                                                                          ACCEPTED
                                                                          14-14 01018
                                                      FOURTEENTH COURT OF APPEALS
                                                                   HOUSTON, TEXAS
                                                                  6/2/2015 7:25:05 PM
                                                                CHRISTOPHER PRINE
                                                                               CLERK

                      COURT OF APPEALS

                FOURTEENTH JUDICIAL DISTRICT          FILED IN
                                               14th COURT OF APPEALS
                                                  HOUSTON, TEXAS
                       HOUSTON, TEXAS           6/2/2015 7:25:05 PM
                                               CHRISTOPHER A. PRINE
                                                        Clerk




JENNIFER ANNE THOMAS,
    APPELLANT                 *
                              *
VS.                           *   NUMBER 14-14-01018-CR
                              *
                              *
THE STATE OF TEXAS,           *
    APPELLEE                  *


        APPELLANT’S BRIEF SPECIFYING ERROR OF WHICH
              APPELLANT COMPLAINS ON APPEAL



      APPEALED FROM THE 400TH JUDICIAL DISTRICT COURT OF
                  FORT BEND COUNTY, TEXAS
                IN CAUSE NUMBER 14-DCR-065587
      THE HONORABLE MAGGIE PEREZ-JARAMILLO, PRESIDING
               ORAL ARGUMENT NOT REQUESTED


                                  Maloney & Parks, L.L.P.
                                  Zachary S. Maloney
                                  TBN 24030761
                                  2925 Gulf Fwy Ste. B #295
                                  League City, Texas 77573
                                  (713) 228-2277 Tel.
                                  (866) 838-5656 Fax.
                                  ATTORNEY FOR APPELLANT
                  IDENTITY OF PARTIES AND COUNSEL

For Jennifer Anne Thomas, APPELLANT:

Trial counsel:
       Tommy James Stickler, JR
       235 W. Sealy
       Alvin, Texas 77511
       Phone: (281) 331-5288
       TBA# 00794988

Appellate counsel:
      Zachary S. Maloney
      2925 Gulf Fwy Ste. B #295
      League City, Texas 77573
      Tel: (713) 228-2277 Tel
      Fax: (866) 838-5656 Fax
      TBN# 24030761

For the State of Texas, APPELLEE:

Trial and Appellee Counsel:

Mr. Rodolfo Ramirez
Texas Bar No. 24048749
Assistant District Attorney
Ms. Jenna Rudoff
Texas Bar No. 24080343
Assistant District Attorney
301 Jackson
Richmond, Texas 77469
Telephone: 281.341.4460




                                    ii
TABLE OF CONTENTS
Identity of Parties and Counsel.......pg. ii
Table of Contents...........................pg. iii
Index of Authorities.......................pg. iv
Statement of the Case.....................pg. 1
Issue 1 Presented............................pg. 2
Issue 2 Presented............................pg. 2
Issue 3 Presented............................pg. 2
Issue 4 Presented............................pg. 2
Issue 5 Presented............................pg. 2
Summary of Facts......................... pg. 2
Certificate of Counsel................... pg. 4
Summary of the Argument............pg. 5
Issue 1 Restated............................pg. 7
Issue 2 Restated............................pg. 7
Issue 3 Restated............................pg. 10
Issue 4 Restated............................pg. 11
Issue 5 Restated............................pg. 12
Prayer...........................................pg.14
Certificate of Service....................pg. 14
Certificate of Compliance.............pg. 15




                                                         iii
                          INDEX OF AUTHORITIES
Case Law:

United States Supreme Court Cases:
Anders v. California, 386 U.S. 738 (1967)

Texas Case Law:
Gainous v. State, 436 S.w.2d 137 (Tex.Crim.App.1969)
Stafford v. State, 813 S.W.2d 503 (Tex.Crim.App.1991)

Texas Statutory Law:
Article 26.13 of Texas Code of Criminal Procedure
Article 37.07 of Texas Code of Criminal Procedure
§31.03(e)(7) Texas Penal Code
§34.02(e)(4) Texas Penal Code
Rule 408 Texas Rules of Evidence
Rule 410 Texas Rules of Evidence

CITATIONS TO THE RECORD

Clerk’s Record Note: (CR and page number)


Reporter’s Record: (R.R. Volume and Page number)




                                        iv
    To THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

   Comes Now, Jennifer Anne Thomas, Appellant in this cause, by and through her

attorney of record, Zachary S. Maloney, and pursuant to the provisions of

Tex.R.App.Pro. 38 et seq., files this brief on appeal.



                           STATEMENT OF THE CASE

   On August 29th, 2014, Jennifer Anne Thomas, hereinafter referred to as Appellant,

entered a non-negotiated plea of guilty before the Associate Judge for the 400th Judicial

District Court of Fort Bend County (RR Vol. 2 pg 5). Appellant stood charged by a

two count indictment with committing the offenses of Theft and Money Laundering

(RR Vol. 2 pg 4 & 5). There was also three other indictments that alleged fraudulent

use of indentifying information, theft and misapplication of fiduciary funds. Appellant

pled guilty in the instant with the understanding the State would dismiss the other three

indictments arising from the instant case. Vol. 3 pgs.7 & 8).       On December 19th,

2014, the State proceeded on counts one and two of the indictment for Theft and

Money Laundering (RR Vol. 3 pgs.8,9.). The range of punishment for counts one and

two of the indictment were both of a first degree felony. Vol. 2 pgs. 5 & 6).

   The trial court accepted Appellant’s non-negotiated plea of guilty and immediately

ordered a Pre-Sentence Investigation report to be made to consider as punishment


                                           1
evidence for the sentencing hearing.

On December 19th, 2014, the punishment phase began and was completed the same day

after both sides rested. The Court returned with a punishment verdict sentencing

Appellant to thirty (30) years confinement in the institutional division of the Texas

Department of Criminal Justice and an order of restitution (RR Vol. 3 pg. 76).

Appellant timely filed a notice of appeal on December 22nd, 2014 (CR). Appellant

now brings this matter for appeal before this Court.

Issue 1:     Whether the indictment filed was sufficient in Appellant’s case.

Issue 2:     Whether the trial court substantially complied with the requirements of

Article 26.13 of the Texas Code of Criminal Procedure.

Issue 3:     Whether there was any reversible error committed during the punishment

phase.

Issue 4:     Whether there is evidence to support Appellant’s guilty plea.

Issue 5:     Whether Appellant was provided with the effective assistance of counsel

by her trial counsel.



                             SUMMARY OF FACTS

   In August 2011, Jennifer Thomas was hired by Mr. Raymond Cummings, owner of

Sierra Chemical Company, as their accountant. From October 1st, 2011, through


                                          2
November 30th, 2013, Appellant forged approximately 115 checks by signing them as

Mr. and Mrs. Cummings. Mr. Cummings testified that Appellant stole from him an

estimated amount of $326,000. Testimony by Det. Ron Fields showed Appellant

deposited her ill-gotten gains into her own personal bank account, her mother’s

account, and to pay for purchases from hotels and casinos, jewelry stores, IRS fees,

and her own bills.

      Det. Fields testified that Appellant also took out two individual loans under the

pretense of being for Sierra Chemical Company. The first loan was for $150,000. The

second loan was for an additional $150,000. Both loans had deposits made into her and

her husband’s bank accounts.

      The record also shows that starting October 1st, 2011, the Defendant was on

felony probation for Harris County for second-degree theft. Testimony from the victim

of that case, Grant Stephenson, showed that Appellant was arrested in 2009 and

charged with stealing less than $200,000 from a company similar to that of Sierra

Chemical. Mr. Stephenson testified that Appellant stole from him personally and his

company, an amount just under $200,000. Mr. Stephenson testified that he ultimately

had to close down his business, fire his employees, and continues having to pay off

creditors, loans, and money to the IRS due to Appellant’s actions.




                                          3
                            CERTIFICATE OF COUNSEL

   Pursuant to the requirements of Anders v. California, 386 U.S. 738 (1967), and

Gainous v. State, 236 S.W.2d 137 (Tex.Cr.App. 1969), Appellant’s counsel states

the following:

   I, Zachary S. Maloney, counsel of record for Appellant JENNIFER ANNE

THOMAS, do hereby state that I have diligently searched the record in this cause and

have researched the law applicable to the facts and issues contained therein, and it is

from my professional evaluation that no reversible error is reflected within the record.

Therefore, I am of the professional opinion that this appeal is without merit and

frivolous. Appellate counsel has made every effort to locate any possible error within

the record in compliance with the applicable law pertaining to appeals of this type, and

I have not been able to identify or set forth one (1) possible point of error that may

arguably support an appeal.

   I have sent a copy of this brief to the Appellant, accompanied by a letter informing

the Appellant of her right to examine the entire appellate record for the purpose of

filing a pro se brief. A copy of this letter has been attached to this brief.

   Because counsel is unable to raise any arguable issues for appeal, he is required to

move    for   leave    to   withdraw,    Stafford    v.   State,    813   S.W.2d    503



                                            4
(Tex.Crim.App.1991). Accompanying this brief is counsel’s motion to withdraw on

these grounds.

                                                     /s/ Zachary S. Maloney

                                                     Zachary S. Maloney
                                                     Attorney for Appellant




                            Summary of the Argument

   Counsel’s professional evaluation arrives at the conclusion that no reversible error

is contained within the record. The indictment filed against Appellant properly tracked

§31.03(e)(7) and §34.02(e)(4) of the Texas Penal Codes for the offenses of theft and

money laundering both greater than $200,000.00 and it properly granted jurisdiction to

the district court Appellant was tried in. Article 26.13 of the Texas Code of Criminal

Procedure was complied with substantially by the trial court.

   Appellant chose to enter a non-negotiated guilty plea before the court, with the

election that the Judge would be selected to assess punishment at the conclusion of a

punishment hearing (RR Vol. 2 pgs. 3-5). Appellant was admonished orally by the

associate judge for the 400th District Court that she faced a potential range of

punishment as that of a first degree felony (RR Vol 2 pgs. 3-5 and C.R.-Written Plea

Admonishments). The record is clear that Appellant freely and voluntarily entered her


                                          5
guilty plea, and an inquiry was made about such by the trial court (RR Vol. 2 pg 6).

The record further indicates that Appellant was not or had not ever been treated for any

mental health ailments prior to these proceedings (RR. Vol. 2 pg. 7). The record is

clear that Appellant possessed a sufficient level of intelligence to understand the

proceedings against her.

   There were not any pretrial rulings sought by trial counsel or made by the trial

court. The punishment hearing tried to the trial court consisted of evidence and

testimony from Grant Stephenson, a prior victim, Ronald Fields, the detective of the

instant case, and Raymond Cummings, the victim in the instant case. Appellant

admitted that she committed the offenses of theft and money laundering as stated in the

indictment and did not dispute the amount in controversy below the first degree

amount (RR Vol. 3 pgs. 63-64).

   The evidence presented during the punishment hearing sufficiently demonstrated

that Appellant freely participated in the offenses as charged in the indictment.

   Trial counsel was faced with a very difficult task in determining on how best to

advise Appellant on whether or not Appellant should enter a guilty plea. Appellant’s

guilt left little doubt.   Trial counsel from the record zealously and effectively

represented Appellant throughout the course of Appellant’s trial court proceedings.

There was no reversible error discovered during the proceedings of the punishment


                                           6
hearing.

Issue 1 Restated: Whether the indictment filed was sufficient in Appellant’s case.



Sufficiency of the Indictment

   Appellant was originally indicted on March 3, 2014 under a two count

indictment for the offenses of theft and money laundering both greater than

$200,000.00. These offenses constituted first degree felony offenses.

   The indictment, properly tracked §31.03 (e)(7) and §34.04(e)(4)of the Texas

Penal Codes, of the statutes for theft and money laundering both greater than

$200,000.00. The indictment was presented during the statute of limitations periods

for both offenses. There were no errors on the face of the indictment itself, and

there were no pretrial motions made to quash the indictment by trial counsel

brought to the trial court’s attention.



Issue 2 Restated: Whether the trial court substantially complied with the

requirements of Article 26.13 of the Texas Code of Criminal Procedure.



Article 26.13 of Texas Code of Criminal Procedure

      Appellant entered a non-negotiated guilty plea before the trial court on August


                                          7
29, 2014 freely and voluntarily (RR Vol. 2 pgs 6). Prior to accepting Appellant’s

guilty plea, the trial court admonished Appellant as to the proper range of punishment

that she faced on the record (RR Vol. 2 pgs. 7-8). The range of punishment for this

offense was to be not less than five years confinement or no more than ninety-nine

years or life, in the Texas Department of Criminal Justice Institutional Division, and a

fine not to exceed $10,000 (RR Vol. 2 pgs. 6-7).

   Appellant, with the assistance of trial counsel, had the opportunity to review a

written plea admonishment packet that detailed the range of punishment as that of a

first degree felony (RR Vol. 2 pg. 4). The trial court made reference to written plea

admonishments that were signed by Appellant and her trial counsel detailing the

constitutional and statutory rights afforded to Appellant (RR Vol. 2 pgs. 8). The trial

court did orally inform Appellant prior to Appellant’s plea that the range of

punishment is that of a first degree felony (RR Vol 2 pgs. 5-8). Therefore, the written

Defendant’s plea of guilty, waivers, stipulations, and judicial confession clearly should

indicate according to the record available, that all parties involved definitely

understood, that per the trial court’s oral admonishments, the agreed range of

punishment was that of a first degree felony.

   The Appellant was orally informed by the trial court that by virtue of her non-

negotiated plea of guilty, Appellant had waived her right to a jury for the guilt-


                                           8
innocence phase of the trial(RR Vol. 2 pg. 5). Appellant however had chosen to

proceed into the punishment phase with the trial court chosen to assess punishment

(RR Vol. 2 pg. 5).    There currently is no indication that Appellant is not a United

States citizen and subject to deportation as a result of this current conviction per her

testimony. Therefore the voluntariness of the plea as in regards to any immigration

consequences is not at issue. The trial court upon questioning Appellant regarding the

understanding of her rights and her ability to respond to said questioning led the trial

court to the conclusion that Appellant was mentally competent to enter a guilty plea

(RR Vol. 2 pg. 7).

   The clerk and reporter’s records are both silent as to any pretrial motions for

competency that were raised by Appellant’s trial counsel. By all accounts, Appellant

seemed to fundamentally comprehend the proceedings that were taking place as

evidenced by her ability to coherently testify on her own behalf during the punishment

phase.

   Therefore the trial court substantially complied with the provisions of Article 26.13

in properly informing Appellant of the complete range of punishment that she faced

and by informing Appellant of any possible collateral consequences of her plea of

guilty. Appellant, on the record and in writing, waived her right to a jury trial as to

determining guilt-innocence. Appellant is an American citizen and not subject to


                                           9
deportation or removal from the United States of America.

PRETRIAL RULINGS

   There were not any pretrial rulings that were brought before the trial court or

adversely ruled on against the Appellant in this matter.



Issue 3 Restated: Whether there was any reversible error committed during the

punishment phase.



PUNISHMENT HEARING

   The punishment phase of the trial commenced on December 19, 2014. Counsel

thoroughly reviewed the reporter’s record of the direct and cross examinations

conducted by both trial counsel and the State. Any objections that were made by either

party were properly ruled on by the trial court.

   Counsel’s review of the proceedings during the punishment hearing did not uncover

any objections that were made by or ruled upon against Appellant that were improperly

decided.

Fundamental Error

   Counsel did not discover from the record any fundamental error. There was no

fundamental error present; therefore trial counsel did not have any such error to bring


                                          10
to the trial court’s attention.   Appellant was charged by indictment as a first degree

felony offense. The range of punishment for a first degree felony is confinement in the

Institutional Division of the Texas Department of Criminal Justice for a minimum of

five (5) years and a maximum of 99 years or life. A fine not to exceed $10,000.00 is

also possible. The trial court’s sentence of thirty (30) years confinement is within the

defined range of punishment for this level of offense.

   The written judgment accurately reflects that Appellant pled to and was convicted

of the offense as stated in the indictment of the Texas Penal Code. The written

judgment states that Appellant pleaded guilty to the charged offense. The judgment

correctly lists that the sentence imposed on December 19th, 2014, was thirty (30) years

confinement in the Texas Department of Criminal Justice. Appellant was properly

granted time credited towards her sentence.



Issue 4 Restated: Whether there is evidence to support Appellant’s guilty plea.



Sufficiency of the Evidence

   There does not appear from the record that the proper jurisdiction in this case was

some jurisdiction other than Fort Bend County. The evidence and witnesses presented

during the punishment phase all proved the date of the offense as alleged in the


                                            11
indictment. The State presented three witnesses during the punishment hearing that

provided testimony and insight into the acts committed by Appellant that gave rise to

her plea of guilty. Mr. Raymond Cummings testified regarding his monetary loss

caused by the Appellant (RR 3 Vol. pgs 47, 50). Det. Fields testified as to the checks

and loan payments that were deposited into Appellant’s accounts and those of her

husband and mother. Mr. Stephenson testified as to the harm he received when

Appellant worked for him prior to acts in the instant case. Appellant through her

testimony confirmed the economic loss perpetuated on Mr. Cummings (RR Vol. 3 pgs.

63 & 64). The evidence submitted at the punishment phase was sufficient to establish

that Appellant had been involved in and committed the fraud charge for which she

admitted guilt.



Issue 5 Restated: Whether Appellant was provided with the effective assistance of

counsel by her trial counsel.

Effective Assistance of Counsel

   Trial counsel, from the record available, zealously and effectively represented

Appellant. Appellant from counsel’s review of the record received effective assistance

of counsel at the trial/punishment hearing and throughout trial counsel’s representation

based upon the record provided.


                                          12
   Appellant was investigated by Det. Fields of the Fort Bend County Sheriff’s

Department shortly after being identified by Mr. Cummings who had called to report

the theft. Det. Fields discovered numerous extravagant expenses on Appellant’s bank

and credit cards statements. Appellant also confessed her theft to Mr. Cummings.

Given this fact scenario, there was little that could be done to dissuade any fact finder

that Appellant was not guilty of the charged offense.

   The ultimate decision to enter a guilty plea appears voluntary on the part of

Appellant, and that decision more than likely was entered into upon the advice of

counsel. Trial counsel attempted to challenge evidence presented by the State at the

punishment hearing. Appellant’s testimony and trial counsel’s closing argument

confer the hope that the trial court would return with a sentence closer to the statutory

minimum for a first degree felony. The record does not clarify if the Appellant’s

felony theft probation was pending. Nor is the record clear if that prior probation was a

deferred or a probation conviction.       Ultimately the trial court returned with a

punishment verdict that exceeded the Appellant’s desires.

   Trial counsel could at best only hope to persuade the trial court that Appellant

should only be confined to a term near the punishment minimum. The record indicates

that Appellant freely and voluntarily chose to enter a guilty plea, and that Appellant

chose to have the trial court assess her punishment.


                                           13
   There is no suggestion that Appellant did not understand the consequences of her

plea or was misled in any fashion by trial counsel as to what the results of her actions

could lead to. There was no reversible error discovered from counsel’s review of the

record in its entirety as pertaining to Appellant receiving ineffective assistance of

counsel.

                              PRAYER FOR RELIEF

   WHEREFORE, PREMISES CONSIDERED, Counsel respectfully prays that this

Court permits him to withdraw after this Court’s own examination of the record in this

cause and to afford Appellant her right to file any pro se brief she may wish to file.



             Respectfully submitted,



                                               /s/ Zachary S. Maloney

                                               Zachary S. Maloney
                                               TBN: 24030761
                                               2925 Gulf Fwy. Ste. B 295
                                               League City, Texas 77573
                                               Tel: (713) 228-2277
                                               Fax: (866) 838-5656


                          CERTIFICATE OF SERVICE

I, Zachary S. Maloney, Attorney at Law, 2925 Gulf Fwy. Ste. B #295, League City,
Texas 77573, do hereby certify that Appellant’s Brief Specifying Error of Which

                                          14
Appellant Complains on Appeal, was served on the Fort Bend County District
Attorney’s Office, on May 26th, 2015.

                       CERTIFICATE OF COMPLIANCE

   I certify that the foregoing brief was prepared in Microsoft Word using 14-point

font. Excluding those portions not counted towards word limitations, this document

contains 2877 words.




                                        15
