Opinion
05-23-00404-CR 05-23-00405-CR
03-28-2024
JORDAN DONTRELL CRAWFORD, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish Tex.R.App.P. 47
On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause Nos. F16-41069-M, F16-41071-M
Before Justices Garcia, Breedlove, and Kennedy
MEMORANDUM OPINION
NANCY KENNEDY JUSTICE
Pursuant to a plea bargain, appellant Jordan Dontrell Crawford pleaded guilty to the felony offense of possession with intent to deliver a controlled substance, to wit alprazolam, 200 grams or more but less than 400 grams, and the state-jail offense of possession of marijuana, greater than 4 ounces but less than or equal to 5 pounds, and the trial court placed him on unadjudicated community supervision for seven years in both cases. Six months later, the State filed a motion to proceed with adjudicating appellant's guilt. Appellant entered pleas of true to the allegations in the State's motion. Following an open plea hearing, the trial court denied the State's motion, continued appellant on community supervision, and placed him into an Intensive Intervention Program. Five years later, the State filed an amended motion to proceed with adjudication of guilt, alleging he had violated four conditions of his community supervision. The State withdrew the first allegation, and appellant entered pleas of true to the remaining allegations. After conducting a hearing, the trial court adjudicated appellant guilty in both cases and assessed punishment.
We affirm the trial court's judgment in trial court cause number F16-41071-M. We modify the trial court's judgment in trial court cause number F16-41069-M to reflect the correct offense for which appellant was convicted and affirm that judgment as modified. Because all issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.4.
Anders
Appellant's appointed appellate counsel filed an Anders brief and a motion to withdraw, stating that she had made a thorough review of the entire appellate record and that, in her opinion, there are no meritorious issues on appeal. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel certified that she delivered a copy of the brief to appellant, and by letter dated November 8, 2023, we advised appellant of his right to file a pro se response by December 9, 2023, and cautioned that failure to file a pro se response by that date would result in the case being submitted on the Anders brief alone. See Kelly v. State, 436 S.W.3d 313, 319-21 (Tex. Crim. App. 2014) (noting appellant has right to file pro se response to Anders brief filed by counsel). Appellant has not filed a pro se response. The State waived its opportunity to file an appellee's brief but filed a letter with a requested correction of a clerical error in the judgment in trial court cause number F16-41069-M.
An Anders brief must "contain a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced." High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978). This evaluation requires not only that counsel refer the court to anything in the record that might arguably support the appeal, citing applicable authorities, but it also requires appellate counsel to discuss the evidence introduced at trial, which entails providing the reviewing court with ready references to the record. Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).
After court-appointed appellate counsel files an Anders brief asserting that no arguable grounds for appeal exist, we must independently examine the record to determine whether an appeal is "wholly frivolous." Anders, 386 U.S. at 744 (emphasizing that reviewing court-and not counsel-determines, after full examination of proceedings, whether case is "wholly frivolous"). An appeal is wholly frivolous when it lacks any basis in law or fact; an argument is frivolous if it cannot "conceivably persuade the court." See In re Schulman, 252 S.W.3d 403, 407 n. 12 (Tex. Crim. App. 2008).
If, after conducting an independent review of the record, we conclude either that appellate counsel has not adequately discharged his or her constitutional duty to review the record for any arguable error, or that the appeal is not wholly frivolous, notwithstanding appellate counsel's efforts," we abate the appeal and return the cause to the trial court for the appointment of new appellate counsel. Meza v. State, 206 S.W.3d 684, 689 (Tex. Crim. App. 2006).
With these principles in mind, we turn to considering counsel's Anders brief after we briefly discuss the factual and procedural background of the cases before us.
Background
On June 11, 2016, police officers were dispatched to appellant's residence in reference to a shooting that had just occurred. The officers were unable to locate the suspected shooter, but they spoke to appellant and observed a strong odor of fresh marijuana inside the residence. A computerized check revealed appellant had two warrants for his arrest. After arresting appellant and transporting him to the city jail, the officers obtained and executed a search warrant of appellant's residence, leading them to find several baggies of marijuana, digital scales, a laptop, two pistols, lists of drug orders, and baggies of white and yellow pills later determined to be Alprazolam.
On August 10, 2017, pursuant to a plea bargain, appellant pleaded guilty to the felony offense of possession with intent to deliver a controlled substance, to wit alprazolam, 200 grams or more but less than 400 grams, and the state-jail offense of possession of marijuana, greater than 4 ounces but less than or equal to 5 pounds. At the plea hearing, appellant's judicial confessions were admitted. Appellant requested community supervision to correct his mistake, and the trial court placed him on unadjudicated community supervision for seven years in both cases. The trial court judge ordered appellant to return in six months to evaluate appellant's performance on community supervision.
On March 7, 2018, the State filed a motion to proceed with adjudicating guilt, alleging appellant had violated several conditions of his community supervision, including that he had failed to appear at a community supervision review hearing on February 23. On March 29, the trial court conducted an open plea hearing on the State's motion, at which appellant pleaded true to the allegations in the motion. At that hearing, appellant admitted to having tested positive for marijuana use in November or December of 2023. At the conclusion of the hearing, the trial court denied the State's motion, continued appellant's community supervision with additional conditions, and placed him into an Intensive Intervention Program (IIP).
On September 21, 2018, the State filed a motion to proceed with adjudicating guilt, alleging appellant had tested positive for THC on or about September 14, had failed to report to the community supervision office on September 19 or any date thereafter, and had failed to report to the IIP Court on September 20 or any date thereafter.
On April 4, 2023, the State filed an amended motion to proceed with adjudicating guilt, alleging appellant had violated laws of the State of Texas, failed to report to the community supervision office on September 19 or any date thereafter, possessed or used or consumed alcohol or controlled substances, and failed to participate in and report to IIP Court on September 20 or any date thereafter. Thereafter, the State struck the first allegation, and appellant entered pleas of true to the remaining allegations.
On April 20, 2023, the trial court conducted a hearing on the State's amended motion. At that hearing, a probations officer employed by the Dallas County Community Supervision Corrections Department testified regarding appellant's performance in IIP. In April of 2018, appellant tested positive for THC and admitted to a relapse on May 20. Appellant tested positive again on June 20, and on August 9, appellant was sanctioned for using his phone during an IIP session. Appellant missed a community supervision office visit on September 19 and an IIP court session on September 20, and he remained on active warrant status until his arrest in these cases.
Appellant, appellant's fiancé, and his fiancé's father testified in his defense. Appellant's fiancé, who was expecting a child with appellant at the time of the hearing, testified appellant had maintained employment and helped raise her children who view him as their father. She also testified that she had been diagnosed with epilepsy the previous year and that appellant had left a job in Lewisville for a job in Mesquite to work closer to home during a six-month period while his fiancé was unable to drive and was under other restrictions. According to appellant's fiancé, he was arrested when a disgruntled coworker falsely reported that appellant was trespassing. After receiving that report, the police discovered appellant's outstanding warrant and arrested him when he arrived at his workplace. Appellant's fiancé testified that, other than that arrest, appellant had not had any other interaction with law enforcement during her relationship with him. She stated that she and appellant had discussed his outstanding warrant prior to his arrest and how he needed to turn himself in before or after their expected child was born. According to his fiancé, appellant had three other children with another woman who was living in Las Vegas. Appellant's fiancé's father testified appellant worked for him and that had he known of appellant's legal issues he would have helped him. He also testified appellant was quiet and did not speak much, but that he was always respectful.
Appellant testified that during the five years since he failed to report in 2018 and was arrested in 2023, he had been working and taking care of his family. In 2018, his previous girlfriend was pregnant and living in her car, so he went "on the run . . . to protect her and my first child." He consistently maintained employment, filed his taxes, and cared for his girlfriend and the first two children they had together. While she was pregnant with their third child, appellant's girlfriend left him to live in Las Vegas. Appellant testified he paid her child support for their three children. He confirmed his fiancé's testimony that her three children "recognize me as dad" and that they were expecting a child together due in July 2023. Appellant stated his fiancé's pregnancy was high risk because of her epilepsy, that they had cameras in their home, so that he could monitor her while he was at work, and that his parents have cancer. Appellant also testified regarding the underlying offense of drug possession, asserting he was holding the alprazolam for someone else to sell and that he understood he had a problem with using marijuana. Appellant denied smoking marijuana or using any drugs at the time of the hearing. His defense counsel also stated for the record that appellant's father and grandfather were present in support of appellant and would support the testimony offered at the hearing.
At the conclusion of the hearing, the trial court judge found appellant freely and voluntarily entered into his plea of true and that he was competent to do so. The trial court judge accepted appellant's plea of true and made findings that he had violated the conditions of his community supervision as alleged in the State's amended motions. The trial court judge sympathized with appellant's familial responsibilities but noted that appellant had not reported in five years and questioned whether appellant had minimized the underlying offense despite having pleaded guilty to possession with intent to deliver controlled substances. The trial court judge granted the State's amended motion in each case and sentenced appellant to fifteen years' confinement in the Institutional Division of the Texas Department of Criminal Justice in the alprazolam case (trial court cause number F16-41069-M) and one year in the state jail facility in the marijuana case (trial court cause number F16-41071-M). The court ordered the sentences to be served concurrently.
The record does not contain any indication appellant filed a motion for new trial in either case. The trial court certified appellant's right to appeal in each of the cases, and this consolidated appeal followed.
Discussion
Pursuant to the guidelines set forth in High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978), appellant's counsel provides a thorough recitation of the facts in the record with record references, citations to legal authorities, and her professional evaluation and analysis of any potential meritorious grounds for appeal.
Counsel indicates that she reviewed the entire appellate record including the indictments in the original plea proceedings, plea agreements, terms and conditions of community supervision imposed, appellant's plea of true to violations of the terms and conditions of community supervision, the transcripts of the plea hearing and hearing on the motion to adjudicate, and the clerk's records for both cases.
Having reviewed the record of the original plea hearing, appellant's counsel concluded the indictments conferred jurisdiction upon the trial court, the judgments and certification of rights to appeal state appellant pleaded pursuant to a plea bargain and therefore had no right to appeal, and that no complaint was made to the indictments such that nothing was presented for appellate review. See Tex. Code Crim. Pro. art. 1.14 (waiver of rights and objections on appeal); Bohannan v. State, 546 S.W.3d 166, 171 (Tex. Crim. App. 2017) (citing Tex. Const. art. V, § 12(b)) (presentment of indictment to court invests that court with jurisdiction over case)). Appellant's counsel also detailed her review of appellant's waiver of jury, voluntariness of his plea, the trial court's admonishments, sufficiency of the evidence, performance of trial counsel, and whether punishment was disproportionate, concluding appellant received a fair trial free from reversible error.
We recognize that a defendant placed on deferred adjudication community supervision may generally raise issues relating to the original plea proceeding only in appeals taken when deferred adjudication community supervision is first imposed. Manuel v. State, 994 S.W.2d 658 (Tex. Crim. App. 1999). The Texas Court of Criminal has recognized two exceptions to the general rule, the "void judgment" exception and the habeas corpus exception. See Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim. App. 2001). The Court of Criminal Appeals appears to have abrogated the habeas corpus exception, but said that a claim that a sentence is illegal may be raised at any time. See Jordan v. State, 54 S.W.3d 783, 786 (Tex. Crim. App. 2001); see also Ex parte Rich, 194 S.W.2d 508, 511 (Tex. Crim. App. 2006); Nix, 65 S.W.3d at 670. With respect to appellate counsel's review of the original deferred adjudication proceeding, we make no comment regarding whether any of the areas she considered could fall within an exception to the general rule precluding attack of the original proceeding on appeal from the revocation proceeding, and simply note her review and analysis here.
Having reviewed the record of the hearing on the motion to adjudicate, appellant's counsel concluded that the State's amended motions to adjudicate guilt clearly and fully set forth the alleged violations of community supervision and gave appellant fair notice in compliance with minimum due process requirements. See Coronado v. State, No. 05-16-01001-CR, 2017 WL 6503092, at *2 (Tex. App.- Dallas Dec. 18, 2017, pet. ref'd) (mem. op., not designated for publication) (citing LaBelle v. State, 720 S.W.2d 101, 104 (Tex. Crim. App. 1986)). Appellant's counsel noted that no complaint, either in the form of an objection or a motion, was made to the State's motion; therefore, nothing was presented for appellate review. Tex.R.App.P. 33.1. Appellant's counsel noted the trial court had jurisdiction to adjudicate appellant's guilt and revoke his community supervision, since all of the relevant events took place before the expiration of the community supervision period. See Tex. Code Crim. Pro. art. 42A.108(c). Appellant's counsel reviewed appellant's pleas of true and admission he was the same person who accepted the community supervision on August 10, 2017, as well as the evidence presented at the hearing establishing appellant's violations of his community supervision. After reviewing the hearing record for any objections and the performance of trial counsel, appellant's counsel concluded he received reasonably effective assistance of trial counsel. See Strickland v. Washington, 466 U.S. 668 (1984). Finally, appellant's counsel states she reviewed the record to determine whether an excessive punishment argument exists. Counsel correctly concludes that appellant's sentences are within the statutory ranges, nothing in the record suggests the punishment assessed is grossly disproportionate to the crimes, and that no objection was made to the punishments assessed at trial.
We have reviewed the entire record and counsel's brief. See Bledsoe v. State, 178 S.W.3d 824, 826-28 (Tex. Crim. App. 2005) (explaining appellate court's duty in Anders cases). We agree the consolidated appeal is frivolous and without merit. We find nothing in the record that might arguably support the appeal.
Motion to Withdraw
In accordance with Anders, counsel has filed a motion to withdraw from the case. See Anders, 386 U.S. at 744; Jeffery v. State, 903 S.W.2d 776, 779-80 (Tex. App.-Dallas 1995, no pet.) ("If an attorney believes the appeal is frivolous, he must withdraw from representing the appellant. To withdraw from representation, the appointed attorney must file a motion to withdraw accompanied by a brief showing the appellate court that the appeal is frivolous."). We grant counsel's motion to withdraw. Within five days of the date of this Court's opinion, counsel shall send a copy of the opinion and judgments to appellant and advise appellant of his right to pursue a petition for discretionary review. See Tex. R. App. P. 48.4.
Modification of the Judgment
In response to the Anders brief filed by appellate counsel, the State filed a letter brief, in which it agrees that the appeals are without merit. However, the State notes that the judgment adjudicating guilt in trial court cause number F16-41069-M contains a clerical error: it lists the offense for which appellant was convicted as manufacturing with intent to deliver a controlled substance instead of possession with intent to deliver a controlled substance. The record shows that appellant was charged with, and ultimately convicted of, possession with intent to deliver a controlled substance, alprazolam, in an amount of 200 grams or more but less than 400 grams. The State therefore asks this Court to modify the trial court's judgment in cause number F16-41069-M to accurately reflect the offense for which appellant was convicted.
We have the authority to modify the trial court's judgment to make the record speak the truth. Tex. R. App. P 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992). Accordingly, we modify the judgment in trial court cause number F16-41069-M to reflect that the offense for which appellant was convicted was "possession with intent to deliver a controlled substance; to-wit: alprazolam" and not "manufacturing with intent to deliver a controlled substance; to-wit: alprazolam."
Conclusion
Given our review of the record and counsel's brief, we agree that the appeals are frivolous and without merit. We find nothing in the record that might arguably and substantively support the appeal of the trial court's judgments. We affirm the trial court's judgment in trial court cause number F16-41071-M. We modify the trial court's judgment in trial court cause number F15-41069 to reflect the offense for which appellant was convicted was "possession with intent to deliver a controlled substance; to-wit: alprazolam."
We affirm the trial court's judgment in trial court cause number F16-41069-M as modified.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
to reflect the offense for which appellant was convicted was "possession with intent to deliver a controlled substance; to wit: alprazolam."As REFORMED, the judgment is AFFIRMED.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.