ACCEPTED
03-15-00144-CR
5591872
THIRD COURT OF APPEALS
AUSTIN, TEXAS
6/8/2015 5:30:33 PM
JEFFREY D. KYLE
No. 03-15-00144-CR (Counts II and III) CLERK
IN THE COURT OF APPEALS
FILED IN
FOR THE THIRD DISTRICT OF TEXAS, AT
3rd AUSTIN
COURT OF APPEALS
AUSTIN, TEXAS
6/9/2015 10:14:33 AM
Christopher Arthur Kurtz JEFFREY D. KYLE
Clerk
Appellant
v.
The State of Texas
Appellee
On Appeal from the 207th District Court of Comal County in
Cause No. CR2014-343 (Counts II and III), the Hon. Jack
Robison, Judge Presiding
Brief Pursuant to Anders v. California
Submitted by:
John G. Jasuta
Attorney at Law
1801 East 51st Street, Suite 365474
Austin, Texas 78723
eMail: lawyer1@johnjasuta.com
Tel. 512-474-4747
Fax: 512-532-6282
State Bar Card No. 10592300
Court Appointed Attorney for Appellant
Oral Argument Inapplicable
Identity of Parties and Counsel
Pursuant to Rule 38.1(a), Rules of Appellate Procedure
(“Tex.R.App.Pro.”), the following is a complete list of the names and
addresses of all parties to the trial court’s final judgment and their counsel
in the trial court, as well as appellate counsel, so the members of the Court
may at once determine whether they are disqualified to serve or should
recuse themselves from participating in the decision of the case and so the
Clerk of the Court may properly notify the parties to the trial court’s final
judgment or their counsel, if any, of the judgment and all orders of the
Court of Appeals.
Appellant
Christopher Arthur Kurtz
TDCJ # 01968855
Trial Counsel Appellate Counsel
Matt Stolhandske John G. Jasuta
SBN 19278750 SBN 17833400
Venessa D. Rodriguez 1801 E. 51st St, Ste 365474
SBN 24077794 Austin, Texas 78723
1004 S. St. Mary’s
San Antonio, Texas 78205
State of Texas
Jennifer Tharp
District Attorney
150 N. Seguin, Suite 307
New Braunfels, Texas 78130
Trial Counsel Appellate Counsel
Clayten H. 'Clay' Hearrell Joshua Presley
SBN 24059919 SBN 24088254
Chari L. Kelly
SBN 24057939
i
Table of Contents
Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . i
Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Issue Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Note About Abbreviations.. . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Issue Presented Restated. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Whether the Instant Appeal Is Frivolous and Without
Merit, Such that the Undersigned Should Withdraw as
Appellate Counsel.
Professional Evaluation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Notice Given to Appellant.. . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . 23
Certificate of Compliance and Delivery. . . . . . . . . . . . . . . . . . 23
ii
Index of Authorities
Federal Cases:
Anders v. California, 386 U.S. 738 (1967). . . . . . . . . . . 1, 6-8
McCoy v. Court of Appeals, 486 U.S. 429 (1988). . . . . . . . 6, 8
Strickland v. Washington, 466 U.S. 668 (1984). . . . . . . . . 15
Texas Cases:
Cain v. State, 958 S.W.2d 404 (Tex.Cr.App. 1997). . . . . . . . 14
Casey v. State, 215 S.W.3d 870 (Tex.Cr.App. 2007). . . . . . . 16
Hacker v. State, 389 S.W.3d 860 (Tex.Cr.App. 2013). . . 13, 14
Hammons v. State, 239 S.W.3d 798
(Tex.Cr.App. 2007). . . . . . . . . . . . . . . . . . . . . . . 15, 16, 18
High v. State, 573 S.W.2d 807 (Tex.Cr.App. 1978). . . . . . . . . 1
In re Schulman, 252 S.W.3d 403 (Tex.Cr.App. 2008). . . . . 1, 6
Johnson v. State, 885 S.W.2d 641
(Tex. App. - Waco 1994). . . . . . . . . . . . . . . . . . . . . . . . . . 8
Kacz v. State, 287 S.W.3d 497
(Tex. App. - Houston [14th] 2009). . . . . . . . . . . . . . . . . . 16
Lopez v. State, 86 S.W.3d 228 (Tex.Cr.App. 2002). . . . . 16, 19
iii
Index of Authorities
(CONT)
Texas Cases (CONT):
Miller v. State, _____ S.W.3d _____
(Tex.Cr.App., No. PD-0038-14, April 15, 2015). . . . . 12-14
Montgomery v. State, 810 S.W.2d 372
(Tex.Cr.App. 1991). . . . . . . . . . . . . . . . . . . . . . . 16, 18, 19
Oprean v. State, 201 S.W.3d 724 (Tex.Cr.App. 2006). . . 16, 18
Saxton v. State, 804 S.W.2d 910 (Tex.Cr.App. 1991). . . . . . 14
Smith v. State, 520 S.W.2d 383 (Tex.Cr.App. 1975). . . . . . . 18
Wilson v. State, 40 S.W.3d 192
(Tex.App. - Texarkana 2001). . . . . . . . . . . . . . . . . . . . . . . 6
Wilson v. State, 955 S.W.2d 693 (Tex. App. - Waco 1997).. . . 8
Zuniga v. State, 144 S.W.3d 477 (Tex.Cr.App. 2004). . . 13, 14
Texas Statutes / Codes:
Penal Code
Section 37.09(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 38.04 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 38.04 (b). . . . . . . . . . . . . . . . . . . . . . . . . . . 10
iv
Statement of the Case
The following is a brief general statement of the nature of the
cause or offense:
Appellant was charged by indictment with the offense of
Evading Arrest with a Vehicle, a Third degree Felony, in
Cause No. CR2014-343 (Count II), and Tampering with
Physical Evidence, a Third Degree Felony, in Cause No.
CR2014-343 (Count III), in the 207th District Court of
Comal County, Texas. He was convicted in both of the
said causes and was sentenced to confinement for
seventy-five (75) and thirty (30) years, respectively.
Notice of Appeal was timely given.
Issue Presented
Whether the Instant Appeal Is Frivolous and Without
Merit, Such That the Undersigned Should Withdraw
as Appellate Counsel.
Note About Abbreviations
In this brief, Appellant refers to the Clerk’s Record as “CR”
followed by the appropriate page: e.g., “(CR 123).” Appellant refers
to the Reporter’s Record as “RR” followed by the volume, page and
line numbers: e.g., “(RR Vol. 3, P. 47, L. 12-15).
v
No. 03-15-00144-CR (Counts II and III)
IN THE COURT OF APPEALS
FOR THE THIRD JUDICIAL DISTRICT OF TEXAS, AT AUSTIN
Christopher Arthur Kurtz
Appellant
v.
The State of Texas
Appellee
On Appeal from the 207th District Court of Comal County in
Cause No. CR2014-343, the Hon. Jack Robison, Judge
Presiding
Brief Pursuant to Anders v. California
TO THE HONORABLE THIRD COURT OF APPEALS:
COMES NOW, John G. Jasuta, court-appointed attorney of
record for Christopher Arthur Kurtz, Appellant in the above styled
and numbered cause, and respectfully files this brief pursuant to
Anders v. California, 386 U.S. 738 (1967), High v. State, 573
S.W.2d 807 (Tex.Cr.App. 1978), and In re Schulman, 252 S.W.3d
403 (Tex.Cr.App. 2008), and would show the Court as follows:
1
Statement of Facts
On October 1, 2013, Appellant picked up a friend, Alicia
Dawn Sanchez, to take her to her new job, which she was starting
that morning (RR Vol. 3, P. 73). Appellant was observed by
Detective Bell of the New Braunfels Police Department, who was
looking for him to serve an active warrant (RR Vol. 3, P. 106).
Andrew Kempker, a New Braunfels Police Department Officer was
called by Bell to effect an arrest (RR Vol. 3, P. 15). Kempker
pursued Appellant, activated his emergency lights and watched as
Appellant initially slowed and then accelerated at a high rate of
speed (RR Vol. 3, PP. 16-17). Kempker followed him onto IH 35,
headed south (RR Vol. 3, P. 18). Other officers were also involved
in the pursuit (RR Vol. 3, P. 19).
The chase involved two people on a motorcycle, a male driver
and a female in the rear, neither of whom Kempker knew at the
time (RR Vol. 3, P. 19). Kempker testified that he never lost sight
of Appellant during the chase (RR Vol. 3, P. 20), but the pursuit
was called off by the supervisor on duty, Sergeant Cantu (RR Vol.
2
3, P. 21). Kempker stated that the pursuit took place in Comal
County (RR Vol. 3, P. 23).
Chad Adams, a New Braunfels Police Department Officer
found the motorcycle when called by Schertz PD but he never saw
Appellant on it (RR Vol. 3, P. 45). He took custody of Appellant
and transported him to the Police Department for interview (RR
Vol. 3, P. 47). Officer Michael Rapier of the Schertz Police
Department stated that he assisted in the search for Appellant and
was on perimeter duty. He saw Appellant and called for him to
come out of hiding and, when he didn’t surrender, he pulled him
out, handcuffed him and took him to waiting New Braunfels Police
officers (RR Vol. 3, P. 62). Later, he returned to area and found a
gun and keys on it (RR Vol. 3, P. 63), all in Comal County (RR Vol.
3, P. 64).
Appellant admitted that he knew Kempker was a police officer
but stated that he didn’t know for sure whether Kempker was
attempting to lawfully arrest or detain him that day (RR Vol. 4, P.
46). At trial Appellant admitted to having and attempting to hide
3
the gun but stated that it had been put into his pocket by the
passenger, Alicia Dawn Sanchez (RR Vol. 4, PP. 36, 39), who, by
telling him she had a gun, and that he should avoid the police,
forced his actions (RR Vol. 4, PP. 17-18, 45).
Sanchez testified that she was staying with a friend and
Appellant lived across the street (RR Vol. 3, P. 72). She was
otherwise homeless and had just gotten a new job (RR Vol. 3, P.
73). The roommate’s car had no gas, so Appellant took her to
work (RR Vol. 3, PP. 73-74).
While they were heading for her work, an officer tried to pull
them over (RR Vol. 3, P. 74). Sanchez stated that she did not tell
Appellant to run from the police, but, rather, asked him to pull
over by a gas station. Appellant did not stop there, but took off
instead (RR Vol. 3, PP. 75, 80-81), after saying, “Fuck it,” (RR Vol.
3, PP. 75-76), and announcing, “I am running.” Sanchez asked
him to stop and she asked to get off (RR Vol. 3, PP. 76-77), but
Appellant didn’t stop until after the pursuit ceased, and eventually
let her off at the Caterpillar dealer in Schertz (RR Vol. 3, P. 77).
4
Sanchez expressed no fear of Appellant, but was scared of
going to jail (RR Vol. 3, PP. 77-78, 103). She stated that she knew
Appellant was not trying “to keep me” (RR Vol. 3, P. 82), that he
was just running from the police (RR Vol. 3, P. 83), and that he
would let her off the motorcycle (RR Vol. 3, P. 85).
Sergeant James Bell of the New Braunfels Police Department
testified that the manner and means of use of the motorcycle was
such that it was capable of causing death or serious bodily injury
(RR Vol. 3, P. 126). He stated that Appellant, by using it in such
a manner, made it impossible for Alicia Sanchez to get off of the
motorcycle (RR Vol. 3, P. 127), although there was no testimony
that Sanchez ever attempted to get off of the motorcycle. Bell
stated that Appellant transported Sanchez from one place to
another (RR Vol. 3, P. 127). Bell stated that he saw a police officer
attempt to stop Appellant and he saw Appellant flee from the
officer (RR Vol. 3, P. 139). He believed Appellant knew the officer
was a police officer (RR Vol. 3, P. 139). Appellant admitted that he
was driving the motorcycle that day (RR Vol. 4, P. 63).
5
Issue Presented Restated
Whether the Instant Appeal Is Frivolous and Without
Merit, Such that the Undersigned Should Withdraw as
Appellate Counsel.
A criminal defense attorney’s duty is to zealously represent
the interests of his client on appeal. Schulman, 252 S.W.3d at
406 (Citing Anders, 386 U.S. at 744).1 If the appointed attorney
finds the “case to be wholly frivolous, after a conscientious
examination of it, he should so advise the court and request
permission to withdraw.” Anders, 386 U.S. at 744. It is the
motion to withdraw that is required in this situation. The so-called
“Anders” brief accompanies the motion to withdraw as an
assurance to the appellate court that the attorney has indeed
1
See also McCoy v. Court of Appeals of Wisconsin, District I, 486 U.S. 429,
437 (1988)(stating that both retained and appointed appellate attorneys have a
“duty to withdraw” as counsel when they conclude that an appeal would be
frivolous, but noting that appointed counsel “is presented with a dilemma because
withdrawal is not possible without leave of court, and advising the court of
counsel’s opinion that the appeal is frivolous would appear to conflict with the
advocate’s duty to the client. It is well settled, however, that this dilemma must
be resolved by informing the court of counsel’s conclusion.”); Wilson v. State, 40
S.W.3d 192, 196 (Tex.App. - Texarkana 2001)(“Under Anders and its progeny, if
an appointed attorney concludes that his client’s appeal is without merit, he must
(1) so inform the court, (2) seek permission to withdraw, and (3) file a brief
‘referring to anything in the record that might arguably support the appeal.’”)
(quoting McCoy and Anders).
6
made a thorough and conscientious examination of the record,
has provided the appellate court with the appropriate facts of the
case and its procedural history, and has pointed out any
potentially plausible points of error. Anders, 386 U.S. at 744.2
In Anders, the Supreme Court held that the appellate
attorney could not fulfill his obligation to represent his client by
filing a letter merely stating that he has concluded that the appeal
is frivolous.3 Such a “no-merit letter,” setting out nothing more
than a “bare conclusion,” is not enough to assure the appellate
courts that the attorney has made a thorough review of the record
2
As the Supreme Court explained, the attorney’s motion to withdraw must,
however, be accompanied by a brief referring to anything in the record that might
arguably support the appeal. A copy of counsel’s brief should be furnished the
indigent and time allowed him to raise any points that he chooses; the court–not
counsel–then proceeds, after a full examination of all the proceedings, to decide
whether the case is wholly frivolous. If it so finds it may grant counsel’s request
to withdraw and dismiss the appeal insofar as federal requirements are
concerned, or proceed to a decision on the merits, if state law so requires.
Anders, 386 U.S. at 744. In Texas, an Anders brief need not specifically advance
“arguable” points of error if counsel finds none, but it must provide record
references to the facts and procedural history and set out pertinent legal
authorities. See Hawkins v. State, 112 S.W.3d 340, 343-44 (Tex. App.–Corpus
Christi 2003, no pet.).
3
In Anders, the appointed appellate attorney wrote the court of appeals the
following letter: “I will not file a brief on appeal as I am of the opinion that there
is no meritto the appeal. I have visited and communicated with Mr. Anders and
have explained my views and opinions to him . . . . He wishes to file a brief in this
matter on his own behalf.”
7
and the applicable law, but has nonetheless concluded that there
is no plausible basis for appeal. Anders, 386 U.S. at 742-744.
The attorney’s duty to withdraw is based upon his
professional and ethical responsibilities as an officer of the court
not to burden the judicial system with false claims, frivolous
pleadings, or burdensome time demands. The Supreme Court has
stated,
Neither paid nor appointed counsel may deliberately mislead the court
with respect to either the facts or the law, or consume the time and the
energies of the court or the opposing party by advancing frivolous
arguments. An attorney, whether appointed or paid, is therefore under
an ethical obligation to refuse to prosecute a frivolous appeal.
McCoy, 486 U.S. t 436.
Counsel’s obligation to his client is to seek leave to withdraw
as counsel. His obligation to the appellate courts is to assure
them, through the mechanism of an Anders brief, that, after
thorough investigation and research, his request is well founded.4
4
See Johnson v. State, 885 S.W.2d 641, 647 n.1 (Tex. App. - Waco 1994),
modified by Wilson v. State, 955 S.W.2d 693 (Tex. App. - Waco 1997)(“After
concluding that the appeal is frivolous, the attorney is under a duty to request
permission from this court to withdraw from the appeal”; stating that an Anders
brief is “a brief in support of the motion to withdraw”).
8
Professional Evaluation
Counsel would respectfully show the Court of Appeals that
the instant appeal is frivolous and without merit, for the following
reasons:
Jurisdiction: The trial court clearly had jurisdiction over both
Counts II and III, both of which were within its subject matter
(felony) and occurred within its geographic (Comal County)
jurisdiction.
Pre-Hearing Matters: Neither the Clerk’s Record nor any
discussion in the Reporter’s Record indicates that there were any
matters raised in any motions filed prior to trial and rejected by
the trial Court.
Jury Selection: There were no errors preserved with regard
to jury selection, and, in any event, no error was committed during
the jury selection process.
Sufficiency of the Evidence: The evidence to sustain the
convictions in Count II and Count III is legally sufficient.
9
As to Count II, the statute prohibiting Evading Arrest or
Detention with a Vehicle, states:
(a) A person commits an offense if he intentionally flees from a person he
knows is a peace officer or federal special investigator attempting lawfully
to arrest or detain him.
(b) An offense under this section is a Class A misdemeanor, except that the
offense is:
*****
(2) a felony of the third degree if:
(A) the actor uses a vehicle while the actor is in flight;
Penal Code § 38.04 (a) and (b).
Sanchez testified that she notified Appellant that the officers
were behind him (RR Vol. 3, PP. 74-75). Appellant testified that he
knew the person behind him was an officer and, although he
initially pulled over to let the officer by or to stop, he went on
because Sanchez had a gun (RR Vol. 4, PP. 17-18). Sanchez said
she did not tell Appellant to flee, but that he said he would be
fleeing.
Appellant admitted that he was the man driving the
motorcycle in the video (RR Vol. 4, P. 63), and the video shows
affirmative actions taken by the motorcycle driver to avoid
10
apprehension by the officer. Sergeant Bell testified there was a
warrant for Appellant and that the officer was, at his direction,
attempting to stop Appellant, and that he observed Appellant
fleeing. The evidence was sufficient to allow the jury to find guilt
by finding all of the elements of the offense alleged in Count II of
the indictment.
As to Count III, Tampering with or Fabricating Physical
Evidence, the statute requires:
(a) A person commits an offense if, knowing that an investigation or official
proceeding is pending or in progress, he:
(1) alters, destroys, or conceals any record, document, or thing with
intent to impair its verity, legibility, or availability as evidence in the
investigation or official proceeding;
Penal Code § 37.09(a)(1).
The State’s evidence regarding the locating of the gun came
from, Michael Rapier, the Shertz Police Department officer who,
after removing Appellant, returned to the location and found the
gun. He located the weapon near where Appellant had been
found, with the keys on top of it. There was no evidence that
11
anyone had seen Appellant move, touch or handle in any manner,
the gun.
Appellant testified that the gun was, apparently, put into his
pocket by Sanchez without his knowledge and that when the
officer pulled him out of the bushes, the gun came out (RR Vol. 4,
P. 22). Appellant tried, unsuccessfully because he could not reach
it, to push the gun up under some bushes (RR Vol. 4, P. 36).
There was no attempt to take fingerprints nor were ownership
records used to establish ownership. The gun was never shown
to belong to anyone.
There was, however, a recorded jail call in which Appellant
bragged to another person that he had pushed the gun up under
a bush (State’s Exhibit 9; RR Vol. 4, PP. 37-38). That evidence,
alone, is sufficient to support a conviction, despite the lack of
description as to the area in which the gun was found, except that
it was an extra-judicial statement, which requires consideration of
proof of the “corpus delicti” in a review of the sufficiency of the
evidence. Miller v. State, _____ S.W.3d _____ (Tex.Cr.App., No.
12
PD-0038-14, April 15, 2015). Under the corpus delicti rule, when
the burden of proof is beyond a reasonable doubt, as it was
regarding guilt or innocence in Count III of the case at bar, a
defendant's extrajudicial confession does not constitute legally
sufficient evidence of guilt absent independent evidence of the
corpus delicti. Miller, slip op. at 12; Hacker v. State, 389 S.W.3d
860, 865 (Tex.Cr.App. 2013). The corpus delicti rule requires that
evidence independent of a defendant's extrajudicial confession
show that the “essential nature” of the charged crime was
committed by someone. Hacker, 389 S.W.3d at 866. The ultimate
question with regard to sufficiency of the evidence with regard to
Count III, therefore, is whether there is evidence independent of
the recorded phone call demonstrating the “essential nature” of
tampering with physical evidence by some person.
While Appellant testified at trial that he was unsuccessful in
moving the gun, the jury did not have to accept that portion of the
evidence. See Zuniga v. State, 144 S.W.3d 477, 482 (Tex.Cr.App.
13
2004); Cain v. State, 958 S.W.2d 404, 407 (Tex.Cr.App. 1997);
Saxton v. State, 804 S.W.2d 910, 914 (Tex.Cr.App. 1991).
The sufficiency of the evidence regarding the corroboration
under the corpus delicti rule must be measured against the
evidence adduced from all sources, and it only has to show that
the “essential nature” of the offense was committed by someone.
There was evidence from Sanchez that Appellant was aware of the
police pursuit. He stated in court that he was aware that she was
carrying a gun, and that, upon discovering the gun had been
planted, he tried to move it unsuccessfully. The gun which he was
alleged to have tampered with was found with keys upon it which
were shown to be returned to Appellant as his personal property.
It is counsel’s assertion that the evidence of the corpus delicti
would be held sufficient and that the evidence of his phone call
statement that he had actually moved the gun would be
corroborated to the extent that the evidence would be held
sufficient. See Miller, supra; Hacker, supra.
14
Effective Assistance of Counsel: Nothing in the record
indicates that counsel’s performance was deficient. Certainly
there is nothing on the record which indicates counsel did or did
not do anything which would undermine the Court’s confidence in
the verdict or the sentence imposed. Appellant was not denied the
effective assistance of counsel, as defined in Strickland v.
Washington, 466 U.S. 668 (1984).
Potential Errors Considered by Counsel:
Appellant made several objections. In all instances there was
either no error or no perceived harm. A review of those objections
shows:
1. An overruled objection regarding State’s Exhibit 2, a
video of Appellant after his apprehension, on the basis
that the prejudice outweighed the probative value (RR
Vol. 3, PP. 29-33).
The State argued that the video helped to identify Appellant
by allowing comparison of clothing to that shown in other videos.
The trial court's admission of evidence is reviewed under an
abuse-of-discretion standard. Hammons v. State, 239 S.W.3d
15
798, 806 (Tex.Cr.App. 2007); Oprean v. State, 201 S.W.3d 724,
726 (Tex.Cr.App. 2006). Under that standard, an appellate court
will reverse the trial court's decision only if the court acted
arbitrarily, unreasonably, or without reference to any guiding rules
or principles. Montgomery v. State, 810 S.W.2d 372, 380
(Tex.Cr.App. 1991). As long as the trial court's ruling is within the
zone of reasonable disagreement, an appellate court should not
intercede. Casey v. State, 215 S.W.3d 870, 879 (Tex.Cr.App.
2007); Lopez v. State, 86 S.W.3d 228, 230 (Tex.Cr.App. 2002);
Montgomery, 810 S.W.2d at 391; Kacz v. State, 287 S.W.3d 497,
501-502 (Tex. App. - Houston [14th] 2009).
The decision to admit the evidence was not an abuse of
discretion, because the evidence in question does allow for the
comparison stated. Further, given that Appellant admitted to
driving the motorcycle, there is no harm in its admission.
16
2. An overruled objection as to a question asking what
Sanchez could have done (RR Vol. 3, P. 139).
Bell began to reply, “as someone who is [sic] ridden on
motorcycles before” to which an objection was interposed “to the
responsiveness of this.” After the objection was overruled, Bell
continued, and said that there would be no safe method of exiting
the motorcycle unless it was stopped. While the introductory
portion of the answer mentioned the witness’ experience, it was
interrupted and not completed until the ultimate answer, which
was responsive to the question asked. Additionally, the answer,
that exiting a motorcycle at speed is dangerous, is based on
common sense and harmless.
3. An overruled objection during Appellant’s testimony to
the State’s republishing State’s Exhibit 8 to the jury (RR
Vol. 4, P. 47).
The objection was that it was repetitive. However, Appellant
testified that he knew Andrew Kempker was a law officer, but that
he did not know for sure whether Kempker was attempting to
lawfully arrest or detain him that day.
17
In State’s Exhibit 8, Appellant is heard to say that he ran
because he was trying to make the officer earn his money (RR Vol.
4, PP. 46-47). The State’s Exhibit impeached Appellant’s
testimony in this regard. Pursuant to Rue 607, Tex.R.Evid., the
credibility of a witness may be attacked by any party, including
the party calling the witness. Additionally, as set out in Rule
613(a), Tex.R.Evid., a witness may be impeached with a prior
statement when he gives testimony at trial which is inconsistent
with the prior statement. Smith v. State, 520 S.W.2d 383, 386
(Tex.Cr.App. 1975).
There was no objection to the procedure used to impeach.
Thus, the only question is whether the trial court's evidentiary
ruling was an abuse of discretion. Hammons, 239 S.W.3d at 806;
Oprean, 201 S.W.3d at 726. Again, an appellate court should
reverse the trial court's decision only if the court acted arbitrarily,
unreasonably, or without reference to any guiding rules or
principles. Montgomery, 810 S.W.2d at 380. As long as the trial
court's ruling is within the zone of reasonable disagreement, an
18
appellate court should not intercede. Lopez, 86 S.W.3d at 230;
Montgomery, 810 S.W.2d at 391. The trial court did not abuse its
discretion in allowing republication after Appellant’s statement on
cross examination.
4. An “objection” posed by Appellant as another portion of
State’s Exhibit 8 is to be republished during Appellant’s
testimony (RR Vol. 4, P. 50).
Despite his objection, trial counsel did not state an adequate
objection when he stated, “Once again, Your Honor, I am going to
object,” and was then interrupted by the prosecutor. While there
is a ruling, there is no specific objection. Thus, nothing was
preserved for review.
5. An overruled objection to State’s Exhibit P-23, an
interview conducted by Bell of Appellant introduced
during the punishment phase (RR Vol. 5, PP. 101-102).
Ten minutes of the interview had already been published
during the guilt or innocence phase, but the portion sought to be
published at the time of the objection related to various violations
of protective orders, one of which resulted in the warrant which
was being served at the time. The objection was that the exhibit
19
was repetitious and inflammatory (RR Vol. 5, PP. 101-102). The
publication did not include those portions previously shown (RR
Vol. 5, PP. 101-102). The exhibit did not relate to matters
previously covered and thus, as limited by the trial court, it was
not repetitious. There was no error.
6. An objection was lodged to the trial court answering a
jury question (RR Vol. 6, P. 8).
There were two questions posed by the jury, one of which
mentioned a discrepancy between the allegations of the date set
out in enhancement paragraph number one and the supporting
court documents, and a second, regarding whether the
punishments for the charges would run consecutively or
concurrently (RR Vol. 6, PP. 4-8). Trial counsel stated only,
“Defense objects” (RR Vol. 6, P. 8). The objection came during a
discussion of whether the question regarding the concurrent
nature of service of sentence should be answered “concurrently,”
(RR Vol. 6, PP. 7-8). Thus, the objection was non-specific, did not
state any grounds, and did not preserve any potential error.
20
Conclusion
There are no points of error which can, in good conscience, be
raised in this appeal as to Counts II and III.
Notice Given to Appellant
The undersigned has forwarded a copy of this motion and a
letter explaining Appellant’s rights, as well as the procedures to
be followed when a brief is filed by counsel indicating that the
appeal is frivolous and without merit, to Appellant at the address
set out in the certificate of parties. A true and correct copy of such
letter is attached hereto.
21
Prayer
WHEREFORE, PREMISES CONSIDERED, Christopher Arthur
Kurtz, Appellant in the above styled and numbered cause
respectfully prays that, after providing Appellant an opportunity
to submit a pro se brief, this Honorable Court of Appeals will
review the appellate record to make an independent determination
of whether there are grounds upon which to appeal. The
undersigned also prays that the Court will grant his motion to
withdraw.
Respectfully submitted,
__________________________________
John G. Jasuta
Attorney at Law
1801 East 51st Street, Suite 365474
Austin, Texas 78723
eMail: lawyer1@johngjasuta.com
Tel. 512-474-4747
Fax: 512-532-6282
State Bar No. 10592300
Attorney for Appellant
22
Statement Regarding Oral Argument
Oral Argument is Inapplicable
Certificate of Compliance and Delivery
This is to certify that: (1) this document, created using
WordPerfect™ X6 software, contains 4,021 words, excluding those
items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies
with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on
June 5, 2015, a true and correct copy of the above and foregoing
“Brief Pursuant to Anders v. California” was transmitted via the
eService function on the State’s eFiling portal, to Joshua Presley
(preslj@co.comal.tx.us), counsel of record for the State of Texas,
and via USPS first class to Appellant, as indicated in the attached
exhibit.
______________________________________
John G. Jasuta
23
Exhibit “A”
Attorney at Law
lawyer1@johnjasuta.com
1801 East 51st Street, Suite 365-474
Austin, Texas 78723
Off. Tel. 512-474-4747 www.texasappeallawyers.com
Fax: 512-532-6282
Consultation by Appointment Only
June 5, 2015
Christopher Arthur Kurtz
3005 W San Antonio St
New Braunfels Texas 78130
Re: Kurtz v. State, No. 03-15-00144-CR (Counts II and III) in the Third Court of Appeals
Dear Mr. Kurtz:
Attached, please find a copy of the “Brief Pursuant to Anders v. California, 386 U.S. 738 (1967), seeking to
withdraw as counsel as to Counts II and III of the case, which I have prepared an filed in the above captioned cause.
After a diligent search of both the transcript and statement of facts in your case and the applicable law, it is my
opinion that no reversible error occurred at your trial. So that you may understand my reasoning, a copy of my
confidential notes on review of the appellate record in your case is attached.
Whenever appellate counsel files a motion such as this, the law accords the Appellant the right to review the record
of the trial and file any brief which he or she deems necessary. Because I have submitted such a brief, you now have
the right to review the record of your trial and file any brief which you deem necessary. Such brief would then be
submitted to the Court of Appeals along with the brief I filed.
Pursuant to Kelly v. State, 436 S.W.3d 313 (Tex.Cr.App. 2014), I am required to take concrete measures to
initiate and facilitate the process of actuating your right to review the appellate record, if that is what you wish
to do. I am, therefore, informing you that, should you wish to exercise your right to review the appellate record
in preparing to file a response to the Anders brief, you should immediately file a motion for pro se access to the
appellate record. Attached to this letter, you will find a motion requesting that access. All you need to do, if you
do want to review the record, is to sign the motion, fill in your mailing address, and mail it to the Clerk of the
Court of Appeals immediately. The address is as follows:
Jeffrey D. Kyle, Clerk
Third Court of Appeals
Post Office Box 12547
Austin, Texas 78711
Additionally, feel free to write me if you have any questions about the procedure utilized in your appeal. I will do
my best to answer any questions you may have.
Sincerely,
John G. Jasuta
JGJ/mw
attachments
Exhibit “B”
03-15-00144-CR (Counts II and III)
IN THE COURT OF APPEALS FOR THE
THIRD DISTRICT OF TEXAS, AT AUSTIN
Christopher Arthur Kurtz § On Appeal from the
Appellant §
§ 207th District Court
v. § Comal County, Texas
§
The State of Texas § No. CR2014-343 (Counts II and III)
Appellee § Hon. JackRobison, Judge Presiding
Motion for Pro Se Access to the Appellate Record
TO THE HONORABLE THIRD COURT OF APPEALS:
I am writing to inform the Court that, having been informed by my court-
appointed counsel on appeal that he has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and that I have the right to review the appellate
record and submit a pro se response. I hereby advise the Court of Appeals that
I wish to exercise those rights, and respectfully request that the Court enter
Orders requiring that I be provided with an opportunity to review the record in
this case. I am also requesting sixty (60) days after I have been provided with that
opportunity, to submit a pro se brief in this case.
______________________________________
Christopher Arthur Kurtz
Comal County
3005 W San Antonio St
New Braunfels, Texas 78130
Certificate of Service
This is to certify that I have mailed a copy of this motion to:
District Attorney for Comal County
Appellate Section
Comal County Courthouse Annex
150 N. Seguin Street
New Braunfels, Texas 78130-5122
______________________________________
Christopher Arthur Kurtz
Date: ______________________________
ACCEPTED
03-15-00144-CR
5609493
THIRD COURT OF APPEALS
AUSTIN, TEXAS
6/9/2015 4:44:55 PM
JEFFREY D. KYLE
No. 03-15-00144-CR (Counts II and III) CLERK
Christopher Arthur Kurtz § IN THE COURT OF APPEALS
§
§ THIRD JUDICIAL DISTRICT
vs. §
§ OF TEXAS
§
The State of Texas § SITTING AT AUSTIN, TEXAS
Certificate of Counsel
In compliance with the requirements of Anders v. California,
386 U.S. 378 (1967), I, John G. Jasuta, court-appointed counsel
for Christopher Arthur Kurtz, in the above-referenced appeal, do
hereby verify, in writing, to the Court that I have:
1. Notified Appellant that I filed a motion to withdraw as counsel
with an accompanying Anders brief, and provided a copy of each
to Appellant;
2. Informed Appellant of his right to file a pro se response
identifying what he believes to be meritorious grounds to be raised
in his appeal, should he so desire;
3. Advised of his right to review the appellate record, should he
wish to do so, preparatory to filing that response;
4. Explained the process for obtaining the appellate record,
provided a Motion for Pro Se Access to the Appellate Record lacking
only’s Appellant’s signature and the date, and provided the mailing
address for this Court; and
5. Informed Appellant of his right to seek discretionary review pro
se should this Court declare his appeal frivolous.
Respectfully submitted,
__________________________________
John G. Jasuta
Attorney at Law
1801 East 51st Street, Suite 365474
Austin, Texas 78723
eMail: lawyer1@johngjasuta.com
Tel. 512-474-4747
Fax: 512-532-6282
State Bar No. 10592300
Attorney for Appellant
Certificate of Compliance and Delivery
This is to certify that: (1) this document, created using
WordPerfect™ X7 software, contains 231 words, excluding those
items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies
with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on
June 5, 2015, a true and correct copy of the above and foregoing
“Certificate of Counsel” was transmitted via the eService function
on the State’s eFiling portal, to Joshua Presley
(preslj@co.comal.tx.us), counsel of record for the State of Texas.
______________________________________
John G. Jasuta
Christopher Arthur Kurtz v. State
Combined Opinion