NO.14-15-00118-CR

IN THE COURT OF APPEALS

FOR THE FOURTEENTH DISTRICT OF TEXAS

CHRISTOPHER RASHAD FRAZIER

Appellant 

v. 

THE STATE OF TEXAS

Appellee 

On Appeal from Cause Number 1410778 

228th District Court of Harris County, Texas 

Honorable Marc Carter, Presiding 

BRIEF FOR APPELLANT

 ALEXANDER BUNIN

 Chief Public Defender 

Harris County, Texas 

 CHERI DUNCAN

 Assistant Public Defender 

 Texas Bar No. 06210500 

1201 Franklin, 13th 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

CLERK

 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 7/8/2015 1:13:36 PM CHRISTOPHER A. PRINE Clerk
ii

IDENTITY OF PARTIES AND COUNSEL

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 77002

PRESIDING JUDGE: Hon. Marc Carter

228th District Court

Harris County, TX

1201 Franklin 16th Floor

Houston, TX 77002

COUNSEL ON APPEAL FOR APPELLANT: Cheri Duncan

 Assistant Public Defender

 Harris County, TX

 1201 Franklin, 13th Floor

Houston, TX 77002
iii

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL................................................................................II

TABLE OF CONTENTS..........................................................................................................III

INDEX OF AUTHORITIES .....................................................................................................V

STATEMENT OF THE CASE ................................................................................................... 1

ISSUE PRESENTED................................................................................................................. 1

COURT-APPOINTED COUNSEL BELIEVES 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.

STATEMENT OF FACTS.......................................................................................................... 1

SUMMARY OF THE ARGUMENT............................................................................................ 2

ARGUMENT............................................................................................................................ 2

1. SUFFICIENCY OF THE INDICTMENTS OR MISDEMEANOR INFORMATION....... 3

2. ANY ADVERSE PRETRIAL RULINGS, INCLUDING BUT NOT LIMITED TO RULINGS 

ON MOTIONS TO SUPPRESS, MOTIONS TO QUASH, AND MOTIONS FOR SPEEDY 

TRIAL ..................................................................................................................... 3

3. COMPLIANCE WITH TEX. CODE CRIM. PROC. ART. 26.13 AND PADILLA...... 4

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

5. WHETHER APPELLANT’S PLEA WAS FREELY AND VOLUNTARILY MADE........ 5

6. ANY ADVERSE RULINGS DURING THE SENTENCING HEARING ON OBJECTIONS 

OR MOTIONS ......................................................................................................... 5

7. ANY FAILURE OF TRIAL COUNSEL TO OBJECT TO FUNDAMENTAL ERROR .... 6
iv

8. ANY ADVERSE RULINGS DURING PUNISHMENT PHASE ................................... 6

9. WHETHER THE SENTENCE WAS WITHIN THE APPLICABLE PUNISHMENT 

RANGE................................................................................................................... 6

10. WHETHER THERE IS SUFFICIENT EVIDENCE TO SUPPORT A GUILTY PLEA IN A 

FELONY CASE........................................................................................................ 7

11. WHETHER DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL8

12. OTHER MATTERS INVESTIGATED AND FOUND TO LACK MERIT.................... 9

PRAYER .................................................................................................................................. 9

CERTIFICATE OF SERVICE.................................................................................................. 10

CERTIFICATE OF COMPLIANCE ......................................................................................... 10
v

INDEX OF AUTHORITIES

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 [14th 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

TEX. CODE CRIM. PROC. ART. 1.051 ........................................................................................ 8

TEX. CODE CRIM. PROC. ART. 26.13 ........................................................................................ 4

TEX. PENAL CODE § 12.32........................................................................................................ 6

TEX. PENAL CODE § 29.03(a)................................................................................................... 3

TEX. PENAL CODE § 29.03(b)................................................................................................... 6
1

STATEMENT OF THE CASE

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. 

The trial court sentenced Mr. Frazier to twenty-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 Right of 

Appeal that correctly said this was not a plea-bargain case and Mr. Frazier had the right 

to appeal (CR at 36).

ISSUE PRESENTED

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.

STATEMENT OF FACTS

The presentence report said 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

SUMMARY OF THE ARGUMENT

Counsel has thoroughly reviewed the record and concluded that there 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. 

ISSUE PRESENTED

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.

ARGUMENT

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, her obligation to her 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 needs 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.

TEX. PENAL CODE § 29.03(a).

The indictment alleged: “(I)n Harris County, Texas, CHRISTOPHER RASHAD 

FRAZIER ... on or about August 6, 2012, 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 a 
4

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

rights before making a statement 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 limitations 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 

pleaded guilty on August 5, 2014 (CR at 16).

3. Compliance with TEX. CODE CRIM. PROC. 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 explanation 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 result in his deportation 
5

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 plea 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, during 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 discussing 
6

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 within 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 trial counsel to object to.

8. Whether sentence was within the applicable punishment range

Aggravated robbery with a deadly weapon is a first-degree felony. TEX. PENAL 

CODE § 29.03(b). This made the punishment range 5-99 years or life and a fine not to 

exceed $10,000.00. See TEX. PENAL CODE § 12.32. 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 the 

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 twenty-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, police 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 

time 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, 668
8

(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 admitted 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, then, 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). Allegations of 

ineffectiveness 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. TEX. CODE CRIM. PROC. ART. 1.051. Mr. 

Frazier was represented by counsel when he entered his guilty plea, and at 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

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

See Lackey v. State, 2010 WL 307912 *2-3 (Tex. App. – Houston [14th 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, the 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.

12. 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.

PRAYER

Counsel prays that she be allowed to withdraw from representing Mr. Frazier in 

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, 13th floor
10

Houston Texas 77002

(713) 368-0016 telephone

(713) 437-4318 e-fax

cheri.duncan@pdo.hctx.net

CERTIFICATE OF SERVICE

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

District Attorney’s Office on July 8, 2015.

/s/ Cheri Duncan

______________________________

Cheri Duncan

CERTIFICATE OF COMPLIANCE

I certify that this brief complies with Rule 9.2, TEX. R. APP. PROC. 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