i 

NO. 01-15-00357-CR

 

IN THE FIRST COURT OF APPEALS

OF THE STATE OF TEXAS

KENNETH L. BROWN

Appellant 

v.

THE STATE OF TEXAS

Appellee 

On Appeal in Cause Number 1389982 

From the 177th District Court of Harris County, Texas 

Hon. Ryan Patrick, Judge Presiding 

BRIEF FOR APPELLANT

ORAL ARGUMENT WAIVED ALEXANDER BUNIN

 Chief Public Defender 

Harris County, Texas 

 BOB WICOFF

 Assistant Public Defender 

 State Bar of Texas No. 21422700 

1201 Franklin, 13th floor 

Houston, Texas 77002 

Phone: (713) 368-0016 

Fax: (713) 368-9278 

 bob.wicoff@pdo.hctx.net 

 Counsel for Appellant 

ACCEPTED

01-15-00357-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

11/9/2015 1:57:38 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 11/9/2015 1:57:38 PM CHRISTOPHER A. PRINE Clerk
i

Identity of Parties and Counsel

Appellant Kenneth L. Brown

TDCJ # 01995117

Garza West Unit

4250 Highway 202

Beeville, Texas 78102-8982

Presiding Judge Hon. Ryan Patrick

 177th District Court 

1201 Franklin

19th floor

Houston, Texas 77002

Trial Prosecutor Tammy Massa

Assistant District Attorney

 Harris County, Texas

 1201 Franklin

Houston, Texas 77002

Defense Counsel in Trial Court Ricardo Gonzalez

Attorney at Law

 8876 Gulf Freeway

 Houston, Texas 77017

Defense Counsel on Appeal Bob Wicoff

 Assistant Public Defender

 Harris County, Texas

 1201 Franklin, 13th floor

Houston, Texas 77002
ii

Table of Contents

 Page

Identity of Parties and Counsel: i

Table of Contents: ii 

Index of Authorities: iii-iv 

Statement of the Case: v

Issue Presented: v 

Court-appointed counsel believes that the appeal in this case is 

frivolous, since there are no arguable grounds for appeal from the 

conviction and sentence following the appellant’s open plea of guilty, 

followed by a pre-sentence investigation and hearing before the trial 

court.

Statement of Facts: 1

Summary of the Argument: 3

Argument: 4

Prayer: 18

Certificate of Service: 18

Certificate of Compliance: 19
iii

Index of Authorities

Cases Page

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

Bledsoe v. State, 178 S.W.3d 824 (Tex. Crim. App. 2005)...................................................... 6

Buchanan v. State, 68 S.W.3d 136 (Tex. App.-Texarkana 2001, no pet.)........ 15 

Coleman v. State, 577 S.W.2d 486 (Tex. Crim. App. 1979) ................................................... 8

Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974)....................................................... 5

Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997)................................................... 17

Garner v. State, 300 S.W.3d 763 (Tex. Crim. App. 2009) ..................................................... 6

Guevera v. State, 985 S.W.2d 590 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd) 9 

High v. State, 573 S.W.3d 807 (Tex. Crim. App. 1978)......................................................... 5

In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008)...................................................... 4

Jenkins v. State, No. 14-97-00121-CR, 1998 WL 802439 (Tex. App.-Houston .............. 12

[14th Dist.] November 19, 1998, no pet.)(not designated for publication)

McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 438 n.10 (1988).............................. 4

Mitchell v. State, 193 S.W.3d 153 (Tex.App.-Houston [1st Dist.] 2006, no pet.) ................ 5

Prado v. State, 626 S.W.2d 775 (Tex. Crim. App. 1982)...................................................... 11

Randon v. State, 178 S.W.3d 95 (Tex. App.-Houston [1st Dist.] 2005, no pet.)........ 16 

Rhoades v. State, 934 S.W.2d 113 (Tex. Crim. App. 1996).................................................. 14

Robinson v. State, 240 S.W.3d 919 (Tex. Crim. App. 2007)................................................... 9 

Sanchez v. State, 120 S.W.3d 359 (Tex. Crim. App. 2003) .................................................... 8 
iv

Index of Authorities (cont'd)

Cases Page

Solem v. Helm, 463 U.S. 277 (1983)....................................................................................... 14 

Sowels v. State, 45 S.W.3d 690 (Tex. App.-Waco 2001, no pet.)........................... 4 

Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991).............................................4, 5, 6

Stephens v. State, 35 S.W.3d 770 (Tex. App.-Houston [1st Dist.] 2000, no pet.)............... 17

Temple v. State, 342 S.W.3d 572 (Tex. App.-Houston [14th Dist.] 2010) 11 

Wood v. State, 260 S.W.3d 146 (Tex. App.-Houston [1st Dist.] 2008, no pet.) 16

Statutes Page

TEX. PENAL CODE ANN., sec. 12.42(d) v, 14

TEX. PENAL CODE ANN., sec. 29.03(a)(2) v, 7
v

STATEMENT OF THE CASE

Kenneth Brown (hereafter “Appellant”) was indicted in cause number 1389982 

for the first-degree felony offense of Aggravated Robbery, which was alleged to have 

occurred on June 1, 2013 (C.R. at 13); See Tex. Penal Code, § 29.03(a)(2). The 

indictment contained two enhancement paragraphs, thereby subjecting the Appellant 

to 25-99 years in prison upon conviction (C.R. at 13); Tex. Penal Code, § 12.42 (d).

The Appellant was found guilty of aggravated robbery as charged in the indictment 

(C.R. at 80). After the punishment hearing, the jury assessed the Appellant’s 

punishment at thirty-eight (38) years confinement (C.R. at 87). The judgment contains 

an affirmative finding of a deadly weapon, namely, a firearm (C.R. at 95). No motion 

for new trial was filed.

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 plea of guilty followed by a pre-sentence 

investigation.
1

STATEMENT OF FACTS

Brittany Spates and Curley Carter went out to celebrate Brittany’s birthday with 

friends on the evening of June 1, 2013 (4 R.R. at 59-60, 108). Afterward, they drove 

back to the apartment complex where they both lived. Upon arriving back at the 

complex, as the two of them got out of the car, another car pulled up, a black Toyota 

Camry (4 R.R. at 69). As Spates and Carter were walking to their apartment, two men 

ran up to them, one of them with a gun drawn, telling them to get down on the 

ground (4 R.R. at 70-71, 118). The assailants demanded that Carter and Spates hand 

over their belongings (4 R.R. at 71, 118). Spates gave the robbers everything she had, 

and both she and Carter gave the men their cell phones (4 R.R. at 74-76, 122). The 

two men then ran away and Spates and Carter ran to a neighbor’s apartment, where 

the neighbor called 9-1-1 (4 R.R. at 77).

Houston Police Department Officer Ollie Thibeaux responded to the call 

within five to ten minutes (3 R.R. at 12, 18; 4 R.R. at 78, 125). Upon arriving, 

Thibeaux encountered Spates and Carter, whom he described as “visibly shaking, 

nervous” (3 R.R. at 21). They told Officer Thibeaux that two black males driving a 

Toyota Camry had stolen an iPhone (3 R.R. at 24). Thibeaux asked Spates if her 

phone was an iPhone. They asked her to log into her “find my iPhone” app, which 

allowed the police to determine the location of the phone (4 R.R. at 79). In short 

order, Officer Thibeaux told Spates and Carter that they needed to go with him to a 

second location, where they had located the black Toyota Camry (4 R.R. at 79, 127).
2

Thibeaux drove Spates and Carter to the location where one of the two 

suspects was being detained, which was at another nearby apartment complex (3 R.R. 

at 27). Thibeaux testified that upon arriving at the black Toyota Camry, he let Spates 

and Carter walk up to the vehicle and look through the window at the property lying 

inside (3 R.R. at 28). They identified the iPhones inside the car as theirs, in each case 

because of the photographs that were on the phones (3 R.R. at 30-31; 4 R.R. at 80, 

131-132). The two phone were recovered from the black Toyota Camry, but other 

items that were stolen were not recovered (3 R.R. at 43).

After identifying the phones, Spates and Carter were put into the back seat of 

a patrol car, where they were asked to look at a suspect to see if they could identify 

him (4 R.R. at 81-82). A suspect was then brought in front of the police car with the 

headlights shining on him (3 R.R. at 37-38). Spates testified that the man whom she 

had identified at the scene as being the robber was the Appellant (3 R.R. at 38-39; 4 

R.R. at 84-85). She added that the Appellant had been the man who held the gun 

during the robbery (4 R.R. at 85). Carter had not been able to get a good look at the 

man wielding the gun (4 R.R. at 131). Spates estimated that the total elapsed time 

from the point of being robbed to the identification of the Appellant as the robber 

was 30 to 45 minutes (4 R.R. at 86).

Rafael Fuentes lived at the second apartment complex, where the Appellant 

was arrested. On the morning that the Appellant was arrested, Fuentes was taking a 

bag of trash to the dumpster when he found a gun lying in the grass (3 R.R. at 64).
3

Houston Police Department Officer Matama Roberson responded to the call 

regarding the gun, and took it into custody (3 R.R. at 69).

Houston Police Department Officer Tanika Miller testified that she was 

working patrol the morning of the robbery. At about 4:30 am, she observed a vehicle 

matching the description of the vehicle involved in the robbery (3 R.R. at 82). She 

followed the car to the entrance of an apartment complex, where two black males 

exited the car (3 R.R. at 86). Once the men walked away from the car, leaving it 

running, Officer Miller approached the car, where she could see cell phones lying 

inside (3 R.R. at 88; 4 R.R. at 8).

Miller radioed a description of the suspects and the direction they had headed, 

and within ten minutes a suspect was detained (3 R.R. at 89-90). She drove her patrol 

car to the location where the suspect was being detained and saw that it was the same 

person she had seen getting out of the car a few minutes earlier (3 R.R. at 91). She 

testified that the Appellant was the man who had gotten out of the driver’s side of the 

car and who had been detained (3 R.R. at 92-93).

SUMMARY OF THE ARGUMENT

The undersigned has thoroughly reviewed the record and concluded that there 

are no meritorious grounds for appeal from the appellant’s plea of guilty followed by a 

pre-sentence investigation. Therefore, the undersigned moves to withdraw from 

representing the Appellant and has filed, simultaneously with this brief, a motion to 

withdraw.
4

ARGUMENT

A. Anders briefs generally

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, his obligation to his 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 such a complete review 

of the record has been undertaken and that the request to withdraw is well-founded. 

Id. 

A wholly frivolous appeal is one that “lacks any basis in law or in fact.” See 

McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 438 n.10 (1988). A reviewing court 

must resolve doubtful issues in the appellant’s favor. Id. In the brief which 

accompanies his motion to withdraw, counsel must make references to the appellate 

record as well as to any applicable statutes, rules, and cases that lead counsel to the 

conclusion that the appeal is frivolous. Sowels v. State, 45 S.W.3d 690, 691 (Tex.App.-

Waco 2001, no pet.). The brief must contain references to anything in the record that 

might arguably support the appeal, even though counsel believes that the appeal is 

frivolous. Anders v. California, supra; Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 

1991).
5

Counsel is not required to make arguments that would not be made on behalf 

of a client who has retained counsel for the appeal; counsel is not required to make 

arguments for which there is no merit. Currie v. State, 516 S.W.2d 684 (Tex. Crim. 

App. 1974). If counsel concludes that there are no arguable grounds for appeal, then 

counsel should so state and should make references to the record, statutes, and cases 

which support that conclusion. Stafford v. State, supra; High v. State, 573 S.W.2d 807 

(Tex. Crim. App. 1978). When discussing the record, counsel must discuss the 

evidence introduced at trial and must provide the appellate court “with ready 

references to the record.” Stafford v. State, supra at 510 n.3; High v. State, supra. 

Conclusory statements in the brief are insufficient. Anders v. California, supra; High v. 

State, supra; Currie v. State, supra.

Counsel must furnish a copy of the motion to withdraw and a copy of the brief 

to appellant and must advise appellant of his right to review the record and to file a 

pro se brief. Counsel must certify or otherwise show the appellate court that appellant 

has been furnished with a copy of the motion and brief and that appellant has been 

advised of his right to obtain the record and to file a pro se brief.

After appellant has himself raised the points that he wishes to raise, or the time 

has passed for him to do so, the appellate court must conduct an independent 

examination of the proceedings and determine whether the appeal is wholly frivolous. 

Anders v. California, supra; Mitchell v. State, 193 S.W.3d 153 (Tex.App.-Houston [1st

Dist.] 2006, no pet.). If the court finds that the appeal is wholly frivolous and that 
6

there are no arguable grounds for appeal, it will grant the motion to withdraw and 

affirm the judgment of the trial court. Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. 

App. 2009). Although a reviewing court may issue an opinion explaining why the 

appeal lacks arguable merit, it is not required to do so. Id., at 767. If the court 

determines that there are arguable grounds, it will abate the appeal and remand the 

cause to the trial court with instructions that the trial court appoint new and different 

counsel to represent appellant on appeal to present those arguable grounds, as well as 

any others that new counsel might wish to present. See Bledsoe v. State, 178 S.W.3d 824, 

826–27 (Tex. Crim. App. 2005). The appellate court does not make a decision on the 

merits of any issue, except to determine whether an appeal is wholly frivolous and that 

there either are or are not arguable grounds for appeal. Anders v. California, supra; 

Stafford v. State, supra. An appellant may challenge a holding that there are no arguable 

grounds for appeal by filing a petition for discretionary review in the Court of 

Criminal Appeals. See Bledsoe, supra, at 827-828, fn 6.

B. The appeal in this case is frivolous

The undersigned has evaluated the record from this case with the help of the 

useful “Anders Guidelines” posted on the website of the Fourteenth Court of 

Appeals. See http://www.txcourts.gov/media/883046/andersguidelines-revised-postkelly-.pdf. 
7

1. Sufficiency of the indictment or misdemeanor information.

The elements of aggravated robbery under Tex. Penal Code § 29.03 are:

(a) A person commits an offense if he commits robbery as defined in § 29.02;

and

(2) uses or exhibits a deadly weapon; or

Under Tex. Penal Code § 29.02, a robbery is committed if, in the course of

committing theft and with intent to obtain or maintain control of the property, the

defendant intentionally or knowingly threatens or places another in fear of imminent 

bodily injury or death.

The indictment charging the Appellant with aggravated robbery alleges the

necessary elements under § 29.03(a)(2). Specifically, the indictment tracks the statutory 

language by alleging the Appellant, while in the course of committing the theft of 

property, and with the intent to obtain and maintain control of the property, did 

intentionally and knowingly threaten and place the complainant in fear of imminent 

bodily injury and death, adding the allegation that he used and exhibited a deadly 

weapon, a firearm (C.R. at 13). There is nothing which seems amiss with the 

aggravated robbery indictment, or which would suggest that it should have been 

challenged in the trial court by counsel.

The two enhancement paragraphs in the indictment each allege that the 

Appellant was convicted of the felony conviction of “assault family violence.” The 

first enhancement alleges a conviction in 2009 that occurred prior to the commission 

of the charged offense in this case. The second enhancement alleges a conviction in 
8

2012 that also took place prior to the date that the offense in this case was committed 

(which was June of 2013), and further alleges that it took place after the conviction in 

the first enhancement paragraph had become final. Thus, the enhancement 

paragraphs alleged the sequence of prior convictions necessary to enhance the 

Appellant’s punishment under section 12.42(d) of the Texas Penal Code.

The purpose of an enhancement allegation is to provide the accused with 

notice of the prior conviction relied upon by the State. Coleman v. State, 577 S.W.2d 

486, 488 (Tex. Crim. App. 1979). Because the enhancement paragraphs in this case 

described the prior convictions by date, cause number, county, and offense, sufficient

notice was provided and a motion to quash would have been futile. Id. No motion to 

quash appears in the record for either indictment. Therefore, any defects of form, 

substance, want of notice, or any other claim other than fundamental defect is waived. 

See Tex. Code Crim. Proc. art. 1.14(b); Sanchez v. State, 120 S.W.3d 359, 367 (Tex. 

Crim. App. 2003). However, no such motion was called for, as the indictment was 

sufficient in all respects.

2. Any adverse pretrial rulings, including but not limited to rulings on motions 

to suppress, motions to quash, and motions for speedy trial

The following motions were filed by the defense in this case:

1) Defendant’s Motion for the Appointment of an Investigator and Request

for Funds for an Investigator (C.R. at 21)(motion was granted);

2) Motion for Discovery and Inspection of Evidence (C.R. at 27)(motion was 

not ruled on);

3) Motion for Disclosure and Production of Evidence Favorable to Defendant 

 (pro se)(C.R. at 29)(motion was not ruled on);
9

4) Request for Notice Under Texas Rules of Criminal Evidence 404 and 609

and Texas Code of Criminal Procedure Article 37.07 (pro se)(C.R. at 33) 

(motion was not ruled on);

5) Motion to Dismiss Court Appointed Attorney and Appoint New Counsel

 to Act on Behalf of Defendant (pro se)(C.R. at 36)(motion was not ruled

 on); 

6) Defendant’s Motion in Limine (C.R. at 60)(motion was not ruled on); 

7) Motion for Hearing on Admissibility of Any Statement by Defendant

Whether Written or Oral or Evidence Resulting from Same (C.R. at 62) 

(motion was not ruled on).

“The State filed a Notice of Intention to Use Evidence of Prior Convictions 

and Extraneous Offenses,” so although the Appellant’s motion (number 4 above) was 

not presented to the trial court for a ruling, the information sought in such motion 

was provided nonetheless. For the remainder of the above listed motions, the record 

does not reflect a ruling by the trial court. Motions must be “presented” to the trial 

court to preserve a complaint for appellate review, and presentment means more than 

mere filing. Guevara v. State, 985 S.W.2d 590, 592 (Tex. App.-Houston [14th Dist] 

1999, pet. refd). The movant must make the trial judge aware of the motion by calling 

the judge's attention to it in open court and requesting a ruling thereon. Id. Because 

trial counsel did not obtain a ruling on the above listed motions (absent the motion 

requesting a fee for an investigator) nothing is preserved for appellate review.

As for the Defendant’s pro se motions, because a defendant does not have a 

right to hybrid representation, the trial court is free to disregard any pro se motions 

presented by a defendant who is represented by counsel. See Robinson v. State, 240 

S.W.3d 919, 922 (Tex. Crim. App. 2007). Thus, no point of error would be properly 
10

predicated on the Appellant’s pro se motions. In any case, these were boilerplate 

motions which, even if adversely ruled on, would not have lent themselves to issues 

on appeal. Appellate counsel has detected no other pre-trial motions that were 

advisable in this case but not filed. Specifically, there were no grounds to file a motion 

to suppress, motion to quash, or motion for speedy trial.

3. Any adverse rulings during trial on objections or motions, including

objections to admission or exclusion of evidence, objections premised on 

prosecutorial or judicial misconduct, and motions for mistrial.

Although there were sporadic objections by defense counsel during the 

presentation of evidence, none could be said to have involved hotly contested issues. 

For example, defense counsel objected periodically to questions that called for hearsay 

responses (3 R.R. at 30, 31, 32, 38, 77), or to the form of the question (4 R.R. at 25-

26, 27, 87), but the objections were sustained or the prosecutor rephrased the 

question or the objection was properly overruled.

At one point, defense counsel objected to the State’s attempt to introduce a

gun into evidence, and the trial court sustained the objection (3 R.R. at 74-75). 

Counsel also objected that the chain of custody had not been proven as to some 

clothing the State attempted to introduce, but the trial court sustained that objection 

as well (3 R.R. at 94). At times, the State objected to defense questions, and defense 

counsel merely rephrased his question (4 R.R. at 12, 16).
11

Suffice it to say, the objections posed by each lawyer at trial were as to matters 

of form rather than substance. None of the objections that resulted in adverse rulings 

resulted in arguable issues on appeal.

Defense counsel also objected to the following portion of the State's closing 

argument:

[The State]: And today is the day for you to do your job. Justice 

cannot be done alone. The community has to come together to fight for 

what is right and to fight against what is bad and evil in this world and 

this event should not be occurring in Harris County and if it does...

[The Defense]: Objection as to improper argument, Your Honor.

[Trial Court]: Overruled. (4 R.R. at 180-181).

It is unclear whether defense counsel’s objection was sufficiently specific. In 

any event, a point of error based on the trial court’s ruling would be frivolous. Even

when a jury argument exceeds the approved areas, it will not constitute reversible

error unless the argument is extreme or manifestly improper, violative of a mandatory

statute, or injects new facts harmful to the accused into the trial proceeding. Temple v.

State, 342 S.W.3d 572, 602-603 (Tex. App.-Houston [14th Dist] 2010). Error in 

allowing improper argument is generally nonconstitutional error that must be 

disregarded unless it affects the defendant's substantial rights. Id. The State’s comment 

that “[T]he community has to come together to fight for what is right and to fight 

against what is bad and evil in this world” is not inflammatory, extreme, or manifestly 

improper. Although it is improper to argue that the community desires a certain 

result, the argument in this case was instead a proper plea for law enforcement. Cf. 

Prado v. State, 626 S.W.2d 775, 776 (Tex. Crim. App. 1982) with Jenkins v. State, No. 14-
12

97-00121-CR, 1998 WL 802439 (Tex. App.-Houston [14th Dist.] November 19, 1998, 

no pet.)(not designated for publication). 

4. Any adverse rulings on post-trial motions (e.g., motion for new trial or postjudgment verdict of acquittal)

There were no post-trial motions, nor were any called for.

5. Potential errors during jury selection

Both sides were allowed to conduct voir dire without interference from the trial

court. There were no objections posed by either lawyer to the other’s questions during 

jury selection. No challenges for cause were denied. The trial court granted each side’s

challenges. No objections were lodged by either side to the empaneling of the jury (2 

R.R. at 158).

6. Potential errors regarding jury instructions

The jury instructions in this case were standard instructions for an aggravated 

robbery case. They included instructions on the law of parties (C.R. at 74), as well as 

an application paragraph applying the law of parties to the facts of the case, with the

other, unapprehended robber listed as an “unknown person.” (C.R. at 75). There were 

no defensive issues with regard to this case. It was simply a matter of whether the 

Appellant was indeed one of the robbers. Therefore, the jury charge did not call for 

any unusual instructions. Neither side presented any objections to the charge (4 R.R. 

at 152), and there do not appear to be any objections that would have been 

appropriate. 
13

7. Sufficiency of the evidence.

A legal sufficiency challenge to the Appellant’s conviction would be fruitless. In 

regards to the aggravated robbery charge, the State was required to prove that the

Appellant, in the course of committing theft, and with the intent to obtain and 

maintain control of the property of another, intentionally or knowingly threatened or 

placed another in fear of imminent bodily injury or death. (C.R. at 13). Tex. Penal 

Code, sec. 29.03(a)(2).

Evidence was introduced at the guilt-innocence phase of the trial supporting

each of these elements. Simply, the evidence was not seriously in dispute. Spates and 

Carter were robbed at gunpoint by two men in a black Toyota at the first apartment 

complex. By tracking Spates’s cell phone, police were quickly able to locate the black 

Toyota at another nearby complex. A police officer saw two men, one of whom she 

later identified as the Appellant get out of a black Toyota. Shortly afterward, the 

Appellant was arrested and Spates identified him as the robber who took hers and 

Carter’s property at gunpoint less than an hour earlier. Cell phones belonging to both 

Carter and Spates were found in the black Toyota. The entire episode, from robbery 

to identification of the Appellant as one of the robbers, took less than an hour. The 

apprehension of the Appellant in the early morning hours stood less chance of being 

mistaken given the absence of very many people on the street, and was buttressed by 

the identification by the complainants and Officer Miller. Therefore, the evidence was 
14

legally sufficient to convict and a legal sufficiency challenge in this case would have 

been pointless.

8. Fundamental error.

There was no fundamental error in this case. 

9. Reasonableness of the sentence imposed.

The Appellant entered a plea of true to both enhancement paragraphs of the 

indictment (5 RR. at 12). A plea of “true” to an enhancement paragraph constitutes 

evidence and is sufficient proof to support the enhancement allegation. Wilson v. State,

671 S.W.2d 524, 526 (Tex. Crim. App. 1984). Thus, the punishment range in his case 

was enhanced to 25-99 years in prison upon conviction. Tex. Penal Code, § 12.42(d).

Prison sentences are subject to a proportionality analysis under the Eighth

Amendment of the federal constitution. Solem v. Helm, 463 U.S. 277, 289 (1983).

Additionally, the Texas Constitution prohibits “cruel or unusual punishment.” Tex.

Const, art. 1, § 13. To preserve for appellate review a complaint that a sentence is

grossly disproportionate, constituting cruel and unusual punishment, a defendant

must present to the trial court a timely request, objection, or motion stating the

specific grounds for the ruling desired. Rhoades v. State, 934 S.W.2d 113, 119-20 (Tex.

Crim. App. 1996). No objection was made by the defense to the sentence assessed.

Thus, any claim under the Eighth Amendment and Texas Constitution was waived (8

R.R. at 29-31).
15

In any case, with a minimum punishment of 25 years and the maximum 

punishment at 99 years or life, a sentence of thirty-eight (38) years falls closer to the 

minimum end of the available range. In any case, the sentence was within the 

prescribed statutory range for the offense the Appellant was convicted of, with two 

enhancements. “Texas courts have traditionally held that as long as the punishment is 

within the range prescribed by the Legislature in a valid statute, the punishment is not 

excessive, cruel, or unusual.” Buchanan v. State, 68 S.W.3d 136, 141 (Tex. App.-

Texarkana 2001, no pet.).

10. Whether the written judgment accurately reflects the sentence that was 

imposed and whether any credit was properly applied.

The written judgment accurately reflects a conviction for “aggravated robberydeadly weapon,” and lists such offense as a first-degree felony (C.R. at 95). This is 

accurate. The judgment reflects the thirty-eight (38) year sentence. As to credit for 

time served, the judgment reflects that the Appellant was to be credited for the time 

period of 6/01/2013 until the date of sentencing, 4/17/2015. This is consistent with 

the Appellant’s having been arrested on the date of the offense, 6/01/2013, and being 

credited for all time spent until and including the date of sentencing on 4/17/2015.

11. Examination of the record to determine if the appellant was denied 

effective assistance of counsel.

There is no suggestion from the record that counsel’s performance was 

deficient in a manner that can be raised on direct appeal. The Appellant complained 

to the trial court that his lawyer had not filed any the written motions he had thought 
16

appropriate (5 R.R. at 7-8), but it is unclear what motions were called for. See section 

2, supra. Defense counsel offered a sheriff’s office employee to prove that the clothing 

the Appellant was arrested in did not match the clothing described as being worn by

the robber (4 R.R. at 153-154). He also called the Appellant’s mother, Rene Prince, as 

a character witness at punishment (5 R.R. at 21).

As has been frequently noted, the record on direct appeal in ineffective

assistance of counsel cases rarely provides the reviewing court an opportunity to 

conduct a fair evaluation of the merits. Randon v. State, 178 S.W.3d 95, 102 (Tex. App.-

Houston [1st Dist.] 2005, no pet.). A reviewing court cannot speculate to find trial 

counsel ineffective when the record is silent on counsel’s reasoning or strategy. See

Wood v. State, 260 S.W.3d 146, 148 (Tex. App.-Houston [1st Dist.] 2008, no pet.).

Thus, any claimed ineffectiveness in this case would be better raised in a postconviction writ proceeding.

12.Conclusion

Although this case presents a substantial sentence with aggravated time, it was 

nonetheless a straightforward case for the prosecution, with little opportunity for 

missteps by the State and not much that could have been done in defending it. The

lack of substantive issues left a record without any non-frivolous grounds to argue.
17

C. The Appellant has been provided with a copy of the complete appellate 

record and a copy of the motion to withdraw

A copy of the entire appellate record (which consists of one volume of the 

Reporter’s Record, as well as six volumes of the Clerk’s Record) has been sent to the 

Appellant at his current address, which is:

Kenneth L. Brown

TDCJ # 01995117

Garza West Unit

4250 Highway 202

Beeville, Texas 78102-8982

The undersigned has also sent a letter with the copy of the record, explaining 

further the import of this brief and how the Appellant might pursue issues on an 

11.07 writ that cannot be raised on direct appeal. A copy of this brief is also being 

sent to the Appellant, as is the attached Motion to Withdraw. See Anders v. California, 

386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 2d 493 (1967) and Stephens v. State, 35 S.W.3d 

770, 771 (Tex. App.-Houston [1st Dist.] 2000, no pet.)(motion to withdraw pursuant 

to Anders brief is properly directed to the appellate court, not the trial court).

Should this Court grant the undersigned’s Motion to Withdraw, the 

undersigned will inform the Appellant of the result of his appeal and will also inform 

the Appellant that he may, on his own, pursue discretionary review in the Court of 

Criminal Appeals. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997). 
18

PRAYER

For the reasons stated above, the undersigned prays that he be allowed to 

withdraw from representing the Appellant in this case, and that the Appellant be 

given the opportunity to file his own brief.

Respectfully submitted,

Alexander Bunin

Chief Public Defender

Harris County Texas 

/s/Bob Wicoff

Bob Wicoff

Assistant Public Defender 

Harris County Texas 

1201 Franklin, 13th floor

Houston Texas 77002

(713) 274-6781

TBA No. 21422700

CERTIFICATE OF SERVICE

A true and correct copy of the foregoing brief was sent through the efile 

system to the Harris County District Attorney’s Office on the 9th of November,

2015.

 /s/ Bob Wicoff 

 Bob Wicoff
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CERTIFICATE OF COMPLIANCE

The undersigned certifies that this brief complies with the length requirements 

of Tex. R. App. P. 9.4(i). Specifically, the foregoing brief contains a total of 4,604 

words, which is the total word count excluding those matters listed in Tex. R. App. P. 

9.4(i)(1). 

/s/ Bob Wicoff

Bob Wicoff