N O

. 14

- 15 -00118- CR I N T HE C OURT O F A PPEALS F OR T HE F OURTEENTH D ISTRICT O F T EXAS

C HRISTOPHER R

ASHAD F RAZIER Appellant

v

.

THE S TATE OF T EXAS Appellee

On Appeal from Cause Number 1410778 228 th District Court of Harris County, Texas Honorable Marc Carter, Presiding

B RIEF FOR A

PPELLANT

A LEXANDER B UNIN Chief Public Defender Harris County, Texas

C HERI D UNCAN Assistant Public Defender Texas Bar No. 06210500

1201 Franklin, 13 th Floor Houston, Texas 77002 Phone: (713) 368-0016 Fax: (713) 368-9278 cheri.duncan@pdo.hctx.net Counsel for Appellant ACCEPTED 14-15-00118-CR FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS 7/8/2015 1:13:36 PM CHRISTOPHER PRINE

CLERKii I DENTITY OF P ARTIES AND C OUNSEL

APPELLANT: Christopher Rashad Frazier TDCJ# 01977867 Garza West Unit, TDCJ 4250 Highway 202 Beeville, TX 78102

- 8982

TRIAL PROSECUTOR: Paul Fortenberry Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, TX 77002

DEFENSE COUNSEL AT TRIAL: Joseph Philip Scardino Attorney at Law 1004 Congress, 2 nd Floor Houston, TX 77 002

PRESIDING JUDGE: Hon. Marc Carter 228 th District Court Harris County, TX 1201 Franklin 16 th Floor Houston, TX 77002

COUNSEL ON APPEAL FOR APPELLANT: Cheri Duncan Assistant Public Defender Harris County, TX 1201 Franklin, 13 th Floor Houston, TX 77002iii T ABLE OF C ONTENTS

I DENTITY OF P ARTIES AND C OUNSEL

................................ ................................ ................ II

T ABLE OF C ONTENTS

................................ ................................ ................................ .......... III

I NDEX OF A UTHORITIES

................................ ................................ ................................ ..... V

S TATEMENT OF THE C ASE

................................ ................................ ................................ ... 1

I SSUE P RESENTED

................................ ................................ ................................ ................. 1

C OURT

- APPOINTED COUNSEL BELIEVES THE APPEA L IN THIS CASE
IS FRIVOLOUS , SINCE THERE ARE N O ARGUABLE GROUNDS FOR
APPEAL FROM THE TRIA L COURT ’ S ADJUDICATION OF GU ILT AND
IMPOSITION OF SENTENCE

.

S TATEMENT OF F ACTS

................................ ................................ ................................ .......... 1

S UMMARY OF THE A RGUMENT

................................ ................................ ............................ 2

A RGUMENT

................................ ................................ ................................ ............................ 2

1. S UFFICIENCY OF THE IN DICTMENTS OR MISDEMEANOR INFOR MATION

....... 3

2. A NY ADVERSE PRETRIAL RULINGS , INCLUDING BUT NOT LI MITED TO RULINGS
ON MOTIONS TO SUPPRE SS , MOTIONS TO QUASH , AND MOTIONS FOR SPEEDY
TRIAL

................................ ................................ ................................ ..................... 3

3. C OMPLIANCE WITH T EX

. C ODE C RIM

. P ROC

. ART

. 26.13 AND P ADILLA

...... 4

4. W HETHER THE ISSUE OF COMPETENCY WAS RAISE D BEFORE SENTENCING SO AS TO WARRANT AN INQ UIRY BY THE COURT , AND WHETHER APPELLAN T WAS
COMPETENT WHEN COURT ACCEPTED THE PLEA

................................ ............ 5

5. W HETHER APPELLANT ’ S PLEA WAS FREELY AN D VOLUNTARILY MADE

........ 5

6. A NY ADVERSE RULINGS D URING THE SENTENCING HEARING ON OBJECTION S
OR MOTIONS

................................ ................................ ................................ ......... 5

7. A NY FAILURE OF TRIAL COUNSEL TO OBJECT TO FUNDAMENTAL ERROR

.... 6iv

8. A NY ADVERSE RULINGS D URING PUNISHMENT PHA SE

................................ ... 6

9. W HETHER THE SENTENCE WAS WIT HIN THE APPLICABLE P UNISHMENT
RANGE

................................ ................................ ................................ ................... 6

10. W HETHER THE RE IS SUFFICIENT EVI DENCE TO SUPPORT A G UILTY PLEA IN A
FELONY CASE

................................ ................................ ................................ ........ 7

11. W HETHER DEFENDANT WAS DENIED EFFECTIVE ASS ISTANCE OF COUNSEL 8

12. O THER MATTERS INVESTI GATED AND FOUND TO L ACK MER IT

.................... 9

P RAYER

................................ ................................ ................................ ................................ .. 9

C ERTIFICATE OF S ERVICE

................................ ................................ ................................ .. 10

C ERTIFICATE OF C OMPLIANCE

................................ ................................ ......................... 10v I NDEX OF A

UTHORITIES

Cases

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

............................ 2

Bone v. State , 77 S.W.3d 828 (Tex. Crim. App. 2002)

................................ ............................. 8

Ex parte Varelas , 45 S.W.3d 627 (Tex. Crim. App. 2001)

................................ ...................... 8

In re Schulman , 252 S.W.3d 403 (Tex. Crim. App. 2008)

................................ ........................ 2

Lackey v. State , 2010 WL 307912 *2 (Tex. App.

– Houston [14 th Dist.]) (mem. op., not designated for publication)

................................ ................................ ................................ .... 8

Padilla v. Kentucky, 559 U.S. 356 (2010)

................................ ................................ .................... 4

Strickland v. Washington

, 466 U.S. 668 (1984)

................................ ................................ .......... 8

Statutes

T EX

. C ODE C RIM

. P ROC

. ART

. 1.051

................................ ................................ ........................ 8

T EX

. C ODE C RIM

. P ROC

. ART

. 26.13

................................ ................................ ........................ 4

T EX

. P ENAL C ODE § 12.32

................................ ................................ ................................ ........ 6

T EX

. P ENAL C ODE § 29.03(a)

................................ ................................ ................................ ... 3

T EX

. P ENAL C ODE § 29.03(b)

................................ ................................ ................................ ... 61 S TATEMENT OF THE C ASE

Christopher Rashad Frazier was indicted for aggravated robbery after he

confessed to being a party to a robbery in the parking lot of the apartment complex

where he lived.

T he trial court sentenced Mr. Frazier to t wenty

- five years in prison after a

presentence investigation, and entered judgment on January 12, 2015 ( CR at 28 )

. The

judgment erroneously reflected that Mr. Lopez waived his right to appeal

. However,

the trial court entered a second Trial Court’s Certification of Defendant’s Righ t of

Appeal that correctly s aid this was not a plea

- bargain case and Mr. Frazier had the right

to appeal (CR at 36).

I SSUE P RESENTED

Court

- appointed counsel believes that the appeal in this case is frivolous, since there are no arguable grounds for appeal from
the trial court’s adjudication of guilt and imposition of sentence.

S TATEMENT OF F

ACTS

The presentence report sai d that Mr. Frazier and his co

- actor, Keith Dillingham

agreed to commit a robbery, and took air guns to use. During the offense, however, Mr.

Dillingham found a real gun in the glovebox of the complainant’s car. He took it as

they fled. When the complainant chased the two men, Mr. Dillingham fired the real gun

several times at the complainant. The complainant died as a result of his injuries (RR 2

at PSI page 3)

.2 S UMMARY OF THE A RGUMENT

Counsel has thoroughly reviewed the record and concluded that t here are no

meritorious grounds for appeal from the judgment against Mr. Frazier

. Therefore,

counsel seeks leave to withdraw from representing him . Counsel has filed, along with

this brief, a motion to withdraw.

I SSUE P RESENTED

Court

- appointed counsel believes that the appeal in this case is frivolous, since there are no arguable grounds for appeal from the appellant’s adjudication of guilt.

A RGUMENT

An attorney has an ethical obligation to refuse to prosecute a frivolous appeal. In

re Schulman , 252 S.W.3d 403, 407 (Tex. Crim. App. 2008) . If an appointed attorney finds,

following a professional, conscientious evaluation of the record, that a case is wholly

frivolous, h er obligation to h er client is to seek leave to withdraw. Anders v. California

, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)

. Counsel’s obligation to the appellate

court is to assure it, through an Anders brief, that a complete review of the record has

been done and that the request to withdraw is well

- founded. Id

.

Counsel has evaluated the record in this case in light of this Court’s Anders

Guidelines

.3

1. Sufficiency of the indictment or misdemeanor information

An indictment need s to be sufficient to confer subject

- matter jurisdiction on the

trial court . This one was. It charged Mr. Frazier with aggravated robbery with a deadly

weapon , a first

- degree felony offense. The elements of this offense are:
1. A person 2. in the course of committing theft 3. with intent to obtain or maintain control of the property 3. intentionally, knowingly, or recklessly 4. uses or exhibits a deadly weapon.

T EX

. P ENAL C ODE § 29.03(a)

. The indictment alleged: “(I)n Harris County, T exas, CHRISTOPHER RASHAD

FRAZIER

... on or about August 6, 201 2 , did then and there unlawfully, while in the

course of committing theft of property owned by Alexander Segura, and with intent to

obtain and maintain control of the property, intentionally and knowingly cause bodily

injury to Alexander Segura, and the Defendant did then and there use and exhibit a

deadly weapon, namely a firearm.” (CR at 11). The indictment, then, described each

element of the alleged offense with sufficient specificity to invoke subject

- matter

jurisdiction in the felony district court

.

2. Any adverse pretrial rulings, including but not limited to rulings on motions to suppress, motions to quash, and motions for speedy trial

Trial counsel did not file any pretrial motions, except a motion for community

supervision (CR at 10)

. Mr. Frazier signed a Waiver of Constitutional Rights, Agreement

to Stipulate, and Judicial Confession ( CR at 15 ). He agreed to plead guilty without a4

recommend ed sentence (CR at 16 ). Mr. Frazier was under arrest and warned of his

rights before making a stateme nt to police. His statement appears to have been freely

and voluntarily given. No other evidence appears to have been illegally obtained, or

otherwise subject to suppression. The record does not appear to support a motion to

suppress.

There were no limitat

ions or speedy trial issues. The offense occurred on August

6, 2012 (CR at 5). The case was indicted on December 6, 2013 (CR at 5) . The Appellant

ple a de d guilty on August 5, 2014 (CR at 16)

.

3. Compliance with T EX

. C ODE C RIM

. P ROC

. ART

. 26.13 and Padilla

The plea hearing is not on the record , but Mr. Frazier signed a written

admonishment form which included the following:

● An explana tion that the range of punishment was “ a term of life or any term of not more than 99 years or less than 5 years...”

● Explanations that any recommendation of the prosecuting attorney is not binding on the court; that if there is any plea bargain
agreement, the court will inform the defendant in open court whether it will follow the agreement; that the court will permit the defendant to withdraw his plea if it rejected any plea bargain
agreement;

● An explanation that if the court’s punishment does not exceed the plea agreement, the court must give permission for an appeal, except for matters raised by the defendant in written pretrial motions;

● An explanation that if the defendant is not a citizen of the United States, a plea of guilty for this offense may r esult in his deportation5 or his exclusion from admission to this county [sic], or his denial of naturalization under federal law.

(CR at 19 ). Nothing in the record suggests that the trial court did not properly admonish

him about his rights.

4. Whether the issue of competency was raised before sentencing so as to warrant an inquiry by the court, and whether appellant was competent when court accepted the plea

The record does not show any motions for competency evaluation, nor any sua

sponte court order for a competency evaluation. Mr. Frazier initialed the box on the

admonishment form that said he was mentally competent and understood the nature

of the charge against him and the trial court’s admonishments (CR at 19 ) . His counsel

signed a statement on the pl ea form that he believed him competent to stand trial (CR

at 16 ). The trial judge affirmed that he ascertained that he appeared to be mentally

competent ( CR at 16 ). Based on this record, and Mr. Frazier’s apparent competency at

the punishment hearing, duri ng which he testified briefly, appellate counsel cannot

argue that there was any potential competency issue below.

5. Whether appellant’s plea was freely and voluntarily made

Mr. Frazier’s counsel said that he believed Mr. Frazier executed the plea of guilty

knowingly and voluntarily (C.R. at 16 ). The trial judge also signed a statement that he

ascertained that Mr. Frazier entered the plea knowingly and voluntarily after discussing6

the case with his attorney (C.R. at 16 ). Nothing in the record suggests that the plea was

not made freely and voluntarily.

6. Any adverse rulings during the sentencing hearing on objections or motions

Mr. Frazier filed a motion for community supervision (C.R. at 25 ). He had never

been convicted of a felony, nor placed on community supervision for a felony. At

sentencing, however, the court did not place Mr. Frazier on community supervision.

Instead, the judge imposed a 25

- year prison sentence (1 RR at 9 ). This was wit hin the

court’s discretion.

7. Any failure by trial counsel to object to fundamental error

Appellate counsel has combed the record for fundamental error, but has found

none. There was nothing for tr ial counsel to object to.

8. Whether sentence was within t he applicable punishment range

Aggravated robbery with a deadly weapon is a first

- degree felony

. T EX

. P ENAL

C ODE § 29.03(b)

. This made the punishment range 5

- 99 years or life and a fine not to

exceed $10,000.00

. See T EX

. P ENAL C ODE § 12.3 2 . Therefore, the twenty

- five

- year
punishment Mr. Frazier received was within the applicable range of punishment.

Further, it was half as long as the 50

- year sentence his co

- defendant received after

pleading guilty (2 RR at 7 ). Additionally, the trial court received three victim impact

statements from family members of the complainant. All asked the court to impose t he

maximum sentence (2 RR at 25 )

.7

9. Whether the written judgment accurately reflects the sentence imposed and whether any credit was properly applied

The written judgment accurately reflects a conviction for aggravated robbery

with a deadly weapon and describes the offense as a first

- degree felony ( CR at ) . The

judgment reflects the tw e nty

- five

- year sentence the judge announced at the hearing

. It

also reflects that Mr. Frazier was to be credited for time served from December 5, 2013

to January 12, 2015 (C.R. at 28)

. Although the offense occurred on Aug 6 , 2012

, police did not arrest anyone until

October 25, 2012, when they arrested Mr. Dillingham after touch DNA taken from one

of the air soft pistols at the scene was matched to his DNA (2 RR at PSI page 6). On

October 18, 2013, Mr. Dillingham was set for trial. Instead, he agreed to give a full

confession and implicate Mr. Frazier (2 RR at PSI page 7). A court issued a warrant for

Mr. Frazier ’s arrest. Then, on December 6 , 2013

, pol ice learned that Mr. Frazier had

been arrested on an unrelated drug charge the previous day, and brought him in for

questioning on this offense (2 RR at PSI page 8).

Based on this record, it appears that the trial court properly applied credit for jail

tim e to Mr. Frazier’s judgment and sentence from the date of his arrest to the date of

sentencing

.

10. Whether there is sufficient evidence to support a guilty plea in a felony

case
A guilty plea is some evidence, for purposes of determining whether there is a
complete lack of evidence to support a conviction. See Nix v. State

, 65 S.W.3d 664, 6688

(Tex. Crim. App. 2001) . Mr. Frazier’s signed Waiver of Constitutional Rights,

Agreement to Stipulate, and Judicial Confession provided sufficient evidence to support

his guilty plea to the offense of aggravated robbery with a deadly weapon

. The

presentence investigation report , which was admi tted as an exhibit at the punishment

hearing, included summaries of confessions by Mr. Frazier and his co

- defendant, who

implicated him in the incident . Mr. Frazier did not object to the PSI in general, or to

any statements within it. It must be assumed, t hen, that the summaries were accurate.

11. Whether defendant was denied effective assistance of counsel

The standard of review for evaluating claims of ineffective assistance of counsel

is set forth in Strickland v. Washington
, which dictates that a defendant is entitled to

“reasonably effective assistance.” 466 U.S. 668, 687 (1984)

. A llegations of

ineffective ness of counsel must be firmly rooted in the record. See Bone v. State, 77

S.W.3d 828, 833 & n. 13 (Tex. Crim. App. 2002) . When the record is silent, a reviewing

court may not speculate to find trial counsel ineffective. See Ex parte Varelas, 45 S.W.3d

627, 632 (Tex. Crim. App. 2001)

.

Court

- appointed counsel must represent the client in all adversary proceedings

that could possibly result in confinement. T EX

. C ODE C RIM

. P ROC

. ART

. 1.051

. Mr.

Frazier was represented by counsel when he entered his guilty plea

, and a t the

punishment hearing

. There were no other adversary proceedings in this case. During

the hearing

, counsel gave a brief closing argument and asked the court for leniency in

light of his client’s remorse, work history, and secondary role in the offense ( 1 RR at 8 )

.9

T here is no evidence that counsel erroneously advised Mr. Frazier to plead guilty.

See Lac key v. State , 2010 WL 307912 *2

- 3 (Tex. App.

– Houston [14 th Dist.]

, Jan. 28,

2010, no pet. ) (mem. op., not designated for publication)

. Even if there had been

evidence about counsel’s advice to his client, t he State’s evidence included a confession

from Mr. Frazier , in addition to Mr. Dillingham’s statement implicating Mr. Frazier (2

RR at PSI page 8). Given this, appellate counsel cannot argue that Mr. Frazier should

not have entered a plea of guilty. It does not appear from the record that trial counsel

was ineffective.

1 2 . Other matters investigated and found to lack merit

After reviewing the record and conferring with Mr. Frazier, appellate counsel

could identify no other matters to investigate.

P RAYER

Counsel prays that she be allowed to withd raw from representing Mr. Frazier i n

this case, and that Mr. Frazier be given the opportunity to file his own brief.

Respectfully submitted,

Alexander Bunin Chief Public Defender Harris County Texas /s/ Cheri Duncan

_________

_____________________ Cheri Duncan Assistant Public Defender Texas Bar No. 06210500 1201 Franklin, 13 th floor10 Houston Texas 77002 (713) 368

- 0016 telephone (713) 437

- 4318 e

- fax cheri.duncan@pdo.hctx.n et

C ERTIFICATE OF S ERVICE

I certify that a copy of this brief was served electronically on the Harris County

Distri ct Attorney’s Office on July 8, 2015

.
/s/ Cheri Duncan

______________________________ Cheri Duncan

C ERTIFICATE OF C OMPLIANCE

I certify that this brief complies with Rule 9.2, T EX

. R. A PP

. P ROC . It was prepared on

a computer using 14

- point Garamond type. It contains 1,958 words that are subject to

the limits imposed by Rule 9.2.

/s/ Cheri Duncan

______________

_______________ Cheri Duncan