Cook v. State

James T. Campbell Justice

On Appeal from the 320th District Court Potter County, Texas
Trial Court No. 70564-D
, Honorable Don R. Emerson, Presiding

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Following a jury trial, appellant Michael Cook was convicted of the felony offense of assault of a family member, enhanced by a prior conviction of assault of a family member, and sentenced to sixty-four years of confinement in the Texas Department of Criminal Justice. In presenting this appeal, counsel has filed an Anders brief in support of her motion to withdraw. We will affirm and grant counsel's motion to withdraw.

Appellant was charged via indictment with "intentionally, knowingly or recklessly caus[ing] bodily injury to Kricynthia Black, a person with whom the defendant has or has had a dating relationship as described by Section 71.0021(b), Family Code, by striking her head against a vehicle, throwing her to the ground or any combination thereof and prior to the commission of this offense the defendant had been convicted of an offense under Chapter 22, Penal Code, against a member of the defendant's family as described by Section 71.003, Family Code, on January 28, 2014." Appellant pleaded not guilty and the case was tried to a jury.

Jeffrey Fuston testified that he and appellant, along with their two girlfriends, went to a nightclub in Amarillo. After they left the club and drove to a hotel, Fuston and his girlfriend started toward their room but heard screaming and returned to the parking lot. Fuston saw appellant hit Black's head on a car. He then "slammed [her head] into the car one more time." Appellant "proceeded to pick her up and carry her over his shoulder and took off running and fell and she cracked her head on the back of the pavement." Appellant picked her up, "threw her in the car" and tried to leave. Black jumped out of the car and rolled on the ground. As Fuston watched, appellant stopped his car. Appellant tried to put Black back in the car, but police arrived and subdued him.

Black testified she and appellant dated for "[a]lmost a year." The couple lived together. She testified to the events Fuston described. She also said appellant hit her in the face, on the back of her head, and her arms. She told the jury she sustained a lump on the back of her head as well as scratches and bruises on her arms and legs. Her face was swollen and painful the next day.

Black admitted that when police arrived, she initially told them "nothing happened" because she was "scared" and "wanted to go home" and "didn't know what was going to happen." After appellant was restrained, she told the officers what appellant had done. Photographs of Black's injuries were admitted into evidence without objection.

The responding officers also testified. Their version of events was consistent with Fuston's testimony. After the jury found appellant guilty, it heard punishment evidence. As noted, appellant pleaded "true" to the enhancement paragraphs of the indictment setting forth his two previous felony convictions. The State produced the testimony of appellant's community supervision officer. The officer testified appellant was on community supervision for violation of a protective order but that community supervision had expired. During her testimony, Black explained that the probation stemmed from an incident in which appellant assaulted her by choking her. After that incident, Black told the jury, she evicted appellant from her house and obtained a protective order against him. Appellant violated that order.

Appellant was also on probation for aggravated assault of a family member. Black was the victim of that assault. She told the jury of the couple's June 2015 fight during which the assault occurred. That fight involved a firearm. Black also testified to other acts of domestic violence appellant had committed.

The jury also heard evidence from appellant's step-mom. She told the jury appellant was mean and aggressive since childhood. She also testified that in June 2015, appellant sent her vulgar and sexually explicit text messages. The messages, amounting to seventy-six pages, were admitted into evidence over appellant's objection. One of appellant's former girlfriends also testified to numerous incidents of abuse and violence toward her by appellant, dating back to 2010.

Appellant presented the testimony of his mother. She told the jury of her recent surgery to remove a brain tumor and of her likely need for surgery to remove two other tumors. She asked the jury to give appellant the minimum sentence so that he would be able to get out of prison and see her.

After hearing the evidence, the jury sentenced appellant to imprisonment for a period of sixty-four years. This appeal followed.

In support of her motion to withdraw, appellant's appellate counsel has certified she has conducted a conscientious examination of the record, and has expressed her opinion it reflects no potentially plausible basis for reversal of appellant's conviction. Anders, 386 U.S. at 744-45; In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008). Counsel has explained why, under the controlling authorities, the record supports appellant's conviction and the lawfulness of the sentence imposed. High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978).

Counsel's discussion of the record includes consideration of objections raised at trial to the admission of items of evidence. She has explained why none of the objections present arguable grounds for reversal. We agree with her analysis of those issues.

Counsel has further demonstrated she has complied with the requirements of Anders and In re Schulman by (1) providing a copy of the brief and appellate record to appellant, (2) notifying him of his right to review the records, and (3) informing him he may file a pro se response if he desired to do so. In re Schulman, 252 S.W.3d at 408; see Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014) (specifying appointed counsel's obligations on filing a motion to withdraw supported by an Anders brief). By letter, this Court granted appellant an opportunity to exercise his right to file a response to counsel's brief. Appellant did not file a response.

We have also conducted our own review of the entire record to assess the accuracy of counsel's conclusions and to independently determine whether there are any non-frivolous issues that were preserved in the trial court which might support the appeal. Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); In re Schulman, 252 S.W.3d at 409; Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We have found no such issues.

After carefully reviewing the appellate record and counsel's brief, we conclude there is no plausible basis for reversal of appellant's conviction. Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). We therefore affirm the trial court's judgment and grant counsel's motion to withdraw. Tex. R. App. P. 43.2(a).

James T. Campbell

Justice Do not publish.