Criminal Procedure, the Trial Court

entered a judgment accurately describing the charge and sentenced Appellant to a

twenty-year sentence on each of the two counts consistent with the plea agreement.

CR, at pp. 177-8, 180-1; Tab C; Tex. Code Crim. Proc., Art. 42.01. There does

not appear to be a defect as to form or substance regarding the judgment that would

support the presentation of an error.




             7
Trial Court’s Certification of Right to Appeal:

      During the plea hearing, the Trial Court signed the Trial Court’s Certification

of Defendant’s Right of Appeal noting that this criminal case “is a plea-bargain

case, and the defendant has NO right of appeal.” CR, at pp. 175-6. Tab D.

Additionally, the Trial Court noted that “the defendant has waived the right of

appeal.” Id.

      Further, the record is silent as to the grant of permission to appeal having

been given to the Appellant.

Assistance of Counsel:

      Appellant was entitled to legal representation in criminal prosecution pursuant to

state and federal constitutional law and statutory law. United State’s Constitution, 6th

Amendment; 14th Amendment; Texas Constitution, Article 1, Section 10; Texas Code

of Criminal Procedure, Art. 1.05. The right to counsel, as described in the state and

federal constitutions, does not mean errorless counsel. Ex Parte Burns, 601 S.W. 2d

370, 372 (Tex. Crim. App. 1980); Howell v. State of Texas, 563 S.W. 2d 933 (Tex.

Crim. App.). Further, the right to counsel has been determined to be sufficient if

counsel provided “reasonably effective assistance.” Ex Parte Bratchett, 513 S.W. 2d

851, 853 (Tex. Crim. App. 1974). In Strickland v. Washington, the standard for review

under Texas law of ineffective assistance of counsel requires 1) identification of the

               8
deficient acts or omissions on the part of his attorney; 2) demonstration that the acts or

omissions were not the result of reasonable professional judgment; and 3) establishment

that the acts or omission so prejudiced the Defendant that he was denied a fair trial.

Medeiros v. State of Texas, 733 S.W. 2d 605, 607 (Tex. App. – San Antonio 1987).

Using Garcia v. State as a guide, the Court of Criminal Appeals calls upon the

Appellant to establish reversible ineffective assistance of counsel by demonstrating:

          1) “defense counsel’s performance fell below an objective standard of

             reasonableness, and

          2) there is a reasonable probability that, but for counsel’s unprofessional
             error, the result of the proceeding would have been different.”

Garcia v. State, 57 S.W.3d at p. 436, 440 (Tex. Crim. App. 2001).

      A review of the record does not evidence conduct or lack of action on the part of

Trial Counsel that would allow a reversible error to be presented for consideration. The

record does not support grounds that satisfy either Crawford prong, and no error was

found to present as a basis of reversal or remand. Although none of the defense pre-trial

motions were ruled upon, it appears that Appellant’s Trial Counsel negotiated and

secured a plea agreement that 1) avoided a deadly weapon finding (that had been sought

by the State; CR, at pp.136-7); 2) avoided higher punishment range minimum sentence

levels (in the event the State advanced its Notice of Intent to Enhance Punishment


              9
identifying four additional prior felony convictions of Appellant; Id., at pp. 119-20);

and succeeded in having the sentences run concurrently. CR, at pp. 177-181.

       In regard to the various undisposed defense motions, since no hearings were

conducted, a Crawford analysis cannot be completed.

Summary:

       Following review and consideration of pre-trial and trial activities before the

Trial Court, there are no points of reversible error found.

Notice to Appellant:

       Counsel hereby notifies Appellant that this Brief requests that the appeal be

found to be frivolous and be dismissed. Along with the Brief, a motion to withdraw

has been filed requesting permission of the appellate court for Counsel to withdraw

from this case, that, if granted, would leave Appellant representing himself as a pro

se litigant.

       Counsel further advises Appellant that Appellant has a right to prepare and

file a pro se Brief, meaning that Appellant can prepare and file with the appellate

court his own pro se Brief, under his own signature, pointing out to the appellate

court any errors or problems he sees in the record or any reason why Appellant feels

the appeal is not frivolous.

       Counsel also advises Appellant of Appellant’s right to review the record

               10
before filing a pro se Brief.

      If Appellant desires to file a pro se Brief with the appellate court, then

Appellant should immediately send a written request to Counsel requesting a copy

of Reporter’s Record and the Court Reporter’s Record.

      Appellant is advised that if he presents a pro Se Brief [Twelfth Court of

Appeals, 1517 West Front Street, Suite 354, Tyler, Texas 75702, Attention: Cathy

Lusk, Clerk], then he must also 1) provide a copy of his Brief to Counsel [Sten

Langsjoen, P.O. Box 539, Tyler, Texas 75710]; 2) provide a copy of his Brief to the

State [Rachael Patton, West 6th Street, Rusk, Texas 75785]; and 3) include in his Brief

a written statement (“Certificate of Service”) that he sent copies of his Brief and/or

Motion to Counsel and to the State.

                                         IX.
Word Count Certificate:
      Counsel certifies that WORD format character count is 2,750.
                                                                Digitally signed by Sten M.
                                                Sten M.         Langsjoen
                                                                DN: cn=Sten M. Langsjoen, o, ou,
                                                                email=sten@langsjoenlaw.com,
                                                Langsjoen       c=US
                                                                Date: 2015.08.31 13:29:36 -05'00'
                                               _______________________________
                                               STEN M. LANGSJOEN




              11
                                PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, Counsel for Appellant, Roland

Odom, respectfully requests and prays that this matter be considered by the Court and

that appointed counsel be allowed to withdraw herefrom and that this appeal be

dismissed following the Appellant’s opportunity to respond hereto; and further, Counsel

respectfully requests and prays for any and all other relief, at law or in equity, to which

he may show himself justly entitled.

                                                Respectfully submitted,

                                                                     Digitally signed by Sten M. Langsjoen
                                                                     DN: cn=Sten M. Langsjoen, o, ou,
                                                 Sten M. Langsjoen   email=sten@langsjoenlaw.com, c=US
                                                                     Date: 2015.08.31 13:30:12 -05'00'

                                                ______________________________
                                                STEN M. LANGSJOEN
                                                Attorney for Appellant
                                                P.O. Box 539
                                                Tyler, Texas 75710-0539
                                                Telephone: (903) 531-0171
                                                Telefax: (903) 531-0187
                                                TBA # 11922800


                                                e-mail: sten@langsjoenlaw.com




              12
                                  CERTIFICATE OF SERVICE

       I certify that a true and correct copy of the foregoing Appellant’s Brief was
delivered by certified mail, return receipt requested, and/or by "fax" transmission and/or
by hand-delivery to the State’s attorney on August 31, 2015.
                                                  Sten M.            Digitally signed by Sten M. Langsjoen
                                                                     DN: cn=Sten M. Langsjoen, o, ou,
                                                                     email=sten@langsjoenlaw.com, c=US
                                                  Langsjoen          Date: 2015.08.31 13:30:44 -05'00'

                                                 ____________________________
                                                 STEN LANGSJOEN




                13
                                                      APPENDIX

Contents:

Indictment ............................................................................................................... Tab A

Felony Agreed Plea Recommendation- No Appeal ................................................ Tab B

Judgments ............................................................................................................... Tab C

Trial Court’s Certification of Defendant’s Right of Appeal .................................... Tab D

Notice of Appeal......................................................................................................Tab E

Docket Sheet............................................................................................................ Tab F




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