ACCEPTED
04-14-00370-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
2/20/2015 2:48:45 PM
KEITH HOTTLE
CLERK
NO. 04-14-00372-CR and 04-14-00370-CR
IN THE COURT OF APPEALS FOR THE FILED IN
4th COURT OF APPEALS
FOURTH DISTRICT OF TEXAS SAN ANTONIO, TEXAS
SAN ANTONIO, TEXAS 2/20/2015 2:48:45 PM
______________________________ KEITH E. HOTTLE
Clerk
ANDRES RAMON JUAREZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
______________________________
ON APPEAL FROM THE 175th JUDICIAL DISTRICT COURT
OF BEXAR COUNTY, TEXAS
CAUSE NUMBERS 2013CR0936B and 2013CR0937B
______________________________
BRIEF FOR THE STATE
______________________________
NICHOLAS “NICO” LAHOOD
Criminal District Attorney
Bexar County, Texas
LAUREN A. SCOTT
Assistant Criminal District Attorney
Bexar County, Texas
Paul Elizondo Tower
101 W. Nueva Street
San Antonio, Texas 78205
Phone: (210) 335-2885 Email: lscott@bexar.org
State Bar No. 24066843
Attorneys for the State of Texas
IDENTITY OF PARTIES AND COUNSEL
TRIAL COURT Honorable Mary Roman
APPELLANT Andres Ramon Juarez
APPELLANT’S Marvin Zimmerman
TRIAL ATTORNEY State Bar No: 22271000
P.O. Box 760468
San Antonio, TX 78246
(210) 494-1919
APPOINTED ATTORNEY Richard Dulany
ON APPEAL Public Defender’s Office
(Has filed motion to withdraw)
TRIAL STATE’S Jason Garrahan
ATTORNEY State Bar No. 24045920
Emily (McCready) Angulo
State Bar No. 24010707
APPELLATE STATE’S Lauren A. Scott
ATTORNEY State Bar No. 24066843
Assistant Criminal District Attorney
Paul Elizondo Tower
101 W. Nueva Street
San Antonio, Texas 78205
(210) 335-2885
Email: lscott@bexar.org
ii
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL ................................................. ii
TABLE OF CONTENTS............................................................................... iii
INDEX OF AUTHORITIES ......................................................................... iv
BRIEF FOR THE STATE .............................................................................. 1
STATEMENT OF THE CASE ...................................................................... 1
STATEMENT OF FACTS ............................................................................. 2
SUMMARY OF THE ARGUMENT ............................................................. 4
There is no evidence in the record to support appellant’s allegations that he
received ineffective assistance of counsel.
ARGUMENT .................................................................................................. 4
SUMMARY OF STATE’S CROSS POINT ON APEAL ............................. 7
The trial court should not have granted Juarez’s request to appeal because
his waiver was made voluntarily, knowingly, and intelligently.
STATE’S CROSS POINT ON APPEAL ....................................................... 7
PRAYER ....................................................................................................... 10
CERTIFICATE OF COMPLIANCE AND SERVICE ................................ 11
iii
INDEX OF AUTHORITIES
Page(s)
Cases
Ex parte Broadway, 301 S.W.3d 694 (Tex. Crim. App. 2009) ...................... 8
Ex parte Delaney, 207 S.W.3d 794 (Tex. Crim. App. 2006) ......................... 8
Jackson v. State, 973 S.W.2d 954 (Tex. Crim. App. 1998) ........................... 5
Marsh v. State, 444 S.W.3d 654 (Tex. Crim. App. 2014) .............................. 7
Mendez v. State, 138 S.W.3d 334 (Tex. Crim. App. 2004) ............................ 6
Monreal v. State, 99 S.W. 3d 615 (Tex. Crim. App. 2003)............................ 8
Moreno v. State, 721 S.W.2d 295 (Tex. Crim. App. 1986) ............................ 7
Strickland v. Washington, 466 U.S. 668 (1984) ............................................. 4
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) ........................ 4, 5
Statutes
Tex. Code Crim. Proc. Ann. Art. 1.13 (West 2005) ....................................... 8
Tex. Penal Code Ann. § 12.42(c)(1) ............................................................... 8
Tex. Penal Code Ann. § 29.03 (West 2011) ................................................... 2
iv
NO. 04-14-00372-CR and 04-14-00370-CR
ANDRES RAMON JUAREZ § IN THE FOURTH DISTRICT
§
§
VS. § COURT OF APPEALS
§
§
STATE OF TEXAS § SAN ANTONIO, TEXAS
BRIEF FOR THE STATE
To the Honorable Fourth Court:
Now comes, Nicholas “Nico” LaHood, Criminal District Attorney of Bexar
County, Texas, and files this brief for the State.
STATEMENT OF THE CASE
On January 31, 2013, two indictments were filed, charging appellant with
three different aggravated robberies, all of which occurred on the same day against
three different people. (0936B C.R. at 4 and 0937B C.R. at 4-5); See Tex. Penal
Code Ann. § 29.03 (West 2011). On February 10, 2014, Juarez signed a jury
waiver and pled no contest to charges against him. (0936B C.R. at 22 and 0937B
C.R. at 23). He also signed judicial confessions to three charges of aggravated
robbery. (0936B C.R. at 24 and 0937B C.R. at 25). As a part of the jury waiver
and plea process, Juarez agreed and pled true to his previous felony and to the
deadly weapon allegations. (0936B C.R. at 22 and 0937B C.R. at 23) and (3 R.R.
at 5). At the end of the plea, the trial court found Juarez guilty and reset the case
1
for a sentencing hearing to be determined by the trial court. (2 R.R. at 7-8). On
April 28, 2014, the trial court sentenced Juarez to 45 years in the Texas
Department of Correction—Institutional Division. (0936B C.R. at 76-77 and
0937B C.R. at 72-73).
On the same day as the plea, the trial court found Juarez did not have a right
to appeal because the case was a result of a plea bargain and he waived his right to
appeal. (0936B C.R. at 67 and 0937B C.R. at 63). But on May 14, 2014, Juarez
filed a Notice of Appeal, and requested permission to appeal, which the trial court
granted. (0936B C.R. at 78, 86 and 89; 0937B C.R. at 76, 84 and 87). Appellate
counsel was appointed and filed a motion to withdraw and brief in support showing
that Juarez had no meritorious issues for review. Shortly after, Juarez filed a Pro
Se Brief alleging he received ineffective assistance of counsel. This State’s brief
responds to those allegations.
STATEMENT OF FACTS
The State challenges the factual assertions contained in appellant’s brief.
See TEX. R. APP. P. 38.2(a)(1)(B). The appellant plead guilty to two charges of
aggravated robbery on February 10, 2014. (2 R.R. at 6). The State offered exhibits
in support of each of the charges against Juarez, the defense attorney did not
object, and the trial court admitted the exhibit into evidence. (2 R.R. at 7). The
State’s evidence contained the police reports and the victims’ statements which
summarized Juarez’s actions on November 26, 2012. (0936B C.R. at 27-59 and
2
0937B C.R. at 27-56).1 The following fact summary comes from those documents
admitted into evidence at the plea.
On November 26, 2012, Juarez held three individuals at gun point and
demanded money. The first two victims were William and Rebecca Murillo. The
couple was at home when Juarez pulled a gun out on William and demanded
money. Juarez then held a gun on Rebecca as William went in their house and got
some money. William gave Juarez $40, and he left with his accomplices. Luckily
no one was hurt, but Rebecca and William both believed they were going to die
that afternoon at the hands of Juarez. (0937B C.R. at 51-53).
A couple of hours later, Juarez and his associates went to their third victim’s
home, and approached Stephen Dobles and his neighbor, Karmin San Martin, who
were both putting out their trash cans. They told Stephen a story about needing
money for gas, but when Stephen told them he did not have any money, they
quickly pulled a gun out and ordered him to his knees. As the men were focused
on Stephen, Karmin ran and locked herself in her house. Then Juarez and the
others became distracted with looking for Karmin, which gave Stephan a chance to
get away. As he stepped into his home, he heard his storm door shatter and he
realized he had been shot. (0936B C.R. at 52-54).
1
The State’s exhibits from the pleas are found in the Court’s files, attached to the jury waiver and plea paperwork.
3
SUMMARY OF THE ARGUMENT
There is no evidence in the record to support appellant’s allegations that he
received ineffective assistance of counsel.
ARGUMENT
In the pro se motion, appellant claims he received ineffective assistance of
counsel for the following reasons: 1) Counsel failed to properly advise Juarez on
the jury waiver and the guilty plea 2) Counsel failed to have Juarez examined for
competency to stand trial and 3) Counsel failed to file a motion to quash the
State’s indictments.
The law regarding the review of a trial counsel’s effectiveness is well
settled. To establish ineffective assistance of counsel, the appellant must show: 1)
that defense counsel’s assistance fell below an objective professional standard of
reasonableness and 2) that counsel’s actions prejudiced the defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812
(Tex. Crim. App. 1999). In order to show prejudice, an appellant must prove by a
preponderance of the evidence that “but for counsel’s unprofessional error, the
result of the proceeding would have been different.” Jackson v. State, 973 S.W.2d
954, 956 (Tex. Crim. App. 1998).
When reviewing an ineffective assistance claim, a court “looks to the totality
of the representation and the particular circumstances of each case.” Thompson, 9
S.W.3d at 813. There is a strong presumption that defense counsel’s conduct fell
4
within the wide range of reasonable professional assistance. Id. To defeat this
presumption, “any allegation of ineffectiveness must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged ineffectiveness.”
Id. at 814 (quoting, McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App.
1996)).
There is no evidence in the record to support Juarez’s allegations of
ineffective assistance of counsel. This case was the result of Juarez pleading no
contest to the charges against him and there is nothing on the record to support a
finding that his counsel failed to properly advise him on the consequences of
pleading guilty. The record, however, does show the trial court asking Juarez
whether he was forced or mistreated into pleading, and he responded, “no.” (2 R.R.
at 5). In addition, there was a two and a half month break between Juarez’s plea
and the trial court’s sentencing, during which Juarez could have withdrawn his plea
and the trial court would have had broad discretion in allowing the withdraw prior
to sentencing. See Mendez v. State, 138 S.W.3d 334, 345 (Tex. Crim. App. 2004)
(stating, “when trial by jury has been waived, the defendant may change the plea
from guilty to not guilty until the court pronounces judgment or takes the case
under advisement.”). But Juarez never claimed any lack of understanding his
guilty plea—until now.
5
There is also no evidence that trial counsel failed to have Juarez examined
for competency to stand trial. Juarez’s counsel did have him examined by Dr.
Brian Skop and asked the trial court to take Dr. Skop’s assessment into
consideration for punishment purposes. (3 R.R. at 26 and 0936B C.R. at 70).
Moreover, Dr. Skop stated in his report that Juarez was competent to stand trial
and understood the charges against him. (0936B C.R. at 71). Juarez does suffer
from mental health issues, but his counsel did not fail to have him evaluated and
certainly was not ineffective for making a frivolous motion to the court to find
Juarez incompetent to stand trial.
On the last ineffective issue, trial counsel did not file a motion to quash the
indictments in this case. There is nothing on the record regarding counsel’s
reasons for not filing a motion; therefore, the presumption should be counsel had a
strategy and a reason for not filing the motions. In addition, looking at the face of
the indictments, they both provided Juarez with adequate notice of the charges
against him and they both track the statutory language of aggravated robbery. See
Moreno v. State, 721 S.W.2d 295, 300 (Tex. Crim. App. 1986) (stating the general
notion that an indictment which tracks the statutory language of the offense will be
found sufficient).
Clearly the record does not support appellant’s allegations of ineffective
assistance of counsel. Instead, the record shows a valid plea and jury waiver
6
signed by Juarez. Also, looking at the totality of the representation, trial counsel
provided the trial court with mitigation evidence at the punishment trial. In the
end, the trial court sentenced Juarez to 45 years imprisonment which is not only
well within the punishment range of aggravated robbery, but an extremely
reasonable sentence considering Juarez committed two robberies of three people at
gunpoint within hours of each of other. (3 R.R. at 29). Appellant’s argument is
wholly without merit and his conviction and the judgment of the trial court should
be affirmed.
SUMMARY OF STATE’S CROSS POINT ON APEAL
The trial court should not have granted Juarez’s request to appeal because
his waiver was made voluntarily, knowingly, and intelligently.
STATE’S CROSS POINT ON APPEAL
The trial court erred in changing the trial court certification and granting
Juarez’s request to appeal his plea of guilty. See Marsh v. State, 444 S.W.3d 654,
659 (Tex. Crim. App. 2014) (holding the State can complain for the first time on
appeal about an improperly amended appeal certification).
When a defendant makes a voluntary, knowing, and intelligent waiver of his
right to appeal, he may not appeal without permission from the trial court. See
Monreal v. State, 99 S.W. 3d 615, 617 (Tex. Crim. App. 2003). The Texas Court
of Criminal Appeals has held that a pre-trial or pre-sentencing waiver of the right
to appeal is not voluntary, knowing, and intelligent when the consequences of the
7
waiver are not known with certainty. See Ex parte Delaney, 207 S.W.3d 794, 795-
96 (Tex. Crim. App. 2006). But the Court narrowed the Delaney holding when
they decided that a defendant can voluntarily waive his right to appeal, even if the
sentence is unknown, when consideration is given by the State for the defendant’s
waiver. See Ex parte Broadway, 301 S.W.3d 694, 699 (Tex. Crim. App. 2009).
In this case Juarez’s waiver was the result of a plea bargain. During the
plea, the prosecutor referred to a limited plea bargain they made with Juarez. (2
R.R. at 5). While not explicitly stated, the State consented to the jury waiver in
exchange for Juarez’s waiver of appeal. See Tex. Code Crim. Proc. Ann. Art. 1.13
(West 2005). The State also had him agree to the felony enhancement and the
deadly weapon allegation, which changed the minimum punishment from five
years to 15 years, which supports a finding that Juarez’s plea and waiver were
bargained for and done knowingly. See Tex. Penal Code Ann. § 12.42(c)(1).
Before Juarez could go to the court for punishment, he had to agree to increase the
minimum punishment by 10 years. Clearly, Juarez and the State believed he
received some benefit by pleading open to the court, and the State gave
consideration in consenting to the jury waiver, and in return Juarez waived his
right to appeal and agreed to plea true to the punishment enhancements.
Juarez took a gamble by pleading open to the court. He avoided the jury’s
punishment determination and took a chance that the judge’s punishment
8
determination would be lower. He should not get another chance simply because
his gamble did not pay off and he did not get the sentence he wanted. See Ex Parte
Broadway, 301 S.W.3d at 698 (stating, “the fundamental nature of an open plea is
uncertainty.”). The trial court should have enforced the initial trial court
certification and denied Juarez’s request to appeal; therefore the State requests this
Court find Juarez properly waived his right to appeal deny review on any of his
issues on appeal.
9
PRAYER
WHEREFORE, PREMISES CONSIDERED, the State of Texas submits that the
judgment of the trial court should, in all things, be AFFIRMED.
Respectfully submitted,
Nicholas “Nico” LaHood
Criminal District Attorney
Bexar County, Texas
/s/ Lauren A. Scott
______________________________
Lauren A. Scott
Assistant Criminal District Attorney
Bexar County, Texas
Paul Elizondo Tower
101 W. Nueva Street
San Antonio, Texas 78205
Phone: (210) 335-2885
Email: lscott@bexar.org
State Bar No. 24066843
Attorneys for the State
10
CERTIFICATE OF COMPLIANCE AND SERVICE
I, Lauren A. Scott, herby certify that the total number of words in appellee’s
brief is approximately 2200. I also certify that a true and correct copy of the above
and forgoing brief was mailed to appellant at the Bexar County Jail on February
20, 2015.
/s/ Lauren A. Scott
____________________________
Lauren A. Scott
Assistant Criminal District Attorney
Pro Se Appellant
Andres Ramon Juarez
SID #995152
200 N. Comal
San Antonio, TX 78207
11