In The FIFTH COURT OF APPEALS. Dallas, Texas )( )( )( )( BRIEF IN SUPPORT OF MOTION TO WITHDRAW

Transcription

1 In The FIFTH COURT OF APPEALS Dallas, Texas 5th Court of Appeals FILED: 3/21/11 14:00 Lisa Matz, Clerk KAAREAM G. WASHINGTON, Appellant Vs. THE STATE OF TEXAS Appellee Nos CR, CR, BRIEF IN SUPPORT OF MOTION TO WITHDRAW TO THE HONORABLE COURT OF APPEALS: The undersigned attorney files this Brief in Support of Motion To Withdraw. Robert E. Fitzgerald SBN N. Zang Blvd. Dallas, TX Tel: (214) Fax: (214 ) r.fitzl C2il.verizon.net ATTORNEY FOR APPELLANT BRIEF IN SUPPORT OF MOTION TO WITHDRAW- Page 1

2 IDENTITY OF PARTIES & COUNSEL Kaaream Washington Appellant Robert E. Fitzgerald SBN N. Zang Blvd. Dallas, TX Attorney for Appellant BRIEF IN SUPPORT OF MOTION TO WITHDRAW- Page 2

3 TABLE OF CONTENTS IDENTITY OF PARTIES & COUNSEL... 2 INDEX OF AUTHORITIES... 4 STATEMENT OF THE CASE... 5 INDICTMENTS... 6 MOTION TO PROCEED TO ADJUDICATE GUILT... 6 SENTENCES... 7 EFFECTIVE ASSISTANCE OF COUNSEL... 8 POSSIBLE POINTS OF ERROR... 9 PRAYER... 9 CERTIFICATE OF SERVICE BRIEF IN SUPPORT OF MOTION TO WITHDRAW- Page 3

4 INDEX OF AUTHORITIES Cases Ex Parte Williams, 703 S.W.2d 674 (Tex.Crim.App.1986)... 8 Jack v. State, 871 S.W.2d 741 (Tex.Crim.App.1994)... 8 Manuel v. State, 994 S.W.2d 658 (Tex.Crim.App.1999)... 6 Statutes & Codes Sec , Texas Penal Code... 7 Sec , Texas Penal Code... 7 Sec , Texas Penal Code... 7,8 Sec , Texas Penal Code... 7 Sec , Texas Penal Code... 6 Sec , Texas Penal Code... 6,7 BRIEF IN SUPPORT OF MOTION TO WITH ORA W- Page 4

5 STEMENT OF THE CASE Nature ofthe Cases: In case No. F M, Appellant was charged with the offense of aggravated assault. 1 In Case No. F M, Appellant was charged with the offense of aggravated robbery? Course of Proceedings: In case No. F M, Appellant pleaded guilty to the offense and true to one enhancement paragraph in a plea bargain agreement. 3 In Case No. F , Appellant pleaded guilty to the offense and true to the enhancement paragraph. 4 In Case No. F M, The State of Texas filed a motion to proceed to adjudicate guilt. 5 The Appellant pleaded true to the allegations contained in the motion. 6 Appellant filed his notice of appeal in each case. 7 Trial Court Disposition: In case No. F M, the trial court adjudicated Appellant guilty of the offense and assessed a sentence of fifteen (15) years in the Institutional Division of the Texas Department of Criminal Justice. 8 In case No. F M, the trial court found Appellant guilty and assessed his punishment at thirty-five (35) years in the Institutional Division of the Texas Department of Criminal Justice. 9 The sentences in the two cases are to run concurrently (No CR: Clerk's Rec: 002) 2 (No CR:Clerk's Rec:002) 3 (No CR: Clerk's Rec: 0024,0028; Reptr's Rec:Vol.2:5-7) 4 (No CR: Clerk's Rec: 0021,0025: Reptr's Rec: Vol. 3:5,7; Vol.4:5-6) 5 (No CR: Clerk's Rec: 006,037) 6 (No CR: Clerk's Rec:044: Reptr's Rec: Vo1.3:7) 7 (No CR: Clerk's Rec:052; No CR: Clerk's Rec:031) 8 (No.05-I CR:Clerk's Rec: 027; Reptr's Rec: Vol.4:69) 9 (No.05-I CR: Clerk's Rec: 027; Reptr's Rec: Vol.4:69) 10 (No CR: Clerk's Rec: 021) BRIEF IN SUPPORT OF MOTION TO WITHDRAW- Page 5

6 THE INDICTMENTS A. Cause No. FOS M: Aggravated Assault Appellant did not appeal the order of Deferred Adjudication that was entered on September 8, 2009, in the above referenced case. He therefore cannot raise issues relating to the original proceeding when deferred adjudication was first imposed. 11 Any issues relating to the indictment cannot be raised. B. Cause No. F M: Aggravated Robbery The indictment sets forth the requisite elements of the o±iense as found in Sec and Sec , Texas Penal Code. Moreover, Appellant did not file a motion to quash the indictment nor did he file special exceptions to the indictment. The indictment gave Appellant sufficient notice of the nature of the charges against him. MOTION TO PROCEED TO ADJUDICATE GUILT The State's Motion To Proceed to an Adjudication of Guilt alleged that Appellant violated conditions A, J, and M of the Order of Deferred Adjudication. 12 Appellant pleaded true to violation of condition A of the Order of Deferred Adjudication. 13 Appellant did not file a motion to quash the motion to proceed to an adjudication of guilt nor did he file any special exceptions to the motion. Appellant waived any complaint regarding the motion to proceed to an Adjudication of Guilt. 11 Manuel v. State, 994 S. W.2d 658, (Tex.Crim.App.l999) 12 (No. 05-\0-0057\0-CR: Clerk's Rec: 037) 13 (No \-CR: Clerk's Rec: 044; Reptr's Rec: Vol.3:7) BRIEF IN SUPPORT OF MOTION TO WITHDRAW- Page 6

7 SENTENCES A. FOS M: Aggravated Assault Aggravated Assault is a second degree felony. 14 The range of punishment for a second degree felony is for a term of not more than 20 years or not less than 2 years. 15 Appellant pleaded guilty to the offense. 16 Appellant also pleaded true to an enhancement paragraph admitting that he had previously been convicted of a felony. 17 In such instances the range of punishment is enhanced to that of a first degree felony, i.e., life imprisonment or for a term of not more than 99 years but not less than 5 years. 18 Appellant pleaded true to the State's Motion To Proceed to an Adjudication of Guilt, admitting that he had committed the ofiense of aggravated robbery while on community supervision. 19 Appellant received a sentence of 15 years imprisonment which is within the range of punishment for a second degree felony enhanced with one prior felony conviction. 20 B. F M: Aggravated Robbery Aggravated robbery is a first degree felony. 21 The range of punishment for a first degree felony is life imprisonment or for a term of not more than 99 years but not less than 5 years. 22 Appellant pleaded guilty to the offense. 23 Appellant also pl1;::aded true to an enhancement paragraph alleging he had previously been convicted of a felony offense? 4 The finding that Appellant had previously been convicted of a felony conviction raises the minimum 14 Sec (b), Texas Penal Code 15 Sec.l2.33(a), Texas Penal Code 16 (No CR: Clerk's Rec.024,028; Reptr's Rec:Vol.2:5) 17 (No CR: Clerk's Rec:024,028; Reptr's Rec. Vol.2:8) IR Sec.l2.42(b), Texas Penal Code 19 (No.05-l CR: Clerk's Rec.044: Reptr's Rec.Vol.3 :7) 20 (No CR: Clerk's Rec.027; Reptr's Rec.Vo.4:69) 21 Sec.29.03(b), Texas Penal Code 22 Sec.l2.32(a), Texas Penal Code 2 ' (No CR: Clerk's Rec.021,025: Reptr's Rec. Vol.3:5) 24 (No.05-l CR: Clerk's Rec.004,02l: Reptr's Rec. Vol.4:5-6) BRIEF IN SUPPORT OF MOTION TO WITH ORA W- Page 7

8 punishment from 5 years to 15 years. 25 Appellant received a sentence for this offense of 3 5 years imprisomnent which is within the range of punishment. 26 The sentence to run concurrently with the one received in F O-M. 27 EFFECTIVE ASSISTANCE OF COUNSEL Appellant acknowledged that he understood his rights; that he understood the admonitions and warnings contained in the plea agreement; and that he made his plea knowingly, freely, and voluntarily with the full understanding of the consequences? 8 Appellant expressed no confusion, hesitation, or misgivings about his plea of guilty to each of the four charges against him. All non-jurisdictional defenses and defects were waived up to the plea of guilty. Ex Parte Williams, 703 S.W.2d 674 (Tex.Cr.App.l986) During the punishment hearing, the Appellee presented two victims of the aggravated robbery as well as the investigating detective. Each of the complaining witnesses succinctly testified to facts supporting the allegations contained in the indictments against Appellant. Trial counsel wisely avoided reinforcement of damaging testimony by only briefing cross-examining the witness or by choosing not to examine them at all. Appellant could raise matters on appeal that occurred at or after the entry of the guilty pleas, but he made no objections during the punishment hearing, except one hearsay objection which was sustained by the court. Jack v. State, 871 S.W.2d 741 (Tex.Cr.App.l994) Thus, all claims of error were waived. 25 Sec.l2.42( c 1 ), Texas Penal Code 26 (No CR: Clerk's Rec.027: Reptr's Rec.Vo\.4:69) 27 (No CR: Clerk's Rec.021) 2 ~ Rcptr's Rec. Vol.2: 5, 7-9;Vol.3: 5-6,9) BRIEF IN SUPPORT OF MOTION TO WITHDRAW- Page 8

9 Trial counsel attempted to show the court that Appellant's actions were due to a childhood marred by violence and death. 29 Trial counsel did not render ineffective assistance of counsel based on this record. POSSIBLE POINTS OF ERROR Based on the examination of the record, counsel for Appellant did not find any possible points of error. PRAYER FOR THESE REASONS, appointed counsel for Appellant asks the court to allow him to withdraw from representation of Appellant. Respectfully submitted, " - -;;;;~ ~-~~--._ {(4::~/Ltf:' Robert E. Fitzgerald (#0708:8'700) 900 N. Zang Blvd. Dallas, TX Tel: (214) Fax: (214) r.fitz I!Lihcrizon.nct " 9 Rcptr's Rec.Vo1.4: BRIEF IN SUPPORT OF MOTION TO WITHDRAW- Page 9

10 CERTIFICATE OF SERVICE I hereby certify th~t a true and correct copy of the foregoing Brief in Support of Motion To Withdraw has this -,, 1 f day of March, 2011, been forwarded to Dallas County District Attorney, Appellate Section, LB 19, 133 N. Riverfront Blvd., Dallas., TX ,,,.- ~.Lc L~A--~- t '2-. <-;.CJJ0-~.... ~-(~{:~ Robert E. Fitzgerald J/ BRIEF IN SUPPORT OF MOTION TO WITHDRAW- Page 10