                                                                                  ACCEPTED
                                                                             12-15-00020-CR
                                                                  TWELFTH COURT OF APPEALS
                                                                              TYLER, TEXAS
                                                                        3/6/2015 10:39:40 AM
                                                                                CATHY LUSK
                                                                                      CLERK

                       12-15-00020-CR

                                                             FILED IN
                                                      12th COURT OF APPEALS
          IN THE TWELFTH COURT OF              APPEALS TYLER, TEXAS
                    TYLER, TEXAS                      3/6/2015 10:39:40 AM
                                                           CATHY S. LUSK
                                                               Clerk

              ROBERT MITCHELL DEAN, JR.

                                Appellant,

                               v.

                   THE STATE OF TEXAS

                                    Appellee



On Appeal from the Seventh District Court of Smith County, Texas
                 Trial Cause No. 007-1251-14




          ORAL ARGUMENT NOT REQUESTED


                           Austin Reeve Jackson
                           Texas Bar No. 24046139
                           112 East Line, Suite 310
                           Tyler, TX 75702
                           Telephone: (903) 595-6070
                           Facsimile: (866) 387-0152
                   IDENTITY OF PARTIES AND COUNSEL


Attorney for Appellant

Appellate Counsel:
Austin Reeve Jackson
112 East Line, Suite 310
Tyler, TX 75702

Trial Counsel:
John JHarvis
326 S. Fannin
Tyler, TX 75702

Attorney for the State on Appeal

Michael J. West
Assistant District Attorney, Smith County
4th Floor, Courthouse
100 North Broadway
Tyler, TX 75702




                                            ii
                                          TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................................. ii
TABLE OF CONTENTS............................................................................................... iii
INDEX OF AUTHORITIES ......................................................................................... iv
STATEMENT OF THE CASE....................................................................................... 2
ISSUES PRESENTED ................................................................................................... 2
STATEMENT OF FACTS ............................................................................................. 2
SUMMARY OF THE ARGUMENT ............................................................................. 3
ARGUMENT .................................................................................................................. 3

    I.      JURISDICTION ............................................................................................. 4

    II.     WAIVER OF TRIAL BY JURY ................................................................... 4

    III. APPELLANT'S PLEA ................................................................................... 5

    IV. APPELLANT'S STIPULATION .................................................................. 7

    V.      PUNISHMENT ............................................................................................... 8

    VI. EFFECTIVE ASSISTANCE OF COUNSEL .............................................. 9

CONCLUSION AND PRAYER .................................................................................. 10
CERTIFICATE OF SERVICE ..................................................................................... 10
CERTIFICATE OF COUNSEL ................................................................................... 11
CERTIFICATE OF COMPLIANCE ............................................................................ 11




                                                            iii
                                  INDEX OF AUTHORITIES


UNITED STATES SUPREME COURT:

Anders v. California,
 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) .................................... 3, 10, 11

Brady v. Alabama,
 397 U.S. 742, 25 L.Ed.2d 747, 90 S.Ct. 1463 (1970) .................................... 5

Strickland v. Washington,
  466 U.S. 668, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1984) .................................. 9


TEXAS COURT OF CRIMINAL APPEALS:

Barfield v. State,
 63 S.W.3d 446 (Tex.Crim.App. 2001) .......................................................... 7

Eatmon v. State,
 768 S.W.2d 310 (Tex.Crim.App. 1989) ........................................................ 6

Ex parte Sadberry,
 864 S.W.2d 541 (Tex.Crim.App. 1993) ........................................................ 5

Ganious v. State,
 436 S.W.2d 137 (Tex.Crim.App. 1969) ........................................................ 2

Hernandez v. State,
 988 S.W.2d 70 (Tex.Crim.App. 1999) .......................................................... 9

Johnson v. State,
  614 S.W.2d 148 (Tex.Crim.App. 1981) ........................................................ 9

Johnson v. State,
  72 S.W.3d 346 (Tex.Crim.App. 2002) .......................................................... 5

Martinez v. State,
 981 S.W.2d 195 (Tex.Crim.App. 1998) ........................................................ 7

                                                    iv
TEXAS COURT OF CRIMINAL APPEALS (CON’T):

McKenna v. State,
 493 S.W.2d 514 (Tex.Crim.App. 1972) ........................................................ 8

Monreal v. State,
 99 S.W.3d 615 (Tex.Crim.App. 2003) .......................................................... 4

Moore v. State,
 694 S.W.2d 528 (Tex.Crim.App. 1985) ........................................................ 9

Miniel v. State,
 831 S.W.2d 310 (Tex.Crim.App. 1992) ........................................................ 9

Murray v. State,
 302 S.W.2d 874 (Tex.Crim.App. 2009) ........................................................ 4

Rhodes v. State,
 934 S.W.2d 113 (Tex.Crim.App. 1996) ........................................................ 8

Stafford v. State,
  813 S.W.2d 503 (Tex.Crim.App. 1991) ........................................................ 10

Stone v. State,
  919 S.W.2d 424 (Tex.Crim.App. 1996) ........................................................ 7

Young v. State,
 8 S.W.3d 656 (Tex.Crim.App. 2000) ............................................................ 3


TEXAS COURTS OF APPEAL:

Brink v. State,
 78 S.W.3d 478 (Tex.App.—Houston [14th Dist.] 2001) ............................... 4

Castaneda v. State,
 135 S.W.3d 719 (Tex.App.—Dallas 2003) ................................................... 8

Edwards v. State,
 921 S.W.2d 477 (Tex.App.—Houston [1st Dist.] 1996) ............................... 7

                                                    v
TEXAS COURTS OF APPEAL (CON’T):

Guidry v. State,
 177 S.W.3d 90 (Tex.App.—Houston [1st Dist.] 2005) ................................. 4

Kirk v. State,
 949 S.W.2d 769 (Tex.App.—Dallas 1997) ................................................... 8

Lord v. State,
 63 S.W.3d 87 (Tex.App. – Corpus Christi 2001) .......................................... 6, 8

Mays v. State,
 904 S.W.2d 290 (Tex.App.—Fort Worth 1995) ............................................ 3


STATUTES:

TEX. CODE CRIM. PROC. art. 1.13 ...................................................................... 4, 5

TEX. CODE CRIM. PROC. art. 1.15 ...................................................................... 7

TEX. CODE CRIM. PROC. art. 4.05 ...................................................................... 4

TEX. CODE CRIM. PROC. art. 26.13 .................................................................... 5, 6

TEX. HEALTH & SAFETY CODE § 481.115 ........................................................ 4, 7, 8

TEX. PEN. CODE § 12.425 .................................................................................. 8

TEX. R. APP. P. 25.2 .......................................................................................... 4

TEX. R. APP. P. 33.1 .......................................................................................... 8




                                                            vi
                                12-15-00020-CR


                  IN THE TWELFTH COURT OF APPEALS
                            TYLER, TEXAS


                      ROBERT MITCHELL DEAN, JR.

                                       Appellant,

                                      v.

                             THE STATE OF TEXAS

                                           Appellee



       On Appeal from the Seventh District Court of Smith County, Texas
                        Trial Cause No. 007-1251-14




TO THE HONORABLE JUSTICES OF THE COURT:

      COMES NOW, Austin Reeve Jackson, attorney for Robert Dean, and files

this brief pursuant to the TEXAS RULES OF APPELLATE PROCEDURE, and would

show the Court as follows:
                         STATEMENT OF THE CASE

      Robert Dean seeks to appeal his conviction and sentence for the offense of

possession of a controlled substance. (I CR 60). Mr. Dean was indicted for this

offense in the Seventh District Court of Smith County, Texas in October of 2014

and, in response, elected to enter an open plea of “guilty.” (I CR 4, 60). In

January of this year Mr. Dean was sentenced by the trail court to serve a term of

twelve years’ confinement. (I CR 60). Sentence was pronounced on 16 January

and notice of appeal then timely filed. (I CR 59, 60).

                              ISSUES PRESENTED

      Counsel has reviewed the appellate record in this cause and reluctantly

concludes that as a matter of professional judgment the record contains no

reversible error and no jurisdictional defects are present. Where counsel concludes

that there are no arguable grounds for reversal, he is required to present a

professional evaluation of the record demonstrating why there are no arguable

grounds to be advanced. Ganious v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969).

                           STATEMENT OF FACTS

      In the fall of 2014, Appellant, Mr. Robert Dean, was indicted for the felony

offense of possession of a controlled substance in the Seventh District Court of

Smith County. (I CR 4). In addition to the primary allegation, the indictment




                                         2	  
returned against him also included allegations of two prior felony convictions.

(Id.).

         To this charge Mr. Dean elected to enter a plea of “guilty” without the

benefit of a plea agreement. (I CR 60). The trail court, after accepting the plea,

found Mr. Dean guilty and pronounced sentence at a term of twelve years’

confinement. (Id.). Sentence was pronounced on 16 January and notice of appeal

then timely filed. (I CR 59, 60).

                           SUMMARY OF ARGUMENT

         In accordance with the requirements of Anders v. California, 386 U.S. 738,

744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967), counsel has reviewed the record

and determined that, in his professional opinion, the record contains no reversible

error or jurisdictional defects. Under circumstances where there appears to be no

arguable grounds for reversal on appeal, counsel is required to present a

professional evaluation of the record supporting this assertion. See Mays v. State,

904 S.W.2d 290, 922-23, (Tex.App.—Fort Worth 1995, no pet.).

                                    ARGUMENT

         Mr. Dean entered a plea of “guilty” to the charged offense. (I CR 60). A

valid guilty plea waives a defendant’s right to appeal a claim of error when the

judgment of guilt was rendered independently of, and is not supported by, the

alleged error. See Young v. State, 8 S.W.3d 656, 666-67 (Tex.Crim.App. 2000),



                                          3	  
superseded in part by TEX. R. APP. PROC. 25.2(b) as stated in Monreal v. State, 99

S.W.3d 615 (Tex.Crim.App. 2003). Thus, for a defendant to be successful on

appeal he must be able to demonstrate a nexus between the alleged error and the

judgment of guilt. Guidry v. State, 177 S.W.3d 90, 93 (Tex.App.—Houston [1st

Dist.] 2005, no pet.); Brink v. State, 78 S.W.3d 478, 484 (Tex.App.—Houston

[14th Dist.] 2001, pet. ref’d).

      I. JURISDICTION

      As indicted the offense with which Mr. Dean was charged was a felony

offense.   TEX. HEALTH & SAFETY CODE § 481.115.              Therefore, jurisdiction

properly rested with the Seventh District Court of Smith County, Texas. See TEX.

CODE CRIM. PROC. Art. 4.05 (Vernon 2007) (stating that district courts shall have

original jurisdiction in felony criminal cases); Murray v. State, 302 S.W.2d 874,

877 (Tex.Crim.App. 2009). Additionally, because it alleged all of the essential

elements of the offense charged, the indictment returned in this case provided Mr.

Dean with sufficient notice of the offense she alleged to have committed. (I CR 4).

Consequently, no error regarding the trial court’s jurisdiction can be advanced.

      II. WAIVER OF TRIAL BY JURY.

      Article 1.13 of the Texas Code of Criminal Procedure provides that a

defendant may waive her right to trial by jury if that waiver is made in writing,

joined by the State, and approved and accepted by the trial court. TEX. CODE



                                         4	  
CRIM. PROC. art. 1.13 (Vernon 2007). A waiver meeting all of these statutory

requirements was filed in the case currently before the Court. (I CR 41).

      Prior to accepting this waiver the trial court ensured that the waiver was

freely and knowingly made by inquiring into whether Mr. Dean understood various

rights and options available to him including the right to have the issues of guilt

and punishment resolved by a jury, the right to make the State prove its case

against him beyond a reasonable doubt, and the right to call and cross-examine

witnesses. (II RR 17-19). Additionally, the court ensured that at the time he made

the waiver Mr. Dean was not under the influence of any controlled substance and

had had sufficient time to consult with his attorney. (II RR 19-20.). Ex parte

Sadberry, 864 S.W.2d 541, 543 (Tex.Crim.App. 1993). The record created as a

result of the trial court’s investigation into these issues, coupled with its

compliance with Article 1.13, has resulted in appellate counsel’s inability to

identify any non-frivolous error to be advanced on appeal regarding this issue.

Johnson v. State, 72 S.W.3d 346, 349 (Tex.Crim.App. 2002).

      III. APPELLANT’S PLEA.

      Like a waiver of the right to trial by jury, to have been validly made a

defendant’s plea of “guilty” must be freely, knowingly, and intelligently made.

See TEX. CODE CRIM. PROC. ANN. art. 26.13 (Vernon 2007); Brady v. United

States, 397 U.S. 742, 749, 25 L.Ed.2d 747, 90 S.Ct. 1463 (1970). Article 26.13 of



                                         5	  
the Code of Criminal Procedure defines the steps a trial court must take before

accepting a plea in order to ensure that it is, in fact, being voluntarily made. TEX.

CODE CRIM. PROC. ANN. art. 26.13. If a trial court substantially complies with

these steps a prima facie case is established that the plea was validly entered.

Eatmon v. State, 768 S.W.2d 310, 312 (Tex.Crim.App. 1989).                  “Substantial

compliance exists when the trial court has undertaken to admonish the defendant,

the sentence given was within the range prescribed by law, and the defendant has

failed to affirmatively show harm.” Lord v. State, 63 S.W.3d 87, 90 (Tex.App.—

Corpus Christi 2001, no pet.).

      In this instance, the trial court substantially complied with Article 26.13. As

noted, before accepting her pleas the trial court admonished Mr. Dean as to the full

range of punishment in this case, the right to remain silent, the right to trial by jury,

and the consequences of waiving those rights. (II RR gen.). The court also

inquired as to whether Mr. Dean had had sufficient time to consult with counsel

and whether he was being forced or coerced into entering her plea. (II RR 33-34,

37). At no time did Mr. Dean indicate that his plea was anything other than freely

and knowingly made. (Id.). Additionally, Mr. Dean filed a series of written

waivers and admonishments that reflected the same topics and responses discussed

between he and the court. (I CR 36-41).




                                           6	  
      Under such circumstances, counsel has been unable to make a non-frivolous

argument that the presumption that there was no irregularity in the trial court’s

acceptance of either plea could be overcome. Edwards v. State, 921 S.W.2d 477,

479 (Tex.App.—Houston [1st Dist.] 1996, no pet.); See also Martinez v. State, 981

S.W.2d 195, 197 (Tex.Crim.App. 1998).

      IV. APPELLANT’S STIPULATION

      Article 1.15 of the Texas Code of Criminal Procedure requires the State to

introduce some evidence showing the guilt of the defendant in support of a guilty

plea. TEX. CODE CRIM. PROC. art. 1.15 (Vernon 2007). After being offered and

admitted without objection a stipulation of evidence and judicial confession

embracing all of the essential elements of the offense and enhancements charged is

sufficient to support the plea.    See Barfield v. State, 63 S.W.3d 446, 450

(Tex.Crim.App. 2001); Stone v. State, 919 S.W.2d 424, 427 (Tex.Crim.App.

1996).

      The essential elements of the offense at issue are found in the Section

481.115 of the Health and Safety Code.          TEX. HEALTH & SAFETY CODE §

481.115(b); (I CR 4). In support of his plea to this offense the State offered a

signed “Stipulation of Evidence” in which Mr. Dean admitted the truth of all of the

elements of the offense charged and to the validity of the alleged two prior felony

convictions. (I CR 39).



                                        7	  
      These stipulations constitute a judicial confession to all of the essential

elements of the offense. McKenna v. State, 493 S.W.2d 514, 515 (Tex.Crim.App.

1972). A judicial confession provides sufficient evidence to support the judgment.

Lord, 63 S.W.3d at 92.       Therefore, there was legally and factually sufficient

evidence to support the trial court’s finding of guilt.

      V. PUNISHMENT.

      As alleged, the offense of possession of a controlled substance is a state jail

felony. TEX. HEALTH & SAFETY CODE § 481.115(b); (I CR 4). However, because

he had twice before been convicted of felony offenses, the punishment range was

enhanced to that of a second degree felony. TEX. PEN. CODE § 12.425(b).

      Mr. Dean was sentenced to serve a twelve-year sentence. (I CR 60). At the

time that sentence was imposed no objection was raised as would be required in

order to preserve any error for purposes of the direct appeal. See TEX. R. APP.

Proc. 33.1(a)(1); Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996);

Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.—Dallas 2003, no pet.).

However, even if an objection had been raised, a sentence within the statutory

punishment range for the offense, as this sentence is, is presumptively not

constitutionally cruel and unusual under these circumstances. Kirk v. State, 949

S.W.2d 769, 772 (Tex.App.—Dallas 1997, pet. ref’d).




                                           8	  
      Consequently, there exists no non-frivolous error to be advanced on the

issue of punishment.

      VI. EFFECTIVE ASSISTANCE OF COUNSEL.

      Effective assistance of counsel is to be evaluated under the standard

enunciated in Strickland v. Washington, 466 U.S. 668, 105 S.Ct. 1965, 85 L.Ed.2d

344 (1984); see also, Hernandez v. State, 988 S.W.2d 70 (Tex.Crim.App. 1999).

To prevail on a claim of ineffective assistance of counsel, a defendant must show

(1) that his trial counsel’s performance fell below an objective standard of

reasonableness, and (2) that a reasonable probability exists that, but for trial

counsel’s alleged errors, the result would have been different. Strickland, 466 U.S.

at 687-88. On appeal, the defendant carries the burden of proving ineffective

assistance by a preponderance of the evidence. Moore v. State, 694 S.W.2d 528,

531 (Tex.Crim.App. 1985). Trial counsel’s performance is not to be judged with

the benefit of hindsight. Miniel v. State, 831 S.W.2d 310, 323 (Tex.Crim.App.

1992).

      With the Strickland standard in mind, counsel has reviewed the record

before the court and found no conduct that would rise to the level of rendering trial

counsel’s assistance ineffective. See, e.g., Johnson v. State, 614 S.W.2d 148, 152

(Tex.Crim.App. [Panel Op.] 1981) (holding that, on appeal, courts will not second-

guess reasonable trial decisions).



                                         9	  
                            CONCLUSION AND PRAYER

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

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

(Tex.Crim.App. 1991).

       WHEREFORE, PREMISES CONSIDERED, counsel prays that the Court,

after affording Mr. Dean the opportunity to review the record and file a pro se brief

should she desire to do so, accept this brief and grant the attached Motion to

Withdraw pursuant to Anders v. California, 386 U.S. 738, 18 L.Ed.2d 493, 87 S.Ct.

1396 (1967).

                                                       Respectfully submitted,

                                                       /s/ Austin Reeve Jackson
                                                       Texas Bar No. 24046139
                                                       112 East Line, Suite 310
                                                       Tyler, TX 75702
                                                       Telephone: (903) 595-6070
                                                       Facsimile: (866) 387-0152




                              CERTIFICATE OF SERVICE

       I certify that a true and correct copy of this brief was delivered to counsel for the

State by e-file concurrently with its filing in the Court.

                                                       /s/ Austin Reeve Jackson




                                              10	  
                           CERTIFICATE OF COUNSEL

       The attorney’s role as an advocate requires that I support my client’s appeal

to the best of my ability. Anders v. California, 386 U.S. 738. I, Austin Reeve

Jackson, counsel of record in this appeal, do hereby state that I have diligently

searched the entire record in this cause. I have researched the law applicable to the

facts and issues contained therein, and it is my professional opinion that the record

reflects no reversible error. In conformity with the applicable law pertaining to an

appeal of this nature, I have set forth any potential grounds of error and have

briefed them to the extent possible. I have further caused a copy of this brief to be

served by certified mail on Appellant, accompanied by a letter informing Appellant

of the right to examine the record for the purpose of filing a pro se brief.

                                                   /s/ Austin Reeve Jackson

                           CERTIFICATE OF COMPLIANCE

       I certify that this document complies with the requirements of Rule 9.4 and

consists of 2,203 words.

                                                   /s/ Austin Reeve Jackson
	  




                                          11	  
