Noel L. Taylor v. State

NO. 07-02-0363-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL E JUNE 20, 2003 ______________________________ NOEL TAYLOR, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 320TH DISTRICT COURT OF POTTER COUNTY; NO. 43,185-D; HONORABLE DON EMERSON, JUDGE _______________________________ Before REAVIS and CAMPBELL, JJ., and BOYD, S.J. (1) On May 7, 2001, as a result of his plea of guilty to the charge of robbery, and a plea bargain agreement, appellant was granted deferred adjudication and was placed on probation (community supervision) for a period of three years. On June 27, 2002, after a hearing on the State's application to revoke probation and proceed to adjudication, the trial court revoked the probation and ordered appellant to serve 12 years confinement in the Institutional Division of the Department of Criminal Justice. On January 15, 2003, appellant's appellate counsel filed an Anders brief with this court. See Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In his brief, counsel certifies that after careful examination of the record, he has concluded that appellant's appeal is without merit. In his brief, counsel certified that he supplied a copy of the brief to appellant. On January 21, 2003, the clerk of this court notified appellant that the appellate brief, which showed a copy had been furnished to appellant, and a motion to withdraw had been filed with the court. The court sua sponte granted an extension of time within which to file a pro se brief, if appellant wished to do so. Subsequently, this court received a pro se motion for extension of time within which to file an appellate brief, and we granted an extension to March 24, 2003. However, no such brief has been filed since that time, and neither have we received a motion seeking additional time within which to file a brief. Before allowing counsel to withdraw, we must first satisfy ourselves that the attorney has provided the client with a diligent and thorough search of the record for any arguable claim that might support the client's appeal, and then we must determine whether counsel has correctly concluded the appeal is frivolous. See McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988). Initially, appellant points out that the first "clear" notice of appeal was filed on August 26, 2002, 61 days after the date sentence was imposed. In his discussion, he points out the provision in Texas Rule of Appellate Procedure 26.2(a)(1) that a notice of appeal must be filed within 30 days after the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order. Without a timely filed notice of appeal, an appellate court lacks jurisdiction over the appeal. See Slanton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). However, counsel points out there are two other "curious" documents in the clerk's record. One of those documents is a letter to the court dated July 19, 2002, that in part states, "I ask for a new trial . . ." and purports to be signed by appellant. The second is dated July 25, 2001, and asks the trial court ". . . how can I appeal my case . . . ." In considering those documents, and in pursuance of his duty as an officer of the court, counsel points out that the signatures on those two documents are different from the signatures on other documents contained in the clerk's file, and neither of them purports to be signed by an attorney acting for appellant. However, in the interests of justice and judicial economy, we will consider the first document to satisfy the requisites for a motion for new trial. Viewed in that light, a notice of appeal filed within 90 days after the date sentence was imposed would be timely. See Tex. R. App. P. 26.2(a)(2). Because the notice of appeal was filed within that 90-day period, we will consider it as timely filed. In his brief, appellant sets out three points of discussion. In the first, he mentions the possibility that a notice of appeal was not timely filed. We have dealt with that question above and will not discuss it further. In the second point, he certifies that he has reviewed the original plea of guilty and, after examination, concludes that the record shows that the guilty plea and the waiver of specific constitutional and statutory rights was properly explained. He also certifies that the record shows that appellant was properly warned of the consequences of community supervision (probation) and the fact that if those conditions were violated, there was no right to appeal the decision to proceed with an adjudication of guilt. In his brief, counsel certifies that he examined the record of the adjudication proceedings and finds that, based upon the evidence adduced at those proceedings, the trial court did not abuse its discretion in arriving at the adjudication of guilt. He also states that the record shows the trial court properly proceeded to a sentencing hearing and the record does not show the trial court abused its discretion in the sentence assessed. In his third point and in argument under that point, counsel also certifies that he examined the record to see if appellant was not rendered the effective assistance of counsel, but he finds it demonstrates that appellant was afforded effective assistance at all proceedings. We have also made an independent examination of the record to determine if there are any arguable grounds that might support the appeal. See Penson v. Ohio, 88 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), and Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We have found no such grounds and agree with counsel that the appeal is without merit and is frivolous. Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974). Accordingly, counsel's motion to withdraw is granted and the judgment of the trial court is affirmed. John T. Boyd Senior Justice Do not publish. 1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2003). ommitted to the discretion of the trial court. See Mozon v. State, 991 S.W.2d 841 (Tex.Crim.App. 1999). As counsel also notes, evidence showing extraneous offenses may be admitted if it is "same transaction contextual evidence" which provides information essential to an understanding of the context and circumstances of interwoven events. Camacho v. State, 864 S.W.2d 524, 532 (Tex.Crim.App. 1993). We find the trial court's admission of the evidence of other offenses occurring during the events giving rise to appellant's prosecution does not present a meritorious issue on appeal. Appellant's well-prepared pro se brief raises three issues. The first two issues question the legal and factual sufficiency of the evidence supporting the finding he is criminally liable as a party. Appellant's third issue asserts the sentence of 99 years violates the prohibition against cruel and unusual punishment in the federal constitution. His brief correctly states the standards by which we must review challenges to the legal and factual sufficiency of the evidence and recitation of those standards here is unnecessary. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Clewis v. State, 922 S.W.2d 128 (Tex.Crim.App. 1996). In support of his first issue, appellant argues the evidence failed to establish a prior or contemporaneous agreement to commit an offense. He relies on Beier v. State, 687 S.W.2d 2, 3 (Tex.Crim.App. 1985), for the proposition that criminal liability as a party for the conduct of another requires evidence of such an agreement. We do not agree with that characterization of the holding in Beier. Imposition of criminal liability on a defendant for the conduct of another is authorized by chapter seven of the Penal Code. Section 7.02(a) provides in relevant part: "A person is criminally responsible for an offense committed by the conduct of another if: (2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense[.]" Tex. Pen. Code Ann. § 7.02(a) (Vernon 2003). In the Beier opinion the court began with the general statement that where the evidence shows the defendant "was not a 'primary actor,' but at most responsible for the actions of the 'primary actor,' the State must prove conduct constituting an offense plus an act by the defendant done with the intent to promote or assist such conduct." Id. at 3. It went on to hold physical presence during an offense and encouraging commission of the offense "either by words or other agreement" are sufficient to impose liability as a party, and that such agreement must be before or contemporaneous with the criminal event. Id. at 3-4. Contrary to appellant's view of the opinion, it did not hold evidence of such an agreement is always necessary to make the defendant liable as a party. In Beier the court found a contemporaneous agreement was merely one method by which the defendant could "encourage" commission of the offense. Section 7.02(a)(2) provides a defendant is also liable for the criminal conduct of another if he solicits, directs, aids, or attempts to aid the other with intent to promote or assist commission of the offense. The undisputed evidence, including Lara's testimony, showed appellant's actions were not limited to encouragement of Lara; appellant aided Lara by transporting him to the area where Lara committed the burglary at issue and transporting Lara and the stolen property from the area. The element appellant's argument attacks is whether his conduct was with the intent to aid the commission of the offense. Through Lara's testimony, appellant sought to show he was unaware Lara was burglarizing houses and therefore did not have the requisite intent to aid in the commission of Lara's offense. Appellant relies on the holding of Valdez v. State, 623 S.W.2d 317, 321 (Tex.Crim.App. 1979), that mere presence at the scene of an offense, or flight from the scene, are insufficient to make a defendant liable as a party. Such evidence is probative of guilt and may, in combination with other facts, establish liability. Id. See also Stroman v. State, 69 S.W.3d 325, 329 (Tex.App.-Texarkana 2002, pet. ref'd). He argues there was no evidence that he was at the scene of the Gallegos residence on the day of the burglary. Appellant's argument does not address the recording of the 911 telephone call made from the house across the street from 2817 65th Street, and admitted into evidence. As noted, the caller reported two Hispanic men committing burglary. She described the clothing they were wearing and their vehicle. She also recited that her mother, whose voice also appears on the tape, saw "them" kick the door open. The only objection to this evidence was a hearsay objection to the entire recording. Appellant's brief does not challenge that ruling, only the sufficiency of the evidence. (3) Appellant acknowledges that a jury is free to accept or reject any or all of a witness's testimony. The jury in this case was faced simply with a conflict in the evidence between the testimony of appellant's cousin, who had plead guilty to burglary and been convicted, and the recorded 911 statement of a disinterested party, combined with evidence of appellant's flight from police and his possession of property from the Gallegos home. The 911 call to police did not place appellant at the Gallegos house but could properly be considered as evidence controverting Lara's testimony that he acted alone. The jury could have reasonably found appellant and Lara were acting together in conducting the series of burglaries. The jury was not required to accept as true Lara's belief that appellant fled from police because of a warrant. Lara's testimony on the issue was vague and the defense presented no other evidence of a warrant. The jury's resolution of these conflicts does not present a meritorious issue concerning the legal or factual sufficiency of the evidence. Appellant's third issue seeks determination of whether his sentence of 99 years confinement is cruel and unusual punishment in violation of the Eighth Amendment to the federal constitution. He admits this complaint was not presented to the trial court. Generally, the failure to timely raise a complaint in the trial court results in waiver of the complaint. See Tex. R. App. P. 33.1(a); Solis v. State, 945 S.W.2d 300, 301 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). Appellant's complaint is the same as that made in Solis, that his sentence is disproportionate to the offense. He presents no authority suggesting the issue has not been waived, but relies on three cases for the proposition that an appellate court may consider a complaint which was not properly preserved in the interest of justice. See Wright v. State, 28 S.W.3d 526, 530 (Tex.Crim.App. 2000) (procedure used to appoint counsel); Perryman v. State, 798 S.W.2d 326, 329 (Tex.App.-Dallas 1990, no pet.) (admission of evidence), Boggs v. State, 643 S.W.2d 180 (Tex.App.-Tyler 1982, no pet.) (admission of evidence). These cases did not concern challenges to the constitutionality of a sentence within the limits set by the legislature. Even if we were to consider the issue, the primary authority on which appellant relies, Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 3009, 77 L.Ed.2d 637 (1983), is no longer controlling law. It has long been the general rule that assessment of a punishment within the limits set by the legislature will not be disturbed on appeal. See Nunez v. State, 565 S.W.2d 536, 538 (Tex.Crim.App. 1978). In Solem the court recognized an exception to the general rule applicable when the sentence imposed was "grossly disproportionate" to the offense. 463 U.S. at 284-92. In Harmelin v. Michigan, 501 U.S. 957, 115 L.Ed. 2d 836, 111 S.Ct. 2680 (1991), Justice Scalia wrote "Solem was simply wrong, the Eighth Amendment contains no proportionality guarantee." 501 U.S. at 965. A majority of the court did not join in that holding. As analyzed by the Fifth Circuit, seven members of the Harmelin court supported an Eighth Amendment guarantee against disproportionate sentences. McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992). Only four justices supported continued application of the factors used in Solem. Id. The Fifth Circuit concluded disproportionality analysis survived Harmelin, but the analysis set out in Solem did not. Id. See also Lockyer v. Andrade, 538 U.S. 63, 77, 155 L.Ed.2d 144, 123 S.Ct. 1166 (2003) (gross disproportionality presents constitutional violation only in extraordinary cases). In Thomas v. State, 916 S.W.2d 578 (Tex.App.-San Antonio 1996, no pet.), the San Antonio Court of Appeals agreed with the analysis in McGruder and found it could review a sentence to determine whether it is grossly disproportionate to the crime. Id. at 583. Only after determining the sentence is grossly disproportionate to the offense should a court consider other factors which bear on the claim, including those discussed in Solem and sentences for similar crimes. Id. See also Vrba v. State, 69 S.W.3d 713, 724 (Tex.App.-Waco 2002, no pet.). Where the defendant's sentence is enhanced by a prior conviction, a reviewing court considers the defendant's criminal history. See id. It may also consider the possibility of parole. Thomas, 916 S.W.2d at 584. Assuming, arguendo, appellant's sentence were viewed as grossly disproportionate, other factors support the proportionality of the sentence. The evidence established appellant had four prior felony convictions including tampering with a government record, (4) two for forgery, and attempted retaliation. It also showed juvenile offenses including unlawful carrying of a weapon, and property offenses. Appellant's brief cites numerous Texas opinions reciting punishments for burglary of a habitation of between 2 and 60 years. Only one of those cases concerned liability as a party. In that case the defendant received a sentence of 20 years. See Michael v. State, 864 S.W.2d 104 (Tex.App.-Dallas 1993, no pet.). That opinion indicated the defendant had an unspecified prior criminal history. Appellant's multiple prior felony convictions provide ample distinction between that case and appellant's sentence. We find appellant's third issue is not meritorious. We have conducted an independent review of the record to determine whether there are any arguable grounds for appeal. Penson v. Ohio, 488 U.S. 75, 109 S.Ct 346, 102 L.Ed. 2d 300 (1988); Nichols, 954 S.W.2d at 86. We have found no such grounds and agree with appellate counsel that the appeal is without merit. Currie v. State, 516 S.W.2d 684 (Tex.Crim.App. 1974). Accordingly, counsel's motion to withdraw is granted and we affirm the judgment of the trial court. James T. Campbell Justice Do not publish. 1. Lara's testimony did not explain which of the two occupants had a warrant or what the warrant was for. No other evidence of an outstanding warrant was presented. 2. Counsel concludes the discussion of the potential issue with the assertion the trial court erred in admitting evidence. This assertion of error is inconsistent with counsel's representation the appeal is frivolous, and is improper in an Anders brief. Johnson, 885 S.W.2d at 646. 3. We find the statements of the caller and her mother, made while watching the offense unfold, were excited utterances and admissible regardless of whether those witnesses were available to testify at trial. Tex. R. Evid. 803(2). 4. The jury was also aware, and we may consider, the fact that appellant was placed on probation for this offense and had his probation revoked.