### No. 03-15-00478-CR & 03-15-00479-CR

DAVID WAYNE STOKES

V.

STATE OF TEXAS )

)

) IN THE COURT OF APPEALS

FOR THE THIRD SUPREME

JUDICIAL DISTRICT OF TEXAS

MOTION FOR LEAVE TO WITHDRAW AS COUNSEL ON APPEAL

UNDER ANDERS v. CALIFORNIA

TO THE HONORABLE JUSTICES OF SAID COURT:

COMES NOW, Ken Mahaffey, appointed as appellate counsel for David

Wayne Stokes, the Appellant, in the above-entitled and numbered cause and files this

motion to withdraw because the record reveals no meritorious issue to argue for

reversal. In support thereof counsel would show the following:

1. Counsel Appointed. On July 24, 2015, the undersigned counsel, movant,

was appointed by the 264th District Court of Bell County to represent Appellant on

appeal.

2. Appointed Counsel must Withdraw If Record Does Not Show Reversible

Error. When the trial record does not support any legal argument that could persuade

a reviewing court to reverse, appellate counsel must inform the appellate court and the

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

(advancing frivolous arguments on appeal prohibited). Counsel is under an ethical

Page 1 ACCEPTED 03-15-00478-CR 6943678 THIRD COURT OF APPEALS

AUSTIN, TEXAS 9/16/2015 8:59:08 AM JEFFREY D. KYLE

CLERK

### o b l i g a

t i o n t o w i t

h d r a w b e c a u s e i t is im

pr o p e r t o m a

k e a r g u m e n t s f o r r e v e r s a l t

h a t a r e

n o t g r o u n d e d i n t h e r e c o r d a

n d s u p p o r t e d b y t h e l a w

. I d

. ; N g u y e n v

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n s e l h a s d u t y t o d i s c l o s e c o n

t r a r y a u t h o r i t y t o t h e c o u r t )

.
3. Counse l H as Re vie w e d the Re c o r d a nd L aw . T he m ova nt ha s thoroughly

re vie we d the c le rk’ s a n d re porte r’ s re c ords in t hi s cau se a n d the la w in re la tion to
possible m e ritorious a

rgum e nts for re ve rsa l

.

4. No Re v e r s ible Erro r F o u nd

. C ounse l ha s d e te rm ine d the re a re no issue s

tha t c ould pe rsua de a n a

p p e lla te c ourt to re ve rse t

he judgm e nt of c onvic t ion from the

c urre nt re c ord. Any othe r grounds would req u i r e su p p le m e nta t ion of the re c ord by

ne w he a rings to d o c um e nt those c la im s. As a p pe lla te c ourts m a

y n o t accept ne w

e vide nc e on dire c t a

ppe a l, the only prope r proc e dure to de ve lop a suffic ie nt re c ord is

by a n a pplic a tion for post c onvic tion writ of ha be a s c orpus. S

e e A ldric h v

. S

tate , 104

S.W .3d 890, 896 (Te x. C rim . App. 2003)(whe re a m a t te r is n ot shown in the re c ord

from d i r ec t a

ppe a l, prope r proc e dure to se c ure doc um e nta tion is ha b e a s c orpus);

Oldham v

. State
, 977 S.W .2d 354, 363 (Te x. C rim

. App. 1998) (a ppe lla te rule s do not

pe rm it a ba te m e nt for a h e a ring on ne w e vide nc e whe n the c la i m can be ra ise d by

ha be a s c orpus).

Pag e 2

### 5. Appointe d Couns el M ust File B r ie f B e for e W ithdr a w al. W he n c ounse l

is a ppointe d
, the la

wy e r m ust file a brie f with the a

ppe lla te c ourt de ta iling the re c ord

a nd disc ussing a ny c ogniz a ble le ga l issue s. The brie f m ust a lso provide a

uthority t o
show why

e a c h issue would not re sult in re v e rsa l a nd would be c o nside re d frivolous

by the re v ie wing c ourt. N g u y e n v

. St a t e , 1 1 S

. W

. 3 d 3 7 6
, 3 7 8 ( T e x

. A p p

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[ 1 4 t h D i s t

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6

. A n d e r s B r i e f

F i l e d T h i s D a t e

. C o u

n s e l
, a s m o v a

n t , h a s p r e p a

r e d a n d f i l e d a

" A n d e r s " b r i e f w i t

h t h i s C o u r t o n t h i s d a t e , d i s c u s s i n g t

h e r e c o r d a

n d d e t a i l i n g w h y e a c h

i d e n t i f i a b l e issue wo u l d n o t s u

p p o r t a b o n e f

i d e a r g u m e n t t h a t c o u l d p e r s u a d e a

n

a p p e l l a t e c o u r t t o r e v e r s e

.

7. Couns e l H a s I n f

o r m e d A p p e l l a n t o f t h e R i g h t t o C o n t i n u e t h e A p p e a l

.

A l o n g w i t

h t h e A n d e r s b r i e f

, C o u n s e l i s r e q

u i r e d t o n o t i f

y Appe lla nt of h i s r i g h t t o

c o n t i n u e t h e a p p e a l b y f i l i n g a p r o

- s e b r i e f a

n d t o p r o v i d e i n f

o r m a t i o n o n h o w t o o b t a i n

t h e a p p e l l a t e r e c o r d

. N

g u y e n , s u p r a , a t 3 7 9

. A c o p y o f t

h i s M o t i o n t o W i t

h d r a w a n d t h e

A n d e r s b r i e f i n s u

p p o r t o f t h e m o t i o n h a

v e b e e n s e r

v e d o n A p p e l l a n t b y c e r t i f i e d m a i l

.

8. P roof of Se r vic e

. A c opy of a le tte r se nt b y c e rtifie d m a il e xpla ining

Appe l la n t’ s right c ontinue the a

ppe a l, de t a iling the proc e dura l ste p s for filing a pro

se brie f, a n d ins t r u ct i ons on h ow to obta in the a ppe lla te re c ord is a tta c h e d to t his

m otion a s Exhibit “ A ”

.

Pag e 3

### 9. Appe llant’s M ailing Addr e ss. Appe lla n t’ s m a iling addre ss is a s follows:

Da vid W a y ne Stoke s, TDC J No. 02013175, Gurne y Unit, 1385 FM 3328, Te nne sse e

C olony , TX 75803.

PRAYE R FO R RE L IE F

W HER EFOR E, PR EM ISE S
, C ONSIDER ED, the unde rsigne d c ounse l

res p ect fully re que st tha t he be pe rm itte d to withdra w from re pre se nta tion in t his

a ppe a l a nd tha t the C ourt inde pe nde ntly re vie w the re c ord to de te rm ine if inde e d the re

is no a rgua

ble point on a

ppe a l a nd if a n issue is found ap p o i n t n e w c ounse l for

Appe l la n t.

R e s pe c tfully Subm itte d,

Ke n M a ha ffe y C o unse l for Appe lla

n t P.O. B ox 684585 Austin, Te x a s 78768 Phone & Fa x (512) 444-6557 St. B a r. No. 12830050 K e n Mahaffe

y @y a hoo.c om

Pag e 4

### CE RT IFICAT E O F SE RV I CE

The ab o ve signa

ture c e rtifie s tha t on Se pte m be r 16, 2015, this doc um e nt wa s

se nt by e le c tronic filing to the B e ll C oun ty D

. A

. ’s Offic e , P.O. B o x 540, B e lton,

Te xa s 7 6 5 1 3 an d
, b y c e rtifie d m a il, t o Da vid W a y ne Stoke s, TDC J No. 02013175,

Gurne y Unit, 1385 FM

3328, Te nne sse e C olony
, TX 75803.

Pag e 5K ENNETH G . MAHAF F EY 

### A ttorney A t

Law P. O . Box 684585 Aus ti n , T X 78768 (512) 444-6557
September 16, 2015

David W ay

ne Stokes CERTIF IED MAIL 70008 1300 0001 1357 6381 02013175 Gurney Unit 1385 F M 3328 Tennessee Colony
, TX 75803

RE: Determ ination o f No Gr o u n d s f o r S u c c e s s f

u l A p p e a l, Transm ittal of Motion to Withdraw and Brief

Exam ining Each P ossible G round f or Reversal

Dear Mr. Stokes:

I have fully reviewed the records of y our recent c onviction for B urg lary of a B u i l d i n g a n d B u rg lary o f a Vehicle. I was unable to find any issue that would resul t i n r e v e r s a l of y our conviction. I reg ret that I am unable to help y ou. I assure y ou I dili ge n t l y searched the record and reviewed the applicable law. A copy of an " Anders " brief detailingthis review is enclosed.

I nitially
, y ou should understand so m e f u n d amental a spects of appellate review. The appellate court can either reverse or affirm the decision of the c ou r t below. " Reverse" means that the appellate c ourt o rders a n ew trial. " Affirm" means the trial court’s decision sta n d s a n d t h e defendant will have to serve the sentenced ordered in the judg ment of conviction.

The Court of Ap p e a l s m ay o n l y reverse a lower court for an error o f law shown in the record. An

" error of law" is a mistake by the trial judg e in h o w t h e case was tried. The error must be serious enoug h t h a t it denied the defendant a fair trial. The fact that the defendant disag rees with the outcome is not a r ecog niz a b le g round for appeal. Trial c ourts may only be r eve r s e d b a s e d o n a clear mis-application of the law by the trial judg e.

This error must a lso be shown in the tri a l r e c o r d

. T he " record" consists of a ll documents filed with th e court clerk and the transcript of testimony g iven by the witnesses. Appellate courts do not hear new testimony or accept new evidence. The decision on appeal is made s o l e l y by

ex a mining the record from the proceeding s below.

I t is also required that each error be called to the a ttention of the trial judg e by a proper and t imely objection. The objection must require the trial judg e to make a ruling on the i s s u e

. U n l e s s t h e trial judg e makes a ruling
, the judg e has not made any d ecision that could be err o n e o u s

. I f there was no objection, the a ppellate court will ty

p ically n o t review the trial judg e ' s action even to see if there was an error. The reviewing court will simply

hold any complaint was " waived"

. 

## EXHIBIT "A "L etter to David W ay n e Stokes September 16, 2015 Pag e -- 2

________________________________________ The rol e o f t h e l a w y e r on initial appeal is to review the trial record as it currently e x ists. The appellate lawy er looks for an error of law by the trial judg e. W hen the lawy er finds a specific leg al error, he researches the law and wr i t e s a brief to the Court o f Appeals. T his brief ex plains why the error deprived the defendant o f a fair trial. Ex a mples of leg al e rrors include use of illeg ally seiz ed evidence, improperly admitted o r e x c l u ded evidence o r permitting inappropriate closing arg uments. This is not an ex c lusive list.

Please b e aware that complaints suc h as the " witnesses were ly ing " are not p roper issues on appeal. The jury
, or judg e in a bench trial, is considered the "f act finder." Our leg al sy stem deleg ates to the fact finder all questions of which wi t n e s s e s t o b elieve and the w eig ht to g ive their testim o n y

. A p p e l l a te courts will not second g uess the jury or judg e’s decision on whether a witness was telling the truth.

Sufficiency o f the evidence to s h ow g uilt c an be raised on appeal but only when there is virtually

no evidence to prove g uilt. W hile y ou may disagr e e w i t h w h a t the witnesses said, our law permits the f

act f inder to resolve all issues concerning th e c redibility of the evidence. I f there is any evidence to support the decision, the fact finder’s decision on which witnesses t o b elieve and what happened during the offense is final. The appellate court w ill o nly look at a complete lack of evidence.

You should also k

now that n ot all errors of law are reversible errors

. T o b e "reversible," the error must be serious e n o ug h to call into question the funda m e n t a l f airness of the w hole proceeding

. Minor errors are considered " harmless" and will not require reversal.

Appellate courts will not reverse f or technical mistakes such a s the s p e l l ing of names. W hen an
a p p ellate c ourt finds an actual leg al error, it c an only r everse the conviction if the error actua l l y resulted in id e n t i f

i a b l e h arm to the accused. This determination of actual harm is conducted by looking at the record of the whole trial not just the error in isolation.

To show " r eversible error," an a ppellate lawy er must do the fol lowing

. F irst, he must identify an actual mistake of law by the trial judg e. Second, he mu s t s h o w there was a proper objection by the trial lawy er that c alled the error to the attention of the trial judg e. Third, he must demonstrate that the mistake was s e r i o u s enoug h to deny the defendant a f air trial. Unfortunately
, I found no such errors in y

o ur case.

Plea s e u n d e r s t a n d that it is improper for a lawy er to make a frivolous arg ument to the Court. A

" frivolous arg ument" is one that the lawy er knows must b e o v e r r u led by the Court based on the applicable law. I have thoroug hly reviewed y our case. I did not find any issue that I can leg itimately

say would convince an appellate court to reverse the decision of the lower court.L etter to David W ay n e Stokes September 16, 2015 Pag e -- 3

________________________________________
W h en an a

ppellate lawy er is unable to find a ny ma t t e r in the record he c ould p roperly arg ue constitutes reversible error, he must withdraw from representation. This is r equired b e c a u se it would not make sense for an attorney to continue repr es en t a t i o n a fter he had d etermined there were no meritorious issues in the case. You still have a rig ht to continue the appeal on y our own.

You have the rig ht to file a b rief o n y our own. The C o u r t o f Appeals will also independently

ex a mine the record to make sure I did n o t o v erlook any thing

. I f the Court finds there is a meritorious issue from their own review, or from y o ur brief, they are s u p p o s e d to appoint new counsel and set the matter for full consideration by the Court.

A brief prepared by y ou is c al l e d a " p r o-se " brief. Pro-se simply means the defendant is representing

himself and proceeding

without an attorney

. A brief is a written ex planation stating why y ou b elieve y ou were denied a fair trial. I t must identify the portions of th e a p p e l l a t e r e cord that support y our claims and state a leg al basis to support y o u r conclusions.

To a ssist y ou in obtaining the record if y o u w i s h t o review it, I have enclosed a Motion for Pro Se Access to the Appellate Record for y ou to file. I n order t o o b t ain the appellate record, y ou must sig n and d ate the motion a nd mail it to the Third Court of A p p e a l s w i t h i n ten day s of the date of this letter at the following address:

Clerk of the Court Third Court of

Appeals P .O. Box 12547 Austin TX 78711

The Court of A ppeals will then direct th e c l e r k of the trial court to provide y ou w ith a copy of the appel l a t e r ec o r d

. Y our response will be d ue to be f iled in the Third Court of Appeals within 30 day s of the date the clerk provides the record to y o u.

W h ether or not y o u file a response, the law requires the Court o f A p p e a l s to review the record to determine if the Court ag rees with my assessment that n o m e ritorious g rounds for appeal e x ist, i .e., that n o r eversible error ex ists. I f the Court does n ot ag ree, but instead believe s t h e r e a r e non-frivolous issues t o be raised on y our behalf, the Court must a bate the appeal to have another attorney appointed to review the record on y our behalf.

Any p r o

- s e b r i ef, motion o r other document filed with the Court of Appeals must also be sent to the prosecutors. There address is as follows: Bell County District At t o r n e y , P .O. Box 540, Belton, Texas 76513

.L etter to David W ay n e Stokes September 16, 2015 Pag e -- 4

________________________________________

I also urg e y ou to read the Tex as Rules of A ppellate Procedure to g uide y ou in any appellate action. There are many specific requirements for motions, brie f s and raising of issues. There are also deadlines for f

iling o f briefs and motions. I t is essential that y ou follow these rules i n order to have any

chance of success.

Should the Court of A ppeals ultimately determine that there a re no meritori o u s gr o u n d s to be raised and that y our appeal is frivolous, the Court w il l af fi r m y o u r conviction and sentence. You

m ay t h en seek review of the Court of Appeals by a pro se petition to Tex as Court o f Crimina l Appeals. Such petition m u s t be filed within 30 day s of the d ate the Court of Appeals renders its judg ment.

This is called a Petition for Discretionary Review, also known as a " PDR"

. The PDR is filed with the C o u r t o f C r i m i nal Appeals. This Court is the hig hest court for criminal matters in Tex as. I t does not have to accept all appeals but decides in its own " discretion" which cases to hear.

The p rocedure for discretionary review is to sug g e st particular issues for the Cour t t o r e v i e w a nd

ex p lain w hy e a c h issue is important. I f y ou seek r eview and it is g r anted, the trial judg e is supposed to appoint a l a w y er to prepare and f ile a brief. The trial judg e can be contacted throug h the district clerk.

Any PDR must be f

iled w i th the Court of Criminal Appeals within 30 day s of the Court of Appeals judg ment. The Court of Crimina l A ppeals’ address is as follows: Court o f Crim inal Appeals, P .O. B o x 12308, Austin TX 78711. L ike a ny documents sent to the Court of Appeals, y ou must send c opies o f a n y t h i n g y o u file to the D.A. Also, in any matter b efore the Court of Criminal Appeals, y ou should also send copies to the " State Prosecuting Attorney "

. The State Prosecuting Attorney ’s Address is as follows: State Pr o secuting A ttorney, P .O. Box 13046, Austin, Texas 78711-3046.

I understand y ou may h ave complaints about y our tria l t h a t a r e not addressed by this initial appeal. Please understand that my conclusion that there are no meritorious issues i s b as ed solely

on the record a s it currently ex ists. Claims n o t s u p ported by the initial appellate r ecord are not forev e r b a rr e d
, they are simply not ready for decision a t this time. A p roper record c an b e created by obtaining a hearing on an application for writ of habeas c o rp u s

. Oldham v. State
, 977 S.W .2d 354, 363 (Tex

. Crim. App. 1998) (appellate r u l e s d o n o t p ermit abatement for a hearing on new evidence when the claim can be raised by habeas corpus).

F or instance, a failure by trial counsel to object to c ertain procedures or bring f orth favorable evidence can be ineffective assistance of counsel. Appellate courts, however, will rarely considerL etter to David W ay n e Stokes September 16, 2015 Pag e -- 5

________________________________________ ineffective assistance claims o n initial appeal. This is b ecause t h ere is n o r ecord showing why the defense lawy er a cted in the way he or she did. S ee A l d r i c h v

. State
, 1 04 S.W .3d 890, 896 (Tex

. Crim. App. 2003)(because the record f rom direct appeal is ty

pically lacking
, " the proper procedure for r aising such cla i m s i s a lmost alway s habeas corpus." ). Trial lawy ers are also pres u m ed t o h ave acted competently

. Decisions not to challeng e certain evidence or procedures

are often based on leg itimate trial strateg y

. The initial a ppellate r ecord i s t y

p i c a l ly insufficient to properly evaluate whether a trial lawy er' s actions were appropriate trial tactics.

Claims such as ineffective assistance of coun s e l, new e vidence, assertions of perjury
, and others, require a hearing to record the evidence supporting th e c l a i m

. A ga in, this is b ecause appellate courts must have a record to conduct a ny review. At a new hearing in the trial c ou r t , t h e defendant can present the e v idence suppo r t i n g a n y complaints not shown by the initial trial record.. The co u rt r e p o rter will make a transcription of the testimony and receive in evidence any supporting documents. This transcription provides the record for an appellate court to review.

Habeas corpus is a separate proceeding that cannot be started until after the i n i t i a l appeal is concluded. Habeas corpus is g overned by Art. 11.07 of the Tex as Code o f Criminal Procedure. You must make the application on a form prescribed for this purp o s e

. T h a t form can be obtained by writing the district clerk. Any application must be filed with the district cl e r k

. Be aware that y ou should raise all claims in the f i r s t w r i t application because the rig ht to f ile later writs is severely limited.

F inally
, I would like to state my profound r eg ret that I could n ot f ind any a rgu ab l e b a s i s f

o r a
ne w t r i al i n y our case. I take my role as an appellate advocate f or my clients very seriously

. I

assure y ou I did my best to l o c a te some reason to arg ue for reversal. I have detailed the results of my research in the enclosed Anders brief. I w i s h y o u a l l the best for an early release. I also sincerely wish y ou luck in any

further challeng e s to y our conviction.

Very truly y ours,

Ken Mahaffey

attachments: Anders B rief

Motion to W ithdraw Pro Se Motion for Access to Appellate Record