Gibson v. State, No. 13-02-250-CR (TX 4/28/2005)
| Decision Date | 28 April 2005 |
| Docket Number | No. 13-02-250-CR.,13-02-250-CR. |
| Parties | WALTER CHARLES GIBSON, JR., Appellant, v. STATE OF TEXAS, Appellee. |
| Court | Texas Supreme Court |
On appeal from the Criminal District Court of Jefferson County, Texas.
Before Chief Justice VALDEZ and Justices, RODRIGUEZ and CASTILLO.
A jury convicted appellant Walter Charles Gibson, Jr. of the second-degree felony offense of possession of a controlled substance.2 The jury sentenced him to twenty years imprisonment in the Institutional Division of the Texas Department of Criminal Justice and imposed a $ 10,000 fine. On original submission, we held that the trial court's denial of Gibson's Batson challenge was not supported by the record and was, therefore, clearly erroneous. See Gibson v. State, 117 S.W.3d 567, 580 (Tex. App.-Corpus Christi 2003), rev'd 144 S.W.3d 530 (Tex. Crim. App. 2004); Batson v. Kentucky, 476 U.S. 79, 95-96 (1986). The Texas Court of Criminal Appeals reversed, concluding that we erroneously applied the clearly erroneous standard of review. Gibson v. State, 144 S.W.3d 530, 531 (Tex. Crim. App. 2004). Consistent with the mandate of the Court of Criminal Appeals, we consider Gibson's remaining issues on remand. We conclude that Gibsons's appeal on remand is frivolous and without merit. We affirm.
Aside from his two Batson issues, Gibson's court appointed appellate counsel certifies that four additional issues requested by Gibson do not present an arguable basis for reversal. The issues are whether: (1) trial counsel was ineffective because he (a) did not relay the State's plea bargain offer, (b) did not advise that prior felony convictions could be used, and (c) called Gibson's mother to testify at the penalty phase; and (2) the cocaine admitted in evidence was the substance collected at the time of his arrest. We construe the brief as an Anders brief. See Anders v. California, 386 U.S. 738, 744-45 (1967).
Gibson's court-appointed counsel has identified in the brief four issues which he has concluded are without merit for purposes of an appeal. Counsel has certified that Gibson requested the issues be raised on appeal. Counsel has shown, in compliance with Anders, 386 U.S. at 744-45, and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978) that: (1) he has searched the complete appellate record in this case; (2) in his opinion, there is no reversible error; (3) he served Gibson with a copy of the brief; (4) he informed Gibson by letter accompanying the appellate brief that he was unable to find any points of error on which to file a brief; (5) he informed Gibson of his right to examine the entire appellate record for the purpose of filing a pro se brief; and (6) he arranged for Gibson to inspect the appellate record in this cause. Counsel has demonstrated he notified Gibson of his right to review the record and file a pro se brief if he desires to do so.3 See Anders, 386 U.S. at 744-45. Gibson has not filed a pro se brief in response to his counsel's Anders assessment of the four issues. See McMahon v. State, 529 S.W.2d 771, 772 (Tex. Crim. App. [Panel Op.] 1975).
A frivolous appeal brief must demonstrate why there are no arguable grounds to be advanced by providing reference to both legal precedent and pages in the record. See High, 573 S.W.2d at 812. The brief of Gibson's counsel does advance grounds of error appellant "wishes to raise," but concludes they are without merit. While arguable grounds of error, if there are any, should be advanced by counsel for an indigent appellant as required by Anders, that case should not be interpreted as requiring appointed counsel to make arguments he would not consider worthy of inclusion in a brief for a paying client or to urge reversal if in fact he can find no merit in the appeal. Id. We hold that counsel's brief is not the "conclusory statement" involved in Anders. Id.
We have reviewed the record, as we must. Penson v. Ohio, 488 U.S. 75, 80 (1988). As part of our review under Anders, we consider the entire record. See Gearhart v. State, 122 S.W.3d 459, 464-65 (Tex. App.-Corpus Christi 2004, pet. ref'd).
On the evening of June 16, 1997, while on criminal interdiction patrol as part of the Jefferson County Drug Task Force, Beaumont police officer Ricky Anderson and Texas Ranger Aaron Burleson stopped a 1989 Buick on the interstate. The vehicle lacked a rear license plate and a tail light. The traffic stop was recorded by videotape.5 Gibson was the passenger in the vehicle. The driver consented to the search of his vehicle. Anderson saw Gibson Officer Anderson asked Gibson if he could search the item. Gibson reached over and depressed the button to open the trunk. At Anderson's request, Gibson exited the vehicle. Anderson started the search at the area where he saw Gibson place the plastic bag. He found two "cookies" inside the plastic bag. He field-tested the substance and determined it was cocaine. The cocaine was admitted in evidence. Anderson testified the substance was not in "cookie" form because, in part, the lab crushed it to analyze it and, in part, during transportation or storage it crumbled.
Claire Eaglin, a property technician, testified as to the chain of custody of the cocaine Anderson seized. Charlyn Voight, a forensic analyst with the Jefferson County Regional Crime Lab, testified that the substance tested positive for cocaine. She testified that the testing procedure involves crushing the individual items so that the final test is a mixture of all the individual pieces. The cocaine weighed 49.03 grams.
After the State rested, Gibson's counsel requested a record outside the presence of the jury. The colloquy between Gibson and his counsel follows:
[Counsel]: Mr. Gibson, you realize we have spoken regarding you taking the stand on your own behalf. You realize that?
[Gibson]: Yeah.
[Counsel]: You remember talking about that. And is it your wish to take the stand and testify on your own behalf?
[Gibson]: Yeah. I want to get up there and represent myself.
[Counsel]: Okay. And do you realize that when you take the stand that all your prior felonies and crimes of moral turpitude will be entered against you.
[Gibson]: Yeah, but I want it known to the Court that I'm a first offender. I've only been convicted once.
[Counsel]: Okay. But do you realize that they are going to try to prove other felonies against you?
[Gibson]: But that's what I'm saying. I did my time.
[Counsel]: But do you realize that?
[Gibson]: Yeah, I realize all of it, but I still want the jury to hear everything.
[Counsel]: And you realize it is my advise [sic] that you do not take the stand?
[Gibson]: Yeah, but I'm saying I'm a first offender.
[Counsel]: Answer my question.
[Gibson]: Yeah, I want to take the stand.
[Counsel]: Okay. You wish to take the stand and waive your right to remain silent?
[Gibson]: Yeah. I want to take the stand.
A break in the proceedings occurred to allow a bench conference to consider Gibson's request to change his plea to no contest. At the conclusion of the bench conference, Gibson decided not to change his plea. Gibson testified he realized he had the right to remain silent and wished to waive the right. He admitted he had reviewed the videotape and the discovery in his case. According to Gibson, the driver and owner of the vehicle, Kenneth Christy, picked him up in Louisiana the day before the arrest. Christy is Gibson's cousin. Gibson was staying with his sister in Louisiana. The two traveled to Houston and stayed with Christy's mother. In Houston, the two parted when Christy left to visit his children. On the return trip, they were stopped. He denied knowing Christy had drugs in the car. At the time of the stop, Gibson was asleep. When he woke up, he saw the" dope" on the console. He admitted he "pushed the stuff down" and the police saw him.
On cross-examination, Gibson admitted, "We both possessed it at the time." Gibson added:
They dropped [Christy's] case just on his word that—him saying that it was mine. It's his car. He's the owner of the car. The owner supposed to know what's in his car at all times. So, by him telling the police that . . . it was mine or whatever, he's saying immediately that he knew that he was in possession of a controlled substance from the start.
Later, Gibson denied he possessed the cocaine. Gibson admitted he had been convicted of seven felonies and the sentences ran concurrently, including possession and distribution of cocaine, attempted armed robbery, aggravated assault, and escape. Three of the charges were cocaine related. He admitted telling the prosecutor out of the presence of the jury, He admitted saying that the cocaine "[did not] weigh 49.03 grams." Gibson testified that the cocaine weighed" no more than 20 grams." He testified that the cocaine admitted in evidence was not the substance seized from the vehicle. He admitted that Christy had no criminal record. Gibson admitted he fled the state after bonding out of jail.
During the penalty phase, the State adduced evidence of Gibson's flight and apprehension. Records of Gibson's convictions were admitted in evidence. Called by the defense, Gibson's mother testified that he had learning disabilities as a child and started getting in trouble after his father left the family and the parents divorced. Because she had to work to meet the family's needs, she believed her absence from home contributed to Gibson's troubles with the law. She asked the jury for leniency in...
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