In the Court of Appeals for the Fifth District of Texas at Dallas KANISHA ADAMS, Appellant 05-10-01218-CR v. THE STATE OF TEXAS Appellee 5th Court of Appeals FILED: 7/18/11 14:00 Lisa Matz, Clerk Appealed from Cause Number F09-71218-H in the Criminal District Court #1 of Dallas County, Texas, the Honorable Robert Burns, Judge Presiding. APPELLANT S BRIEF VALENCIA BUSH Attorney for Appellant State Bar Number 18692100 1000 North Central Expwy. Ste. 400 Dallas, Texas 75231 Telephone: (214) 631-3435 Facsimile: 1 866 275-2570 Oral Argument Waived
LIST OF PARTIES APPELLANT Kanisha Adams 1514 Dewberry #126 Lancaster Texas 75134 APPELLEE The State of Texas DEFENSE COUNSEL AT TRIAL James Jamison Attorney at Law 529 West 12 th Street Dallas, Texas 75208-6319 STATE S ATTORNEYS AT TRIAL Craig Watkins Criminal District Attorney Dallas County Rontear Farmer Assistant District Attorney Chris Pryor Assistant District Attorney Frank Crowley Courts Building 133 North Riverfront Boulevard Dallas, Texas 75207 APPELLANT S ATTORNEY ON APPEAL Valencia Bush Attorney at Law 1000 North Central Expwy. Ste. 400 Dallas, Texas 75231 SBN 18692100 Ph. 214 631-3435 Fax 214 1 866 275-2570 STATES ATTORNEY ON APPEAL Appellate Division 133 N. Riverfront Blvd., LB-2 Dallas Tx 75207 ii
TABLE OF CONTENTS IDENTITY OF THE PARTIES AND COUNSEL... ii TABLE OF CONTENTS... iii,iv INDEX OF AUTHORITIES... v,vi STATEMENT REGARDING ORAL ARGUMENT... vii REFERENCES TO THE RECORD... 1 STATEMENT OF THE CASE... 1 ISSUES PRESENTED... 1,2 SUMMARY OF THE ARGUMENT... 2 STATEMENT OF FACTS... 2-6 STATEMENT REGARDING VOIR DIRE... 4 STATEMENT REGARDING ARGUMENTS DURING CLOSING... 4 VERDICT... 5 STATEMENT REGARDING PUNISHMENT... 5 VALIDITY OF THE CHARGE... 5,6 ARGUMENT AND AUTHORITIES... 4-9 I. THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT APPELLANT S CONVICTION FOR CRIMINAL MISCHIEF BASED ON THE COMPLAINANT S TESTIMONY THAT SHE PAID 3500.00 TO REPAIR HER CAR... 6-8 II. THE TRIAL COURT DID NOT VIOLATE THE CONFRONTATION CLAUSE BY ADMITTING THE ESTIMATE OF REPAIRS UNDER THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE... 8-11 iii
III. TRIAL COUNSEL RENDERED EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE COUNSEL S PERFORMANCE WAS NOT DEFICENT AND THE RECORD REFLECTS THAT COUNSEL ADEQUATELY EXAMINED THE WITNESSES AND CHALLENGED THE STATE S EVIDENCE... 12-13 VALIDITY OF THE PUNISHMENT ASSESSED... 13 PROFESSIONAL EVALUATION OF THE RECORD... 13 CONCLUSION... 14 APPELLANT S RIGHT TO FILE A PRO SE BRIEF... 14 STATEMENT OF MOTION TO WITHDRAW... 15 PRAYER FOR RELIEF... 15 CERTIFICATE OF SERVICE... 15 iv
INDEX OF AUTHORITIES CASES Anders v. California, 386 U.S. 738 (1967)... 14 Armijo v. State, 751 S.W.2d 950, 953 (Amarillo 1988, no pet.)... 10 Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)... 7 Curran v. Unis, 711 S.W.2d 290, 295 (Dallas 1986, no writ)... 10 Crane v. State, 786 S.W.2d 338 (Tex.Crim.App. 1990)... 10 Crawford v. Washington, 541 U.S. 36, 59 (2004)... 11 Currie v. State. 516 S.W.2d 684 (Tex. Crim. App.1974)... 14 Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969)... 14 High v. State, 573U.S. 2d 807 (Tex. Crim. App. 1978)... 14 Holz v. State, 320 S.W.3d 344, 351-52 (Tex. Crim.App. 2010)... 8,11 Jackson v. Virginia, 443 U.S. 307 (1979)... 7 Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)... 7 Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998)... 7 King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000)... 7 Knox v. Taylor, 992 S.W. 2d 40, 64 (Tex.App. -- Houston [14th Dist.] 1999, no pet.)... 10 Langham v. State, 305 S.W.3d 568, 576 (Tex. Crim. App. 2010)... 9 Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009)... 10,11 Mitchell v. State, 68 S.W.3d 640 (Tex. Crim. App. 2002).... 13 Montgomery v. State, 810 S.W.2d372, 391 (Tex. Crim. App. 1991) (op. on reh g).... 9,12 v
Mosely v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998).... 7 Perry v. State, 957 S.W. 2d 894, 899 (Tex. Appl. -- Texarkana 1997, pet. ref'd)... 10 Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006)... 9 Stafford v. State, 813 S.W.2D 503 (Tex. Crim.App. 1995)... 14 Strickland v. Washington, 466 U.S.668 (1984)... 12 Thompson v. State, 9 S.W.3d 808, (Tex. Crim. App. 1999)... 13 Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006)... 9 Willis v. State, 2 S.W.3d 397, 401 (Austin 1999, no pet.)... 10 Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999)... 7 CODES, RULES AND CONSTITUTIONAL PROVISIONS Tex. R.App. Pro. 39.7... vii Tex. Pen. Code 28.03(a)(1)... 7,13 Tex. Pen. Code 28.06(b... 8 Tex. Penal Code 7.01... 6 Tex. R. Crim. Ev. 803(6).... 10 Tex. R. Crim. Ev. 401... 12 vi
STATEMENT REGARDING ORAL ARGUMENT Pursuant to Tex. R. App. Proc. 39.7 counsel waives oral argument herein since the facts and legal arguments are adequately presented in the record. vii
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS: Comes now, Kanisha Adams, herein referred to as Appellant and by and through her attorney of record, Valencia Bush and, pursuant to the provisions of Tex.R.App.Pro. 38, et seq., files this brief on appeal. REFERENCES TO THE RECORD References to the clerk s record are designated as (CR, Vol. #pp. #). References to the reporter s record are designated as (RR, Vol. 1 pp. #). STATEMENT OF THE CASE Following a jury trial which began on September 15, 2010, the Appellant was convicted of the offense of Criminal Mischief in the amount of at least $1500.00 but less than $20,000 and sentenced to 180 days confinement in the State Jail Division of the Texas Department of Criminal Justice, probated for a period of 4 years. with a fine of 500.00. (RR. Vol. 3, pp. 123;) (CR, Vol. 1 pp. 6). Appellant timely filed Notice of Appeal on September 14, 2010. (CR, Vol. I pp. 52). This brief is due to be filed on or before July 30, 2011. ISSUE PRESENTED I. Was the evidence legally sufficient to support Appellant s conviction for the State Jail offense of Criminal Mischief. II. Did the trial Court commit reversible error in admitting the business record affidavit and estimate for repair over counsel s objection in violation of the
Confrontation Clause. III. Did trial counsel render effective assistance of counsel. SUMMARY OF THE ARGUMENT Appellant's counsel has reviewed the record of trial without finding an error that can arguably support a point of error. The record reflects that the evidence was legally sufficient to support Kanisha Adams s conviction for Criminal Mischief. The jury, as the sole trier of fact, was entitled to judge the credibility of the witnesses and the weight to be given to their testimony in finding Adams guilty of Criminal Mischief at the State Jail level. Additionally, because counsel adequately professionally examined the available witnesses, objected to the controverted evidence, there is nothing in the record to support a claim of ineffective assistance of counsel. STATEMENT OF FACTS On the evening of August 10, 2008 complainant, Rakesha Mitchell was at home watching television with her boyfriend, when she heard someone beating on her door attempting to get her to come outside. (RR, Vol. 3 pp. 16-17). After going out on her balcony, she saw the Appellant Kanisha Adams, a friend she had known for about 5 years, attempting to get her to come outside. (RR, Vol. 3 pp.) Accordingly, she asserts that after arguing by phone with Adams s sister Kasha earlier that day, she witnessed Adams keying her car while her sister Kasha kicked the vehicle. (RR, Vol. 3 pp. 12-17). 2
Within three days of the incident, complainant Mitchell obtained a damage estimate from Service King that she later gave to the police. An estimate from Service King was introduced as a business record over counsel s objection and a Service King manger explained the basis for repairs listed in the document. (RR, Vol. 3 pp. 24-26). During cross-examination the complainant indicated that she paid 3500.00 out of pocket to repair her car. She claimed that she had the car painted in one place and the dents repaired at another but did not have the receipts. One of the repair shops was Maaco, but she could not recall the other. (RR, Vol. 3 pp. 32-33). The complainant testified that no photographs were taken of the damage done to her car and there was no damage to the headlights, taillights, windshield, gas tank, front grill, bumper, mirror, windows, roof of the car, fender, mud flap, or emblems. (RR, Vol. 3 pp. 35-38). The State countered with testimony from a Service King manager explaining the necessity of removal of items listed in the estimate to effect the repairs. (RR, Vol. 3 pp. 71 thru 79). State s witness, London Thibodeaux, the complainant s boyfriend, indicated that he witnessed a phone call confrontation between the complainant Mitchell, Adams, and Adams s sister on the day the car was damaged. He later observed Adams keying the complainant s car. (RR, Vol. 3 pp. 45-47). Dallas police officer Daniel Kosak responded to the disturbance call made by the complainant Mitchell on the date of the incident and observed scratches and dents on complaint s car. (RR, Vol. 3 pp. 60). State s witness Matthew Grace, Service King manager, identified State s exhibit 1 as an estimate of cost to repair the complainant s car generated on August 13, 2008. He 3
did not prepare the estimate but testified about the various repairs listed on the estimate. The trial court admitted the exhibit over counsel s objection, (RR, Vol. 3 pp. 69-70). Grace indicated that certain items on the car would be removed to effect repair 0f the damaged areas. Under cross-examination Grace acknowledged that there was no indication on the estimate as to whether the damage listed in the estimate was fresh or stale prior damage, and he did not see the damage personally because the estimate was prepared by Service King employee David Cantrell. (RR, Vol. 3 pp. 78-84). OPENING STATE BY STATE Opening Statement by the State was recorded and does not reflect any errors. (RR. Vol. 3 pp. 6-7). VOIR DIRE Voir Dire of Counsel was recorded and does not reflect any errors (RR, Vol. 2 pp. 20-110). ARGUMENTS OF COUNSEL DURING CLOSING States Closing Argument Argument by the State was recorded and does not reflect any errors (RR, Vol. 3 pp. 90-92 1 st half by Asst. Da Chris Prior)(rebuttal argument by Asst. DA Rontier Farmer RR, Vol. 3 pp. 98-101). Defense Closing Argument Argument of Defense Counsel was recorded and does not reflect any errors (RR, Vol. 3 pp. 92-98). 4
VERDICT The Jury found Kanisha Adams guilty of the offense of Criminal Mischief of at least 1500.00, but less then 20,000. (RR, Vol. 3 pp. 101-102). PUNISHMENT State s Evidence During Punishment State s Exhibits 1 thru 4 (Certified judgment and fingerprints of Appellant s prior misdemeanor conviction) were admitted without objections for the purpose of proving prior a prior misdemeanor conviction. (RR, Vol. 3 pp. 106-107). Defense Evidence During Punishment Kanisha Adams denied committing the offense of Criminal Mischief, admitted that she previously served probation on a prior misdemeanor conviction and indicated that she had no prior felony convictions. (RR, Vol. 3 pp. 108-111). The Defense s final witness, probation officer Tracy Cooper. explained the requirements of probation to the jury. Sentence The Jury, having found Kanisha Adams guilty of the offense of Criminal Mischief at the state jail level, assessed punishment at 180 days confinement in the State Jail Division of the of the Texas Department of Criminal Justice, and recommended that the Court suspend the sentence and place the Defendant on community supervision. (RR, Vol. 3 pp. 123-124) 5
JURY CHARGE The record does not reflect any jury charge error and no objections were made by the Defense or the State. The Court s charge properly set out the law regarding the elements of the offense of Criminal Mischief at the State Jail level, and correctly incorporated those elements in the application paragraph of the charge. The charge properly included that all parties to an offense who are guilty of acting together in the commission of an offense may be held criminally responsible as a party to the offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. Tex. Penal Code 7.01 (RR, Vol. 3 pp. 112) (CR, Vol. 1 24-28). Argument of Counsel During the Punishment Argument of both counsel were recorded during punishment and does not reflect any reversible error. ARGUMENT AND AUTHORITIES UNDER ISSUE 1 I. THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT APPELLANT S VERDICT. THE COMPLAINANT S TESTIMONY THAT SHE PAID $3500.00 TO REPAIR HER CAR WAS SUFFICIENT TO ESTABLISH THAT THE APPELLANT WAS GUILTY OF CRIMINAL MISCHIEF AT THE LEVEL OF A STATE JAIL FELONY. A. STANDARD OF REVIEW In reviewing the legal sufficiency of the evidence, an appellate court looks at the evidence in the light most favorable to the verdict and determines whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the 6
essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). When the record supports conflicting inferences, the appellate court presumes that the fact finder resolved the conflicts in favor of the prosecution and therefore defers to that determination. Clayton, 235 S.W.3d at 778. Reconciliation of conflicts in the evidence is within the exclusive province of the fact finder. Mosely v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). The fact finder is the exclusive judge of the witnesses credibility and of the weight to be given their testimony. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). It is free to believe or disbelieve all, part, or none of the witnesses testimony. Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998). The appellate court may not sit as a thirteenth juror and reweigh or decide on the credibility of evidence. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). All evidence admitted at trial whether properly or improperly admitted is considered in a sufficiency review. Clayton, 235 S.W.3d at 778; Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999). The same standard is applied to circumstantial and direct evidence. Clayton, 235 S.W.3d at 778; King, 29 S.W.3d at 565(Tex. Crim. App. 2000). B. ARGUMENT Evidence of Criminal Mischief A person commits the offense of criminal mischief when they intentionally or knowingly damages or destroys tangible property without the effective consent of the owner. Tex. Pen. Code 28.03(a)(1). The amount of pecuniary loss suffered by the owner determines the degree of the offense. If the property is damaged (as opposed to 7
destroyed), the amount of pecuniary loss is determined by the cost of repairing or restoring the damaged property within a reasonable time after the damage occurred. Tex. Pen. Code 28.06(b). Criminal mischief causing pecuniary loss between $1,500 and $20,000, as alleged in the indictment, is a state jail felony. Id. at 28.03(a)(4)(A). A lay witness s testimony concerning the cost of repairs is sufficient proof of the cost, and the State is not required to present expert testimony. Holz v. State, 320 S.W.3d 344, 351-52 (Tex. Crim. App. 2010); see also Miller v. State, No. 10-10-00071-CR, 2011 WL 653034, at *2 (Tex. App. Waco Feb. 23, 2011, no pet. h.) (not designated for publication). In the present case the complainant Mitchell and her boyfriend related that they saw Kanisha Adams keying her car while her sister kicked the car, and Mitchell indicated that she paid 3500.00 to repair the damage. (RR, Vol. 3 pp. 32-33). In Holtz, the court of Criminal Appeals held that a non-expert property owner s testimony about the cost of repairs or restoring the damaged property can be sufficient without further evidence to prove the pecuniary-loss element of a criminal mischief offense. Id at 2. Accordingly, viewing the decision in the light most favorable to the verdict, a rational fact finder could have found beyond a reasonable doubt that Appellant intentionally or knowingly damaged the complainant s car without her consent and that the pecuniary loss was more than $1500. ARGUMENT AND AUTORITIES UNDER ISSUE 2 II. THE TRIAL COURT DID NOT VIOLATE THE CONFRONTATION CLAUSE BY ADMITTING THE ESTIMATE FOR REPAIRS UNDER THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE 8
A. STANDARD OF REVIEW Generally, a trial court s decision to admit evidence is reviewed under an abuse of discretion standard. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006). As long as the court s ruling is not so clearly wrong that it lies outside the zone of reasonable disagreement, an appellate court will not intercede. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh g). Whether a particular out ofcourt statement is testimonial or not is a question of law and is reviewed de novo. Langham v. State, 305 S.W.3d 568, 576 (Tex. Crim. App. 2010); Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006). B. PRESERVATION OF ERROR In the present case counsel preserved error by receiving an adverse ruling to his objection to the introduction of the business records affidavit from Service King. (RR, Vol. 3 pp. 70). Counsel specifically objected on the grounds of relevancy, hearsay, preparation of document for the purpose of litigation, and on the basis that the document contained matters that were not damaged. (RR, Vol. 3 pp. 67-68). Counsel s objection was subsequently overruled by the Court. (RR, Vol. 3 pp. 67-69). C. ARGUMENT Admissibility of Estimate of Repairs as Business Record Defense counsel s objection to the introduction of State s Exhibit 1, the Service King estimate for repairs, on the basis of relevancy, hearsay, and preparation of document 9
for the purpose of litigation was properly overruled by the court because the document was qualified as a business record, the admission of the document was an exception to the hearsay rule, and there was no record evidence that the document was created for the purpose of litigation. (RR, Vol. 3 pp. 67-69). Hearsay is not admissible unless it fits some exception to the hearsay rule. Knox v. Taylor, 992 S.W. 2d 40, 64 (Tex.App. -- Houston [14th Dist.] 1999, no pet.); Perry v. State, 957 S.W. 2d 894, 899 (Tex. Appl. -- Texarkana 1997, pet. ref'd). The business record exception to the hearsay rule is grounded on the presumption that documents kept in the regular course of a business, relied upon in conducting its own affairs, are inherently reliable. Curran v. Unis, 711 S.W.2d 290, 295 (Dallas 1986, no writ) (admitting annual tax returns prepared from contemporaneous ledger cards and spread sheets); see also Crane v. State, 786 S.W.2d 338 (Tex.Crim.App. 1990) (radio dispatcher testified that most of prisoners calls were recorded, implying it was not routine to record calls, casting doubt on reliability of records and rendering statement inadmissible). Business records are generally admissible absent confrontation because having been created for the administration of an entity s affairs and not for the purpose of establishing or proving some fact at trial are not testimonial. Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 2539-40 (2009). A business record is inadmissible hearsay only if the sources of information or the method or circumstances of preparation indicate lack of trustworthiness. TRE 803(6); Armijo v. State, 751 S.W.2d 950, 953 (Amarillo 1988, no pet.); Willis v. State, 2 S.W.3d 397, 401 (Austin 1999, no pet.) (finding narrative report inadmissible in part because it was prepared for future litigation); 10
Out-of-court testimonial evidence violates the Confrontation Clause unless the declarant is unavailable to testify and the defendant had a prior opportunity to crossexamine him. Crawford v. Washington, 541 U.S. 36, 59 (2004). Generally, testimonial statements are those made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. Crawford, 541 U.S. at 51-52. There was no evidence in the present case that the Service King estimate was prepared for the purposes of litigation. As such, it would have been admissible even absent confrontation. Melendez-Diaz, 129 S.Ct. at 2539-40. Specifically, the Supreme Court in Melendez-Diaz articulated that business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because having been created for the administration of an entity s affairs and not for the purpose of establishing or proving some fact at trial----the are not testimonial. Melendez-Diaz Id.at 20. Further, once the complainant testified that she paid 3500.00 dollars to repair her car, the evidence was sufficient to support her conviction because the jurors as triers of fact were entitled to accept or reject her testimony as evidence of the cost of repair. Holz v. State, 320 S.W.3d 344, 351-52 (Tex. Crim.App. 2010). (PD-1786-09). (RR, Vol. 3 pp. 32). Additionally, Counsel s objection that the record was not relevant because items listed in the estimate were not damaged was controverted by the State thru cross- 11
examination. Grace indicated that certain items on the car would be removed to effect repair 0f the damaged areas. (RR, Vol. 3 pp. 78-84). The jurors as the trier of fact could accept or reject the testimony and were entitled to judge the credibility of the witness. The court s ruling is not so clearly wrong that it lies outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh g). Further, evidence is relevant of it tends to prove or disprove any material matter in the case. Tex. R. Ev. 401. Here, the testimony tended to support the material issue that that the repair cost was at least 1500.00. Accordingly, because there was no evidence that the estimate was prepared with an eye toward litigation, and because the State qualified the document as a business record prior to it s introduction, the trial court did not commit reversible error in admitting the estimate as a business record and allowing testimony regarding the cost of repair. ARGUMENT AND AUTHORITIES UNDER ISSUE NO. 3 III. TRIAL COUNSEL RENDERERED EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE THE RECORD REFLECTS THAT COUNSEL'S PERFORMANCE WAS NOT DEFICIENT AND DID NOT FALL BELOW PROFESSIONAL STANDARDS. A. STANDARD OF REVIEW To prevail on a claim of ineffective assistance of counsel, the defendant must show that trial counsel's performance was deficient and that a reasonable probability exists that the result of the proceeding would have been different but for the deficiency. Strickland v. 12
Washington, 466 U.S. 668, (1984). The first prong of the Strickland test requires that the defendant show that counsel's performance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, (Tex. Crim. App. 1999). Thus, the defendant must prove objectively, by a preponderance of the evidence that trial counsel's representation fell below professional standards. Mitchell v. State, 68 S.W.3d 640 (Tex. Crim. App. 2002). B. ARGUMENT The record reflects that counsel s performance did not fall below the objective standard of reasonableness. Counsel adequately cross-examined the State s witnesses and challenged the amount of damages in issue. (RR, Vol. 3 pp. 31-36). In sum, based on the available record, Appellant did receive effective trial representation at trial. Accordingly, there is no evidence in the record that trial counsel s representation was ineffective. VALIDITY OF THE PUNISHMENT ASSESSED Criminal Mischief is a State Jail felony where the amount in controversy is at least 1500.00 but less then 20,000. The range of punishment is from 180 days in a State Jail Facility up to 2 years Accordingly, the Appellant s punishment of 180 days State Jail probated for 4 years is within the applicable range of punishment for the offense. Tex. Pen. Code Ann. 28.03 (4). PROFESSIONAL EVALUATION OF THE RECORD Counsel has reviewed the appellate record in this cause and reluctantly concludes 13
that as a matter of professional judgment, the record contains no reversible error and no jurisdictional defects are present. Where counsel concludes that there are no arguable grounds for reversal, he is required to present a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. Anders v. California, 386 U.S. 738 (1967); Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969). CONCLUSION Because counsel is unable to raise any arguable issues for appeal, he is required to move for leave to withdraw. See Stafford v. State, 813 S.W.2d 503 (Tex.Crim.App. 1991). Accompanying this brief is counsel s motion to withdraw on these grounds. APPELLANT'S RIGHT TO FILE PRO SE BRIEF Appellant is entitled to examine the record of trial and to file a pro se brief in the event that he is of the opinion that a meritorious point of error exists. Anders v. California, 386 U.S. 738 (1967). High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974), and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). MOTION TO WITHDRAW AS APPELLANT COUNSEL The undersigned counsel is required to file a Motion to Withdraw as Counsel 14
for Appellant in order to permit Appellant to file a pro se brief if he so desires. A copy of that motion is attached hereto and the original will be filed separately in the Court of Appeals. PRAYER WHEREFORE, PREMISES CONSIDERED, Counsel respectfully prays that this Court permit her to withdraw after this Court s own examination of the record in this cause and to afford Appellant her right to file any pro se brief he may wish to file. CERTIFICATE OF SERVICE This is to certify that on June 15, 2011 a true correct copy of Appellant s brief was forwarded to the Fifth Court of Appeals, 600 Commerce Street, Dallas, Texas 75202 by email and first class mail, the Appellate Division of the District Attorney's Office, 133 Riverfront Blvd. Dallas, Texas 75207, and to Appellant Kanisha Adams 1514 Dewberry #126 Lancaster Texas 75134. Valencia Bush 10000 North Central Epwy. Ste. 400 Dallas, Texas 75231 Ph: (214) 631-3435 Fax 1-866-275-2570, 15
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