/2ZZ~t5
NO. Pb'llLk- K
ORIGINAL IN THE
COORT OF CRIMINAL
APPEALS
OF TEXAS
ANTONIO PEREZ LOPEZ CCURT OF CRE5W1ATOUS
Petitioner
NOV 03 2015
V.
THE STATE OF TEXAS Uftei! ACOR^I, G:!*,?i"
Petition in Cause No. D-DC-13-904067, from the
390th District Court of Travis County* Texas
and the Court of Appeals for the Third
District of Texas* Case No. 03-14-00452-CR.
FILED IN
PETITION FOR DISCRETIONARY REVIEW
COURT OF CRIMINAL APPEALS
OV 03 2G;5
Abel Acosta, Cierk
Antonio Peree Lope? #1942352
C.T. Terrell Unit
1300 FM 655
Rosharon* TX 77583
Petitioner Pro 3e
TABLE OF CONTENTS
Pages
Index of Authorities III
Statement Regarding Oral Argument ,v_ 1
Statement of the Case 1-2
Statement of Procedural History ,2
Grounds for Review 2
WHETHER THE COURT OF APPEALS ERRED WHEN IT FOUND
THAT THERE WERE NO ARGUABLE GROUNDS TO BE ADVANCED
UNDER ANDERS V. CALIFORNIA, WHEN THE COURT APPLIED
STANDARD OF REVIEW FOR REVERSIBLE ERROR ?
[Do ineffective assistance of counsel claims*
regarding 6th Amendment Confrontation Clause
issue* raised and preserved in a pro se response
to an Anders Brief - which would otherwise be
waived or forfeited for habeas corpus review*
constitute "arguable grounds to be advanced
under Anders v. California* 384 U.S. 738 (1967);
Bledsoe v. St.* 178 S.W.3d 824 (Tex.Crim.App.2005)"?]
Argument 2-6
2-4
Prayer for Relief 6
Appendix
ii.
INDEX OF AUTHORITIES
Page
Anders, v. California, 386 U.S. 738 (1967) ... 2
Armstrong v. State, 340 S.W.3d 315 (Tex. 2009) •• . ; . 4,5
Bledsoe v. State, 178 S.W.3d 824 (Tex.Grim.App.2005) . 3
Crawford v. Washington, 541 U.S. 36 (2004) . . . 4
Evitts v. Lucey, 469 U.S. 387 (1985) . . • 2
Griffin v. State,'614 S.W.2d 155 (Tex.Crim.App.1981) . 5
Jackson v. Virginia, 433 U.S. 307 (1979) . . • 3,5,6
Mayer v. State, 309 S.W.3d 552 (Tex.Grim.App.2010) . 5
Melendez-Diaz v. Massaehussetts, 129 S.Ct. 2527 (2009) . 4
Moff v. State, 131 S.W.3d 485 (Tex.Crim.App.2004) . . 3,5,6
Strickland v. Washington, 466 U.S. 668 (1984) . . .2
Thames v. State, 753 S.W.2d 688 (Tex.Crim.App.1998) . 6
III.
IN THE
COURT OF CRIMINAL
APPEALS
OF TEXAS
ANTONIO PEREZ LOPEZ
Petitioner
v.
THE STATE OF TEXAS
Petition in Cause No. D-DC-13-904067, from the
390th District Court of Travis County, Texas
and the Court of Appeals for the Third
District of Texas, Case No. 03-14-00452-CR.
PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE JUDGES OF THE
COURT OF CRIMINAL APPEALS OF TEXAS:
Antonio Perez Lopez, petitions the court to review the judgement affirming
his conviction for aggravated sexual assault of a child.
Statement Regarding Oral Argument
Present circumstances considered, Petitioner waives oral argument.
' Statement of the Case
Petitioner was found guilty,: by jury, and convicted of one count of ag
gravated sexual assault of a child, indecency with a child by contact and
indecency by exposure, and aequited Petitioner of indecency with a child by
contact.(1-eouht) and aggravated sexual assault (2-counts). [5 R.R.: 67-73].
The jury assessed punishment at 20-years in the Texas Department of Criminal
Justice - Institutional Division on the aggravated sexual assault and j20-years
on the indecency with contact counts, and 10-years on the indecency by exposure
1.
count. [CR: 78-81].
The trial court further ordered indigent Petitioner to pay court costs
without a finding on Petitioner's indigency status or an objection from trial
counsel. [8.R.: 28-48]. Petitioner filed timely notice of appeal. [C.R.: 83].
Statement of Procedural History
The Third Court of Appeals rendered its decision affirming Petitioner's
conviction on Aug. 12* 2015. A motion for rehearing was filed by Petitioner
and was denied on 5&PT. /Oth , 2015. Petitioner then timely submitted a
motion for extension of time to file petition for discretionary review. The
Court granted the motion making the petition (PDR) due by Dec. 11, 2015.
Claim For Review
WHETHER THE COURT OF APPEALS ERRED WHEN IT FOUND
THAT THERE WERE NO ARGUABLE GROUNDS TO BE ADVANCED
UNDER ANDERS V. CALIFORNIA, WHEN THE COURT APPLIED
STANDARD OF REVIEW FOR REVERSIBLE ERROR.?
[Do ineffective assistance of counsel claims* regarding
6th Amendment Confrontation Clause Issue*.raised and
preserved in a pro se response to an Anders Brief -
which would otherwise be waived or forfeited for habeas
corpus review* constitute "arguable grounds to be
advanced under Anders v. California* 384 U.S. 738 (1967);
Bledsoe v. State* 178 S.W.3d 824 (Tex.CriIn.App.2005),,?]
Argument
Persons convicted of a ci.-ime are entitled to effective assistance of coun
sel, in their first appeal of right. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct.
830, 834! (835 (1985). Counsel's performance on appeal is judged under the 2 -
prong Strickland test. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
2064 (1984).
In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), the Court
determined that appointed counsel could file brief supporting his motion to
withdraw, by showing his professional evaluation of the record demonstrating
where there are no reasonable grounds to be advanced on appeal.
The court's ruling in an Ander's appeal, which includes a pro se response
by Appellant, is limited to determining whether arguable grounds for appeal
exist. Bledsoe v. State, 178 S.W.3d 824, 826-828 (Tex.Grim.App.2005)-(stating:
if a court of appeals were to review ease and issue an opinion which addressed
and rejected the merits raised in a pro se response to an Ander's brief, then
appellant would be deprived of the meaningfull assistance of counsel).
Opinion of the Court of Appeals
Petitioner contends that the Court of Appeal's application of reversible
error standard is unreasonable and contrary to the standard set forth in Anders
v. California; Bledsoe v. State, 178 S.W.3d 824 (Tex.Grim.App.2005), in light
of the circumstances in this ease. Here, court appointed attorney's Ander's
Brief failed to raise and exhaust all available State remedies to avoid proce
dural bar from bringing issue on State/Federal habeas corpus review/petition.
To be specific, counsel's Anders Brief failed to raise ineffective assist
ance of counsel claims, which vere raised in Petitioner's pro se response. The
Opinion of the Court of appeals reflects that Petitioner can pursue ineffective
assistance of counsel claims in a petition for writ of habeas corpus. Peti
tioner asks the Court of Criminal Appeals, does the court of appeals remedy -
[preservation of I.A.C. claim for habeas corpus review] - constitute an argu
able ground to be advance on appeal under Anders v. California; Bledsoe v. State ?
In addition, Petitioner asks the court whether Confrontation Clause issue
raised in pro se response, implicate a sufficiency of evidence review under
Jackson v. Virginia, 433 U.S. 307, 318-319, 99 S.Ct. 2781 (1979); Moff v.
State, 131 S.W.3d 485, 488 (Tex.Crim.App.2004) ?
3.
Summary of Ineffective Assistance of Counsel
Grounds Raised in Pro Se Response
* - Whether trial counsel was ineffective when he failed to assert
a Sixth Amendment Confrontation Clause objection to the admis
sion of questionable hospital business records entered by the .
prosecution as State's exhibits at trial, where doctors, nurses
and lab technicians who prepared business records, were not
called to testify and authenticate their-documents and evidence.
The United States Supreme Court has .held that out of court testimonial
evidence violates the Confrontation Clause.unless the declarant is unavailable
to testify and the defendant has a prior opportunity to cross-examine him.
Crawford v. Washington, 541„U.S. 36, 63, 124 S.Cti 1374 (2004). It is clear
that such out-of-court testimonial evidence includes reports of the kind at
issue here and offered into evidence via. circumstances like those here, see
Melendez-Diaz v. Massaehussetts, 129 S.Ct. 2527, 2532 (20G9).
Petitioner complained of his trial counsel;s failure to object to the ad
mission of Hospital's and Lab's business records, which allowed inadmissable
and highly prejudicial evidence to be put before the jury. The business re
cords were inadmissable given the person's through which the prosecution .-.
authenticated, proffered and filed them into the trial record.
Petitioner would argue that claims of ineffective assistance of counsel. ;
in pro se response brief are adequately supported by references to the record
and authorities, pursuant to Texas Rules of Appellate Procedure. (Pro Se Brief)
* - whether trial counsel was ineffective for failing
to object to trial court order for the withdrawal of funds for
payment of court costs, because there was insufficient evidence
to support finding that Appellant was not indigent at sentencing.
The assessment of court costs and attorney fees is a criminal proceeding;
the manner in which those costs are withdrawn is a civii proceeding. Armstrong
v. State, 340 S.W.3d 315, 319, 321 (Tex.2009). To contest the assessment of
4.
court costs and attorney-fees* complaint must be made by direct appeal of
the criminal judgement. Armstrong, 340 S.W.3d at 766-767. In Mayer v. State,
309 S.W.3d 552, 554 (Tex.Crim.App.20iO)-(no trial objection was required to
preserve a claim of insufficient evidence.) -• --
In this instance, assessment of court costs and order for withdrawal of
£unds was not objected to by trial counsel, where order was announced at sen
tencing phase of trial. Petitioner contends that trial counsel simply failed
to challenge the sufficiency of the evidence. regarding order for withdrawal
of funds for payment of court costs. Without evidence to demonstrate Petitioner's
financial resources to offsett the court costs, the evidence is insufficient
to support a finding of Petitioner's ability to pay.
Again, Petitioner argues that claim is supported by references to the
record and authorities pursuant to Texas Rules of Appellate Procedure, (see
Pro Se BfJ.ef).
Summary of Sufficiency of Evidence
Ground Raised in Pro Se Response
* - Whether the evidence is legally sufficient to sustain the
conviction in this case ?
If a defendant challenges legal sufficiency of the evidence to support
his conviction on direct appeal, the appellate court allways has a duty to
address that issue, regardless of whether it was raised in the trial court.
Moff v. State, 131 S.W.3d 485, 488 (Tex.Crim.App.2004). The "Moff" court fur
ther acknowledged prior to decisions where the Texas Court of Criminal Appeals
adopted the Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781 (1979),
constitutional standard of review for assessing the legal sufficiency of tne
evidence. Moff, 131 S.W.3u at 488,(supra)-(citing Griffin v. State, 614 S.W.2d
155, 158 (Tex.Crim.App.1981). Under that standard, the relevant question is
5.
whether after reviewing the evidence in the light most favorable to the pro
secution, any rationale trie.-r of fact could have found the essential elements
of the crime beyond a reasonable doubt, (iackson v. Virginia). In applying the
Jackson sufficiency review, an appellate court "must consider all evidence
which the jury was permitted, whether rightly or wrongly considered. Moff v.
State, 131 S.W.3d at 488. (citing Thames v. State, 753 S.W.2d 688, 695 (Tex.
Crim.App.1998).
Petitioner contends that the court of appeals erred in failing to find his
pro se grounds in Anders brief, worthy of a sufficiency of evidence review,
in light of the evidence cited regarding essential elements of the crime.
Prayer
Petitioner prays the Court finds that the Court of Appeals erred when it
affirmed judgement of conviction.
Respectfully submitted,
Antonio P. Lopez #1942352
C.T. Terrell Unit
1300 FM 655
Rosharon, TX 77583
Appendix
Opinion of the First Court of Appeals affirming conviction is attached.
Certificate of Service
This is to certify that a copy of the above-entitled an numbered petition
for review has been served on State's Prosecuting Attorney, P.O. Box 13046
Capitol Station, Austin, Te^as 78711, via first-class U.S. Mail, on this
the H%4k aay of Qcf oA£d * 2015.
OlsnJUiAjf r ^US&S7_>
6.
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00452-CR
Antonio Perez Lopez, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
NO. D-l-DC-13-904067, HONORABLE JULIE H. KOCUREK, JUDGE PRESD3ING
MEMORANDUM OPINION
Appellant Antonio Perez Lopez was charged with three counts of aggravated sexual
assault of a child, three counts of indecency with a child by contact, and two counts of indecency
with a child by exposure. A jury found Lopez guilty of one count of aggravated sexual assault of a
child, two counts of indecency with a child by contact, and one count of indecency with a child by
exposure. See Tex. Penal Code §§ 22.021, 21.11. The jury acquitted Lopez on all other charges.
The jury assessed Lopez's punishment at 20 years' confinement in the Texas Department of
Criminal Justice-Institutional Division on the counts for aggravated sexual assault of a child and
indecency with a child by contact and at 10 years on the indecency with a child by exposure count.
Appellant's court-appointed attorney has filed a motion to withdraw supported by a
briefconcluding that the appeal is frivolous and without merit. The brief meets the requirements of
Anders v. California by presenting a professional evaluation of the record demonstrating why there
are no arguable grounds to be advanced. See Anders v. California, 386 U.S. 738, 744 (1967);
Garnerv. State, 300 S.W.3d 763,766 (Tex. Crim. App. 2009); see also Penson v. Ohio, 488 U.S. 75,
86-87(1988).
Appellant received a copy of counsel's briefand was advised ofhis right to examine
the appellate record and to file a pro se brief. See Anders, 386 U.S. at 744; Garner, 300 S.W.3d at
766. Appellant requested and received the appellate record and filed a pro se brief, raising four
issues on appeal.
We have conducted an independent review of the record, including appellate
counsel's briefand appellant's pro se brief, and find no reversible error.1 See Anders, 386 U.S. at
744; Garner, 300 S.W.3d at 766; Bledsoev. State, 178 S.W.3d 824,826-27 (Tex. Crim. App. 2005).
We agree with counsel that the record presents no arguably meritorious grounds for reviewandthe
appeal is frivolous.
Counsel's motion to withdraw is granted. The judgment of conviction is affirmed.
Scott K. Field, Justice
Before Chief Justice Rose, Justices Goodwin and Field
Affirmed
Filed: August 12, 2015
Do Not Publish
1 Appellant has raised claims of ineffective assistance of counsel in his pro se briefwhich,
if appellant wishes to pursue those claims, should be raised in a petition for writ of habeas corpus
inthe Courtof Criminal Appeals because the recordbefore this Courtdoesnot support thoseclaims.