David Wayne McCullough v. State

NO. 07-99-0388-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C SEPTEMBER 5, 2001 ______________________________ DAVID WAYNE McCULLOUGH, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY; NO. 12,163-C; HONORABLE ED NOBLES, JUDGE _______________________________ Before QUINN and REAVIS and JOHNSON, JJ. Upon a plea of not guilty, appellant David Wayne McCullough was convicted by a jury of assault on a public servant and pursuant to an agreement, punishment was assessed by the court at 25 years confinement. In presenting this appeal, counsel has filed an Anders (1) brief in support of a motion to withdraw. Based upon the rationale expressed herein, the motion to withdraw is granted and the judgment is affirmed. In support of her motion to withdraw, counsel has certified that, in compliance with Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and High v. State, 573 S.W.2d 807, 813 (Tex.Cr.App. 1978), she has diligently reviewed the record and, in her opinion, the record reflects no reversible error or grounds upon which an appeal can be predicated. Thus, she concludes the appeal is frivolous and without merit. Counsel has candidly discussed why, under the controlling authorities, there is no error in the court's judgment. Counsel has also shown that she sent a copy of the brief to appellant, and informed appellant that, in counsel's view, the appeal is without merit. In addition, counsel has demonstrated that she notified appellant of his right to review the record and file a pro se brief if he desired to do so. By letter the State indicated it only desired to file a brief if appellant filed a pro se brief. Appellant did not file a pro se brief. A review of the record establishes that on the evening of December 22, 1996, appellant was involved in an automobile accident. Officer Brent Bryant was dispatched to the scene to assist with the investigation. Upon arriving, he noticed that appellant was very agitated and that there were indications he was intoxicated. Officer Douglas Harlan was also called to the scene because he was certified in the horizontal gaze nystagmus sobriety test. Appellant, who was sitting on a curb, ran away as Bryant approached him. Bryant pursued him for approximately one block and apprehended him. The testimony of several witnesses established that appellant resisted, struggled, was uncooperative, and shouted vulgarities at the officers. Several officers managed to subdue appellant and place him in handcuffs. Leg restraints were also placed on appellant to enable the officers to place him in the back of the patrol car. According to Harlan's testimony, appellant appeared violent and made threats such as "you're dead," "your mother is dead," and "when I get out, I am going to kill you." Officer Bryant and appellant drove to the county jail and Officer Harlan followed in his patrol car. While in the elevator at the jail facilities, appellant kicked Harlan and together with Bryant they fell to the ground. He then kicked Bryant in the nose causing it to bleed. County deputies responded to assist the officers. After appellant was placed in a cell and the officers began their paperwork, they heard loud banging. They discovered that appellant was banging his head against the cell wall and a county deputy used pepper spray on appellant to calm him down. Appellant had blood in one of his ears and it was determined that he should be taken to the hospital for medical clearance. He was transported to a nearby hospital in a larger vehicle than a patrol car because of the difficulty the officers had encountered in placing him in a patrol car the first time. At the hospital appellant's behavior prevented the staff from treating him. He refused to be treated and spit on the nurse and shouted profanities. A doctor suggested he be taken to another hospital. Upon arriving at a second hospital, appellant was still agitated, spitting, and uncooperative. He was restrained on a board and sedated for a CAT scan. Other than a small laceration on his ear, the doctor testified that he did not observe any other cuts or bruises on appellant, and his CAT scan was normal. He did observe that appellant was suffering from acute alcohol intoxication. Appellant was released and taken back to the county jail. Bryant and Harlan offered conflicting testimony regarding whether appellant was still bound by leg restraints when he kicked them in the elevator. The officers testified that the incident in the elevator was chaotic and they could not be sure whether the leg restraints were in place or had become loose. The restraints were described as Velcro restraints which could have come loose while appellant was struggling with the officers. The evidence also established that appellant never claimed that the officers had kicked or beaten him. After a jury found appellant guilty of assault on a public servant, he agreed to have the court assess punishment pursuant to a plea agreement. The State gave him notice of its intent to introduce two prior convictions during punishment. However, trial counsel objected to the introduction of one pen packet as not being self-authenticating because it had been unstapled and restapled. After brief argument, the court overruled counsel's objection and held that there was no evidence to indicate the pen packet was not authentic. Thereafter, appellant plead true to the enhancement paragraphs and the trial court assessed punishment at 25 years confinement in accordance with the agreement. Counsel presents three arguable points of error on appeal and then candidly concludes why no reversible error is presented. First, sufficiency of the evidence is challenged. However, counsel concedes that the evidence presented established the elements of the crime. The State established that Officers Bryant and Harlan were uniformed public servants lawfully discharging their official duties and that appellant intentionally or knowingly made threats, caused bodily injury, or caused offensive physical contact. Tex. Pen. Code Ann. § 22.01 (a) and (b) (Vernon Supp. 2001). Despite conflicting testimony from the officers regarding whether appellant was in leg restraints when he kicked them, it was within the exclusive province of the jury as the sole trier of fact to reconcile the conflict. Tex. Code Crim. Proc. Ann. art 38.04 (Vernon 1979); see also Losada v. State, 721 S.W.2d 305, 309 (Tex.Cr.App. 1986). By counsel's second point, she questions the authenticity of the pen packet containing different staple holes. However, as counsel points out, any complaint regarding the staple holes would go to the weight of the evidence and not its admissibility. Robinson v. State, 739 S.W.2d 795, 802 (Tex.Cr.App. 1987). Furthermore, appellant's plea of true to the enhancement paragraphs waives a challenge to the authenticity of the pen packet and relieves the State of its burden to prove the enhancement allegations. Harrison v. State, 950 S.W.2d 419, 420 (Tex.App.-Houston [1st Dist.] 1997, pet ref'd); see also Harvey v. State, 611 S.W.2d 108, 111 (Tex.Cr.App. 1981) (holding that an accused who enters a plea of true to enhancement allegations cannot complain that the evidence is insufficient to support the same on appeal). By her final arguable point, counsel raises ineffective assistance of counsel and concedes that trial counsel's performance was within the reasonably professional norm required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See also Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App. 1986). Trial counsel conducted a legally sound voir dire and no objectionable jurors served on the jury. He also effectively cross-examined witnesses and brought out inconsistencies in their testimonies. Numerous objections were made and sustained. Trial counsel negotiated a plea agreement for the minimum punishment possible for appellant's conviction with enhancements. Based on the totality of trial counsel's representation, we agree with appellate counsel that appellant received effective assistance of counsel. See Garcia v. State, 887 S.W.23d 862, 880 (Tex.Cr.App. 1994), cert. denied, 514 U.S. 1021, 115 S.Ct. 1368, 131 L.Ed.2d 223 (1995). We have also made an independent examination of the entire record to determine whether there are any arguable grounds which might support the appeal. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Cr.App. 1991). We have found no such grounds and agree with counsel that the appeal is without merit and is, therefore, frivolous. Currie v. State, 516 S.W.2d 684 (Tex.Cr.App. 1974); Lacy v. State, 477 S.W.2d 577, 578 (Tex.Cr.App. 1972). Accordingly, counsel's motion to withdraw is hereby granted and the judgment of the trial court is affirmed. Per Curiam Do not publish. 1. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). font-size: 12pt"> The State filed Notices of Appeal on each of these Judgments. In addition, the State requested findings of fact and conclusions of law, but no findings and conclusions are contained within the record. On February 24, 2009, Green filed a Motion to Dismiss the State’s Appeal for Want of Jurisdiction. In the motion, Green contends that, due to the holding in State v. Sellers, 790 S.W.2d 316 (Tex.Crim.App. 1990), the State is not permitted to appeal in bond forfeiture cases. In Sellers, the Court reviewed the history of articles 44.42 and 44.01 of the Texas Code of Criminal Procedure. After analyzing these articles and applying them to the facts of the case, the Court held that “neither Article 44.42 nor Article 44.01(a)(2) . . . authorizes the State’s appeal in these causes.” Id. at 321. However, in its analysis of article 44.01(a)(2), the Court was addressing the State’s argument that the trial court’s final judgment was a modification of the trial court’s previous judgment nisi. The Court explained that a judgment nisi is not enforceable by the State and, therefore, a “final judgment following trial upon a judgment nisi cannot be considered an ‘order’ that ‘modifies’ an earlier ‘judgment’” as those terms are used in article 44.01(a)(2). Id. By contrast, the present case does not involve the State’s attempt to appeal a purported modification of a judgment nisi by way of a final judgment. Rather, the State is actually appealing a reformation of a final judgment in a bond forfeiture case under article 22.17. See Tex. Code Crim. Proc. Ann. art. 22.17. The majority of the cases that have addressed appeals of rulings on article 22.17 special bills of review have addressed the defendant’s appeal and, thus, are inapplicable to the issue of our jurisdiction over the State’s appeal. In the only case addressing the issue of the State’s right to appeal a remittitur ordered under article 22.17, see State v. Maldonado, 936 S.W.2d 14 (Tex.App.–San Antonio 1996, no writ), the Court, believing itself bound by the “holding and implications” of Sellers, concluded that article 44.01(a)(2) does not authorize the State to appeal a trial court’s order entered pursuant to article 22.17. Id. at 16. While the Court acknowledged that the facts of the case were distinguishable from those presented in Sellers, it indicated that the State “has not made this argument in this case.” Id. Of course, whether a court has jurisdiction over an appeal is a question of law and the proponent of the court’s assertion of jurisdiction is not obligated to argue for the existence of the court’s jurisdiction. The Court additionally states that, “. . . it would be ironic, at best, if the State could appeal an order of remittitur entered in a bill of review proceeding when, under Sellers, it plainly could not appeal the same order if it were entered in a bond forfeiture proceeding within the period of the trial court’s plenary power.” However, the basis for the Sellers holding that the State cannot appeal an order entered within the period of the trial court’s plenary power is that the order entered during the trial court’s plenary power is not a final order that would bring it within the purview of article 44.01(a)(2). See Sellers, 790 S.W.2d at 320-21. In the present case as well as in Maldonado, the State is appealing a final judgment that was “reformed” in accordance with the procedure identified in article 22.17 and, thus, ironic or not, it falls within the express terms of article 44.01(a)(2), as acknowledged by the Maldonado Court. Maldonado, 936 S.W.2d at 16. The Maldonado Court’s discomfort in their reliance on Sellers is illustrated by the closing statement in the opinion, “While the Texas Court of Criminal Appeals may ultimately hold that article 44.01(a)(2) authorizes the State to appeal an order entered pursuant to article 22.17, we believe ourselves bound by the holding and implications of Sellers. Accordingly, the State’s appeal is dismissed for want of jurisdiction.” While we question the analysis of the Maldonado Court, we do not question its holding. Sellers instructs us that article 44.42 does not authorize the State to appeal a final judgment in a bond forfeiture proceeding. See Sellers, 790 S.W.2d at 319. However, Sellers further provides that article 44.42 does not prohibit the State’s appeal in a bond forfeiture case if otherwise authorized by the legislature. See id. We are aware of no legislative authorization contained within the Code of Criminal Procedure or elsewhere that would authorize the State to take a direct appeal from a final judgment in a bond forfeiture proceeding. Thus, were we presented with the State’s direct appeal from a final judgment in a bond forfeiture proceeding, we would have no pause in dismissing the appeal for want of jurisdiction. But, the present case is not a direct appeal from a final judgment in a bond forfeiture proceeding. Rather, it is an appeal of a reformation of a final judgment. While we acknowledge the State’s argument that article 44.01(a)(2) appears to authorize the State to appeal an order that “arrests or modifies a judgment,” including a judgment in a bond forfeiture proceeding, we find that it would be logically inconsistent for that article to authorize the appeal of a modification of a final judgment, while at the same time not authorizing the appeal of the original judgment. Because we must construe statutory provisions in a manner that avoids illogical or absurd results, see Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991), we hold that article 44.01(a)(2) does not authorize the State to appeal a reformation of a final judgment in a bond forfeiture proceeding. For the foregoing reasons, we dismiss the State’s appeal for want of jurisdiction. Mackey K. Hancock Justice