


 
IN THE
TENTH COURT OF APPEALS










 

Nos. 10-08-00379-CR,
10-08-00380-CR,
10-08-00381-CR,
10-08-00382-CR,
and 10-08-00383-CR
 
Frank King Powell,
                                                                                    Appellant
 v.
 
The State of Texas,
                                                                                    Appellee
 
 
 

From the 361st District
Court
Brazos County, Texas
Trial Court Nos. 08-01055-CRM-361,
08-01834-CRF-361,
08-01835-CRF-361, 08-01836-CRF-361,
and 08-03415-CRM-361
 

MEMORANDUM  Opinion

 




After accepting Frank King Powell’s
guilty pleas and conducting a punishment hearing, the trial court sentenced
Powell to life in prison for three counts of aggravated sexual assault, sixty-years
in prison for two counts of burglary of a habitation with intent to commit
aggravated sexual assault, twenty years in prison for attempted burglary of a
habitation with intent to commit aggravated sexual assault, two years in State
jail for attempted escape, and 128 days in jail for evading arrest or
detention.  Powell’s appellate counsel filed an Anders brief presenting
five potential issues.  See Anders
v. California,
386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).  Although informed of his right to do so, Powell
did not file a pro se brief.  Nor did the State file a brief.  We affirm.
involuntary
statement
 
            In potential issue one,
appellate counsel addresses whether the trial court abused its discretion by
considering Powell’s confession.
            The State introduced both a
video and transcript of Powell’s confession.  At the beginning of the
interview, Detective David Fallwell advised Powell of his Miranda rights
and Powell indicated that he understood these rights.  Fallwell asked Powell if
he wanted to answer some questions and, after asking what he was charged with,
Powell proceeded to do so.  Powell initially denied wrongdoing, but eventually
admitted committing two sexual assaults and evading arrest.  He denied
attempting to assault a third victim.  Powell gave detailed accounts of the
assaults.
Trial counsel objected to admission of
the statement on the basis of article 38.22 of the Code of Criminal Procedure,
arguing that the statement failed to “reflect on its face that Mr. Powell intelligently,
knowingly and intelligently [sic] waived his rights to remain silent.”  See
Tex. Code Crim. Proc. Ann. art.
38.22 (Vernon 2005).  After hearing the first part of the recording, the trial
court found that Fallwell could have “used different language,” but the statement
“substantially complies with Miranda” and 38.22.
            The trial court failed to
issue findings of fact and conclusions of law.  See Tex. Code Crim. Proc. Ann. art. 38.22 §6; see also Urias v. State, 155
S.W.3d 141, 142 (Tex. Crim. App. 2004) (en banc).[1]  Abatement of this appeal would ordinarily
be the proper remedy.  See Norton
v. State, 156 S.W.3d
668, 669 (Tex. App.—Waco 2005, abatement order); see also Gutierrez v. State,
71 S.W.3d 372, 380 (Tex. App.—Amarillo 2001, pet. ref’d).  Nevertheless,
we decline to abate because, assuming without deciding that Powell’s statement
was inadmissible, any error would be harmless.[2] 
See Gutierrez, 71 S.W.3d at 380.
            “Lisa” and “Lauren” testified in detail to
the sexual assaults.  Both women were threatened.  Lisa heard metal clinking
metal, which led her to believe that Powell had a weapon.  Lauren testified
that Powell held a knife to her throat.  Forensic technician Liza Phillips
testified that a knife was found at both crime scenes.
Officer Phillip Dorsett testified that one
of the bedroom windows of Lisa’s home had been shattered and opened.  Someone
had placed blue igloo coolers in front of the window, as if to look through the
window.  Officer Dennis Bain testified that a screen had been removed from a
window of Lauren’s home and the window was open.
             “Lucy” testified that she contacted
police after hearing scratching on her roommate’s window.  Officer Stephen
Schoellman arrived to find Powell standing at the back window with something in
his hands, as if he was trying to remove something from the window.  Powell
ran, but was eventually apprehended.  He was in possession of condoms, blue
latex gloves, and a screwdriver.
            Phillips recovered shoe
prints from Lisa’s and Lauren’s homes.  Both prints appeared to be from the
same type of shoe.  Lauren told Phillips that the sole of the suspect’s shoe
was soft.  Phillips later compared Powell’s shoes to the prints.  The shoes resembled
the prints and the soles matched Lauren’s description.  Phillips also testified
that Powell was in possession of the same brand of condoms as those found at
the crime scenes and the gloves matched those used at Powell’s place of
employment.  Fallwell testified that gloves were found at the home of Powell’s
girlfriend and that Powell’s work uniform had loops on the sleeves.  Lauren had
described loops on the sleeves of her assailant.  Additionally, Fallwell
testified that Powell’s girlfriend delivered several items to police that had been
taken during the assaults.
            In light of the evidence showing
Powell’s commission of the charged offenses, we cannot say that the admission
of his confession into evidence, even if erroneous, had a “substantial and injurious effect” on
the trial court’s sentencing decision.  Brooks v. State,
76 S.W.3d 426, 435 (Tex. App.—Houston [14th Dist.] 2002, no pet.).  Because
Powell’s substantial rights were not affected, this issue presents nothing for appeal. 
See Tex. R. App. P.
44.2(b).
 
 
 
full range of
punishment
In potential issue two, appellate
counsel addresses whether the trial court failed to consider the full range of
punishment.  He points to the following statements made by the trial court
after sentence was imposed:
Mr. Powell, you may now look forward to
the next 10,730 days of your life in anticipation of your eligibility for
parole.  During those 257,496 hours, you will be able to consider what the
world will be like when you have reached the age of 66 years, four months, and
four days.  During those 15,449,760 minutes you can ponder what the decision of
the Board of Pardons and Paroles might be in March of 2038.
 
You might wish to remember that Charles
Manson and Sirhan Sirhan have had multiple parole hearings and remained
confined.  The authorities in California have decided that they should remain
where they are and not returned to society that they so cruelly terrorized. 
While I may not be here in 2038, I am sure our Board will make a fair and
informed decision.
 
            Due process requires a
neutral and detached hearing body or officer.  Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App.
2006).  Absent a
clear showing of bias, a trial court’s actions will be presumed to have been
correct.  Id.  Although Powell did not present this issue to the trial
court, we need not determine whether it is preserved because the record does
not suggest that the trial court entered a predetermined sentence.  See id;
see also Booth v.
State, No. 05-08-00622-CR, 2009 Tex. App. LEXIS 4248, at *7-8 (Tex.
App.—Dallas June 16, 2009, no pet.) (not designated for publication).  The trial court’s comments were made
after sentence was imposed and after the trial court had heard evidence of
Powell’s crimes.  See Brumit, 206 S.W.3d at 645-46; see also Booth, 2009 Tex. App. LEXIS 4248, at *7-8.  This issue presents nothing for
appeal.  
 
Excessiveness
of punishment
In potential issue three, appellate
counsel addresses whether Powell’s punishment is excessive.  Powell did not challenge
his punishment at trial.  This issue is not preserved for appellate review.[3] 
See Wynn v. State, 219 S.W.3d 54, 61 (Tex. App.—Houston
[1st Dist.] 2006, no pet.); see also Steadman v. State, 160 S.W.3d 582,
586 (Tex. App.—Waco 2005, pet. ref’d); Tex. R. App. P.
33.1(a).
Relevancy of
items in vehicle
In potential issue four, appellate
counsel addresses whether items found in Powell’s girlfriend’s vehicle were
relevant.
Fallwell testified that a BJ Services
uniform, blue latex gloves, and two serrated knives were found in the vehicle
belonging to Powell’s girlfriend.  The State sought to introduce seven photographs
of these items.  Trial counsel objected:
I’m not sure what connection the knives
and gloves and what any other evidence that was found in that Ford Explorer
connect to Mr. Powell.  I think the officer testified to his knowledge my
client had no expectation of privacy in that particular vehicle, it was [the
girlfriend’s], so I object to relevance to the assessment of punishment in this
case.
 
The trial court overruled the objection,
noting that it “goes more to the weight rather than the admissibility.”
            The State had previously offered
and admitted eight other photographs of these items, without objection.  See
Lasher v. State, 202 S.W.3d 292, 295 n.1 (Tex.
App.—Waco 2006, pet. ref’d); see also Broussard v. State, 163 S.W.3d
312, 318 (Tex. App.—Beaumont 2005, no pet.).  Powell did not object to Fallwell’s testimony describing
the objected-to photographs.  See Jones v. State,
944 S.W.2d 642, 652 (Tex. Crim. App. 1996).  This issue has not been preserved for appellate review.[4]
 See Tex. R. App. P. 33.1(a).
admissible
evidence
In potential issue five, appellate
counsel addresses whether a question by the prosecutor amounts to inadmissible
evidence.
During Lisa’s testimony, the State
asked, “When you hear the way he talked to Detective Fallwell during that interview,
did that sound to you in your mind like he recognized the gravity of what he
had done?”  Trial counsel objected on grounds of speculation.  The trial court
overruled the objection.  Lisa then testified that Powell did not appear to
take responsibility and appeared to minimize what he did. 
While a witness cannot possess personal
knowledge of another’s mental state, he may possess personal knowledge of facts
from which an opinion regarding mental state may be drawn.  Solomon v. State, 49 S.W.3d 356, 364 (Tex. Crim. App.
2001).  Having observed the videotape of Powell’s interview, Lisa could draw an opinion as to whether
Powell appeared to take responsibility or minimize his actions.  See id.;
see also Tex. R. Evid.
701.  We cannot say that her
opinion would be “helpful to a clear understanding” of her testimony or the
“determination of a fact in issue.”  Tex. R. Evid.
701.  Nevertheless, the
trial court had also seen the videotape and could draw its own conclusions. 
Lisa’s opinion added little weight to her testimony.  See Solomon, 49 S.W.3d at 365.  Thus, we have a fair assurance that Lisa’s
opinion did not influence the trial court’s punishment decision or had but a slight
effect.  See id.; see also Tex.
R. App. P. 44.2(b).  This issue presents nothing for appeal.  
Independent
Review
Having
conducted an independent review of the record, we find this appeal to be wholly
frivolous.  We affirm the
judgment.  Pursuant to Rule of Appellate Procedure 48.4,
counsel must send Powell a copy of our decision by certified mail, return
receipt requested, at Powell’s last known address.  Tex. R.
App. P. 48.4. 
Counsel must also notify
Powell of his right to file a pro se petition for discretionary review.[5] 
Id.; see also Ex parte Owens, 206 S.W.3d 670, 673-74 (Tex.
Crim. App. 2006); Villanueva v. State, 209 S.W.3d 239, 249 (Tex.
App.—Waco 2006, no pet.).







 




 
FELIPE REYNA
Justice
Before Chief
Justice Gray,
Justice
Reyna, and
Justice
Davis
(Chief
Justice Gray concurring with note)*
Affirmed
Opinion
delivered and filed March 31, 2010
Do not publish
[CRPM]
 
*           (Chief
Justice Gray concurs with the Court’s judgment to the extent that it affirms
the trial court’s judgments.  He does not join the opinion.  A separate opinion
will not issue.)
 




[1]               This is true even where,
as here, the defendant fails to object to the absence of findings.  See Urias v. State, 155 S.W.3d 141, 142 (Tex. Crim. App.
2004) (en banc).
 


[2]
              Appellate counsel
contends that the record shows that Powell’s confession was voluntary; thus,
abatement would be moot.  The law is clear that findings are necessary when a
question is raised as to voluntariness of a confession and that abatement is
the proper remedy.  See Tex.
Code Crim. Proc. Ann. art. 38.22 §6
(Vernon 2005); see also Urias v. State, 155 S.W.3d 141, 142 (Tex. Crim.
App. 2004) (en banc).
 


[3]               Even if
error was preserved, each sentence is within the applicable statutory range.  See
Buster v. State, 144 S.W.3d 71, 81 (Tex.
App.—Tyler 2004, no pet.) (“[I]f the sentence falls within the
limits prescribed by a valid statute, the punishment is not excessive, cruel, or unusual.”); see
also Tex. Pen. Code Ann. § 22.021(e) (Vernon
Supp. 2009) (Aggravated sexual assault); Tex.
Pen. Code Ann. § 30.02(d) (Vernon 2003) (Burglary of a habitation);
Tex. Pen. Code Ann. § 38.04(b)
(Vernon Supp. 2009) (Evading arrest); Tex.
Pen. Code Ann. § 38.06(c) (Vernon Supp. 2009) (Escape); Tex.
Pen. Code Ann.
§ 15.01 (Vernon 2003) (Criminal attempt); Tex.
Pen. Code Ann. § 12.32 (Vernon Supp. 2009) (First degree felony); Tex. Pen. Code Ann. § 12.33 (Vernon Supp.
2009) (Second degree felony); Tex. Pen. Code Ann. § 12.35(a) (Vernon Supp. 2009) (State
jail felony); Tex. Pen. Code Ann.
§ 12.21 (Vernon 2003) (Class A misdemeanor).
 
 


[4]               Even if error was preserved,
the record shows that Powell was employed by BJ Services, his uniform had loops
on the sleeves, Lauren described loops on the sleeves of her assailant, and knives
and blue latex gloves, like the ones found in the vehicle, were found at both
crime scenes.  The trial court could reasonably conclude that these items
connected Powell to the offenses.  See Franklin v. State,
No. 05-08-01714-CR, 2010 Tex. App. LEXIS 639, at *9-10 (Tex.
App.—Dallas Jan. 29, 2010, no pet. h.) (not designated for publication).


[5]               We typically grant
counsel’s motion to withdraw, effective upon counsel’s compliance with the
aforementioned notification requirement as evidenced by “a letter [to this
Court] certifying his compliance.”  See Tex. R.
App. P. 48.4. 
In this case, however, appellate counsel filed his motion to withdraw with the
trial court in accordance with Sowels v. State, 45 S.W.3d 690, 692 (Tex. App.—Waco
2001, no pet.), overruled in part by Meza v. State, 206
S.W.3d 684, 689 (Tex. Crim. App. 2006).  The Court of Criminal Appeals has
overruled this aspect of Sowels, and this
Court has “jurisdiction and authority to grant a motion to withdraw that
accompanies an Anders
brief” if the Court determines that counsel has satisfied his professional
obligations and that the appeal is frivolous.  Meza, 206 S.W.3d at 689; Alexander v. State, No.
10-07-00090-CR, 2008 Tex.
App. LEXIS 7542, at *8 n.1 (Tex. App.—Waco Oct. 8, 2008, pet. dism’d)
(not designated for publication).


