                                                                             ACCEPTED
                                                                         03-15-00058-CR
                                                                                 6567047
                                                              THIRD COURT OF APPEALS
                                                                         AUSTIN, TEXAS
                                                                    8/19/2015 3:16:14 PM
                                                                       JEFFREY D. KYLE
                                                                                  CLERK
                            No. 03-15-00058-CR

                        IN THE COURT OF APPEALS         FILED IN
                                                 3rd COURT OF APPEALS
                                                     AUSTIN, TEXAS
             FOR THE THIRD JUDICIAL DISTRICT OF TEXAS
                                                 8/19/2015 3:16:14 PM
                                                   JEFFREY D. KYLE
                       BRADY ALAN DANIEL,                Clerk
                                APPELLANT


                                     VS.


                          THE STATE OF TEXAS,
                                 APPELLEE


                           APPELLANT'S BRIEF



                     On appeal from Cause Number 3029
                             35^^ District Court
                            Mills County, Texas
                    The Honorable Stephen Ellis, Presiding


Emily Miller, Lawyer
Woodley and Dudley, Lawyers
707 Center Avenue
Brownwood, Texas 76801
emily@woodleydudley.net

Attorneyfor Appellant
                   IDENTITIES OF PARTIES AND COUNSEL

       Pursuant to the provisions of Rule 38.1(a), Texas Rules of Appellate

Procedure, a complete list of the names of all parties to this action and counsel are

as follows:


Parties:                                       Mr. Brady Alan Daniel, Appellant

                                               State of Texas, Appellee

Attorneys for the Appellant:                   Ms. Emily Miller
                                               Woodley and Dudley, Lawyers
                                               707 Center Avenue
                                               Brownwood, Texas 76801
                                               (On Appeal Only)

                                               Mr. Patrick Howard
                                               Attorney at Law
                                               101 South First Street
                                               Bangs, Texas 76823
                                               (Trial Attorney)

Attorneys for Appellee:                        The Honorable Micheal Murray
                                               District Attorney, 35th Judicial,
                                               Brown and Mills Counties, Texas
                                               200 South Broadway Street
                                               Brownwood, Texas 76801

                                               The Honorable Sam C. Moss*
                                               First Assistant District Attorney
                                               35th Judicial District
                                               Brovm and Mills Counties, Texas
                                               200 South Broadway Street
                                               Brownwood, Texas 76801
                                               * Mr. Moss assumed the bench of
                                               Brown County Court at Law effective
                                               January, 2015

                                          11
                       TABLE OF CONTENTS



IDENTITIES OF PARTIES AND COUNSEL                                         ii


INDEX OF AUTHORITIES                                                      iv


STATEMENT OF THE CASE                                                     1


ISSUES PRESENTED                                                          2


SUMMARY OF ARGUMENT                                                       2


          ISSUE ONE:          The evidence is legally insufficient        4
    to support a conviction based solely on a guilty plea by Appellant.

            ISSUE TWO:       The evidence is legally insufficient         1
    to support enhancement ofthe indicted offensefrom a second
    to a first degreefelony.

PRAYER FOR RELIEF                                                         11


CERTIFICATE OF SERVICE                                                    12


CERTIFICATE OF COMPLIANCE                                                 13




                                       III
                           INDEX OF AUTHORITIES



Arizona v. Fulminante, 499 U.S. 279 (1991)                              4
Baggett V. State^ 342 S.W.Sd 172 (Tex.App.-Texarkana 2011, pet. refd)   5
Blanks v. State, 172 S.W.Sd 673 (Tex.App.-San Antonio 2005, no pet.)    7, 8
Brooks V. State, 957 S.W.2d 30 (Tex.Crim.App. 1997)                     7
Crawford v.       278 S.W.2d 845 (1955)                                 4
Dinnery v.       592 S.W.2d 343 (Tex.Crim.App. 1980)                    5
Flowers v.       220 S.W.Sd 919 (Tex.Crim.App.2007)                     8
Jackson v. Virginia, 443 U.S. 307 (1979)                                4, 7
      V. S'to/e, 373 S.W.Sd 790                                         4
      (Tex.App.-Houston [14^ Dist] 2012, no pet.)
Lyles V. State, 745 S.W.2d 567                                          4
      (Tex.App.-Houston [1st Dist.] 1988, pet. refd)

McClain v. State, 730 S.W.2d 739 (Tex.Cr.App. 1987)                     5
Mendez v. State, 138 S.W.Sd 334, 340 (Tex.Crim.App.2004)                5
Menefee v. State, 287 S.W.Sd 9 (Tex.Crim.App.2009)                      5
Stringer v. State, 241 S.W.Sd 52 (Tex.Crim.App.2007)                    4
Thornton v. State, 601 S.W.2d 340, 344 (Tex.Crim.App. 1980)             4
Washington v. State, 893 S.W.2d 107 (Tex.App.-Dallas 1995, no pet.)     5
Wilson V. State, 671 S.W.2d 524 (Tex.Crim.App. 1984)                    8
                            STATUES AND RULES

Tex.Penal Code §12.42                                                   8,7
Tex.Penal Code §22.02                                                   9
Tex.Code Crim.Proc., Art. 1.15                                          4
Tex.R.App.Pro. §38                                                      ii, 1



                                           IV
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:


       COMES NOW, Brady Alan Daniel, Appellant in this cause, by and through

his attorney of record, Emily Miller, and pursuant to the provisions of

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

                             STATEMENT OF THE CASE


              This is an appeal from appellant's guilty plea and sentencing hearing.

Appellant was charged with the Second Degree felony offense of Aggravated

Assault occurring on February 8, 2014. Appellant was indicted for the offense on

June 11,2014. The indictment contained an enhancement paragraph for one prior

felony offense, which raised the punishment range for the offense to that of a First

Degree felony. (CR: p. 11           Appellant entered what is commonly referred to as

an open guilty plea on November 17, 2014, wherein he pled guilty to the offense

and selected the Judge to assess his punishment. (Vol. 3, p. 20). Appellant was

convicted of the offense and sentenced by the court to thirty five (35) years. (CR:

p. 48). The trial court certified Appellant's right of appeal. Appellant gave timely

notice of appeal. Counsel for appellant was appointed on January 9, 2015 (CR: p.

58). This brief is due on or before August 17,2015.




^"CR" Refers to Clerk'sRecord. The Reporter's Record is referenced by volume and page number.
                                              1
                                ISSUES PIIESENTBD


      ISSUE ONE:           The evidence is legally insufficient to support a
                           conviction based solely on a guilty plea by Appellant.

      ISSUE TWO:           The evidence is legally insufficient to support
                           enhancement of the indicted offense from a second to a
                          first degreefelony.

                           SUMMARY OF ARGUMENT


      Appellant's conviction of Aggravated Assault was entered without sufficient

evidence to support his guilty plea. Prior to a finding of guilt or the announcement

of a "unitary" trial, the court found the Appellant guilty. At the time the trial court

pronounced Appellant's guilt, the State had failed to offer any evidence to

substantiate Appellant's guilt. The failure of the State to offer and the trial court to

admit any evidence prior to a finding of guilt means the essential elements of the

offense of Aggravated Assault were not met. Appellant's signed "Written

Admonitions to the Defendant for Plea to Court" were not admitted until after the


court had pronounced Appellant's guilt, during the punishment phase of the

proceedings. Only after the pronouncement of Appellant's guilt, did the court

announce the court was proceeding in a unified manner. Even in a 'unitary trial',

there must be some evidentiary basis for the court's corroboration of a defendant's

plea of guilt. Without the introduction of some evidence before the court's

pronouncement of guilt, in the light most favorable to the verdict, no rational trier

of fact could have met every element of the offense charged. Appellant's

                                           2
conviction should be reversed and a judgment of acquittal should be entered, or the

case remanded to the trial court for a new trial.


       Appellant further maintains the evidence is legally insufficient to support

enhancement ofthe offense charged from a second to a first degree felony. The

indictment contained a paragraph alleging Appellant had a prior felony conviction

for Tampering with or Fabricating Evidence from 2007 While the State filed

notice to introduce the felony convictions and several other extraneous offenses, at

no point did Appellant indicate he pled true to any enhancement, prior conviction,

or extraneous offense. The State failed to meet its required burden showing

Appellant's prior convictions were final, and proving Appellant was the person

previously convicted. Because Appellant did not enter a plea to the enhancement

paragraph at trial, and the State offered no additional evidence to support the

enhancement, the State's burden was not met. Therefore, no rational trier of fact

could find the enhancement issue beyond a reasonable doubt. On this basis.

Appellant's conviction of a first degree felony conviction should be reversed and a

judgment of acquittal should be entered, or remanded to the trial court for a new

trial. In the alternative. Appellant's first degree felony conviction should be

reformed to confirm to a second degree felony with the applicable range of

punishment.
                                     ISSUE ONE


       In his first point of error, Appellant alleges the evidence is legally

insufficient to support the conviction for Aggravated Assault. This Court views

the evidence with deference to the trial court and in the light most favorable to the

judgment. Jackson v. Virginia, 443 U.S. 307, 319 (1979). When a guilty plea is

entered, "the evidence does not have to establish the defendant's guilt beyond a

reasonable doubt but must embrace every element of the offense charged. Jones v.

State, 373 S.W.3d 790, 793 (Tex.App.-Houston [14^^ Dist.] 2012, no pet). A
statutory procedural safeguard is established by Article 1.15 of the Code of

Criminal Procedure requiring sufficient evidence for a guilty plea, stating:
         "...it shall be necessaryfor the state to introduce evidence into the
        record showing the guilt ofthe defendant and said evidence shall be
        accepted by the court as the basisfor its judgment and in no event
        shall a person charged be convicted upon his plea without sufficient
        evidence to support the same. " Tex.Code Crim.Proc. ART 1.15

      Article 1.15 applies only to the guilt stage. Stringer v. State, 241 S.W.3d 52,

59 (Tex.Crim.App.2007). It ensures no one will be convicted of a felony on a

guilty plea without the introduction of sufficient evidence of guilt. Lyles v. State,

745 S.W.2d 567, 567 (Tex.App.-Houston [1st Dist.] 1988, pet. refd), (citing

Crawford v. State, 278 S.W.2d 845 (1955)). Article 1.15 effectively maintains the

burden of proof on the State, even where a defendant has entered a plea of guilt,

Thornton v. State, 601 S.W.2d 340, 344 (Tex.Crim.App.1980). A court may not
"render a conviction in a felony case" unless evidence was presented supporting

the defendant's guilt. Menefee v. State, 287 S.W.3d, 9, 13. A stipulation of

evidence or judicial confession which fails to establish every element ofthe

offense charged will not authorize the trial court to convict. Dinnery v. State^ 592

S.W.2d 343,352 (Tex.Crim.App.1980). By its plain terms, it requires evidence in

addition to, and independent of, the plea itself to establish the defendant's guilt.

Menefee at 15.


      The statutory directive of Article 1.15 is an absolute or systemic requirement

and "in no event" shall a person be convicted without sufficient evidence to

support it. Baggett v. State, 342 S.W.3d 172, 174 (Tex.App.-Texarkana 2011, pet.

refd). The failure to comply with any of the requirements of Article 1.15 will lead

to an automatic reversal. McClain v. State, 730 S.W.2d 739 (Tex.Cr.App.l987).

In rare instances, an error is of such magnitude that it cannot be evaluated for

harm; these errors are structural ones which affect the framework within which the

trial proceeds, rather than simply an error in the trial process. Mendez v. State, 138

S.W.3d 334, 340 (Tex.Crim.App.2004) {citmg Arizona v. Fulminante, 499 U.S.

279, 309, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). A structural error defies a

harm analysis and requires reversal without a harm analysis. Id., Baggett, at 176.


      When a person enters a plea of guilty, the proceeding properly becomes a

unitary proceeding. Washington v. State, 893 S.W.2d 107, 108 (Tex.App.-Dallas
                                           5
1995, no pet.). Here, Appellant was not advised of nor questioned about a unitary

proceeding until after the court found him guilty. Instead, the court found guilt and

the State immediately began its evidence for punishment. Well into the direct

examination of the state's first punishment witness, (Vol. 3, p.36), the court

interjected the following:

      THE COURT: Let me ask one question. I didn't get it clarified. I

      should have done it earlier. Are we doing this in a unifiedproceeding

      where both guilt-innocence andpunishment evidence comes in at one

      time? Is that right?

      MR. MOSS: Yes, sir, with the guilty plea, that was part ofour -

      THE COURT: Do you agree?

      MR. HOWARD: Absolutely.

      THE COURT: That'sfine. You may proceed.

      Appellant's election to proceed in a unitary fashion did not occur prior to his

entry of a guilty plea. Rather, it occurred during the questioning of the state's first

punishment witness. Here, every element of the offense of Aggravated Assault

was not "embraced" prior to the court's finding of guilt. Guilt and punishment

were procedurally handled separately. The trial court erred by rendering a

conviction in a felony case where no evidence was presented supporting the

defendant's guilt by reason of his plea.
Appellant entered, and the trial court accepted, a guilty plea without any testimony

or stipulated evidence to substantiate his plea. This lack of "embracing" evidence

is fatal to the State's case of guilt and violates Appellant's rights under the statute.

The state, moreover, failed to offer its "Written Admonitions to the Defendant for

Plea to Court" until the punishment phase of the proceedings (Vol. 3, p. 24). Even

at this late hour, the document fails to establish even a skeletal framework of the

charged offense. The statutory requirements for satisfying guilt in a felony case

have not been satisfied. Because Appellant's plea was supported by insufficient

evidence. Appellant's conviction should be reversed and a judgment of acquittal

should be entered, or remanded to the trial court for a new trial.

                                  ISSUE TWO

      In his second point of error. Appellant alleges the evidence is legally

insufficient to support enhancement of the indicted offense from a second to a first

degree felony. Here, the Court must view the evidence in the light most favorable

to the judgment and determine whether any rational trier of fact could have found

the enhancement issue beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307,319(1979).

      A defendant is entitled to receive notice of the prior convictions the State

intends to use as enhancement. Brooks v. State, 957 S.W.2d 30, 33

(Tex.Crim.App. 1997). When the State seeks to enhance a defendant's punishment
range, the State has the burden of proof to show the defendant's prior conviction

was a final conviction and the appellant was the person previously convicted.

Wilson V. State, 671 S.W.2d 524 (Tex.Crim.App.1984). If a defendant pleads true

to the enhancement paragraph, the State's burden of proof is satisfied. Id. Citing

Blanks v. State, 172 S.W.3d 673, 675 (Tex.App.-San Antonio 2005, no pet.), the

Court in Flowers v. State, 220 S.W.3d 919, 921-22 (Tex.Crim.App.2007) found:

              "yf prior conviction may be proven by certified copies of a
      judgment and sentence and authenticated copies of records from the
       Texas Department of Corrections or other correctional institution,
       including fingerprints, supported by expert testimony matching them
       to the defendant. However, this is not the only method by which the
      State may prove a prior conviction. The State may also offer: (1)
       testimonyfrom a witness who personally knows the defendant and the
      fact ofhis prior conviction; (2) the defendant's stipulations orjudicial
      admissions; or (3) the defendant's photograph in a penitentiarypacket
      or other official record!''

      Appellant was charged with Aggravated Assault under Tex.Penal Code §
22.02, which states:


              Sec. 22.02. AGGRAVATED ASSAULT, (a) A person
      commits an offense if the person commits assault as defined in Sec.
      22.01 and the person:
                       (1) causes serious bodily injury to another, including
      the person's spouse; or
                       (2) uses or exhibits a deadly weapon during the

      commission of the assault.
           The indictment included a repeat offender enhancement under

Tex.Penal Code §12.42, which states:

           Sec. 12.42. PENALTIES FOR REPEAT AND HABITUAL FELONY
OFFENDERS ON TRIAL FOR FIRST, SECOND, OR THIRD DEGREE
FELONY.


          (b) Except as provided by Subsection (c)(2) or (c)(4), if it is
          shown on the trial of a felony of the second degree that the
          defendant has previously been finally convicted of a felony
          other than a state jail felony punishable under Section 12.35(a\
          on conviction the defendant shall be punished for a felony of
          the first degree.

          Appellant received notice of one offense in the form of the indictment (CR:

p. 11), and of several additional alleged offenses and convictions in the Notice of

Intent to Offer Evidence of Prior Convictions and Extraneous Offenses. (CR: p.

19-21). The trial court advised Appellant of the enhancement allegation during his

plea. Appellant was aware ofthe State's intention to increase his charge from a

second- to first-degree felony and the increased range of punishment. (Vol. 3,

p.21).

          Appellant's prior convictions were entered in evidence during punishment

proceedings (Vol. 3, p. 145). The final reference to the enhancement was at the end

of the punishment proceeding where the court finds Appellant pled "guilty" to the

indictment, which included the enhancement. (Vol. 4, p. 181). The court further

states:
       THE COURT: / find true to the repeat offender allegations that are

       also made part of the Indictment, finding he is the same person that

      was previously convicted ofafelony offense in the 355^^ District Court

      ofHood County, Texas, in the case as alleged and on the date alleged

       in the Indictment, of the felony offense of tampering or fabricating

      physical evidenced (Vol. 4, p. 185).


      The "Written Admonishments to the Defendant for Plea to the Court"

contain a boilerplate sentence which states "All enhancement and habitual

allegations as set forth in the indictment are true and correct, except those waived

by the state." (Vol. 5, p. 24). This is not a plea bargained matter, as evidenced by

the court's certification of Appellant's right to appeal (CR, p. 48).


      Although Appellant pled guilty to the charge of Aggravated Assault on the

record (Vol. 3, p. 20-24), nowhere in the record or in discussion of the guilty plea

is there an independent plea to the enhancement. The Appellant did not plead true

to the enhancement when he pled guilty to the offense charged. Therefore, the

State's burden of proof is not satisfied through Appellant's testimony. The State

failed to offer other evidence to meet its burden of proof showing the Appellant's

prior convictions were final, and Appellant was the person previously convicted.

Based on this lack of evidence, no rational trier of fact could find the enhancement



                                          10
issue beyond a reasonable doubt. Therefore, Appellant's conviction of a first

degree felony conviction should be reversed and a judgment of acquittal should be

entered, or remanded to the trial court for a new trial. In the alternative.

Appellant's first degree felony conviction should be reformed to a second degree

felony with the applicable range of punishment for a second degree felony.

PRAYER FOR RELIEF


       WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays

his conviction in the above entitled and numbered cause be reversed and the case


be remanded to the trial court for an entry of an order of acquittal, or remanded to

the trial court for a new trial. In the alternative. Appellant's first degree felony

conviction should be reformed to a second degree felony with the applicable range

of punishment. Appellant prays for any additional reliefto which he should be

entitled.


    ✓Respectfullysi^mitt'ed,


 Qmjj&A-MAi
       Emily Miller
       Woodley and Dudley, Lawyers
       707 Center Avenue
       Brownwood, Texas 76801
       Telephone: (325) 646-7685
       Facsimile: (325) 646-7688
       Email:              emilv@woodlevdudlev.net

       ATTORNEY FOR APPELLANT BRADY ALAN DANIEL




                                           11
                         CERTIFICATE OF SERVICE


      By affixing my signature above, I hereby certify a true and correct copy of

the foregoing APPELLANT'S BRIEF, was delivered via electronic and personal

service to:


                                             The Honorable Micheal Murray
                                             District Attorney, 35th Judicial
                                             District, Brown and Mills Counties,
                                             Texas
                                             200 South Broadway Street
                                             Brownwood, Texas 76801

On this day, Wednesday, August 19, 2015




                                        12
                      CERTIFICATE OF COMPLIANCE


   This document complies with the typeface requirements of Tex, R. App. P.

9.4(e) because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document also complies with the

word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains

2465 words, excluding parts exempted by Tex. R. App. P. 9.4(i)(l).



                                              /s/ Emily Miller
                                              EMILY MILLER




                                         13
