CAUSE NOS CR and CR IN THE COURT OF APPEALS FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS DALLAS, TEXAS

Transcription

1 CAUSE NOS CR and CR IN THE COURT OF APPEALS FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS DALLAS, TEXAS 5th Court of Appeals FILED: 02/07/ :00 Lisa Matz, Clerk DANIEL LEE MORLEY Appellant V. THE STATE OF TEXAS Appellee On Appeal From Cause Numbers and In the 366 th Judicial District Court, Collin County, Texas Honorable Ray Wheless, Judge Presiding BRIEF FOR APPELLANT Kara M. Fitts Fitts & Castleman, P.C W. McDermott Drive, Suite 200 Allen, TX SBOT # ORAL ARGUMENT NOT REQUESTED

2 NAMES OF PARTIES Pursuant to Tex. R. App. P. Rule 38.1, the following is a complete list of the parties and persons interested in the outcome of this cause: (A) Daniel Lee Morley, the Appellant; (B) Daniel Lee Morley (pro se), counsel for Appellant at trial; (C) Kara M. Fitts, counsel for Appellant on appeal; (D) The State of Texas, by and through Gregory Willis, Collin County Criminal District Attorney, and his Assistant District Attorney at trial, Coleman Sylvan (E) The Honorable Ray Wheless, Judge Presiding. i

3 TABLE OF CONTENTS NAMES OF PARTIES... i TABLE OF CONTENTS... ii INDEX OF AUTHORITIES... iii STATEMENT OF THE CASE... 1 ISSUE PRESENTED... 2 STATEMENT OF FACTS... 3 SUMMARY OF APPELLANT S ARGUMENTS... 4 ARGUMENT AND AUTHORITY... 5 CONCLUSION AND PRAYER CERTIFICATE OF SERVICE ii

4 INDEX OF AUTHORITIES Statutes, Codes, and Rules TEX. CODE CRIM. PRO. art g... 6 TEX. CODE CRIM. PRO. art TEX. GOV T CODE ANN. SEC (d)... 7 Cases Federal Anders v. California, 386 U.S. 738 (1967)... 4 Barker v. Wingo, 407 U.S. 514 (1972) 9 Birdwell v. Skeen, 983 F.2d 1332 (5 th Cir. 1993)...8 Coughlan v. Starkey, 852 F.2d 806 (5 th Cir. 1988)... 5 United States v. Johnson, 527 F.2d 1328 (5 th Cir. 1976).4 State Blanco v. State, 18 S.W.3d 218 (Tex. Crim. App. 2000).. 7 Harris v. State, 827 S.W.2d 949 (Tex. Crim. App. 1992)...9 Jeffery v. State, 903 S.W.2d 776 (Tex. App. Dallas 1995)... 6 Johnson v. State, 885 S.W.2d 641 (Tex. App. Waco 1994)... 5 Kirvin v. State, 2011 WL (Tex. App. Dallas 2011)...7 Morley v. State, Memorandum Opinion, CR (Tex. App. Dallas 2011) 6 iii

5 Morganfield v. State, 919 S.W.2d 731 (Tex. App. San Antonio 1996)..8 Shankle v. State, 119 S.W.3d 808 (Tex. Crim. App. 2003) 6 Sheckles v. State, 122 S.W.3d 482 (Tex. App. Dallas 2003, no pet.).6 iv

6 IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS DANIEL LEE MORLEY APPELLANT Nos CR CR THE STATE OF TEXAS, APPELLEE APPEALED FROM CAUSE NUMBERS AND IN THE 366TH JUDICIAL DISTRICT COURT OF COLLIN COUNTY, TEXAS, THE HONORABLE RAY WHELESS, JUDGE PRESIDING. TO THE HONORABLE COURT OF APPEALS: STATEMENT OF THE CASE CHARGES... IMPERSONATION OF A PEACE OFFICER (X2) TEX. PENAL CODE CR 5 PLEA... GUILTY RR 24, CR 80 VERDICT (Judge)... GUILTY RR 42 PUNISHMENT (Judge)... YEARS IN TDCJ-CID RR 43 NOTICE OF APPEAL... FILED CR 9 1

7 ISSUE PRESENTED APPELLANT WAIVED HIS RIGHT TO APPEAL IN EXCHANGE FOR THE STATE OF TEXAS ABANDONING THE DEADLY WEAPON PARAGRAPH IN THE TWO ALLEGED CHARGES AND THE RECORD OF THE PROCEEDINGS REVEALS THAT THIS COURT LACKS JURISDICTIOON TO HEAR ANY NON-FRIVOLOUS MATTERS 2

8 STATEMENT OF FACTS Appellant, Daniel Lee Morley was charged with two counts of Impersonation of a Peace Officer for acts alleged to have occurred on or about July 31, C.R. p. 10. Appellant was offered a plea from the State on April 28, 2011 of five (5) years in TDCJ- CID, and the State further offered to abandon the deadly weapon enhancement. RR. Vol. 2, p. 4. Appellant was represented by counsel, James Whalen, at this hearing, and after questioning from counsel, Appellant declined the State s offer and requested that his case be set for trial. RR Vol. 2, p. 8. On September 21, 2011, Appellant s counsel, Mr. Whalen, filed a Motion to Dismiss Pursuant to Texas Criminal Code Section (IADA) and speedy trial. CR p. 17. On October 3, 2011, Appellant filed a motion to proceed pro se. CR p. 48. On October 6, 2011, a hearing was held to address the issues raised in that motion to dismiss, and also to address Appellant s additional request to represent himself at trial. RR Vol. 3, p. 6. After hearing testimony and argument, the judge denied Appellant s motion to dismiss and granted his request to represent himself at trial. RR Vol. 3, p. 28. On October 11, 2011, Appellant pled guilty to the two Impersonation of a Public Servant Charges. RR Vol. 4, p. 9-10, 24. As part of the plea bargain agreement that Appellant reached with the State of Texas, Appellant waived his right to appeal his cases, including his right to appeal the issues raised pretrial. RR Vol. 4, p. 9, 24. 3

9 SUMMARY OF THE APPELLANT S ARGUMENTS A court appointed attorney may not raise an issue in an appeal if he makes a conscientious examination of the case and finds the appeal to be wholly frivolous. Anders v. California, 386 U.S. 738, 744 (1967). To comply with Anders, counsel must isolate possibly important issues and furnish the court with references to the record and legal authorities to aid in its appellate function. United States v. Johnson, 527 F.2d 1328, 1329 (5 th Cir. 1976). After the appellant is given an opportunity to respond, the court makes a full examination of the record to detect whether the case is frivolous. Anders, 386 U.S. at 744. Appellant s counsel has reviewed the clerk s record and the reporter s record. Appellant s counsel has determined that there are no non-frivolous matters for appeal. 4

10 ARGUMENT AND AUTHORITIES APPELLANT WAIVED HIS RIGHT TO APPEAL IN EXCHANGE FOR THE STATE OF TEXAS ABANDONING THE DEADLY WEAPON PARAGRAPH IN THE TWO ALLEGED CHARGES AND THE RECORD OF THE PROCEEDINGS REVEALS THAT THIS COURT LACKS JURISDICTIOON TO HEAR ANY NON-FRIVOLOUS MATTERS Appellant s counsel has conducted a thorough review of the record of this appeal, and has been unable to find any non-frivolous error that the Court has jurisdiction to hear. A frivolous appeal is defined as an appeal in which the result is obvious or the arguments of error are wholly without merit. Coughlan v. Starkey, 852 F.2d 806, 811 (5 th Cir. 1988). An appeal is also frivolous when the only theories that the attorney can discover after a conscientious review of the record and the law are arguments that cannot conceivably persuade the court. Johnson v. State, 885 S.W.2d 641 (Tex. App. Waco 1994, pet. ref d). Pursuant to Anders, Appellant s appointed counsel files this brief. Appellant has alleged that the trial court erred in denying his motions to dismiss his cases pursuant to Texas Code of Criminal Procedure Section and pursuant to the United States and Texas Constitutions for failure to afford him a speedy trial. Appellant waived his right to appeal these issues when he entered into a plea agreement whereby he waived his right to appeal in exchange for the State of Texas abandoning the deadly weapon paragraphs in the two cases. The evidence in the record establishes that this Court does not have jurisdiction to hear the appeal of these cases. Therefore, pursuant to Anders, Appellant s appointed counsel files this brief and moves for withdrawal in the trial court. 5

11 Anders Brief The purpose of an Anders brief is to support counsel s motion to withdraw by showing that he has performed a conscientious examination of the record and that the appeal is so frivolous that an appellant should be denied his constitutional right to appointed counsel on appeal. Jeffery v. State, 903 S.W.2d 776, 779 (Tex. App. Dallas 1995, no pet.) The ultimate test of an Anders brief is whether it contains a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. Johnson, 855 S.W.2d at 646. Arguable Issues of Law This is an appeal from a plea of guilty. Appellant pled guilty to the alleged offenses in exchange for the State abandoning the deadly weapon paragraphs in the two alleged cases. Appellant acknowledged during his plea and during a previous hearing that the abandonment of the deadly weapon paragraph in the two cases would be beneficial to Appellant because his cases would no longer fall within the list offenses in Texas Code of Criminal Procedure Art , Sec. 3g, and it would assist Appellant when he was seeking parole. Appellant s case involves a charge-bargain, like those set out in Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003), and Sheckles v. State, 122 S.W.3d 482, (Tex. App. Dallas 2003, no pet.). Morley v. State, Memorandum Opinion in No CR (Morley is a duplicate filing of CR). This Court acknowledged in Morley that the State s abandonment of the deadly weapon allegation impacted Appellant s punishment. This charge-bargain between 6

12 Appellant and State eliminated the prohibition on the trial court probating Appellant s sentence, and also affected the amount of time that Appellant would have to serve on his sentence before he would be eligible for parole. See Morley, See also Shankle at 813, Tex. Code Crim. Proc. Ann. Art Sec. 3g(a)(2) (West Supp. 2010), and Tex. Gov t Code Ann. Sec (d) (West Supp. 2010). A defendant may knowingly enter a plea bargain in which he waives his right to appeal as part of the agreement. Morley, citing Blanco v. State, 18 S.W.3d 218, 220 (Tex. Crim. App. 2000). After review of the record counsel is of the opinion that this Court lacks jurisdiction to hear the issues in this case because Appellant knowingly waived his right to appeal pursuant to a plea bargain agreement. However, in an abundance of caution, Appellant s arguable issues of law are presented below. Motion to Dismiss 1. Interstate Agreement on Detainers Act (IADA). The IADA is a congressionally sanctioned compact between the United State and the states, including Texas, that have adopted it. Kirvin v. State, 2011 WL (Ct. App. Dallas 2011). The IADA can be invoked by a prisoner held in custody or by a State seeking the prisoner. See Kirvin, See also Tex. Code Crim. Proc. Art , art. III(a). When the State seeks to have a prisoner held on a detainer under the act, the [i]f the person is not brought to trial within 120 days, the indictment must be dismissed with prejudice. Id at art. V(c). 7

13 The 120 day period identified in the act can be tolled [i]f the trial court grants a necessary or reasonable continuance after a showing of good cause is made in open court, with the defendant or his attorney present. Id at art. IV(c); See also Morganfield v. State, 919 S.W.2d 731, 733 (Tex. App. San Antonio 1996, no pet.). The length of the continuance can be subtracted from the total number of days between book-in and the day when trial begins. See Morganfield at 735. The IADA sets forth five distinct requirements for obtaining a continuance: 1) [t]he court must have competent jurisdiction; 2) [t]he grant of the continuance must be in open court; 3) [t]he defendant and/or his attorney must be present; 4) [t]he movant must demonstrate good cause in open court, and 5) [t]he length of the continuance must be reasonable or necessary. Birdwell v. Skeen, 983 F.2d 1332, 1336 (5 th Cir. 1993). Compliance with the first requirement is a question of law, which this Court reviews de novo. The second and third requirements present questions of fact, and the Court will reverse the district court findings thereon only if those findings are clearly erroneous. Conformance with the fourth and fifth requirements is a mixed question of law and fact which, again, this court reviews de novo. Id. The facts in Appellant s case show that the State of Texas issued a detainer request on June 9, 2010 and another detainer request on June 22, C.R. p. 39, 40. These detainer requests were sent to the U.S. Marshall s service on June 9, 2010 and to the Federal Correctional Facility in Fort Worth on June 22, See Id. The trial court issued a Writ of Habeas Corpus ad Prosequendum on January 6, C.R. p

14 While there are several settings noted on the docket sheet, there is no record of the reason for the setting, why the setting was passed or rescheduled, whether Appellant or his attorney were present, or whether the continuance was reasonable or necessary. C.R. p. 5. While it appears that Appellant could have an arguable issue to be reviewed by this Court on appeal, this Court lacks jurisdiction to hear the issue because Appellant waived his right to appeal any pre-trial issues when he pled guilty to the offense on October 10, Speedy Trial. In Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972), the United States Supreme Court held that a balancing test must be used in determining whether an accused has been denied his federal constitutional speedy trial right. Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992). The factors enumerated in Barker to be weighed include, but are not limited to the length of the delay, the reason for the delay, the defendant s assertion of the right to a speedy trial, and the prejudice suffered by a defendant as a result of the delay. See Id. In the present case, Appellant was indicted on April 22, 2010 for offenses that were alleged to have occurred on or about July 31, C.R. p. 10. Appellant was held in Federal custody until approximately February C.R. p. 6. Appellant was unable to assert any right to a speedy trial in Collin County, Texas for approximately ten (10) months the time after he was indicted until he was brought to Collin County, Texas. 9

15 After being returned, Appellant made it clear in open court that he desired a trial on his case in April However, Appellant s trial was not scheduled until October This resulted in another delay of six (6) months. None of the delays are explained in the record of this case. While it is possible that Appellant has an arguable speedy trial issue for this Court to review, he waived his right to appeal these issues when he entered into a plea bargain agreement with the State of Texas and pled guilty to these two offenses, leaving this Court without jurisdiction to review these issues on appeal. CONCLUSION AND PRAYER WHEREFORE, PREMISES CONSIDERED, because this Court lacks jurisdiction to hear any of the arguable issues of Appellant on appeal, the undersigned counsel asks that she be allowed to withdraw from representation of Appellant and Appellant be granted such relief as he may be justly entitled. Respectfully submitted, Kara M. Fitts Fitts & Castleman, P.C W. McDermott Dr., Suite 200 Allen, Texas (469) Phone (469) Fax State Bar No

16 CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing Appellant s Brief has been served on the Appellate Division of the Collin County District Attorney s Office, 2100 Bloomdale Rd., McKinney, Texas, by U. S. mail on February 6, Kara M. Fitts 11