Criminal defense appellate opinions released on October 30, 2019 by the Ninth Court of Appeals in Jefferson County, Texas can be found here.
Redmond v. Texas: A jury convicted appellant Donald Ray Redmond Jr. of evading arrest or detention as a prior felony offender and assessed punishment at three hundred sixty-five days of confinement in the county jail and a $4000 fine. In two appellate issues, Redmond contends that the trial court erred by denying his motion for directed verdict and argues that trial counsel provided ineffective assistance….Viewing the evidence in the light most favorable to the prosecution, we conclude that a rational jury could have found Redmond guilty of evading arrest beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Hooper, 214 S.W.3d at 13. In addition, the allegation in the charging instrument that Redmond fled from “Officer Walter” was not a variance; rather, it merely involves a missing allegation. See Grant v. State, 970 S.W.2d 22, 22-23 (Tex. Crim. App. 1998). The charging instrument merely omitted Walter’s first name, and Redmond waived this defect by failing to object to it at trial. See id. at 23 (holding that “officer” as stated in the charging instrument was clearly the officer’s title rather than his first name, the 6 omission of the officer’s first name from the charging instrument was not a variance, and appellant waived the defect by failing to object at trial). We conclude that the evidence was legally sufficient to support the verdict. Therefore, the trial judge did not err by overruling Redmond’s motion for directed verdict….The record does not indicate that Redmond filed a motion for new trial to allege ineffective assistance. The record is silent as to trial counsel’s strategies and tactics. See Estrada v. State, 313 S.W.3d 274, 311 (Tex. Crim. App. 2010). Moreover, Redmond cannot demonstrate that, but for counsel’s alleged errors, the outcome of his trial would have been different. See Graves v. State, 310 S.W.3d 924, 929 (Tex. App.—Beaumont 2010, pet. ref’d). Nor is this a case in which trial counsel’s ineffectiveness is apparent from the record. See Freeman v. State, 125 S.W.3d 505, 507 (Tex. Crim. App. 2003). Under these circumstances, Redmond cannot defeat the strong presumption of reasonable professional assistance. See Thompson, 9 S.W.3d at 814.
Foster-Smith v. Texas: Foster-Smith appeals the trial court’s order revoking his community supervision and adjudicating his guilt. In July 2016, Foster-Smith pleaded guilty to the offense of sexual assault of a child pursuant to a plea bargain.The trial court deferred adjudication of guilt and placed Foster-Smith on deferred adjudication community supervision for ten years. In December 2018, the State filed a Motion to Revoke Unadjudicated Community Supervision, alleging that Foster-Smith had violated the terms of his community supervision…On appeal, Foster-Smith argues that the State failed to prove that he violated one or more of the conditions of his probation “based on factors within his control[]” or the State failed to prove an actual violation occurred. Foster-Smith’s brief argues that the violations alleged by the State are not specific enough to support a violation and that any violation was a result of factors outside Foster-Smith’s control…The State only needed to establish one of the alleged violations to support revocation of Foster-Smith’s community supervision. See Moore, 605 S.W.2d at 926. As discussed herein, we have determined that the evidence supports at least two grounds of the trial court’s findings—that Foster-Smith failed to attend required counseling and that he accessed HBO television without prior approval. We need not address the trial court’s other findings. See Tex. R. App. P. 47.1. We overrule Appellant’s issues and affirm the judgment of the trial court
Ex Parte Garbett: Garbett appeals from the trial court’s denial of his application for writ of habeas corpus, in which he asserted that double jeopardy and collateral estoppel bar his prosecution as to five counts, four of which involve alleged aggravated sexual assault of a child and one of which pertains to alleged indecency with a child…We conclude that the trial court’s declaration of a mistrial as to counts two, four, five, six, and seven after the jury was unable to reach a verdict as to those counts did not terminate the original jeopardy to which Garbett had been subjected. See Richardson, 468 U.S. at 326; Ex parte McAfee, 761 S.W.2d at 772. We also conclude that Garbett’s various alleged acts of sexual misconduct against the victim do not comprise a single offense, and Garbett is liable for separate prosecution and punishment for each alleged instance. See Vernon, 841 S.W.2d at 410; see also Sledge, 953 S.W.2d at 255-256; Thomas, 753 S.W.2d at 693. We further conclude that Garbett has not shown that the jury made a specific factual determination as to counts two, four, five, six, and seven. See Stevens, 235 S.W.3d at 740; Guajardo, 109 S.W.3d at 460.
Clymer v. Texas: The State indicted James Russel Clymer Jr. for Continuous Sexual Abuse of a Child, a first-degree felony. See Tex. Penal Code § 21.02(b). Pursuant to a plea bargain agreement, Clymer pled guilty to the lesser included offense of aggravated sexual assault of a child. See Tex. Penal Code § 22.021(a)(2)(B). On April 17, 2019, the trial court sentenced Clymer to 60 years in the Institutional Division of the Texas Department of Criminal Justice. Clymer timely filed a notice of appeal. The trial 2 court certified that this was a plea-bargain case and Clymer had no right of appeal except as to punishment….The attorney appointed to represent Clymer in his appeal filed an Anders brief which asserted that the attorney diligently reviewed the record and found no meritorious claims on which to appeal Clymer’s sentence and that any appeal is frivolous. See Anders v. California, 386 U.S. 738, 744–45 (1967); High v. State, 573 S.W.2d 807, 810–13 (Tex. Crim. App. [Panel Op.] 1978). Clymer was provided an opportunity to file his own pro se brief, and he did not do so. We have independently reviewed the record, and we agree with counsel that this appeal is wholly frivolous and without merit; we find nothing in the record that arguably might support an appeal. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (stating that the reviewing court must determine whether arguable grounds for review exist). The Court concludes it is unnecessary for us to order appointment of new counsel to re-brief this appeal. Cf. id.. As no arguable grounds exist to support the appeal, we affirm the trial court’s judgment.
