HHtS

CAUSE NO:

IN THE

COURT OF CRIMINAL APPEALS U K IU IN A L

OF TEXAS

REGINALD FRITZ BELL,

APPELLANT/PETITIONER

RECEIVED IN

VS. COURT CF CRIMINAL APPEALS

JUL 20 2015

THE STATE OF TEXAS,

APPELLWREstefiWtepte.CS@rk

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

Fll FD IN

COURT OF CRIMINAL APPEALS

IN APPEAL NO: 02-14-00156-CR JUL 22 20^5

FROM THE

Abel Acosta, Clerk

COURT OF APPEALS

FOR THE 2ND JUDICIAL DISTRICT OF TEXAS

Reginald F. Bell

TDCJ-ID: 1923613

James A. Lynaugh Unit

1098, South Hwy 2037

Ft. Stockton, Tx 79735
CAUSE NO:

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

REGINALD FRITZ.BELL,

APPELLANT/PETITIONER

VS.

THE STATE OF TEXAS,

APPELLEE/RESPONDENT

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

TO THE COURT OF CRIMINAL APPEALS OF TEXAS:

Appellant/Petitioner respectfully submits this Petition for

Discretionary Review and moves that this Honorable Court grant review

of this cause and offers the following in support thereof ;

Statement Regarding Oral Argument

The Appellant/Petitioner request Oral Argument in this case because

such argument may assist the Court in applying the facts to the issues

raised, it is suggested that Oral Argument may help simplify the facts

and clarify the issues.

-1-
Statement of the Case

On May 24, 2013, Appellant was indicted for the felony offense

of Indecency - Fondling alleged to have occurred on or about Septem

ber 02, 2012 in Tarrant County, Texas (CR6). On September 27, 2013,

Appellant entered a plea of guilty and received 10 years deferred

adjudication probation, pursuant to a plea bargain agreement which

was approved by the trial Court. (CR26-31). On March 03, 2014, the

State filed its first Petition to proceed to adjudication (CR45-49),

on April 15, 2014, the trial Court conducted a hearing on the Petition.

After being admonished by the trial Court, Appellant entered plea of

"True" to each allegation (RR.I 5-16). The State offered no testimony

(RR. I 15). Appellant's trial counsel called four witness, including

Appellant (RR I 18-86). After both sides rested and presented argument,

the trial Court assessed Appellant's punishment at 15 years in the

Institutional Division of the Texas Department of Criminal Justice

(RR I 93). The next day, Appellant filed his notice of appeal (CR 73).

-2-
Statement of Procedural History

In Case No. 1319218-D, The Appellant/Petitioner was charged with

the offense of Indecency with a Child. The Appellant/Petitioner was

convicted of such offense on April 15, 2014 and appealed the convic

tion.

On April 16, 2015, the 2nd Court of Appeals affirmed the convic

tion. No Motion for Rehearing was filed. sOn July 17, 2015, this Petition

for Discretionary Review was timely forwarded to the Court of Appeals

for filing pursuant to Rule 9.2(b) Texas Rules of Appellate Procedure.

-3-
List of Interested Parties

Pursuant to the Texas Rules of Appellate Procedure, Rule 38.1

(a), Appellant lists the following persons who have an interest in

the appeal for purpose of the Court's determining conflicts and re

cusals :

PARTIES TRIAL COUNSEL

REGINALD FRITZ BELL Hon. Gary Shane Lewis

Attorney At Law

1319 Ballinger Street

Fort Worth, Tx 76102

THE STATE OF TEXAS

-lAPPELLATE COUNSEL

Don Hase

Attorney At Law

4025 Woodland Park Blvd,

Suite 100

Arlington, Tx 76013

TRIAL COUNSEL

Hon. Erin W. Cofer

Mr. Phillip Hall (Intern)

Assistant District Attorney

401 W. Belknap

Fort Worth, Tx 76196

APPELLATE COUNSEL

Hon. Joe Shannon, Jr., .:.L. • ?,

District Attorney

Hon. Charles Mallin,

Assistant Attorney

Attorney & Chief of Appellate

Section

401 W. Belknap

Fort Worth, Texas 76196

JUDGE

Hon. Mollee Westfall

371st District Court

401 W. Belknap

Fort Worth, Texas 76196
Table of Contents

Page

INDEX OF AUTHORITIES iii

STATEMENT REGARDING ORAL ARGUMENT 1

STATEMENT OF THE CASE 2

STATEMENT OF PROCEDURAL HISTORY 3

GROUNDS FOR REVIEW 4

GROUND FOR REVIEW NO. ONE 5

CLAIM OF JURISDICTION DEFECT.

GROUND FOR REVIEW NO. TWO 6

IMPROPER VENUE

GROUND FOR REVIEW NO. THREE 7

INEFFECTIVE ASSISTANCE OF COUNSEL AT ORIGINAL PLEA PROCEEDING

GROUND FOR REVIEW NO. FOUR 8

INEFFECTIVE ASSISTANCE OF COUNSEL AT COMMUNITY SUPERVISION

REVOCATION HEARING

GROUND FOR REVIEW NO. FIVE 9

ONE PROSECUTOR NOT AUTHORIZED TO PRACTICE LAW

ARGUMENT NUMBER ONE 5

ARGUMENT NUMBER TWO 6

ARGUMENT NUMBER THREE 7

ARGUMENT NUMBER FOUR 8

ARGUMENT NUMBER FIVE 9

PRAYER FOR RELIEF 10

CERTIFICATE OF SERVICE 10

APPENDIX A. [MEMORANDUM OPINION] 11-14

LIST OF INTERESTED PARTIES i

-ii-
Index of Authorities

Cases^ Page

Rodriguez v. State, 42 S.W. 3d 181 4,5

Black v. State, 645 S.W. 2d 789 4,6

David v. State, 704 S.W. 2d 766 4

Jones v. State, 42 S.W. 3d 143 5

Martinez v. State, 5 S.W. 3d 722 5

Exparte Rogers, 820 S.W. 2d 35 5

Peterson v. State, 659 S.W. 2d 59 6

Couchman v. State, 3 S.W. 3d 155 6

Granados v. State, 843 S.W. 2d 736 6

Barton v. State, 948 S.W. 2d 364 6

Braddy v. State, 908 S.W. 2d 465 6

Exparte Harmon, 116 S.W. 3d 778 (Tex. Crim. App. 2003) 7

Exparte Patrick Logan Montgomery, 2009 WL 1165499 (Tex. Crim

App. 2009) 7

Schmutz v. State, 440 S.W. 3d 29 7

Wesley v. State, 548 S.W. 2d 37 7

Slavin v. State, 548 S.W. 2d 30. 7

C.F. v. State, 897 S.W. 2d 464 7

Polk v. State, 547 S.W. 2d 605 7

Victory v. State, 547 S.W. 2d 1 7

Cooper v. State, 45 S.W. 3d 77 8

Mendozaiv. State, 76 S.W. 3d 742 8

Rules:

Texas Rules of Appellate Procedure, Rule 9.2(b) 3

Texas Rules of Appellate Procedure, Rule 38. lg 4

Texas Criminal Procedure Code Ann §§13,14 and 13, 17... 6

Code of Criminal Procedure Article 42.12 §5(b) 4

Texas Rules of Appellate Procedure, Rule 25.26(3) 9

Code of Criminal Procedure Article 1.15 and 1.17 9

Other Authorities

Criminal Law 105

Courts - 40

Criminal Law 564(1)

-in-
Grounds for Review

I.

Claim of Jurisdiction Defect

When a Court has no jurisdiction, it has no power to act, and

any actions taken in the absence of jurisdiction is void. Rodriguez

v. State, 42 S.W. 3d 181.

II.

Improper Venue

As a general rule, venue is proper in the county where alleged

Sexual Offense takes place. Tex. Crim. Proc. Code Ann §§13.14 and

13.17. Black v. State 645 S.W. 2d 789.

III.

Ineffective Assistance of Counsel at original Plead Proceeding.

After adjudication of guilt, a defendant's normal appellate

remedies are available to him under Article 42.12 §5(b) raise a

claim of error arising from the original plea proceeding. David v.

State, 704 S.W. 2d 766.

IV.

Ineffective Assistance of Counsel at Supervision Revocation hearing.

The right of the defendant to appeal for a review of the con

viction and punishment, as provided by law, and he is called on to

serve a sentence in a jail or in the TDCJ.

V.

One Prosecutor not Auhtorized to Practice Law.

One Prosecutor not authorized to practice law pursuant to

Texas Rules of Appellate Procedure, Rule 38.1(g). The trial Court

erred when it allowed a person not authorized to practice law in

Texas acting as one of the two prosecutors in the revocation hearing,
Ground for Review No. One

Claim of Jurisdiction iDefect

Statement of Facts:

According to the indictment the alleged felony offense occurred

on or about December 02, 2012 in Tarrant County, Texas (CR6). However,

the Court error by invoking jurisdiction because the Court didn't have

jurisdiction of person. The defendant didn't live in Tarrant County

and the venue was not in Tarrant County either. The alleged felony

offense occurred at the Budget Suite 1050 N. Hwy 360 Grand Prairie,

Texas 75050, Dallas County. The defendant also lived in Dallas County

at the time of alleged offense. Criminal law 105 a jurisdiction issue

may always be reached at any time whether raised by the parties or by

the Court. Rules App. Proc. Rule 25.2b(3) as in Jdnes v. State, 42

S.W. 3d 143. Court - 40 any action taken by a Court without jurisdic

tion is void. Martinez v. State, 5 S.W. 3d 722 (Tex. App.-San Antonio

1999). Subject matter jurisdiction in both criminal and civil matter

is fundamental, can be raised at any time and cannot be waived orc.v-i

conferred by agreement, Exparte Rogers, 820 S.W. 2d 35. Thus when a

Court has no jurisdiction, it has no power to act, and any actions

taken in the absence of jurisdiction is void. Rodriguez v. State, 42

S.W. 3d 181.

-5-
Ground for Review Two

Improper Venue

As a general rule, Venue is proper in the county where the alle

ged Sexual Offense takes place. Tex. Crim. Proc. Code Ann. §§13.14 &

13.17. The burden of proof is on the State to establish proper venue

by a preponderance of the evidence Black v. State, 645 S.W. 2d 789;

Peterson v. State, 659 S.W. 2d 59, failure to prove venue in the

county of prosecution is reversible error. Criminal law 304(6). An

Appellate Court can take judicial notice that a given town is a coun

ty seat. Criminal law 564(1) Judicial notice can serve as proof that

venue lies in the county for which a town is the county seat for crimes

alleged in that town. In the above case the venue is improper because

it lies in the county of Dallas. Proper venue would have afforded the

defendant his due process. Couchman, 3 S.W. 3d 155; Granados, 843 S.W.

2d 736; Barton, 948 S.W. 2d 364; Braddy v. State, 908 S.W. 2d 465.

-6-
Ground for Review Three

Ineffective Assistance of Counsel at original plea proceeding.

Voluntariness of plea was involuntary do to the ineffective of

counsel. Upon hiring Mark Scott of Tarrant County for the offense of

Indecency with a child I was not properly advise about the matter.

Upon setting in county to be released on bond the attempt to contact

the defendant attorney would go without respond. The defendant wrote

the Court about unable to contact the attorney upon trying to get the

case resolved. The defendant felt he had no other choice but, to take

probation and try to resolve the case from outside. A defendant's

guilty plea did not bar relief. Exparte Harmon, 116 S.W. 3d 778 (Tex.

Crim. App. 2003); Exparte Patrick Loyar Montomery, 2009 WL 1165499

Tex. Crim. App. 2009. The act of the defendant counsel was in fact

harmful and prejudice. In Schmutz v. State, 440 S.W. 3d 29,:show the

harmful act of Ineffective Assistance of Counsel. An indictment must

allege both the act and the accompany mental state, because the accom

panying mental state is a part of the conduct "Elements of the offense"

mean the "Forbidden Conduct" plus the required culpability. The defen

dant was advise by his counsel that the out cry alone was good enough

to convict. The defendant told counsel that there was never intent to

arouse or gratify the sexual desire of any person constitutes reversible

error, regardless of whether a Motion to Quash indictment was filed.

Wesley v. State, 548 S.W. 2d 37; Slavin v. State, 548 S.W. 2d 30; C.F.

v. State, 897 S.W. 2d 464; Polk v. State, 547 S.W. 2d 605; Victory v.

State, 547 .'S.W. 2d 1.

-7-
Ground for Review Four

Ineffective Assistance of Counsel at Supervision Revocation Hearing.

In this ground for review, Counsel's .action was harmful and pre

judice by not objecting to at several stages of the hearing. At one

point doing the hearing why defendant was question by the prosecutor

Assistance District Attorney Erin W. Cofer, who's state bar number is

listed as 24066277, which doing question stated the intent to arouse

and gratify the sexual desire of any person was "Irrelavant" which is

necessary for the offense of Indecency with child.' The -plea of guilty

or nolo contendere alone is not sufficient to support conviction; State

is required to introduce sufficient evidence to support judgment. Cooper

v. State, 45 S.W. 3d 77. Also during the punishment phase defendant

counsel fail to bring to the attention of the court the ruling in a

similar case as to punishment of seven years. When the defendant tried

to object to the punishment he was told to put it on a appeal by the

Court. Even though defendant plead true to the violation there were

do to the defendant trying to fulfill the condition of community super

vision, defendant communicated with community supervisor thus more than

idea candidate for community supervision. Counsel remarks in closing

argument was harm and prejudice to .the ability of the defendant to

complete community supervision. In Mendoza v. State, 935 S.W.' 2d 501;

The Courts dealt with when the evidence is contrary to a guilty plea.

-8-
Ground for Review Five

One Prosecutor not Authorized to Practice law.

Pursuant to Texas Rules of Appellate Procedure Rule 38.1(g),

Appellant submits that the trial court gave permission to appeal.

In Marbut v. State, 76 S.W 3d 742, Justice Gray stated if an appeal

is from a judgment rendered on the defendant's plea of guilty or nolo

contendere under code of criminal procedure article 1.15 and the

punishment assessed did not exceed the punishment recommended by the

prosecutor and agreed to by the defendant. State that the trial court

granted permissionvito appeal. The trial court denied any objection

when defendant tried to object in the punishment phase of the hearing

stating to put it on an appeal. Court gave permission to do so. There

fore the defendant preserve this alleged error for review according

to Rule of Appellate Procedure 25.2(b)(3), Criminal law 1030(2) and

1033.1. Denial of absolute, systemic requirement which do not require

a timely and specific objection to raise for the first time on appeal,

includes jurisdiction of the person, jurisdiction of the subject matter

and a Penal Statute's being in compliance.

•9-
Prayer for Relief

For the reasons stated above, it is respectfully submitted that

the Court of Criminal Appeals of Texas shoud grant this Petition for

Discretionary Review.

Respectfully Submitted,

laid Fritz Bell

•ID #1923613

James A. Lynaugh Unit

1098, South Hwy 2037

Ft. Stockton, Tx 79735

Certificate of Service

The undersigned Appellant/Petitioner hereby certify that a true

and correct copy of the foregoing Petition for Discretionary Review

has been mailed, U.S. Mail postage prepaid to the office of the

Criminal District Attorney for Tarrant County, Hon Joe Shannon, Jr.,

District Attorney, 401 W. Belknap, Forth Worth, Texas 76196 and to

the State Prosecution Attorney, P.O.Box 12405, Austin, Texas 78711

on this the 17th dat of July, 2015.

X

•10-

RegLrfald Legijnald Fritz Fri Bel

Appellant/Petitioner
/

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-14-00156-CR

REGINALD FRITZ BELL APPELLANT

V.

THE STATE OF TEXAS

FROM THE 371 ST DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 1319218D

MEMORANDUM OPINION1

STATE

Appellant Reginald Fritz Bell appeals the trial court's judgment adjudicating

him guilty of indecency with a child and sentencing him to fifteen years'

confinement. See Tex. Penal Code Ann. §21.11 (West 2011). In one point, Bell

argues that the trial court reversibly erred by allowing a law-student intern from

the district attorney's office to question two witnesses and make closing

1SeeTex. R. App. P. 47.4.
arguments during the punishment hearing that followed the trial court's

adjudication of guilt. We will affirm.

The facts of this case are not in dispute. And Bell does not dispute that he

pleaded "true" to each of the State's alleged violations in its petition to proceed to

adjudication. Bell also does not challenge the trial court's having adjudicated him

guilty based upon his pleas. See Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim.

App. [Panel Op.] 1979) (holding that a defendant's plea of true to any of the

State's alleged violations, standing alone, is sufficient to support a trial court's

revocation of community supervision). Rather, Bell argues that Phillip Hall, an

apparent law student and intern at the district attorney's office who purportedly

sat "second chair" to Tarrant County Assistant District Attorney Erin W. Cofer

during the adjudication proceedings below, should not have been allowed to

question witnesses nor make closing arguments without the trial court first having

found that Hall was a "qualified law student" in accordance with the Supreme

Court of Texas's promulgated rules that govern when a law student may

participate in court proceedings. See Tex. Gov't Code Ann. § 81.102(b)(3) (West

2013) (stating that the supreme court may promulgate rules that govern and

allow law students to practice law). The State argues that because Bell did not

object at trial to Hall's participation, Bell has failed to preserve this alleged error

for our review. We agree with the State.

As a general rule, to preserve a complaint for our review, a party must

have presented to the trial court a timely request, objection, or motion that states
the specific grounds for the desired ruling if they are not apparent from the

context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Layton v.

State, 280 S.W.3d 235, 238-39 (Tex. Crim. App. 2009). Here, Bell did not object

in the trial court that Hall was not a "qualified law student." Therefore, Bell failed

to preserve this alleged error for our review, and we overrule his sole issue. See

Marbut v. State, 76 S.W.3d 742, 750 (Tex. App.—Waco 2002, pet. refd) (holding

that defendant forfeited appellate review of alleged procedural violations in

appointing an attorney pro tern by failing to object in the trial court).

Having overruled Bell's sole issue on appeal, we affirm the trial court's

judgment.

/s/ Bill Meier

BILL MEIER

JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: April 16,2015
COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-14-00156-CR

Reginald Fritz Bell § From the 371st District Court

§ of Tarrant County (1319218D)

v. § April 16, 2015

§ Opinion by Justice Meier

The State of Texas § (nfp)

JUDGMENT

This court has considered the record on appeal in this case and holds that

there was no error in the trial court's judgment. It is ordered that the judgment of

the trial court is affirmed.

SECOND DISTRICT COURT OF APPEALS

By /s/ Bill Meier

Justice Bill Meier
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