Jamale Jerod Lewis v. The State of Texas--Appeal from 184th District Court of Harris County

Opinion issued October 4, 2007

Opinion issued October 4, 2007

 

 

In The

Court of Appeals

For The

First District of Texas

 

NOS. 01-07-00022-CR & 01-07-00023-CR

 

JAMALE JEROD LEWIS, Appellant

V.

THE STATE OF TEXAS, Appellee

 

 

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause Nos. 1037538 & 1037539

 

 

 

 M E M O R A N D U M O P I N I O N

Jamale Jerod Lewis pleaded guilty to the offenses of aggravated sexual assault and attempted capital murder of a peace officer. Lewis elected to have his punishment assessed at a presentence investigation hearing ( P.S.I. ) without an agreed sentence recommendation. At the end of the hearing, the court sentenced Lewis to life imprisonment for both offenses, to run concurrently, the maximum prison sentence available under the statute. See Tex. Penal Code 12.32 (Vernon Supp. 2006). Lewis s counsel on appeal has submitted a brief stating his professional opinion that the appeal is without merit and that there are no arguable grounds for reversal on appeal. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Lewis responded pro se. In four issues, Lewis contends that (1) he was denied due process because the judge did not consider the sentencing range with an open and fair mind ; (2) his trial counsel was ineffective; 3) his plea was involuntary, without which the State does not have enough evidence to support his conviction; and 4) the judgment should be reformed because it should not have included a finding of a deadly weapon. We have reviewed the record and, having found no reversible error, we affirm Lewis s conviction.

Background

On August 16, 2005, Lewis knocked on Shakivia Pope s door and asked for a lighter. Lewis and Pope were neighbors, and Pope knew him and his family well. At that time, Pope noticed that Lewis had a firearm (shotgun) next to the door. Pope was at home with her younger twenty-year-old sister, who was four months pregnant.

Later that day, while Pope s sister was sleeping, Pope answered another knock at the door, at which time Lewis, wearing a mask, punched her in the face. Lewis pointed the gun at her and demanded her money. When Pope responded that she did not have any money, Lewis told her to take off her clothes. Pope removed her shirt. Lewis then directed Pope into her bedroom, where he told her to remove the rest of her clothes and sit on the bed. After Pope did this, Lewis removed his pants and told Pope to remove his shirt. Lewis then pushed Pope s legs apart and forcibly had sexual intercourse with her, while holding her hands over her head. After this, Lewis forced Pope to perform oral sex on him and then made Pope climb on top of him to continue having sexual intercourse. Throughout the incident, Lewis kept his face covered with a mask.

After Lewis finished assaulting Pope, he told her to put some clothes on and asked if she had any credit or debit cards. He directed her, while holding the gun, to her car and instructed her to drive. A few blocks later, Lewis told Pope to pull over and then forced her to get in the trunk of her car and took her wallet and her credit cards. He drove around for awhile, making a few stops.

When Lewis finally let Pope out of the trunk, they had returned to Pope s house. Lewis took Pope back to her bedroom and sexually assaulted her again. He again forced Pope to perform oral sex and to climb on top of him. While this was occurring, Pope noticed a flashlight beam on the wall coming toward the room. When Lewis became aware of it, he pushed Pope off of him and ran out the front door naked. Pope put on a robe and went to the front of the house where she saw police officers. While hiding under a bed, Pope s sister had called the police to report her kidnapping. Pope s sister identified the assailant as Lewis.

Houston Police Department Officer J. Sealy was one of the first officers to respond to Pope s house. He believed that he was responding to a kidnapping that had already occurred, but when he arrived, Pope s sister told him that Lewis was in the back room with Pope. When Lewis ran out of the house, Officer Sealy chased him into a nearby wooded area. Officer Sealy first tasered Lewis with the darts and then dry stunned him with the taser again, three or four times. While that was going on, Officer Sealy ordered Lewis to stop. Lewis then began to attack Officer Sealy and succeeded in throwing him on the ground, face down, and then jumped on his back. Lewis put his arm around Officer Sealy s neck and began to choke him while twisting his head backward over his shoulder. Fearing for his life, Officer Sealy pulled his pistol, pressed it into Lewis ribs, and pulled the trigger. Nothing happened and Lewis and Officer Sealy began fighting for the gun. Lewis tried to force the gun towards Officer Sealy. In order to prevent Lewis from being able to use the gun on him, Officer Sealy managed to point the gun away and discharged all his rounds. Lewis began choking Officer Sealy again, asked him for his handcuffs, and tried to remove Officer Sealy s baton from his holster. In the process of trying to get the handcuffs, Lewis released his grip, and Officer Sealy was able to run a short distance away. Officer Sealy saw Lewis running into the woods, before he collapsed. Other officers located Officer Sealy and helped him to an ambulance.

Police officers went to Lewis s residence and saw a naked man in the window. Police made contact with three people who occupied the residence, all of whom denied knowing Lewis and his presence in the house. The officers searched the house, found Lewis, and arrested him.

Lewis s counsel filed many pre-trial motions, including a motion for a continuance and a request for a private investigator, which were granted. Lewis pleaded guilty to the felony offense of aggravated sexual assault and attempted capital murder of a police officer. During the P.S.I hearing, Shakivia Pope and Officer Sealy testified for the prosecution as to the events that took place. Lewis called three witnesses: his grandmother who raised him, his uncle, and his older brother. They testified that Lewis told them he was sorry for what had happened. They also testified about Lewis s past (his father murdered his mother when Lewis was eight years old) and the effect that had on Lewis. They testified that Lewis had trouble in school, had nightmares, had spent time in mental hospitals, and had done drugs. Lewis also took the stand, during which he accepted responsibility for the offenses although he claimed not to have any memory of the crimes, because he was high on PCP at the time. Lewis also testified that he heard voices after his mother died.

After hearing all the testimony and reviewing the evidence, the court sentenced Lewis to life imprisonment for both offenses, to run concurrently.

 Anders Procedure

The brief submitted by Lewis s court-appointed counsel states his professional opinion that there are no arguable grounds for reversal on appeal and that any appeal would, therefore, lack merit. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400. Counsel s brief meets the minimum Anders requirements by presenting a professional evaluation of the record and stating why there are no arguable grounds for reversal on appeal. See Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). Counsel sent a copy of the brief to Lewis, requested permission to withdraw from the case, and notified Lewis of his right to review the record and file a pro se response.

When we receive an Anders brief from a defendant s court-appointed attorney who asserts that no arguable grounds for appeal exist, we must determine that issue independently by conducting our own review of the entire record. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court and not counsel determines, after full examination of proceedings, whether case is wholly frivolous ); Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We also consider any pro se response that the defendant files to his appointed counsel s Anders brief. See Bledsoe v. State, 178 S.W.3d 824, 826 28 (Tex. Crim. App. 2005).

Thus, our role in this Anders appeal, which consists of reviewing the entire record while remaining mindful of the defendant s pro se contentions, is limited to determining whether arguable grounds for appeal exist. See id. at 827. If we determine that arguable grounds for appeal exist, we abate the appeal and remand the case to the trial court to allow the court-appointed attorney to withdraw. See id. Then, the trial court either appoints another attorney to present all arguable grounds for appeal or, if the defendant wishes, allows the defendant to proceed pro se. See id. We do not rule on the ultimate merits of the issues raised by Lewis in his pro se response. If we determine that arguable grounds for appeal do exist, Lewis is entitled to have new counsel address the merits of the issues raised. See id. Only after the issues have been briefed by new counsel may [we] address the merits of the issues raised. Id.

On the other hand, if our independent review of the record leads us to conclude that the appeal is wholly frivolous, we may affirm the trial court s judgment by issuing an opinion in which we explain that we have reviewed the record and find no reversible error. See id. at 826 28. Lewis may challenge the holding that there are no arguable grounds for appeal by petitioning for discretionary review in the Court of Criminal Appeals. Id. at 827 & n.6.

Following Anders and Bledsoe, we have reviewed the record, Lewis s appointed counsel s Anders brief, and Lewis s pro se response to that brief and conclude that no reversible error exists. Consequently, we affirm the judgment of the trial court and grant Lewis s appointed counsel s motion to withdraw.[1]

  

Conclusion

We affirm the judgment of the trial court and grant appointed counsel s motion to withdraw.

Jane Bland

Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

Do not publish. Tex. R. App. P. 47.2(b).

 

[1] Appointed counsel still has a duty to inform appellant of the result of this appeal, send appellant a copy of this opinion and judgment, and notify appellant that he may, on his own, pursue discretionary review in the Court of Criminal Appeals. Tex. R. App. P. 48.4; see also Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005); Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997); Stephens v. State, 35 S.W.3d 770, 771 72 (Tex. App. Houston [1st Dist.] 2000, no pet.).