NO. 01

- 13

- 00908

- CR NO. 01

- 13

- 00909

- CR

________________________________________
In the Court of Appeals For the First District of Texas At Houston

________________________________________ On appeal from the 182 nd District Court of Harris County, Texas No . 1365142 No. 1369903

________________________________________ MICHAEL ODURO KWARTENG , Appellant

v. THE STATE OF TEXAS, Appellee

ANDERS BRIEF FOR APPELLANT

Emily Detoto State Bar No.: 00797876

917 Franklin, 4 th Floor Houston, Tex as 77002 Telephone: (713) 227

- 2244 Facsimile: (713) 222

- 5840 emilydetoto@mac.com
Counsel for Appellant

ORAL ARGUMENT NOT REQUESTED ACCEPTED 01-13-00909-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 1/30/2015 6:48:21 PM CHRISTOPHER PRINE

CLERKii Identity of Parties and Counsel

Appellate Counsel for Ap pellant, Mr. Michael Oduro Kwarteng Emily Detoto State Bar No.: 00797876 917 Franklin, 4 th Floor Houston, Tex as 77002 Telephone: (713) 227

- 2244 emilydetoto@mac.com

Appellate Counsel for Appellee, The State of Texas Ms. Devon Anderson District Attorney Mr. Alan Curry Assistant

— Appeal
Harris County District Attorney’s Office 1201 Franklin, Suite 600 Houston, Texas 77002 Telephone: (713) 755

- 5800

Trial Counsel for Ap pellant, Mr. Michael Oduro Kwarteng Mr. A rthur Jerome White, III State Bar No.: 24048877 1300 Post Oak Boulevard, Suite 1600 Houston, Texas 77056 Telephone: (832 ) 620

- 6406

Trial Counsel for Appellee, The State of Texas Ms. Devon Anderson District Attorney Ms. John Lewis, Ass istant State Bar No.: 24055849
Harris County District Attorney’s Office 1201 Franklin, Suite 600 Houston, Texas 77002 Telephone: (713) 755

- 5800iii Table of Contents

Page(s)
Identity of Parties and Counsel...................................................... ....ii

Index of Authorities........................

... .......................................... ...v

Statement of the Case..................................................................... 1

Anders Issues Pre sented................................................................... 1

Statement of Facts......................................................................... 1
Summary of the A rgument................................................................ 2
Arguable Grounds for Review.........................................................

.. .3

Issue Number One.....................................................................

... ..3

OTHER MATTERS DO NOT PROVIDE NON

- FRIVOLOUS ISSUES FOR APPEAL.

A. Sufficiency of the Indictment

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

B. Any Adverse Pretrial Rulings , Including but not Limited to Rulings on Motions to Suppress , Mot ions to Quash, and Motions for Speedy Trial

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

C. Compliance With Texas Code of Criminal Procedure Article 26.13 and, if appropriate, Padilla v. Kentucky , 559 U.S. 356 (2010) ...............4

D. Whether the Issue of Competency was Raised Prior to Sentencing, so as to Warrant an Inquiry by the Court, and Whether Appellant was Mentally Competent When the Court Accepted the Plea...

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

E. Whether Appellant’s Plea was Freely and Voluntarily Made...

........... ......6iv F. Any Adverse Rulings During the Sentencing Hearing on Objections or Motions

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

G. Any Failure on the Part of the Appellant’s Trial Counsel to Object to Fundamental Error

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

H. Whether the Sentence Imposed was Within the Applicabl e Range of Punishment............................................................ ..7

I. Whether the Written Judgment Accurately Reflects the Sentence That was Imposed and Whether any Credit was Properly Applied

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

J. Whether There is Evidence to Support a Guilty Plea in a Felony Case.......................................

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

K. Examination of the Record to Determine if the Appellant was Denied Effective Assis tance of Counsel..................................................9

Prayer............

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

Certificate of S ervice..................................................................... 10

Certificate of C ompliance............................................................... 10
Certificate of Notice to Appellant

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

Notice to Cl ient............................................................................ 11v Index of Authorities

Page(s)

Statutes

Tex. Code Crim. Proc. Art. 1.15................................................

.. ..... 6 , 8

Tex. Code Crim. Proc. Art. 26.13

................................................ .. 4, 5, 6

Tex. Pen. Code § 12.33............................................................

. ... ... 7

Tex. Penal Code § 22.01.........................................................

... .. ..3, 4

Tex. Penal Code § 22.02.........................................................

. .. . 3, 4, 7

Tex. R. App. Proc. § 9.4................................................................. 10

Tex. R. App. Proc. § 34.5......................................................

... ... ... . 11

Tex. R. App. Proc. § 34.6............................................................

... 11

Federal Cases
Anders v. California , 386 U.S. 738 (1967).......................................

.. .. 2, 3
Dusky v. U.S. , 362 U.S. 402 (1960).............................................

.. ....... 5
Padilla v. Kentucky , 559 U.S. 356 (2010)

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

Texas Court of Criminal Appeals
High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978)...........................

... 2

Martinez v. State , 981 S.W.2d 195 (Tex. Crim. App. 1998)(en banc)

...... ... ... ..6
Menefee v. State , 287 S.W.3d 9 (Tex. Crim. App. 2009)

............... ......... .. ... 8
Stafford v. State , 813 S.W.2d 503 (Tex. Crim. App. 1991)..................

.. 2, 3 , 9vi Turner v. State , 422 S.W.3d 676 (Tex. Crim. App. 2013), reh'g denied (Apr. 2, 2014)

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

Williams v. State, 522 S.W.2d 483 (Tex. Crim. App. 1975)

............... ... ... .... 61 St atement of the Case
Appellant
, Michael Oduro Kwarteng
, was charged by indictment in cause

number 1365142 with the felony offense of aggravated assault with a deadly

weapon and in cause number 1369903 with the felony offense of aggrava ted

assault causing s erious bodily injury

. ( 1 CR at 10 ; 2CR at 9 ) 1

. Mr. Kwarteng
entered a guilty plea in both cases. ( 1 CR at 17

- 18 ; 2CR at 16

- 17; RR Vol. 1 at

4 ). The court assessed punishment at 10 years in prison for each case , to run
concurrently . ( 1 CR at 26 ; 2CR at 25 ; RR Vol. 1 at 8 ). Mr. Kwarteng timely
filed a Notice of Appeal. ( 1CR at 29

- 30; 2 CR at 28

- 29 ). Mr. Kwart e n g’s brief

is due January 30 , 2015.

Anders Issues Presented

1. Other matters do not provide non

- frivolous issues for appeal.

Statement of Facts

Mr. Kwarteng shot Dominique Dean in th e chest and the hip following a

heated argument in their apartment complex parking lot. (2Supp CR at 5 ; RR
Vol. 1 at 7) . A 14

- year

- old boy, who was not the intended target, was also shot

in the knee. (2Supp CR at 5; RR. Vol. 1 at 6). His ability to walk has been

1 1CR refers to Clerk’s Record in c ause number 1365142 and 2CR refers to the Cle rk’ s Record in cause n umber 1369903 ; RR refers to Reporter’s Record. There is only one Reporter’s Record because both cause numbers were resolved together in a single sentencing hearing. 2Supp CR refers to the Second Supplemental Clerk’s Record that appl ies to both cause numbers.2 affected. (RR Vol. 1 at 6

- 7). Mr. Kwarteng fled the scene but turned himself in
several hours later. (2Supp CR at 7

- 8).

Mr. Kwarteng entered a guilty plea to both cases and went to the trial court

for sente ncing without an agreed recommendation. (1CR at 17

- 18, 21; 2CR at

16

- 17, 20). The trial court ordered the preparation of a pre

- senten ce
investigation report (PSI) and then conducted a sentencing hearing. (RR Vol. 1

at 4; 2Supp CR at 5). Defense counsel and Mr. Kwarteng requested deferred
adjudication probation from the trial court. (RR Vol. 1 at 6). The prosecution
requested no less than 10 years in prison. (RR Vol. 1 at 7

- 8).

Summary of the Argument
The United States Supreme Court has instru cted court

- appointed counsel:

“ Of course, if counsel finds his case to be wholly frivolous, after a conscientious
examination of it, he should so advise the court and request permission to

withdraw. ” Anders v. California , 386 U.S. 738, 744 (1967). “[A] p pellate

counsel must prov ide the reviewing court with a ‘ professional evaluation of the
record demonstrating why there are no a rguable grounds to be advanced.’”
Stafford v. State , 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991)(citing High

v. State, 573 S. W.2d 807, 812 (Tex. Crim. App. 1978) )

. This requires a
discussion of the evidence at trial, including references to the record and
applicable case law. Id. Appellate counsel is required to discuss anything that3 “might arguably support the appeal.” Id. A copy of the Anders brief must be
provided to the Appellant and he should be given time to respond if he so

chooses. Anders , 386 U.S. at 744. This Court will then examine the
proceedings and make a determination as to whether an appeal is frivolous. Id

.
Court

- appointed counsel has reviewed the Reporter’s Record and th e
Clerk’s Record in Mr. Kwarteng ’s case, and has determined that there are no

non

- frivolous issues to raise as set forth in this brief. Accordingly, court

appointed counsel respectfully r equests permission to withdraw as attorney of
record and to permit the Appellant, Mr. Michael Kwarteng , to file any additional
brief he deems necessary.

Arguable Grounds for Review

ISSUE I : OTHER MATTERS DO NOT PROVIDE NON

- FRIVOLOUS ISSUES FOR A PPEAL.

A. Sufficiency of the Indictment.

The first indictment tracks the required elements in the T exas Penal Code for
aggravated assault with a deadly weapon

. ( 1CR at 10 ); Tex. Penal Code §§
22.02(a)(2) ; 22.01(a)(1). The second indictment tracks the requ ired elements in
the Texas Penal Code for aggravated assault causing serious bodily injury.4 (2CR at 9); Tex. Penal Code §§ 22.02(a)(1); 22.01(a)(1). The indictment s were
never subjected to a motion to quash . Thus, the indictments are sufficient.

B. Any Adverse Pretrial Rulings, Including but not Limited to Rulings

on Motions to Suppress, Mot ions to Quash, and Motions for Speedy

Trial.

There was a Motion to S ubstitute counsel filed in both cases, which was
granted. (1CR at 13; 2CR at 12). There was als o a Motion for Community
Supervision filed in both cases. (1CR at 16; 2CR at 15). There were no other
motions filed and thus, no pretrial rulings adverse to Mr. Kwarteng.

C. Compliance With Texas Code of Criminal Procedure Article 26.13

and, if Appropria te, Padilla v. Kentucky , 559 U.S. 356 (2010).

Mr. Kwarteng ent ered a plea of guilty for both cause numbers. (1CR at 17

-
18; 2CR at 16

- 17; RR Vol. 1 at 4). Mr. Kwarteng is a citizen of the United

States therefore Padilla is inapplicable. (2Supp CR at 4, 1 5). The trial court
prepared written admonishments for Mr. Kwarteng, defense counsel, and the
prosecutor to sign. (1CR at 19

- 20; 2CR at 18

- 19). The written admonishments
complied with Texas Code of Criminal Procedure Article 26.13. Mr. Kwarteng
signed the d ocument declaring, “I have read and I understand the5 admonishments set out above. I understand my plea’s consequences.” Tex.

Code Crim. Proc. Art. 26.13(d); (1CR at 20; 2CR at 19).

D. Whether the Issue of Competency was Raised Prior to Sentencing, so

as to Warrant an Inquiry by the Court, and Whether Appellant was

Mentally Competent When the Court Accepted the Plea.

The issue of competency was not raised in the trial court. “ The constitutional
standard for competency to stand trial a sks whether the defendant has a
sufficient present ability to consult with his lawyer with a reasonable degree of

rational understanding and whether he has a rational as well as factual
understanding of the proceedings against him. ” Turner v. State , 422 S .W.3d
676, 689 (Tex. Crim. App. 2013), reh'g denied (Apr. 2, 2014) (citing Dusky v.

U.S. , 362 U.S. 402, 402 (1960).

Mr. Kwarteng declared in the plea admonishment documents that he signed,
“I am mentally competent. I understand the charges against me, and I
understand the nature of these proceedings. I am freely and voluntarily pleading
guilty.” (1CR at 19; 2CR at 18). There were no mental health issues in the PSI.
(2Supp CR at 17). There was nothing in the Reporter’s Record to raise concerns

about the competency of Mr. Kwarteng. (RR Vol. 1 at 1

- 10).6 E. Whether Appellant’s Plea was Freely and Voluntarily Made.

“In considering the voluntariness of a guilty plea, the court should examine

the record as a whole.” Martinez v. State , 981 S.W.2d 195, 197 ( Tex. Crim.
App. 1998)(en banc)(citing Williams v. State, 522 S.W.2d 483, 485 (Tex. Crim.
App. 1975)).

A finding that a defendant was duly admonished creates a prima facie showing that a guilty plea was entered knowingly and voluntarily. Ex parte Gibauitch, 688 S.W.2d 868 (Tex.Crim.App.1985). A defendant may still raise the claim that his plea was not voluntary; however, the burden shifts to the defendant to demonstrate that he did not fully understand the consequences of his plea such that he suffered harm. Id. at 871.

Martinez v. State , 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (en banc).

Mr. Kwarteng declared in writing, “I am freely and voluntarily pleading
guilty.” (1CR at 19; 2CR at 18). There is nothing to indicate otherwise in the

record. Mr. Kwar teng was also properly admonished under Texas Code of

Criminal Procedure A rticles 1.15 and 26.13

. See Sections C and J.

F. Any Adverse Rulings During the Sentencing Hearing on Objections

or Motions.

There were no objections by defense counsel during the se ntencing hearing.7 G. Any Failure on the Part of the Appellant’s Trial Counsel to Object to

Fundamental Error.

After a thorough review of the record, no fundamental error is apparent.

H. Whether the Sentence Imposed was Within the Applicable Range of

Punishme nt.

Aggravated assault is a second degree felony which “shall be punished by
imprisonment in the Texas Department of Criminal Justice for life or for any
term of not more than 20 years or less than 2 years.” Te x. Pen. Code §§
22.02(b ) ; 12.33(a). A secon d degree felony also carries a potential $10,000

maxim um fine. Tex. Pen. Code § 12.33 (b ). The sentence imposed was 10 years
imprisonment in the Texas Department of Criminal Justice without a fine on
each case, to run concurrently . ( 1CR at 26; 2CR at 25; RR Vol. 1 at 8 ). The
sentence imposed was within the applicable range of punishment.

I. Whether the Written Judgment Accurately Reflects the Sentence

That was Imposed and Whether any Credit was Properly Applied.

The written judgment accurately reflects th e sentence that was imposed.
(1CR at 26

- 27; 2CR at 25

- 26). Credit was properly applied for Mr. Kwarteng’s
time in custody since the arrest. (1CR at 6, 26; 2CR at 25).8 J. Whether There is Evidence to Support a Guilty Plea in a Felony Case.

Mr. Kwarten g agreed to stipulate to the evidence and gave a written judicial

confession to both indictments , which contained all of the required elements of

the offenses . (1CR at 17

- 18; 2CR at 18

- 19); Tex. Code Crim. Proc. Art. 1.15.
He also waived his rights in co mpliance with article 1.15: “I waive the right of
trial by jury. I also waive the appearance, confrontation, and cross

- examination

of witnesses, and my right against self

- incrimination.” (1CR at 17; 2CR at 18).
The Court of Criminal Appeals has held:

N o trial court is authorized to render a conviction in a felony case, consistent with Article 1.1 5, based upon a plea of guilty

‘ without sufficient evidence to support the same. ’ Evidence offered in support of a guilty plea may take many forms. The statut e expressly provides that the defendant may consent to the proffer of evidence in testimonial or documentary form, or to an oral or written stipulation of what the evidence against him would be, without necessarily admitting to its veracity or accuracy; an d such a proffer or stipulation of evidence will suffice to support the guilty plea so long as it embraces every constituent element of the charged offense. Menefee v. State , 287 S.W.3d 9, 13 (Tex. Crim. App. 2009) (internal citations
omitted).

There was s ufficient evidence to support the guilty pleas.9 K. Examination of the Record to Determine if the Appellant was Denied

Effective Assistance of Counsel.

A thorough examination of the record reveals that Mr. Kwarteng was not

denied effective assistance of co unsel.

Prayer
For the reasons above, Appellant respectfully urges that this appeal

presents no non

- frivolous issues or grounds for relief. Appellant’s Counsel
respectfully requests that this Court grant the motion to withdraw. Stafford v.

State , 813 S. W.2d 503, 510 (Tex. Crim. A pp. 1991). Appellant urges this Court

grant such other relief as he may be entitled.
Respectfully submitted,

__ /s/ Emily Detoto_______ EMILY DETOTO State Bar No. 00797876 917 Franklin, 4 TH Floor Houston, Texas 77002 (713) 227

- 2244 (713) 222

- 5840 (fax) emilydetoto@mac.com
Counsel for Appellant10 C ertificate of Service
I hereby certify that a true and correct c opy of the Anders Brief for Appellant was electronically delivered to Mr. Alan Curry, Appellate Division Chief, Harris County Dist rict Attorney’s Office, on this 30 th day of January 2015

.

_____ /s/ Emily Detoto____ EMILY DETOTO

Certificate of Compliance
I hereby certify, pursuant to Rule 9.4 of the Texas Rules of Appellate Procedure, that the instant brief is computer generated using Microsoft Word for Mac and said computer program has identified that there are 1,8 05 words wit hin the portions of this brief required to be counted by Rule 9.4(i)(1)&(2) of the Texas Rules of Appellate Procedure. The document was prepared in proportionately spaced typeface using Times New Roman 14 for text and Times New Roman 12 for footnotes.

_____ /s/ Emily Detoto______ EMILY DETOTO

Certificate of Notice to Appellant
The undersigned counsel affirms that the Notice to Client, infra , has been given to the appellant, Mr. Michael Kwarteng , regarding his right to examine the appella te record and to file a pro se responsive brief.

_____ /s/ Emily Detoto______ EMILY DETOTO11 Notice to Client

Pursuant to Anders v. California , 386 U.S. 738, 744 (1967) and Texas Rules of Appellate Procedure 34.5(g) and 34.6(h), as the a ppellant, you have the automatic right to examine the record on appeal and file a pro se responsive brief arguing that there are meritorious issues to appeal. A defendant who intends to file a responsive brief must notify the Court in writing within 14 da ys of receipt of the Anders brief and have the Court of Appeals set forth a date by which the brief will be filed.

_____ /s/ Emily Detoto______ EMILY DETOTO