ACCEPTED
06-15-00106-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
10/19/2015 12:00:00 AM
DEBBIE AUTREY
CLERK
IN THE COURT OF APPEALS
FILED IN
SIXTH DISTRICT OF TEXAS 6th COURT OF APPEALS
TEXARKANA, TEXAS
10/19/2015 9:05:00 AM
TEXARKANA, TEXAS DEBBIE AUTREY
Clerk
MOISES RENTERIA
Appellant
Vs 06-15-00106-CR
THE STATE OF TEXAS
Appellee
ON APPEAL FROM
THE 188TH JUDICIAL DISTRICT COURT
OF GREGG COUNTY, TEXAS
TRIAL COURT NO. 38,802-A
BRIEF ON BEHALF OF APPELLANT
TIM CONE
State Bar #04660350
P.O. Box 413
Gilmer, Texas 75644
(903) 725-6270
e-mail: timcone6@aol.com
ATTORNEY FOR THE APPELLANT
2
IDENTITY OF PARTIES AND COUNSEL
MOISES RENTERIA, #1734349
POLUNSKY UNIT
3872 FM 350
LIVINGSTON, TEXAS 77351
APPELLANT
THOMAS TIBILETTI
P.O. BOX 3663
LONGVIEW, TEXAS 75606
APPELLANT’S COUNSEL AT TRIAL
JENNY HUCKLE, (FORMER) GREGG COUNTY ASST. CRIM. DIST.
ATTORNEY
101 E. METHVIN
LONGVIEW, TEXAS 75601
APPELLEE’S COUNSEL AT TRIAL
TIM CONE
P.O. BOX 413
GILMER, TX 75644
APPELLANT’S COUNSEL ON APPEAL
ZAN BROWN
GREGG COUNTY ASSIST. CRIM. DIST. ATTORNEY
101 E. METHVIN
LONGVIEW, TEXAS 75601
APPELLEE’S COUNSEL ON APPEAL
3
TABLE OF CONTENTS
Page No.
List of Parties and Counsel……………………………………………. 2
Table of Contents……………………………………………………… 3
Index of Authorities…………………………………………………… 4
Statement of the Case…………………………………………………. 6
Point of Error Number One…………………………………………… 7,10
The trial court erred in finding the Appellant made a voluntary,
knowing, and intelligent waiver of his right to a jury trial.
Point of Error Number Two…………………………………………… 7,11
The trial court erred in failing to properly hold a hearing regarding
Appellant’s competency to stand trial.
Statement of Facts……………………………………………………. 8
Summary of Argument………………………………………………. 9
Conclusion and Prayer……………………………………………….. 12
Certificate of Compliance……………………………………………. 13
Certificate of Service………………………………………………… 13
4
INDEX OF AUTHORITIES
PAGE
U. S.CONSTITUTION:
6th Amendment, U.S. Constitution……….................. 10
14 TH
Amendment, U.S. Constitution………………………… 10
TEXAS CONSTITUTION:
Article 10…………………………………………………….. 10
Article 15……………………………………………………. 10
STATE CASES:
Carpenter v. State, 507 SW2d 794 (Tex.Crim.App. 1974)….. 12
Fuller v. State, 253 SW3d 220 (Tex.Crim.App. 2008)……… 12
Ex Parte Hagans, 558 SW2d 457 (Tex.Crim.App. 1977)…… 12
Meek v. State, 851 SW2d 868 (Tex.Crim.App. 1993)……… 10
Rojas v. State, 228 SW3d 770 (Tex.App.Amarillo 2007)….. 12
Shaffer v. State, 769 SW2d 943 (Tex.Crim.App. 1989)…… 10
Townsends v. State, 427 SW2d 55(Tex.Crim.App. 1968)… 12
STATUTES:
Texas Code of Criminal Procedure, Art. 1.03……………….. 10
Texas Code of Criminal Procedure, Art. 1.04………………. 10
Texas Code of Criminal Procedure, Chapter 46……………. 11
5
NO. 06-15-00106-CR
IN THE
COURT OF APPEALS
FOR THE
SIXTH JUDICIAL DISTRICT OF TEXAS
MOISES RENTERIA,
APPELLANT
VS.
THE STATE OF TEXAS
APPELLEE
6
TO THE HONORABLE JUSTICES OF SAID COURT:
COMES NOW, the Appellant by and through his Attorney, namely Tim Cone,
hereinafter referred to as Appellant, and submits this brief in support of reversing the
judgment and sentence pursuant to the provisions of the Texas Rules of Appellate
Procedure in Cause No. 06-15-00106-CR in the 188th Judicial District Court of Gregg
County, Texas, (Trial Court Cause No. 38,802-A).
STATEMENT OF THE CASE
The Appellant was indicted by the Gregg County Grand Jury in a two count
indictment for the offenses of Aggravated Sexual Assault and Indecency with a
Child. CR6. On February 17, 2011, the trial court held a hearing on the Appellant’s
Motion to Withdraw (filed by Appellant’s trial counsel). CR42, 2RR. The trial court,
sua sponte, ordered a competency evaluation. 2RR11, CR47. On August 1, 2011, the
Appellant executed a waiver of jury trial and, after a bench trial, was found guilty on
both counts of the indictment. 3RR119, CR55. The trial court assessed punishment at
confinement for life on Count 1 Aggravated Sexual Assault) and twenty years
confinement on Count 2 (Indecency with a Child). 3RR127, CR55. The Appellant
indicated he wished to appeal the judgment of the trial court (sort of) and Appellant’s
counsel was appointed for the purpose of appeal. 3RR129. Unfortunately, Appellant’s
7
attorney was not timely informed of the appointment and an out of time appeal was
sought and granted. CR85-129. The Appellant now appeals the judgment and
sentence of the trial court.
For clarity, THE STATE OF TEXAS will be referred to as “the State”, and
Moises Renteria will be referred to as “Defendant” or “Appellant.”
ISSUES PRESENTED
POINT OF ERROR NUMBER ONE
The trial court erred in finding the Appellant made a voluntary, knowing, and
intelligent waiver of his right to a jury trial.
POINT OF ERROR NUMBER TWO
The trial court erred in failing to properly hold a hearing regarding Appellant’s
competency to stand trial.
8
STATEMENT OF THE FACTS
Since sufficiency of the evidence is not a point of error, a fairly short
rendition of the facts will suffice. It should probably be noted that the complaining
witness was thirteen years old when she gave birth to a child and the DNA analysis
indicated that the Appellant was the father of the child by a probability of 99.99%.
3RR43, State’s exhibit number 8. Therefore, sufficiency of the evidence seems an
unlikely successful point of error. However, there are other issues in the proceeding
that do indicate errors made by the trial court.
On February 17, 2011, a hearing was scheduled to consider a Motion to
withdraw filed by Appellant’s trial counsel. 2RR. It should probably be pointed out,
although not clear from the record, that the Appellant does not speak or read the
English language but is fluent in his native Spanish language. Again, although it is
not immediately clear from the record, Appellant’s trial counsel is quite fluent in the
9
Appellant’s native tongue. The hearing on February 17, 2011, really did not address
the Motion to Withdraw but, instead, related to issues of plea offers and incoherent
rambling by the Appellant that are easier to read from the record than set out in this
brief. 2RR5-6,9-10. The trial court appropriately observed that a competency issue
existed and, sua sponte, ordered the Appellant be examined for competency to stand
trial. 2RR10-11. The order requiring the examination improperly states that the
examination was ordered based on the Appellant’s motion. CR47. Dr. Thomas G.
Allen, Ph.D. filed a report indicating he was of the opinion that the Appellant was
competent. CR51. No other judicial proceeding was ever held regarding the issue of
competency.
On August 1, 2011, the trial court held a bench trial. 3RR. The waiver of the
Appellant’s right to a jury trial is set out in the record and is best described as
convoluted and unclear-and best left to a reading of the record rather than an attempt
to repeat in this brief. 3RR8-18. After the waiver was signed by the Appellant
(CR63), the case was tried as a bench trial. The trial court found the Appellant guilty
of both counts of the indictment and assessed the punishment previously described
and ordered the sentences to run concurrently. 3RR127, CR58.
10
SUMMARY OF THE ARGUMENT
The state of mind of the Appellant is related to both points of error. His mental
processes were clearly impaired. Those processes were so clear to the court that the
trial court, sua sponte, ordered a competency evaluation. While the mental health
expert filed a report setting out that the Appellant, in his opinion, was competent, no
hearing was held after the report by the trial court finding the Appellant competent or
even addressing the issue of competency. This is error.
Further-and again related to the Appellant’s mental competency-the process by
which the Appellant executed the jury waiver clearly showed that the Appellant’s
mind was not functioning in a proper manner to voluntarily, knowingly, or
intelligently waive his right to a jury trial. Both of these errors affect fundamental
rights of the Appellant and require reversal.
POINT OF ERROR NUMBER ONE
The trial court erred in finding the Appellant made a voluntary, knowing, and
intelligent waiver of his right to a jury trial.
ARGUMENT
The Texas Code of Criminal Procedure, Art 1.03 and 1.04, as well as the Texas
Constitution (Article 10 and 15) and the U.S. Constitution (6th and 14th Amendments)
all clearly set out the fundamental right of an accused to a jury trial. This right is, of
11
course, waivable. However, the waiver of the right must be made voluntarily,
knowingly and intelligently. Shaffer v. State, 769 S.W.2d 943 (Tex.Crim.App. 1989);
Meek v. State, 851 S.W.2d 868 (Tex.Crim.App. 1993)-this case later reversed on
other grounds. The argument in the case at bar that the Appellant did not make a
voluntary, knowing, intelligent waiver of his right to jury trial is simply abundantly
clear from the record. 3RR8-18. The record shows that the Appellant did not
understand the concept of a jury trial, the significance of a jury waiver, or the
consequences of the waiver. The record shows a mind that simply was not
functioning on a rational basis. Appellant’s counsel is somewhat at a loss for further
words to express the point but the record seems clear on this issue. Since the right to
jury trial is a fundamental right, this error requires reversal.
POINT OF ERROR NUMBER TWO
The trial court erred in failing to properly hold a hearing regarding Appellant’s
competency to stand trial.
ARGUMENT
The Texas Code of Criminal Procedure, Chapter 46, sets out the procedure to
be followed regarding issues of competency to stand trial. On February 17, 2011, the
12
trial court was to hold a hearing regarding trial counsel’s motion to withdraw. The
Appellant’s basically nonsensical ramblings brought to the trial court’s attention that
the issue of competency existed. These ramblings are set out in the record. 2RR5-6,9-
10. The issue was so obvious, the trial court, sua sponte, ordered the Appellant’s
examination on the issue of competence. While it was appropriate and admirable that
the trial court ordered the examination By Dr. Tom Allen, the trial court must hold a
separate hearing on the issue of competency. Carpenter v. State, 507 S.W.2d 794
(Tex.Crim.App. 1974);Ex Parte Hagans, 558 S.W.2d 457 (Tex.Crim.App. 1977);
Townsend v. State, 427 S.W.2d 55 (Tex.Crim.App. 1968); Fuller v. State, 253
S.W.3d 220 (Tex.Crim.App 2008); and Rojas v. State, 228 S.W.3d 770 (Tex.App
Amarillo 2007). Dr. Allen’s report is not a judicial finding of competency. After Dr.
Allen filed his report, the issue was simply never again addressed. In fact, the
proceedings held on August 1, 2011, clearly indicate a bona fide issue of competency
of the Appellant regarding the jury waiver. The Appellant simply did not make any
sense regarding the jury waiver issue-which indicated he was not competent. Without
a separate hearing on the issue of competency, the Appellant was denied a
fundamental right and the trial court’s judgment should be reversed.
CONCLUSION AND PRAYER
For the reasons herein alleged, the sentence of the trial court should be reversed
and remanded for a new trial.
13
Respectfully submitted,
/s/Tim Cone
____________________
TIM CONE
Attorney At Law
P.O. Box 413
Gilmer, Texas 75644
e-mail: timcone6@aol.com
ATTORNEY FOR APPELLANT
CERTIFICATE OF COMPLIANCE
I certify that the foregoing document complies with Texas Rules of Appellate
Procedure, Rule 9 regarding length of documents, in that exclusive of caption,
identity of parties and counsel, statement regarding oral argument, table of contents,
index of authorities, statement of the case, statement of issues presented, statement of
jurisdiction, statement of procedural history, signature, proof of service, certification,
certificate of compliance, and appendix, it consists of 971 words.
/s/Tim Cone
______________________
TIM CONE
ATTORNEY FOR APPELLANT
CERTIFICATE OF SERVICE
14
This is to certify that a true and correct copy of the foregoing Appellant’s Brief
has been provided to the Honorable Zan Brown, Gregg County Assistant Criminal
District Attorney on October 18, 2015.
/s/Tim Cone
_____________________________
TIM CONE
Attorney At Law