IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT DALLAS, TEXAS
Johnathon Ramey § Appellant § § vs. § APPEAL NUMBER § 05-18-00254-CR State of Texas § Appellee §

On Appeal from the 363rd Judicial District Court of

Dallas County, Texas No.F-17-35064 

## Appellant Counsel’s Anders Brief

RONALD L. GORANSON 3838 Oak Lawn Avenue, Ste. 1124 Dallas, Texas 75219 (214) 651.1122 (214) 871-0640 (fax) State Bar No. 08195000 ATTORNEY FOR APPELLANT Ramey ACCEPTED 05-18-00254-CR FIFTH COURT OF APPEALS

DALLAS, TEXAS 5/31/2018 2:34 PM LISA MATZ CLERK5th Court of AppealsFILED: 06/04/2018Lisa Matz, ClerkAppellant Ramey’s Anders Appeal Brief Page ii Identity of Parties and Counsel Appellant Johnathon C. Ramey TDJC # 2182808 John Middleton Unit 13055 FM 3522 Abilene, TX 79601 Appellant’s Counsel Ronald L. Goranson

3838 Oak Lawn, Ste. 1124 Dallas, Texas 75219 (214) 651.1122 (214) 871-0620 (facsimile) SBOT No. 08195000 Appellant’s Trial Counsels Mr. Clayton C. Smith 3300 Oak Lawn Avenue, Ste. 600 Dallas, Texas 75219 SBOT NO. 24050002 (214) 774-1125

State of Texas Faith Johnson, District Attorney SBOT No. 00794284 Dallas County, Texas Appellate Attorney Lori Ordiway SBOT No. 12327300 Trial Attorneys Maxim Ternosky SBOT No. 24088516 Assistant District Attorneys Frank Crowley Courts Building, LB 19 133 N. Riverfront Boulevard Dallas, Texas 75207 214-653-3600 214-653-5774 (facsimile)Appellant Ramey’s Anders Appeal Brief Page iii 

### TABLE OF CONTENTS
PRELIMINARY STATEMENT .............................

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

................................................... . 2
POTENTIAL POINT OF ERROR ..........................

.................................................. 3
STATEMENT OF THE FACTS ............................

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

• EVIDENCE ..........................................

................................................... ........ 4
SUMMARY ...........................................

................................................... ................. 9
APPELLANT COUNSEL'S ANALYSIS OF THE CASE .......... ...................... 10
A. INDICTMENT ........................................ ................................................. 1 0

B. PLEA PAPERS ....................................... ................................................. 1 3
C. JUDGMENT ADJUDICATING GUILT ....................... .......................... 16

D. POTENTIAL GROUND OF ERROR ......................... ............................ 19
CONCLUSION ........................................

................................................... ............. 27
CERTIFICATE OF SERVICE ............................

................................................... . 27
CERTIFICATE OF SERVICE - APPELLANT ................ ...................................... 28
CERTIFICATE OF COMPLIANCE .....................................................28Appellant Ramey’s Anders Appeal Brief Page iv 

### TABLE OF AUTHORITIES
CASES: Anders v. California, 386 U.S. 738, 744 (1967) .... .......................................... 1, 9, 28 Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709 , 23 L.Ed.2d 274 (1969) .... 23 Edwards v. State, 921 S.W.2d 477, 480 (Tex.App.--Ho uston [1st Dist.] 1996, no pet.) .............................................

................................................... ....................... 22 Ex parte Williams, 703 S.W.2d 674, 682 (Tex.Crim.Ap p. 1986) ........................... 22 Fisher v. State, 887 S.W.2d 49, 54-55 (Tex.Crim.App .1994) ................................. 12 Fryar v. State, ___ S.W.3d, ___, (Tex. App. – Dalla s, 05-14-01255-CR, 02/02/2015) .......................................

................................................... .................. 2 Garner v. State, 300 S.W.3d 763 (Tex.Crim.App. 2009 ) .......................................... 9 Jeffery v. State, 903 S.W.2d 776, 779 (Tex.App.-Dal las 1995, no pet.) ................... 9 Kelly v. State, 436 S.W.3d 313 (Tex.Crim.App. 2014) ........................................ 2, 9 Lawal v. State, ,368 S.W.3d 876, 885 (Tex.App.--Hou ston [14th Dist.] 2012, no pet.) .............................................

................................................... ....................... 25 Marshall v. State, 479 S.W.3d 840, 842 (Tex.Crim.Ap p. 2016) ....................... 11, 12 McGill v. State, 200 S.W.3d 325, 330 (Tex.App.--Dal las 2006, no pet.) ... 23, 24, 25 Mendez v. State, 138 S.W.3d 334, 344 (Tex.Crim.App. 2004) .............................. 24 Menefee v. State, 287 S.W.3d 9, 14 (Tex.Crim.App.20 09) .................................... 23 Moon v. State, 572 S.W.2d 681 (Tex. Crim. App. 1978 ) .................................. 21, 22Appellant Ramey’s Anders Appeal Brief Page v

O'Brien v. State, 154 S.W.3d 908, 910 (Tex. App.-Da llas 2005, no pet.) .............. 23 Simpson v. State, 67 S.W.3d 327, 329 (Tex. App.-Tex arkana 2001, no pet.) ........ 25 Solis v. State, 945 S.W.2d 300, 303 (Tex.App.--Hous ton [1st Dist.] 1997, pet. ref'd) ............................................

................................................... ....................... 22 Studer v. State, 799 S.W.2d 263, 268, 273 (Tex.Crim .App.1990) .......................... 12 Valle v. State, 747 S.W.2d 541, 546 (Tex.App. —For t Worth 1988, no pet.) ....... 25Appellant Ramey’s Anders Appeal Brief Page vi

STATUTES:
Texas Penal Code Tex. Pen. Code § 22.01 (a)(1) and (b)(2)(A) .......

................................................... . 10 Tex. Pen. Code § 22.01 (b-2) ......................

................................................... ...... 2, 11 Tex. Pen. Code § 22.01 (b)(2)(A) ..................

................................................... ......... 2 Texas Code of Criminal Procedure Tex. Code Crim. Proc. Ann art. 1.14(b) ............

................................................... ... 12 Tex. Code Crim. Proc. Ann art. 1.15 ...............

................................................... ..... 23 Tex. Code Crim. Proc. Ann art. 21.01 through 21.17 ............................................. 12 Tex. Code Crim. Proc. Ann art. 21.19 ..............

................................................... .... 12 Tex. Code Crim. Proc. Ann art. 42.01 ..............

................................................... .... 16 Tex. Code Crim. Proc. Ann art. 44.02 ..............

................................................... ...... 3 Texas Rules of Appellate Procedure Tex. R. App. Pro. Rule 9.4(i)(1) ..................

................................................... ......... 28 Tex. R. App. Pro. Rule 9.4(i)(3) ..................

................................................... ......... 28 Tex. R. App. Pro. Rule 25.2 .......................

................................................... ............ 3 Constitutions Art. V of the Texas Constitution ..................

................................................... ......... 12Appellant Ramey’s Anders Appeal Brief Page 1 IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT DALLAS, TEXAS
Johnathon Ramey § Appellant § § VS. § APPEAL NUMBER § 05-18-00254-CR State of Texas § Appellee §

On Appeal from the 363rd Judicial District Court of

Dallas County, Texas No.F-17-35064 

## Appellant Counsel’s Anders Brief To the Honorable Justices of the Court of Appeals: 

## Preliminary Statement:
Counsel for Appellant is appointed in this case 1 . Counsel has determined that there are no legal or factual issue s that arguably could be raised for appellate review in this case. Counsel has determined that that this appeal is wholly frivolous and without merit. Counsel has filed a motion to withdraw. This brief presents an evaluat ion of the record showing

1 This Appeal brief is identical to the brief filed contemporaneously in Ramey v. State, #05-18-00253-CR except for several page refe rences.Appellant Ramey’s Anders Appeal Brief Page 2

why there are no arguable grounds to advance. A co py of the motion to withdraw, this brief, the trial court’s record and the statement of facts are being sent to Appellant at his last known address w ith a letter advising him of his right to respond to this brief or file his o wn Appellant’s Brief. See Kelly v. State, 436 S.W.3d 313, 315, 319-320 (Tex.C rim.App. 2014); Fryar v. State, ___ S.W.3d, ___, (Tex. App. – Dallas, 05- 14-01255-CR, 03/06/2015). 

## Statement of the Case:
Appellant Johnathon Ramey was charged in two indic tments with separate cases of felony assault – family violence. 2 In F-17-35063 (05-18- 00253-CR) he was charged with a third-degree felony assault on November 5, 2017, contrary to Tex. Penal Code, §22.01(b)(2)( A). (R-253, p. 7). In F17-35064 (05-18-00254), he was charged with second- degree felony assault on November 7, 2017, contrary to Tex. Penal Code §2 2.01(b-2). (R-254, p. 7) The complainant in each case was the same perso n. On February 6, 2018 Appellant waived his right to a jury trial and pled guilty. The plea was an “open plea.” (SF, pp. 5-7) In other words, there wa s no plea bargain with

2 The matters were tried together and the issues ra ised are identical. Counsel will identify the Clerk’s record in each case by the let ter “R” and the last three digits of the Appeal number. In other words, one clerk’s record will be identified as “R-253” and the other as “R-254.” The case was tried together so t here will only be one designation for the statement of facts – “SF.”Appellant Ramey’s Anders Appeal Brief Page 3

reference to the sentence. After a hearing on puni shment, the trial court assessed a sentence of six years on each case (R 25 3, p. 29-30; R-254, p. 23- 24; SF, p. 84) The Appellant timely filed a notice of appeal in e ach case. (R 253, p. 40; R 254, p. 39) The Trial Court’s Certification o f Defendant’s Right of Appeal indicates each case was not a plea bargain c ase and the Defendant/Appellant had a right to appeal. (R 253, p. 20; R254, p. 27) This jurisdiction of this Court is invoked pursuan t to Art. 44.02 of the Texas Code of Criminal Procedure and Rule 25.2 of t he Texas Rules of Appellate Procedure. This Brief was due on May 30, 2018. Appellant has filed a Motion to extend the filing date one day to May 31, 2018. The cause is properly before this Court of Appeals. 

## Potential Point of Error The trial court should have sua sponte entered a p lea of not guilty after the Appellant denied committing any of the fa cts necessary to state an offense of family violence.Appellant Ramey’s Anders Appeal Brief Page 4



## Statement of Facts:
Evidence: On February 6, 2018 Appellant pled guilty in both c ases. (SF Vol. 2, p. 6) The State introduced without objection Appel lant’s judicial confession. (SF Vol. 2, p. 6). Stephanie Parker t estified on punishment. She identified the Appellant. (SF Vol. 2, p. 9) S he stated they began dating. She stated the Appellant lied about everything – hi s job, his house, his car. (SF Vol 2, pp. 9-10) She described two incidents t hat were not the subject of the indictments. (SF Vol. 2, pp. 12 and 13) Af ter a while she called things off because of a drinking problem, drugs, se lling drugs and his behavior was getting more violent. (SF Vol. 2, p. 13) When Appellant got out of prison she allowed him to stay for a few wee ks so he could help her with recovery from surgery. (SF Vol. 2, p. 13) Af ter being out with friends, she came home and found several suit cases in her l iving room. (SF Vol 2, p. 14) Appellant was intoxicated. (SF Vol 2, p. 1 5) She then described several incidents of assault, including choking (SF Vol 2. pp. 15-21) The State offered State’s Exhibits 1-10 – photos taken by the police that evening showing her injuries (St Ex. 1-4) and the scene (St . Exs. 5-10). The defense had no objection and the photos were admitted (SF V ol 2, p.21; Vol 3, pp. 7- 16). At one point the Appellant left the room and she went into herAppellant Ramey’s Anders Appeal Brief Page 5

bathroom, locked the door and called 911. (SF Vol 2 , p. 23) The State then offered the 911 tape. The defense had no objection and the tape was admitte3d and played. (SF Vol 2, pp. 24-25) Durin g the 911 call she stated Appellant broke into the bathroom. She terminated the call. He slapped her one time on the leg, grabbed his back pack and left . (SF Vol 2, p. 25) She found he phone and called 911 again. (SF Vol 2, p; 25). This portion of the tale was played for the court. (SF Vol 2, p. 26). After the police left, Appellant began texting her . (SF Vol 2, p. 28) Copies of the texts were identified as State Exhibi ts 17-19. The exhibits were admitted with no objection by the defense. (S F Vol 2, pp. 29) She testified that he convinced her ex-husband and her to sit down and have a conversation. She stated that Appellant convince d them it was a one-time drinking problem, it would never happen again and t hat he needed help. She stated “we” agreed to help him and allowed him back . (SF Vol 2, p. 29). In one of the text’s (State’s Exhibit 19) she testifie d that Appellant tried to convince her to lie to the police about the inciden t. (SF Vol. 2, p. 30) She stated that she and her ex-husband met with Appella nt at a restaurant. Appellant told her that he had not drank in almost a year, he did not realize the effect it had on him and that it would never ha ppen again. He asked for help. She agreed to get him in with their church a nd with AA and get him toAppellant Ramey’s Anders Appeal Brief Page 6

a safe place. (SF Vol 2, p. 31) Ms. Parker testi fied that Appellant came back to her residence that night. She went to work the next morning. She started getting strange text messages from him whil e at work. The State introduced the text messages as State’s Exhibits 20 -26 (SF Vol. 2, p. 32; SF Vol 3, pp. 20-32). There was no objection to the e xhibits. (SF Vol 2, p. 32). The text messages stated Appellant was going to fle e, move to Galveston, get a new identity, and move to Thailand forever. (SF Vol 2, pp. 32-33) The texts continued, getting weirder and weirder. (SF Vol 2, p. 34) Ms. Parker left work early and returned home. She call ed her ex-husband and left him on the line. (SF Vol. 2, p. 37) When she tried to open the door, there appeared to be another key in the lock. (SF Vol 2, p. 37) Appellant opened the door. As soon as she walked in, he atta cked her, slamming her against the door. (SF Vol 2, p. 37) The Appellant appeared to be intoxicated. (SF Vol 2, p. 38) She went to the ba throom. When Appellant left the room, she asked her ex-husband to call 911 . (SF Vol 2, p. 38) Appellant came into the bathroom and slammed into h er. HE slammed her against the vanity and her head against the sink. She bolted for the front door, but he slammed it shut. He had an electric r azor in his hand. “[T]his time he really strangled [her].” (SF Vol 2, p. 38) He kept saying he was not going back to prison. (SF Vol. 2, p. 39) Ms. Park er’s ex-husband arrivedAppellant Ramey’s Anders Appeal Brief Page 7

and calmed things down. Appellant was convinced to leave. While getting his things together, she testified he attacked her again, jumped on top of her, pushing and screaming at her. (SF Vol 2, p. 42) S tate’s Exhibits 11-15 were introduced and admitted without objection. (SF Vol 2, p. 42) The exhibits showed the damage to the bathroom door and the elec tric razor that was used to cut her neck. (SF Vol 2, pp. 43-44) She also i dentified a piece of paper with her name and address that was covered in blood . The exhibit was introduced into evidence without objection. (SF Vo l 2, pp. 46-47) The Appellant testified. (SF Vol 2, pp. 52-81) H e acknowledged he had the option for a negotiated plea to prison, a j ury trial or an open plea, but he and defense counsel “decided to do an open plea and ask for mercy from the Court.” (SF Vol 2, p. 52) He stated he grew up in foster care – 21 foster homes, 13 high schools. He also stated he attended two colleges. (SF Vol 2, p. 53) He stated he had been to State Jail before, but not to prison. He stated that he was willing to do any of the program s recommended after a CATS evaluation. He stated that he had enrolled in a BIPP program for about ten weeks. He stated he had an alcohol progr am and was going to an AA program. (SF Vol 2, pp. 54-55) He explained ho w he and Ms. Parker cut their hands on the mirror and the bloody envelo pe (SF Vol 2, pp. 58-59). The following then occurred:Appellant Ramey’s Anders Appeal Brief Page 8

Q Do you have anything else to tell the Court at t his time? A I just want to say that a lot of this stuff that -- that was said in those affidavits and by Ms. Parker isn't al l -- all the truth. A lot of that stuff was -- was – was blown k ind of out of proportion. THE COURT: Why don't you tell me what happened. (S F Vol. 2, p. 60) The Appellant then testified that although he and M s. Parker argued, he did not assault her – he did not slam her up against an ything, he never twisted her arm, punched her in the stomach or choked her. (SF Vol 2, p. 61) When asked by the court why she would make all that up, he stated she wanted his Facebook passwords and they argued about that. She immediately stated he was being shady. He knew she had trust issues, but he never thought she would try to get him thrown into prison. (SF Vol 2 , pp. 61-62) On cross-examination Appellant again denied that h e punched Ms. Parker, he never choked her, never slammed her agai nst the wall, he did nothing physical from his end. (SF Vol. 2, p. 66). He denied taking the phone from her while she was calling 911. (SF Vol 2, p. 67) He stated she made up the allegations about choking and punching her on the second incident. (SF Vol 2, p. 68) The State then review ed his criminal record. (SF Vol 2, pp. 71-76)Appellant Ramey’s Anders Appeal Brief Page 9

On Re-direct Appellant stated he did not want a ju ry trial, that he was pleading guilty and that he was asking for probatio n. (SF Vol 2, pp. 77-78) 

## Summary

Under Anders , a court-appointed attorney may not raise an issue in an appeal if he makes a conscientious examination of t he case and finds the appeal wholly frivolous. Anders v. California, 386 U.S. 738, 744 (1967). See also Garner v. State, 300 S.W.3d 763 (Tex.Crim.App. 200 9), Kelly v. State, 436 S.W.3d 313 (Tex.Crim.App. 2014) and Jeff ery v. State, 903 S.W.2d 776, 779 (Tex.App.-Dallas 1995, no pet.). A n appointed attorney must withdraw from a frivolous appeal by filing a m otion to withdraw and a brief in support of the motion. Id . The brief is commonly known as an Anders brief. Id. The purpose of an Anders brief is to show counsel performed a conscientious examination of the record and the appeal is so frivolous that the indigent appellant should be den ied his right to appointed counsel on appeal. Id . After the appellant is given an opportunity to re spond, the court makes a full examination of the record to detect whether the case is frivolous. Anders , 386 U.S. at 744. Appellant’s counsel has reviewed the transcript, the sentence received by Appellant, and the factual basis for the sentence. As set forth below, there are no non-friv olous issues.Appellant Ramey’s Anders Appeal Brief Page 10



## APPELLANT COUNSEL’S ANALYSIS OF THE CASE

A. Indictment: The offense of assault family violence as applied in this case is defined in Texas Penal Code § 22.01(a)(1) and (b-2) : § 22.01. Assault (a) A person commits an offense if the person: (1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse; (b-2) [Amended by Acts 2017, Texas Acts of the 85th Leg. - Regular Session, ch. TBD] Notwithstanding Subsection (b)(2), an offense under Subsection (a)( 1) is a felony of the second degree if: (1) the offense is committed against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code; (2) it is shown on the trial of the offense that th e defendant has been previously convicted of an offense under this chapter, Chapter 19, or Section 20.03, 20.04, or 21.11 against a person whose relationship to or association with the defendant i s described by Section 71.0021(b), 71.003, or 71.005, Family Code; andAppellant Ramey’s Anders Appeal Brief Page 11 (3) the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person's throat or neck or by blocking the person's nose or mouth. Section 22.01(b-2)(2) enhances the offense of ass ault causing bodily injury from a class A misdemeanor to a second-degre e felony. See Marshall v. State, 479 S.W.3d 840, 842 (Tex.Crim.App. 2016) As relevant here, the offense is a second-degree felony if it is committe d against “a person whose relationship to or association with the defendant i s described by Section ... 71.005 [defining household], Family Code” and if “ it is shown on the trial of the offense that the defendant has been previous ly convicted of an offense under this chapter ... against a person whose relat ionship to or association with the defendant is described by Section 71.0021( b), 71.003, or 71.005, Family Code and the offense is committed by intenti onally, knowingly, or recklessly impeding the normal breathing or circula tion of the blood of the person by applying pressure to the person's throat or neck or by blocking the person's nose or mouth” TEX. PENAL CODE ANN. § 22.0 1(b-2). Under a hypothetically correct jury charge , the State was required to prove (1) appellant (2) intentionally, knowingly, o r recklessly (3) caused bodily injury to the complainant (4) who is a membe r of appellant’s household, (5) had previously been convicted of an assault involving familyAppellant Ramey’s Anders Appeal Brief Page 12

violence and (6) did then and there intentionally, knowingly, or recklessly impede the normal breathing or circulation of the b lood of the complainant by blocking her nose or mouth See Marshall v. State, supra . The indictment in this case tracks the statutory l anguage. It alleges that the Appellant intentionally, knowingly and rec klessly caused bodily injury to Stephanie Parker by various means and tha t prior to the incident he had been previously convicted of an assault against a family member in a specified case in Denton County, Texas and that he intentionally, knowingly and recklessly impeded the complainant’s normal bre athing and circulation by applying pressure to her throat and neck and by blocking her nose and mouth. (R 254, p. 7). No objections were made to the indictment. The fa ilure to object to the form or substance of the indictment prior to tr ial constitutes a waiver of the error, if any. See Tex.Const. art. V, § 12(b); Tex.Code Crim.Proc.Ann. § 1.14(b); Fisher v. State, 887 S.W.2d 49, 54-55 (Tex .Crim.App.1994); Studer v. State, 799 S.W.2d 263, 268, 273 (Tex.Crim.App.19 90). The indictment contains all the requisites as required by Arts. 21 .01 through 21.17 of the Code of Criminal Procedure. There are no defects o f form or substance in the allegations in the indictment that prejudice th e substantial rights of the Appellant. See Art. 21.19, Tex. Code Cr. Proc.Appellant Ramey’s Anders Appeal Brief Page 13



### B. Plea Papers A document titled Plea Agreement was filed in this case. (R 254, p. 19-22) The first part states that the defendant wi ll plead guilty, and it will be an “open plea.” (R253, p. 32). The document inclu ded a section titled “Court’s Admonitions to Defendant” where the trial court stated Appellant was charged with the offense of “Assault FV (enh)(i mp)” and the punishment range for a second degree felony at 2-20 years and an optional fine up to $10,000. (R 254, p.20). The document i ncludes admonitions about the Appellant’s right to a jury trial, to con front and cross-examine witnesses and his right to testify in his own behal f if he chooses to. (R 254, p. 20). The court also advised that the prosecutor ’s recommendation on punishment was not binding on the court, and if the court rejected the plea bargain, the Appellant would be permitted to withdr aw his plea of guilty. (R 254, p. 20) The court then stated that if the pun ishment was not greater than the plea bargain, the Appellant would not be able t o appeal the case with certain exceptions not applicable in this case. (R 254, p. 20). The court then advised the Appellant about certain time limits he and his counsel had to prepare. (R 254, p. 20). The trial court then sta ted that if the Appellant received unadjudicated community supervision and vi olated the conditions of probation, Appellant would be subject to arrest and a hearing to determineAppellant Ramey’s Anders Appeal Brief Page 14

if guilt should be adjudicated. If guilt was adjud icated, then the full range of punishment would be open to the court. (R 254, p. 20). The plea agreement document continued with a secti on titled “Defendant’s Statements and Waivers.” (R 254, p. 2 0). The Appellant stated that he was the accused and was mentally com petent, that he understood the nature of the accusation, the range of punishment and the consequences of a plea of guilty or nolo contender. (R 254, p. 20). He stated that he knew he had an absolute right to a jury tri al, a right to remain silent, that anything he said could and would be used again st him, that he had the right to confront and cross-examine the witnesses a gainst him and the right to be tried upon an indictment returned by the Gran d Jury. (R 254, p. 20) After acknowledging immigration issues not relevant to his case, he waived his right to be tried upon an indictment returned b y the Grand jury, any defects in the indictment, the right to a jury tria l and the right to remain silent. (R 254, p. 21) He also waived arraignment , the reading of the indictment. He waived the appearance (R 254, p. 21 ), confrontation and cross-examination of witnesses, his right to ten da ys to prepare for trial after the appointment of counsel and the preparation of a pre-sentence report, (R 254, p. 21) The next paragraph includes a judicial confession where the Appellant admits that he committed the offense of “ Assault FV (enh) onAppellant Ramey’s Anders Appeal Brief Page 15

__________ exactly as alleged” in the indictment. ( R 253, p. 21) He affirmed that his plea and judicial confession were freely and voluntarily made and not influenced by any consideration of fea r, persuasion or delusive hope of pardon or parole. (R 254, p. 21) He stated he understood the admonitions regarding unadjudicated community super vision. (R 254, p. 21) He stated he understood his rights under the U niform Extradition Act. He stated he understood he did not have a right to appeal the plea if the Court followed the terms of the State’s recommendat ion as to sentencing. (R 254, p. 21) Appellant signed the plea agreement stating that his attorney explained the document to him, that he understood i t and that the plea, his statements and waivers were knowingly, freely and v oluntarily made with full understanding of the consequences. He asked t he trial court to accept his plea. (R 253, p. 34) The Appellant, his defense counsel, the prosecutor and the trial judge signed the document and it was filed with the court clerk. (R 254, p. 21) A document entitled “Judicial Confession was intro duced into evidence as State Exhibit 1. (R 254, p. 30-31; SF, p. 6) The document signed by the Appellant and his counsel states that the Appellant consents to the stipulation of evidence and waives the appearan ce, confrontation and cross-examination of witnesses and that he consents to the introduction ofAppellant Ramey’s Anders Appeal Brief Page 16

the “Judicial Confession.” (R 254, pp. 30-31; SF- Plea Vol. 2, pp. 6; State’s Exhibit 1 – hereinafter cited as “ST Ex 1”). The “ Judicial Confession” then states that, after waiving his state and federal co nstitutional rights against self-incrimination, and after being sworn, upon oat h, committed the offense as detailed in the indictment:



### C. Judgment of Conviction The Judgment of Conviction (R 254, pp. 23-25) appe ars to be proper and states each of the applicable requirements of A rt. 42.01 of the Code of Criminal Procedure. The Judgment was signed by the trial court and entered of record. It reflects: 1. The title and number of the case;Appellant Ramey’s Anders Appeal Brief Page 17

2. That the case was called and the parties appeare d, naming the attorney for the state, the defendant, and the atto rney for the defendant; 3. The plea of true to the offense charged; 4. The submission of the evidence; 6. The verdict or findings of the court; 7. That the defendant was adjudged guilty of the of fense as found by the finding of the court, and that the defendant be punished in accordance with the court's finding as to the prope r punishment; 8. That the defendant was sentenced a term of confi nement; 9. The county and court in which the case was trie d; 10. The offense for which the defendant was convic ted; 11. The date of the offense and degree of offense f or which the defendant was convicted; 14. The term of sentence; 15. The date judgment was entered; 16. The date sentence was imposed; 17. The date sentence was to commence and any cred it for time served;Appellant Ramey’s Anders Appeal Brief Page 18

18. The terms of any order entered pursuant to Arti cle 42.08 Texas Code of Criminal Procedure that the defendant's sen tence is to run concurrently with another sentence or sentences; 19. The terms of any plea bargain (The record indic ates that this case did not have a plea bargain on the issue of se ntence (R 254, p. 19; SF- Vol. 2, pp. 6, 52); 20. The defendant's thumbprint was taken in accorda nce with Article 38.33 of the code of criminal procedure (Ar ticle 38.33 of the Code of Criminal Procedure requires that the defend ant’s right thumbprint be rolled legibly on the judgment or doc ket sheet in the case. This was not done, but the Judgment states: “Thumbprint Certificate attached.” (R 254, p. 24). In the Reco rd on Appeal is a document titled “Judgment Certificate of Thumbprint .” (R 254, p. 25). The document appears to comply with the requirement s of the statute. Further there is nothing in the record to indicate that the fingerprint is for anyone other than the Appellant. No objection was lodged below to the failure of the Judgment or the docket sheet to include a rolled fingerprint of the Appellant’s right thumbprint.);Appellant Ramey’s Anders Appeal Brief Page 19

21. The trial court did not order the defendant to repay a reward or part of a reward under Articles 37.073 and 42.152 o f the code of criminal procedure; 22. The trial court did not order restitution to be paid to the victim; 23. The Appellant was not required to register as a sex offender; 24. The Appellant’s state identification number was entered; and 25. The state incident number was entered. 

## D. Potential Ground of Error During the hearing on punishment the Appellant cle arly testified that he was not guilty. (See pages 10-11 above and SF V ol 2, pp. 61, 63-64, 66, 67, 68, 69). However after making the initial stat ements to the trial court on direct examination, he following occurred: Q (BY MR. SMITH) Now, Mr. Ramey -- now, we basicall y -- we are doing an open plea here; do you understand t hat? A Yes, sir. Q And you entered a plea of guilty?
A Yes. Q And we gave up our right to a jury trial? A Yes, sir.Appellant Ramey’s Anders Appeal Brief Page 20

THE COURT: I'm a little bit confused. If you didn't do any of the things that she says, that she has testified th at you did, why are you pleading guilty? THE DEFENDANT: I guess I know how the court system works. I know -- I know how I look. I know how she looks. I know that it doesn't look good for me. I just -- I really want to get back out there to my kids. She -- she has no reason to fear me wha tsoever. She -- like I said, she'll never see me again for -- fo r -- for the rest of her life and the rest of my life. I -- the only thi ng I want to do is get back to my children. My relationship with my da ughter was very, very close one, and she hasn't seen her fathe r now in over a year and a half. And my son is two-years-old and I've been locked away for almost a year now. (SF Vol 2, pp. 6 4-65) After his cross-examination, the following occurred :
REDIRECT EXAMINATION BY MR. SMITH: Q Johnathon, do you want to have a jury trial? A No, sir. Q All right. Are you pleading guilty? A Yes, sir. Q And, again, you're asking for a chance at probat ion to prove to the Court you -- you can do it? A Yes, sir. And I -- I also enrolled in the BIPP c lass. I've done ten weeks and I plan to continue after I get o ut of here.Appellant Ramey’s Anders Appeal Brief Page 21

Q And you're asking for a chance at the felony dom estic violence specialty court program? A Yes, sir. Q IOP? A Yes, sir. Q High-risk caseload? A Yes, sir. Q Anything -- anything, but for prison, is what we 're asking for here? A Yes, sir. I'm asking for the chance to get out t here and be able to be a father to my children and lead by exam ple. (SF Vol 2, pp. 77-78) Prior to 1978 the trial court would have been requ ired to withdraw Appellant’s plea and set the case for a trial. See Moon v. State, 572 S.W.2d 681 (Tex. Crim. App. 1978). 3 However the current law does not require

3 In a long line of authorities the Court of Criminal Appeals has held that when the evidence introduced makes evident the innocence of the accused or which reasonably and fairly raises an issue as to such fact and such evi dence is not withdrawn, the trial court is required on its own motion to withdraw the defendan t's guilty plea or nolo contendere plea and enter a not guilty plea for the defendant. E. G. Harris v. State (76 Tex.Cr.R. 126), 172 S.W. 975 (Tex.Cr.App.1915); Edwards v. St ate (134 Tex.Cr.R. 153), 114 S.W.2d 572 (Tex.Cr.App.1938); Navarro v. State (141 Tex.Cr.R. 196), 147 S.W.2d 1081 (Tex.Cr.App.1941); Rayson v. State (160 Tex.Cr.R. 1 03), 267 S.W.2d 153 (Tex.Cr.App.1954); Fite v. State (163 Tex.Cr.R. 279 ), 290 S.W.2d 897 (Tex.Cr.App.1956); Richardson v. State (164 Tex.Cr. R. 500), 300 S.W.2d 83 (Tex.Cr.App.1957); Edworthy v. State, 371 S.W.2d 56 3 (Tex.Cr.App.1963); Reyna v. State, 434 S.W.2d 362 (Tex.Cr.App.1968); Swanson v. State, 447 S.W.2d 942Appellant Ramey’s Anders Appeal Brief Page 22

such action. The trial court is not required to wi thdraw a defendant's plea of guilty sua sponte and enter a plea of not guilty wh en a defendant enters a plea of guilty before the trial court after waiving a jury, even if evidence is presented that either makes the defendant's innocen ce evident or reasonably and fairly raises an issue as to his guilt. See id . at 682. The Moon decision reasoned that it is the trial court's duty to consi der the evidence submitted and, as the trier of facts, the court may find the defendant guilty of the crime charged or a lesser offense or it may acquit the de fendant. Thus, no valid purpose would be served to require a trial court to withdraw a guilty plea.
See Moon, 572 S.W.2d at 682; Solis v. State, 945 S.W.2 d 300, 303 (Tex.App.--Houston [1st Dist.] 1997, pet. ref'd); E dwards v. State, 921 S.W.2d 477, 480 (Tex.App.--Houston [1st Dist.] 1996 , no pet.). The entry of a valid guilty plea “has the effect o f admitting all material facts alleged in the formal criminal charg e.” Ex parte Williams, 703 S.W.2d 674, 682 (Tex.Crim.App. 1986). In a trial b efore the court, once a

(Tex.Cr.App.1969); Hays (Hayes) v. State, 484 S.W.2 d 922 (Tex.Cr.App.1972); Lee v. State, 503 S.W.2d 244 (Tex.Cr.App.1974); Lewis v. S tate, 529 S.W.2d 550 (Tex.Cr.App.1975); Gates v. State, 543 S.W.2d 360 ( Tex.Cr.App.1976); Woodberry v. State, 547 S.W.2d 629 (Tex.Cr.App.1977); Malone v. State, (548) S.W.2d (908) ((Tex.Cr.App 1977). This rule has been recognized a nd applied even when a jury has been waived and the plea is before the court withou t a jury. Burks v. State (145 Tex.Cr.R. 15), 165 S.W.2d 460 (Tex.Cr.App.1942); Gonzales v. State, 480 S.W.2d 663 (Tex.Cr.App.1972); Faz v. State, 510 S.W.2d 922 (Te x.Cr.App.1974); Trevino v. State, 519 S.W.2d 864 (Tex.Cr.App.1975); Cooper v. State, 537 S.W.2d 940 (Tex.Cr.App.1976); Sanchez v. State, 543 S.W.2d 132 (Tex.Cr.App.1976).Appellant Ramey’s Anders Appeal Brief Page 23

defendant enters a valid guilty plea, no constituti onal “fact questions” remain for the purposes of his constitutional right to a factual sufficiency review of the evidence used to convict him. The Sta te is no longer required to prove his guilt beyond a reasonable doubt. See id . In fact, for the purposes of federal due process, a plea of guilty is itself a conviction awaiting only determination of punishment. See Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); see also O'Brien v. State, 154 S.W.3d 908, 910 (Tex. App.-Dallas 2005, no pet.) (holding no federal due process right to factual sufficiency review). In Texas, ho wever, the State is also bound by statute to support the plea with sufficien t evidence. See Tex. Code Crim. Proc. Ann. art. 1.15. Under Article 1.15, Te xas Code of Criminal Procedure, the State is required to introduce evide nce demonstrating the defendant's guilt. Tex.Code Crim. Proc. Ann. art. 1 .15. A judicial confession alone is usually sufficient to satisfy t he requirements of Article 1.15 “so long as it embraces every constituent elem ent of the charged offense.” Menefee v. State, 287 S.W.3d 9, 14 (Tex.C rim.App.2009). A defendant relinquishes his right to complain abo ut the State's proof of his guilt beyond a reasonable doubt when he volu ntarily enters his guilty plea. McGill v. State, 200 S.W.3d 325, 330 (Tex.A pp.--Dallas 2006, no pet.) Due process is not denied by a conviction ba sed on a plea of guiltyAppellant Ramey’s Anders Appeal Brief Page 24

accompanied by a strong factual basis for the plea and a defendant's clearly expressed desire to enter it despite his professed innocence. McGill v. State,

supra ; Mendez v. State, 138 S.W.3d 334, 344 (Tex.Crim.Ap p. 2004) (citing North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 , 27 L.Ed.2d 162 (1970)). The number of cases in which defendants c hange their mind about the waiver of their right to plead not guilty is sm all, the appearance of evidence inconsistent with guilt is unpredictable t o the court, and cases are common in which there is some evidence in the defen dant's favor but he has validly chosen to plead guilty after weighing the a dvantage of such a plea against the chance of acquittal. See Mendez, 138 S.W.3d at 350. After a trial court has implemented the constitutional rights ent ailed in the entry of a guilty plea, it is "appropriate that the defendant be required to take some affirmative action to don the armor again" if he wa nts an appellate court to review the factual sufficiency of the evidence agai nst him. See id. If a guilty-pleading defendant decides mid-trial t hat he wants to compel the trial court to evaluate the evidence und er the reasonable doubt standard, he must seek to withdraw the plea of guil ty. McGill v. State, supra If he fails to do so, he is precluded from having a n appellate court review the evidence against him under the traditional legal an d factual sufficiencyAppellant Ramey’s Anders Appeal Brief Page 25

analyses. McGill v. State, supra ; Simpson v. State, 67 S.W.3d 327, 329 (Tex. App.-Texarkana 2001, no pet.). In Valle v. State, 747 S.W.2d 541, 546 (Tex.App. —Fort Worth 1988, no pet.) the Appellant testified as to the re asons he pled guilty. The Court stated: “The fact that appellant entered a plea of guilty i n hope of escaping the possibility of a higher sentence does not invalidate the plea. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Hill v. Estelle, 653 F.2d 20 2 (5th Cir.1981), cert. denied, 454 U.S. 1036, 102 S.Ct. 5 77, 70 L.Ed.2d 481 (1981). This is not fear of bodily harm , improper inducements or ‘terror’ which the statute is meant to circumvent. See Boykin, 395 U.S. at 243, 89 S.Ct. a t 1712; see also Jones v. Estelle, 584 F.2d 687 (5th Cir.1978). ” In Lawal v. State, ,368 S.W.3d 876, 885 (Tex.App.--Houston [14th Dist. ] 2012, no pet.) the Houston Court of Appeals stated: “A defendant may withdraw his plea as a matter of right, without assigning a reason, until judgment is prono unced or the case is taken under advisement by the trial court. Jackson v. State, 590 S.W.2d 514, 515 (Tex.Crim.App.1979); Jag aroo v. State, 180 S.W.3d 793, 802 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). If, however, a defendant desires to withdraw his guilty plea after the court has taken the case under advisement, withdrawal of the plea is within the so und discretion of the court. Jackson, 590 S.W.2d at 515 ; Jagaroo, 180 S.W.3d at 802. After a trial court has admonish ed a defendant, received the plea and evidence, and pass ed the case for pre-sentence investigation, the case has been t aken underAppellant Ramey’s Anders Appeal Brief Page 26

advisement. DeVary v. State, 615 S.W.2d 739, 740 (Tex.Crim.App.1981); Jagaroo, 180 S.W.3d at 802.[1] Because Lawal did not seek to withdraw his plea until the c ase had been taken under advisement, he could not withdraw the p lea as a matter of right. * * * Nevertheless, because the judge is free to make an y finding based on the evidence regardless of the ple a, withdrawal of a guilty plea is not required even when evidence in a PSI raises an issue of a defendant's innocence. Fisher v. State, 104 S.W.3d 923, 924 (Tex.App.-Houston [14th Dist.] 2003 , no pet.); Graves v. State, 803 S.W.2d 342, 346 (Tex.Ap p.-Houston [14th Dist.] 1990, pet. ref'd). Proper admonishment s by a trial court establish prima facie proof that a guilty ple a was entered knowingly and voluntarily. Martinez v. State, 981 S .W.2d 195, 197 (Tex.Crim.App.1998); Houston v. State, 201 S.W. 3d 212, 217 (Tex.App.-Houston [14th Dist.] 2006, no pet.). The burden then shifts to the defendant to show he pleaded gui lty without understanding the consequences of his plea and, con sequently, suffered harm. Houston, 201 S.W.3d at 217. A defend ant has a “heavy burden” to prove in a subsequent hearing tha t he entered the plea involuntarily. Id.” In the pre3sent case there is absolutely no indica tion that Appellant wished to withdraw his plea of guilty. The transcr ipt clearly shows that although the Appellant denied doing the acts allege d in the indictments, he clearly wished to continue with his plea of guilty and try to get a probated sentence. Without some hint the Appellant wished t o withdraw his plea, counsel on appeal cannot make an effort to raise th e issue on direct appeal.Appellant Ramey’s Anders Appeal Brief Page 27 

## Conclusion

Based on the review of the Clerk’s Record and the Statement of Facts it is counsel’s belief that there are no arguable g rounds of error to present to this Court of Appeals. Respectfully submitted, /s/ 

## Ronald L. Goranson RONALD L. GORANSON 3838 Oak Lawn Avenue, Ste. 1124 Dallas, Texas 75219 (214) 651.1122 (214) 871.0620 (fax) State Bar No. 08195000 Email – rlgatty@aol.com ATTORNEY FOR APPELLANT 

### CERTIFICATE OF SERVICE I, the undersigned, do hereby certify that a true a nd correct copy of the Appellant's Brief was delivered to Ms. Lori Ordiway , Assistant District Attorney, Appellant Division, Dallas County Distric t Attorney’s Office, 133 N. Riverfront Blvd, 10 th floor, Dallas, Texas, 75207 this May 31, 2018.
/s/ 

### Ronald L. Goranson RONALD L. GORANSONAppellant Ramey’s Anders Appeal Brief Page 28 CERTIFICATE OF SERVICE - APPELLANT I certify that the above Appellant’s Anders Brief w as placed in an envelope properly addressed and mailed to: Johnathon C. Ramey TDJC # 2182808 John Middleton Unit 13055 FM 3522 Abilene, TX 79601 on this May 31, 2018. I further certify that a cop y of the Statement of Facts and the Appellate Record have been forwarded to App ellant at the above address, along with a letter advising him of his ri ght to file an appeal brief and the address of this Court of Appeals. Also enc losed was a copy of a motion requesting an extension of time within which to file him brief.
/s/ 

### Ronald L. Goranson RONALD L. GORANSON


### Certificate of Compliance Pursuant to Rule 9.4(i)(3), Texas Rules of Appella te Procedure, counsel for Appellant certifies that there are 6507 words in this document pursuant to the inclusions and exclusions required by Rule 9.4(i)(1), Texas Rules of Appellate Procedure.
/s/ 

### Ronald L. Goranson RONALD L. GORANSON