                                                                      ACCEPTED
                                                                 06-14-00201-CR
                                                       SIXTH COURT OF APPEALS
                                                            TEXARKANA, TEXAS
                                                            1/25/2015 4:34:52 PM
                                                                 DEBBIE AUTREY
                                                                          CLERK



         No. 06-14-00201.-CR
                                          FILED IN
   IhI T,he Sixth Court oll APPeale;6th COURT OF APPEALS
           Texarkana, lfexas          TEXARKANA, TEXAS
                                       1/27/2015 4:34:52 PM
                                          DEBBIE AUTREY
                                               Clerk
         D4ARK VTCTOR DHEIL /

                                    AptroeL7atzt,
                    v.
         THE STATE OF TE)IN,S,
                                     Ag>igeJ-Iee   -




Appeals from the 4th Dirstrict Crpurt
          Rusk CountY, Terxas
      T:ria1 Court No. CR14-089



              AIiTDERS   BRIEI'



                         ATTORNEY FOR APPELI,ANT:

                              ileff T. "lackson
                              STBOT No " 2406997 6
                              7 3 6-A Hw5'1 259 N .
                              I(ilgoren TX 75662
                              Ithone: 903- 654-3362
                              I!'ax: 8117-887-4333
                     oRAL ARGI'MENT NOT       REQUESTED
                     L]EST OE. PARTIES AND COI'NSEL



APPELLANII: Mark V'ictor Dhei1
                    TDCiI  . 0t9657 67
                            N'o
                    SID No,. O6344978
                    Choice Moore Transfer JFaciJ.ity
                    1700 Nl. EA{ 87
                    Bonhamr, TX 154L9

    Represented at original Plea bY:
    MR. .fEFF SANDEI1S
     SBOT     No.   24033.153
     Ellis & Sanders, PLLC
     L20 ll . Broadwalg, Suite II2
     Tyle:r, TX 1 51 0:2
     Phone: 903-593-8084

    @appeal                             bv:
    Jef f T. Jacksotr
     SBOT     No.   2406997       6
     736-A Hwy 259 I\I .
     Kilgore, TX 15662
     Phonr:   :   903- 65 4'-3362
     Fax:         817-BB7-4333


APPELLEE:I                  Sltate of Texas
     Represent,ed at ori-gina1 plea arrd sentenci-ng by:
     Micheal E. Jim,=rson
     Rusk County District AttorneY
     SBOT : 00'7 89406
     115 N. Main St .
     Henderson, TX           7   5652
     Phone    :     903- 6It1-2265
     Fax:           903- 6ai'7 -0329
                                       TABLE OF CONTENTS

Lt_st   of Parties and Counsel..                              .."'i
Table of      f-nnj-
              VVfIUVTIUJ.anl-
                              q.   .                                . . ii

Index of Authorities                                                    iv
Statement of the Ca.se                                        " "vi
Issues Presented.                                            '"'vii
                                                                             1
Statement. of Facts...                                        ""'r-
Summary       of the       ArguLment.s .     -                  " "2
Argument...                                                          " '4
        I.    APPELLANT' S PLEA OF GUILTY COMPL:TED W]TH
              THE REQUIF{EMENTS OF ARTICLE 26 'L::i OF THE
              TEXAS CODE OF CRTMINAL PROCEDURE . . . .4

        II.   NO OBJECT]:ON TO THE EVIDI]NCE OR EXHIBITS
              WERE MADE DURING THE PUN]-SHMENT STAGE OF
              TRIAL AND NO MqRITORIOIJS LEGA.L CLAIM
              EXISTS RIILATED TO THE IMPOSI'IION OF
              PUNISHMENT                                   . . .7

        III. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IS
             NOT A V]I\BLE CLAIM BASED ON TH]l RECORD
             BEFORE THIS COURT                       9


        IV.   NO OTHER ARGUABLE ERROR WAI] COMMIT':IED . .T2


StatemenL of Attorney to the Court                                  ' ' "L4
Conclusion and PasrTet                                         ..--15
Certificate of   l,nmnli:nna
                 \/\JlttP-L-LCrrr\-s         .....16


Certificate of Service..                     --.-.1'1




                                       111
                     IIIDEX OF AUTHORIT]IES


Cas,e Law:

Anders v. Cal-if orni.a,
    386 U.S. 738,'744, (1967)-                                -1, 2,    1-3


Brady v. United States,
    391 IJ.S. 742, "749, (1970).                                          5



Currie v. State,
     516 S.W.2d 684 (Tex.Cr.App.I914).                                  IJ


Fuentes v. State,                                                            q
     5BB l3.W.2d 542,,    544 (Tex.Crim.APP 1985)
Hernandez v. State,'
    726 S.W.2d 53,       57    (Tex.Crim.APP,. 1986)                         v


Jack v. State,
     glr s.w.2d 74t      (Tex . Cr . App . L97   4,)


Jackson v. State,
    877 S.W.2d 768,       71   1   (Tex. Crim.APP .I994)          \,    10

Jeffery v. State,
     903 S.W. 716 (Iex.App.-Dallas 1-995, ho pet. ) '3,                 13

Strickl-and v.    Wash-Lngton,
                                                                   q    1n
     466 u.S" 668 (1984).                                        . Jt



Thompson     v. State,
     9 S.W.3d B0B, BL2 (Tex-Cri-m-App-1999)                      .9,    10

Unj-ted States v. J<chnson,
     521 E .2d. I32B , L329 (5th Cir .            -191   6)             .2



                                      1V
Sta'tutes     :




Tex. Code Cri-m. Proc . Art .      26   .I3               <
                                                          Jt   fl
                                                               al   5


Tex   .   Code, Cri-m.   P. Art. 42.L2   SS 9(a)'   \y/             7
                             S]]ATEMENT OF THE CASE




        AppeJ-l-ant wars indicted             for     driving        while

int.oxicated 3'd or more, a 3'd degree felony, bY formal
^h=rni
l-LIo.I     nrv  .i
        v J-1rv rrr\
                      .strumen't- f iled on February 4, i2074. CR p.

5.      On October Ll , 2014, Appellant waived his right                      to

trial      by jury and entered his plea of guilty                  to the

offence charged i-n the indictmenL,, cR p. 24-28 -                            The

TriaI Court sentenced Appellant j-n open court to                         f   our

(4   ) years conf inement in the institutional..          division of
t.he Texas; De'part,ment of Criminal- Justice '          CR   p'   32 '




                                        vl
                        ISSUES PRESENTEI)

I.    Whether Appel-l-ant' s plea of guilty       crcmplied with

the requirement.s of     Art.   j-cle 26.73 of the Texas Code of
Criminal- Procedure?


fI. Whether an objection was made to the evidence or
exhibit.s durj-ng t.he punishment stage of tria-l-?


III. Whether inef fective assistance of tria.l        counsel- is

a viable claim based upon the record before this Court?


IV.   Whet.her any   otfrer arguable error was co:mmitted?




                                   vll
TO THE HONORABLE S]XTH COURT OF APP]IALS:

        Comei; now Jef        f T. Jackson, attqrney               f   or Mark Victor
Dhei1, appellant         the above st.yled eind numbered
                                   in
causes, eind respec'tful1y submits this Anders Br j-ef and
would show the Court the following:


                              9I',ATEMENT OF THE FACm

         In     a       single          count   indictment,            Appef   l-ant.     was

indicted for drJ-ving while intoxj-cated 3'd or                                more   '    CR


p. 5.          Jeff Sanderr3 was hired to represent Appellant by
the Tria-L CourL "               On October      11   , 20L4, Appell-Iant waived
his right           to trial-           by jury and entered his plea of
  Y urri l
"crrr        tvt'
             uJ   to the of f ence charged in the irrdicLment .                             RR


                 The Trial court sentenced Appel--l-ant in                                open

courL to            f   our   (4   ) years conf inement i-.n the Texas
Department of Crim:Lnal Justice -                      CR'   p.   32 '




NOTE:
The reco:rd is refe:rred to as:
\\CR//: clerk's reco:rd in Cause No- C:R14-089'
\\RR//: reJcortert s recorC
"SCR": supplementa.I clerk's record
                      SUMMARY       OF THE      ARGUMENTS




     Under: Anders v. Cafifornia,                      386 U.S. 738, 744,
(7967 )   , a court.-appointed appell-aLe attorney may not
raise an issue in an appeal if he nrakes a conscientious
examinat.i.on of the case and f inds the appeal is who11y
f rivol-ousi   .   To compty with Anders, counsel must isolate
"poSsibly important iSSueS" and "furnish tLre court with
references to the record and lega-L authorities to aid
it   in    j.ts    appellate            functi-on. "     unite<J states   v   -




Johnson, 521 E .2d,          I32B   I L329 ( 5th Cir . I91 6) .       After

the appellant is         g   j-ven an opporturrity to respond, the

court makes a ful]           examination of the record to detect
whether the case is frivolous.                         Anders, 385 U'S' at
144.       Appellant's        counsel- has reviewed the Clerk's
Record a.nd Reporter 's Record f rom the Trie,LI Court, the
sentence received by Appell-ant arLd the f:actual basis
for: the senLence. As set forth in 'bhe Brief , there are
no non-fri-volous issues            -
    The record             reveal-   s    that      the     t.ri-al     court
substantially complied with Article 26.L3 of the                        Texas

Code of Criminal Procedure when accepting Appell-ant'                            s

pIea.     RR pp. 6-10.                   No obj ection \^/as made by
Appellant. to any of the evj-dence, exhilcit,s or the
sentencing of Appellant by the trial                 courL. RR pp. 10-
29. Ther:e are no iurisdictional                 defects-    There are          no

non-jurisidictj-onal- defects arislng at or af:ter entry of
t.he plea .      see Jack v.               state,      817    S . W.   2d   7   4I

(Tex. Cr.App. Lgl 4)   .     Counsel- has al-so f iled          with this
Court a Motion to Withdraw as Court Appoi.nted Counsel
on Appeal with support.ing exhibits in accordance with
the procedures and standards set out in. Jeffery
 State, 903 S.W. 116 (Tex-App.-Dallas 1995, no pet') '
                  ARGUMENTS AND AUTHOR]TIES




                                  I.

    APPEI,LANT'   S PLEA OF GUILTY COMPLIED IVITH THE
    REQUIREMENTS OF ARTICLE            26.L3 OF THE TEXAS CODE

    OF CI{IMINAL    PROCEDURE .




    Appe-Ll-ant's counsel has reviewed t'he c:ntire record
in detail   and has identif ied no error on t'he trial
court' S part      that   suggests harmful- error             in    the

Defendant's pleading guilty to the charges'
    Before accepting a guilty              plea, t.he trial        court

must admonish a defendant of:            (1) Lhe punishment range'
 (2) the fact t.hat the state's sentencing r(3commendation
is not binding on the court, (3) the limited right to
appeal and (4) the possibility              of deportation.         Tex'

code crj-m. Proc. art . 26. 13 (a) .         ithe admonishments may
be made either orally or in writitgt.            Id at 26'L3 (d) '

   At appeJ-lant,s original pleas, the court admonished
appellant on the proper range for driving while
j-ntoxicat.ed,        3td or      more.        RR          p. B.                  The court
substanti ally         complied with         fJ-'^
                                              LI-IV    rorrlrirom,cnf.5 of
                                                       !   v\agJ!      vrr|vrr   9!         the

statute          in   accept   ing    appelf ant' s                 guilt-y plea             as

evroerrceu
^--.1 ^^^^^;t uy the written plea admonishments and verbal
              1^.



admoni shment s       by the trial- judge.  P. B.      .RR

          To be constitutionatty va1id, et guilty plea must be
knowing eind voluntary.              See Brady        v.        Unite<.I         States,    397

U-S. 142, 749-750, (7970); see also Tex" Code Crim'
Proc. Ann. art . 26.13 (b) .                When      the record shows that
the trial- court admonished the defendant in substantial
compliance with Art j-cle            26   .13 of Lhe Code of Criminal
Procedure, this is a prima facie showing that the plea
was knowing and volunt.ary.                   See Tex. Cod<,:                    Cr j-m -   Proc

Ann. arL. 26.L3 (C) .            There is nothing in t.he record to
ind.icate appellant. pleaded guilty                                 and "true without
und.erstanding the consequences of his pleas, and as                                           a

rosrr
!vuuret   I|   - annel-1ant
                 *_L/r         Suf f ered   no har:m.                 Ser) Fuentes v.

state, 6BB S.W.2d 542, 544 (Tex.Clrim.App 1985). The
tri.al crturt accepted Appellant' s; original plea of
gui.lt.y and subsequent plea of true and punishment                                          was
         ^ ^^,.J
dJJr=J,>E\.l       .              RR pp.        6-10;       KK        pp.   aa,an
                                                                            26-zY.                f f IU



                                  of                        nlcns is
                                       ^nnel ant/
                                                                                                  r- l,-
volLlntarine             s   s;   v!        I           s   I/rvsL,
                                                                             sl:rown   1-.r
                                                                                       vJ     z
                                                                                                  L   IlE^


record.                RR p " 6-10.
                                                     II.
        NO OBJECTION TO EV]DENCE OR EXHIBITS ]I\]AS MADE

        DURING THE PUNISHMENT STAGE                                      OF TRIAL AND NO
        MERI:IORIOUS LEGAL CLAIM EXISTS RELATED TO THE

        IMPOI]ITION OF PUNISHMENT.



        On t.he :-lt]" day of October , 2014, Appellant's plea
rrf   rrrri   I   i-Uyrz \ar.-o
                         WCIJ            arl
                                =nnanl- us\f,
                                A\-\-Ey          l-rrz
                                                 v J   furrs
                                                          ho   tri
                                                               u!    !        ]   COUft,,        RR pp.     6-
uI    I |.l-Lr                                                           "1


1n            On that same duy, Appel-lant.'s pullishment was
assessed. RR pp. 28-29 .                                The only eviden.ce presented
bV the State was a presentence investigati-on report
that had been conducted by the Rr-rsk County community
supervis j-on depart.ment j-n accorda.nce with                                                   Tex.     Code

Crim. P. Art. 42.I2 SS 9(a), (g)-                                             RR   p" 10. Appellant
called             One witness,                 and bot.h sides made a closing
argument            ., RR pp . 6-28. Appellant made no                                      ob   j ection to

evidence or exhibits                            of f ered by the sta.Le, and the

trial         judge sentenced Appellant to four (4) years to
serve in the institutional                                 division of TDCJ. RR pp.
28-29.
     The trial     court was the fact finder for purposes of
the punishment, decis j-on. The evidence befo.re the court
was substantial.         The judge's remarks following the
cl-oseof evidence indicate the circumstances taken in
         r


consideration related to the sentence assessed i-n open
court.       KK p. zY.
                   AA
                                                          III.

         ]NE F]IECT ]VE ASSISTANCE                           OF TRIA], COUNSE:L IS           NOT


         A VIABLE CLAIM BASED UPON THE                                           RECORD BEFORE

         THIS        COURT




         Clalrns of ineffective                                  assistance of counsel are
ane
srrs+J I ttz.ed
           sve  rrnder                 the two-prong test set ouL by the United
States        Supreme                  CourL in Strickf ancl v. Washington,                          466

u.   s. 668 (1984                  )   t   -nA
                                           d-IIL,l   =Ann{- 66l
                                                     A\l\-/YUs\r   krrz T(rxF
                                                                   PI   r\r^sr   S in   Hef nandeZ    V.

State     ,          '7
                          26           S.W.2d 53,                  51       (Tex.Crllm.App-1986)        -



AppeIlant- must show that. trial- counsel-'s performance
was def ici-enL, that is, counsel' s representation f el-l
below an objective standard of realionableness.                                              Thompson

v. State,, 9 S"W.3d BOB, BI2 (Tex.Crj-m-App.1999)'
         Anncl I ant must also                            show that counsel..'s def icient
narfrrrm-arr..a
I./(=r rv!rllqrrve
                               nror
                               -y- vJ
                                      rrri'i r:ccl      his defense.               Strickfand,       466

U.   S   . at         68-l     ; Jackson v. State,871                              S.W"2d 168,11I
 (Tex. Crirn.App .1994)                        .        This requ:Lres Appellant                     show

there is   a reasonable probability the;Lt, but f or
counsel-'s unprofessional errors, the result of the
proceeding would have been different                                        Strickland,        466

U.S. at 694; Jackson, Bll S.Vf.2d ert 77I- A                                      reasonabl-e

probability         j-s a probability                  suf f icient            iEo undermine

confidence in the outcome.                             StrickTand,             466     U.   S. at
694; Jackson, 871 S"W.2d at 11I.
     In reviewinq an ineffective                            assistance of counsef
claim, Lhere is a strong presumption t.hilt Counsel 's
conduct      f   alls    wit.hin the wide l:ange of                               reasonable

professiqnal assistance and the apF,ellant must overcome
the pres'umption that the chal-lenged conduct might                                              be

cons j-dererd     sound trial-        strategy.               Thompson,'         9   S . W.   3d at

813; StrickTand, 466                  U.   S. at 689. Any allegation                             of

inef f ecti-veness          mus   t         be          !f fr !rLLrJ
                                                              rfr    | \7     f ,cunded         and

af f irmat   j-veIy demonstrated                 j-n    the record to overcome
t,his presumption.                Thompson,             9 S.W.3d at 813; see
Jackson, 871 S.W.2d at, 11I. It                                    is the Appel-lant 's
burden to'prove ineffective                       assistance of counsel- by                       a

prepondel:ance          of the evldence. Id-
    Atthequilt/innocencephase.lfhist.rialwherein
he entered. a plea of "gui LLy , " Appellant was informed

                                             10
by the tr:j-al- court of his various choices :::egardi-ng his
rights             to plead "not guilty"                       and the presumption of
innocencer and applicabl-e burden of proof . RR pp. 6-10.
Af       n/a nn.in1-        rlrrrinrr
                            vu--.,y     Fn\/   ^f
                                               \JJ-   rlra
                                                      LLIs   nrna6'p6linCrS
                                                             yr\-/\/t;surrrye   in
                                                                                f,-tr   this   CaUSe
f\L      IIU F)U-LIf L


r-li.l Annel I ant aSSert to the tri-a-L court that he
VIV
                                                                                                 was

unhappy \Mj-th t.he performance and representatj-on of his
trial         co'unsel,            Mt . Sanders        .     Appell-ant pl.eaded guilty
freel-y alld voluntarily after being proper1-y                                          admonished

of the prunishment range, RR pp. 6-10.                                          Based on t,his

-n^n-A
Ig\-L./I\rt
                      nA
                      IIv    legitimate non-f rivolous basi.s exists to
:rrrr'ra
s!Yuv         i-   r-i :l   counsel was constitutionally ineffect'ive.




                                                        11
                                            IV.

                NO OTHER ARGUABLE ERROR WAS COMMI]'TED



          Counsel has scrutini-zed the ::ecord and f ound                          no

arguabl_e error .                There are no j urisdictional              def ects   -



There are no non- j urisdictional                      def   ects a:rising at or
      ant-rrr
-€rar E.tr
o.I LgI    t-J- y           ho nl ea.
                  r'.,f t.uf,rv
                  v!                        See Jack v. State.>, BlI S.W.2d

1   4t    (Tex . Cr " App . Lgl 4)   .     The indic    L.menL   was suf f icient
to suppor:t the convict ion - CR, p'                    5'

          Because this appeal- stems from Appel-l-ant's entry of

a plea of             "Gui   lty"        and a rath,er brie:f           punishment

hearing, ho           mot   j-ons were made by Appell-ant at the trial-

level,        a.nd.   no pretrial          rulings      etdverse to Appellant

were made. Appellant. was found competent. RR pp. 9-
10.        There was evidence to support; Appell-ilnt's plea of
"Guilty.'''        RR   pp. 6-1 .         No fundamer:rtal- error existed at

any point              during        the     trial .     The tr::ial        court's

cer:tificiation             of      Defendant's Right            of    Appeal     was

inaccura'te, CR p. 36, and the tria.I court                           ,amended   it to

reflect         its     certification             of   Appellant's        right     to


                                             t2
appeal   . SCR' p. 3. The written Judgment Nlunc Pro Tunc
reflectedi the sentence that was imposed and credit
toward thLat sentence was properly al?pfied, lscR p- 4-6-




                              13
                      STATEIVIENT          OF ATTORNEY TO THE          COUTTT


             This brief is             f   iled by counsel appolnted by the
court to represent appellant on arppeal i:n accordance
with Anders v. Cal-ifornia, 385 U.S. 738 (1961), and
currie          v.       state,        516 S.W.2d 684l (Tex"Cr.App-t974).
Counsel has also                   f   if ed with this              Court a Mot'ion to
withdraw as court                          Appoint.ed cou.nsel- orx Appeal in
accordance with the procedures as standards set out in
Jef'f ery \/. State, 903                    S.W.   2d    11   6 (llex.App " --Dallas   ]-995   ,


no pet. ) .        thorough examina.t j-on of the clerk' s
                          Af ter

record and reporter's record, counsiel can f ind no point
of error that can be supported by the record'                                     Counsel

has discussed t,he evidence and the documents in t'he
ra^r'rrril
IgU\Jl-\lt      r--i urrr\J
                \/I          rof crences to the records
                     I i nrr rv!v                                       -




                                                    t4
                                PRAYER




    Whe   re fore   ,   premises considered, t.he undersigned
counsel requests the Court of Appeals revj-ew the record
on appeal, consider the Motion t.o Withdraw as Court
Appointed Counsel with supporting a.f f j-davit., review the
foreqoing Brief in Support of Moti-on to Wi-thdraw, and
grant the Motion to Withdraw-


                             RespecLfully submittedi,



                             SBOT   No. 2406991 6
                             136-A Hwy 259 N.
                             Kilgore, TX 1f;662
                             Phone: 903-65 4-3362
                             Fax:    BI7 -BB7-4333
                             Email: jef ftjacksonlarnrGgmail-   -   com


                             Attorney for     APPelTant:,
                                          Mark Victor Dheif




                                     15
                 CERTTFICATE OF COMPT,TANCE

    The foregoing Appellant's           Brief     is in compliance

with TEX. R. APP. P.    g .4   (i) (2) (B) .    The total number of

words contained in      Appel-lant' s llrief         ttrat' are not

speci f i cal Iy excl-uded f rom t,he word count under           TEX   '   R   '

APP. P. 9.4 (i) (1) is 1,555 words-



                                Jef f T. Jeickson
                                SBOT  No. 24069976
                                Atto rney f o r APPe lant
                                                      -'L    ,
                                     Ma rk Victo r D.he if




                                   16
                 CERTTFICATE OF SER\/ICE


     II the undersigned attorney, do he::eby certify
that a true and correct copy of the above Motion was
served ol:t the State of Texas by mailing same to the
District Attorney of Rusk County on January 26, 2015 -



    I further certj-fv that I have mai-led a. copy of the
above Brief by First    class Mait, Postage paid, to
Appell-ant, Mark Victor Dheil, at the ad'Cress list'ed
above on the same date.
                                 /// /t
                                 4kr
                          Jeff T. Jackson




                            17
