ACCEPTED
03-15-00467-CR
8046575
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/2/2015 10:12:58 AM
JEFFREY D. KYLE
CLERK
NO. 03-15-00467-CR
IN THE FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
COURT OF APPEALS 12/2/2015 10:12:58 AM
JEFFREY D. KYLE
Clerk
FOR THE THIRD SUPREME JUDICIAL DISTRICT OF TEXAS
AMADOR FERNANDEZ,
Appellant.
vs.
THE STATE OF TEXAS,
Appellee.
From the 119m Judicial District Court
of Tom Green County, Texas
Honorable Ben Woodward, District Judge Presiding
APPELLANT'S BRIEF
Filed by:
Jitmny Stewart, Lead Counsel
101 S. Park
San Angelo, TX 76901
Tel: (325) 658-1532
Fax: (325) 655-9746
State Bar No. : 19211300
)'ABLE OF CONTENTS
Page
Identity of Parties and Counsel ........................................ 3
Index of Authorities ................................................. 4
Statement of the Case ............................................... 5
Possible Error ..................................................... 7
Statement of Facts .................................................. 8
Sununary of Argument ............................................. 11
Argu1nent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Prayer ........................................................... 20
Ce1iificate of Service ............................................... 21
Page 2
PARTIES AND COUNSEL
Counsel for State ofTexas: Jason Ferguson
Assistant District Attorney
State Bar No. 24072092
124 W. Beauregard
San Angelo, TX 76903
Appellant: Amador Fernandez
1302 Briant
San Angelo, Texas 76903
Appellant's Trial Counsel: Brad Haralson
State Bar No. 08930950
331 W. Avenue B
San Angelo, TX 76903
(325) 655-4187
Appellant's Appellate Counsel: Jimmy Stewmi
101 S. Park
San Angelo, TX 76901
(325) 65 8-1532
State Bar No. 19211300
Page 3
INDEX OF AUTHORITIES
Page
Brooks v. State 323 SW 3rd 983 (Tx.Crim.Ap 2010) ...................... 18
Del Rio v. State 840 SW 2nd 443 (Tx.Crim.Ap 1992) ...................... 15
Goodspeedv. State 187 SW 3rd 390 (Tx.Crim.Ap 2005) ................... 15
Jackson v. State 76 SW 3rd 798 (Tx.Crim.Ap-CorpusChristi2002) ........... 15
Jackson v. Virginia 443 U.S.307 (1979) ................................ 18
King v. State 953 SW2nd 266 (Tx.Crim.Ap 1997) ......................... 13
Madden v. State 799 SW 2nd 683 (Tx.Crim.Ap 1990) ..................... 17
Scott v. State 227 SW3rd 670 (Tx.Crim.Ap.2007) .......................... 14
Texas Code of Criminal Procedure .................................... 12
Texas Rules of Evidence ............................................ 12
Page 4
STATEMENT OF THE CASE
Amador Fernandez was indicted on May 4th, 2015, by a Tom Green County
Grand Jury for the offense of Evading Arrest and Detention With A Vehicle. The
Defendant waived a jury, entered a plea of"Not Guilty" and the case was tried by
the Honorable Ben Woodward, Judge of the 119th District Court. Judge
Woodward found the Defendant guilty and sentenced him to five years in the
Institutional Division ofthe Texas Department of Criminal Justice.
The arresting officer in the case testified that he observed a red pickup truck
traveling southbound on Nmih Chadbourne Street in San Angelo at a high rate of
speed. The Deputy stated that he turned his vehicle around, turned on his lights
and siren and followed the vehicle. He further testified that the vehicle did not
slow down but continued to speed for some distance. According to the Deputy,
the chase continued tln·ough several turns and through a residential area before the
pickup finally came to a stop.
The Deputy identified the Defendant as the driver of the vehicle. The driver
denied that he knew that the Sheriffs vehicle was pursuing him and that, when he
realized this, he stopped. The Deputy testified that he continued to question the
Defendant concerning his failure to stop, and, finally, at the jail after being
arrested, on the fomih or fifth time that the Defendant was questioned about this,
Page 5
he finally admitted that he knew a Sheriffs Deputy was pursuing him and he was
trying to get away.
Defendant's witnesses testified that the Defendant had been diagnosed with
mental retardation and there were MHMR records that indicated the Defendant
had an age equivalent of 8.8 on the Vineland Social Maturity Scale.
Page 6
POSSIBLE ERROR
1. There was no error concerning the indictment.
2. There was no error in the court's overruling the objection that the
Deputy Sheriff was stating an opinion rather than testifying as to facts.
3. The trial court's judgement should not be reversed for ineffective
assistance of counsel.
4. There was no error in the courts' denial of the Defendant's Motion For
Instructed Verdict; the evidence is factually sufficient to support the
courts' judgement.
Page 7
STATEMENT OF FACTS
The Defendant, Amador Fernandez, was indicted on May 4, 2015 by a Tom
Green County Grand jury for the offense of Evading Arrest And Detention With a
Vehicle. The Defendant waived a jury, entered a plea of not guilty and the case
was tried by the Honorable Ben Woodward, Judge of the 119th District Comi of
Tom Green County, Texas. Judge Woodward found the Defendant guilty and
sentenced him to 5 years in the institutional division of the Texas Depmiment of
Criminal Justice.
Tom Green County Sheriffs Deputy Jerimie Fry testified that he was on
patrol in north San Angelo on March 15, 2014. Deputy Fry said that he saw a red
pickup coming toward him on north Chadboun1e Street at a high rate of speed.
The deputy stated that he turned his vehicle around, turned on his red and blue
lights and his siren and pursued the vehicle. (RR13) He testified that the red truck
did not stop but continued for several blocks down Chadbourne and turned
eastbound on 31st Street. (RR15) The deputy's testimony was that the red truck did
not stop and did not slow down while driving through a residential area where the
speed limit was 30 miles per hour. (RR16) He said the pickup turned again onto
Oakes Street, continued down Oakes, but stopped at a stop sign. (RR1 7) The
pickup then turned west on 29th Street where the driver finally stopped his vehicle.
Page 8
(RR18) The deputy had the driver exit his pickup and he placed him in handcuffs.
(RR19)
Deputy Fry testified that he identified the driver as Amador Fernandez and
that it was the same person as the Defendant who was in the courtroom. (RR20)
Deputy Fry testified that he read Mr. Fernandez his Miranda rights, but that
Mr. Fernandez was willing to have a conversation with the deputy. Deputy Fry
stated that the Defendant said that he did not realize that he was being pursued
until just before he stopped. (RR21) The deputy stated that he transported the
Defendant to the jail and spoke with him again at the jail. According to the
deputy, at that point, the Defendant admitted that he saw the sheriffs car turn
around on Chadbourne and pursue him. (RR23) The Defendant went on to say that
he thought, if he got far enough ahead, that the deputy would discontinue the
pursuit. (RR29)
On cross-examination by the defense attorney, Deputy Fry stated that he had
questioned the Defendant about his failure to stop three to five times before he
finally admitted that he was trying to get away from the deputy. (RR36)
The Defense also called Rita Maria Martinez of the San Angelo office of
MHMR. She testified that the Defendant had been diagnosed with mental
retardation. (RR56) She also testified that, in the records ofMHMR Services For
Page 9
The Concho Valley, there was a document that contained a statement that on the
Vineland Social Maturity Scale, Mr. Fernandez' age equivalent was 8.8. (RR60)
The Defense called Laura Ortiz, a cousin of the defendant. Ms. Ortiz
testified that the Defendant often acted like a child and that he could be
manipulated by pressure. (RR68)
Finally, the Defense called Tina Fernandez, an employee of Child Protective
Services and a former spouse of the Defendant. She testified that the Defendant
was "susceptible to powers of suggestion". (RR72)
Page 10
SUMMARY OF ARGUMENT
There was no error in the indictment. It meets the requirements of the Texas
Code of Criminal Procedure. There was no harmful error when the judge
overruled Defense Attorney's objection that the arresting officer was stating an
opinion rather than testifying as to facts. Defense counsel did not render
ineffective assistance. Waiving a jury and submitting the case to the court is
within the exercise of judgement as to trial tactics. Further, it appears from the
record that the Defendant knowingly consented to the waiver of jury. The failure
of Defense counsel to object to leading question in a few instances was not
hannful error. Defense counsel was prepared and was aggressive in his
representation of the Defendant. There was no error in the court overruling the
Defendant's Motion For Instructed Verdict. There was sufficient evidence to
support the verdict.
Page 11
ARGUMENT
1. There was no error concerning the indictment.
The indictment meets the requisites of Article 21.02, Texas Code of
Criminal Procedure. There is no exception to the substance of the indictment
pursuant to Article 27.08, Texas Code of Criminal Procedure. There is no
exception to the form of the indictment pursuant to Article 27.09, Texas Code of
Criminal Procedure.
2. There was no error in the court's overruling the objection that the
Deputy Sheriff was stating an opinion rather than testifying as to facts.
In direct examination of the atTesting officer by the prosecutor, the
following exchange took place at page 22, line 2:
"Q. At some point did you decide to atTest him?
A. Yes. At that initial contact I knew that he was attempting to evade based
on the speed through the residential area.
Mr. Haralson: Object, your honor. That's a question of fact to be
determined by the court. This is officer's opinion, not a fact.
The court: Overruled. Go ahead."
Rule 701 of the Texas Rules of Evidence does not allow non-expert
witnesses to express opinions or inferences unless they are rationally based on the
Page 12
perception of the witness and helpful in understanding the testimony or
determining a fact in issue. Rule 701, Texas Rules of Evidence. The trial judge
may have determined that the deputy's testimony that the Defendant "was
attempting to evade" was "rationally based on the perception of the witness".
Since this was a non-jury trial, the trial judge may have been in error in deciding
that the deputy's input was helpful in understanding his testimony or the
determination of a fact in issue. However, if it was error to overrule defense
counsel's objection, it would not be a harmful error.
If it was error for the trial court to overrule defense counsel's objection, if
the error was not a constitutional error, it was not an error that effected substantial
rights. The Texas Court of Criminal Appeals has stated that an error such as this
is harmless unless: " ... the error had a substantial and injurious effect or influence
in determining the jury's verdict." King v. State 953 SW2nd 266 (Tex.Crim.Ap.
1997) The argument that the error was han11less in our case is strengthened by the
fact that the court rather than a jury decided the case.
If the court's error in overruling the defense objection is constitutional error,
it is not the type of error that would "contribute to the conviction or punislunent."
The Scott v. State analysis would be:
1. How important was the officer's inference that the Defendant was
Page 13
"evading";
2. Was the officer's inference cumulative of other evidence;
3. Was there other evidence to corroborate or contradict his inference;
4. The strength of the prosecution's case. Scott v. State 227 SW3rd 670
(Tex.Crim.Ap. 2007). Under that analysis, the admission of the deputy's inference
that the Defendant was "evading" would be harmless error.
3. The trial court judgement should not be reversed for ineffective
assistance of counsel.
Defendant's trial counsel agreed to waive a jury; failed to object to some
leading questions; and failed to object when the Prosecutor asked the arresting
officer if the Defendant "waived" his Miranda Rights. Defense counsel, however,
did object that the arresting officer was stating a conclusion when he stated that
the Defendant "was attempting to evade"; objected to the admission of a
judgement of a criminal conviction against the Defendant; arranged for three
witnesses to testify on Defendant's behalf; moved for an instructed verdict at the
conclusion of the state's evidence; and vigorously argued for acquittal or
probation.
As for the tactical decision to waive a jury in favor of a bench trial, the
Court of Criminal Appeals has stated that the appellate court would presume that
Page 14
such a decision was made in the exercise of reasonable, professional judgement.
Del Rio v. State 840 SW2nd 443 (Tx. Crim.Ap 1992). In another case, the Court of
Criminal Appeals has held that trial strategy, even if unconventional, is not to be
second-guessed by the appellate court. Goodspeed v. State 187 SW3rcl 390
(Tx.Crim.Ap 2005 ).
Also, in this case, the Defendant signed a jury waiver and reaffirmed that
waiver in open court at the trial. (RR5)
In Jackson v. State, the Corpus Christi Comi of Appeals held that waiver of
a jury does not amount to ineffective assistance unless there is something in the
record to indicate that the Defendant did not do so voluntarily. Jackson v. State 76
SW3rd 798 (Tex.Ap.-Corpus Clu~isti 2002). In the Jackson case, the Defendant
had not signed a written jury waiver. Of course, Appellant in our case signed a
wmver.
The following exchange took place between the prosecutor and the arresting
officer in direct examination at page 15, line 24:
" Q. Okay. And it sounded like you had almost caught up to the vehicle
before he makes the turn?
A. Yes, sir. I had gotten within about a half a block-like I say, about a
block, half a block behind the vehicle.
Page 15
Q. Okay. So-and then when he made that turn, he had gotten farther ahead
of you?
"A. Yes, sir."
The direct examination of the arresting officer by the prosecutor continues
at page 21, line 8:
"Q. Okay. Did you talk to him?
A. I had read him his rights, his Miranda rights, and he agreed to speak
with me, so I did question him about what was going on and why he failed to stop.
Q. So you read him his rights?
A. Yes, sir.
Q. And he waived those rights?
A. Yes, sir."
Defense counsel did not object to any of the prosecutors questions as
leading. The prosecutor is basically having the sheriffs deputy affirm facts which
the prosecutor is providing. While this failure to object could be considered as an
example of ineffective assistance of counsel, the entire record indicates that
counsel did mount a vigorous defense. Leading questions did not concern critical
matters.
In addition, when the prosecutor asked: "And he waived those rights?",
Page 16
defense counsel should have objected to that question as asking for an opinion.
As a fact witness, the sheriffs deputy should only be allowed to testify as to the
exchange between arresting officer and Defendant. That exchange might or might
not amount to a waiver of his Miranda rights. To testify that he "waived those
rights" is a conclusion. Defendant's counsel did not object to this. Again, since
the deputy had already testified that he had given the Defendant his Miranda rights
and the Defendant agreed to speak with the deputy, the testimony concerning
"waiver" would hardly be critical to the case.
There is no reason to doubt that defense counsel was using his best efforts,
nor is there reason to believe that his assistance was ineffective.
4. There was no error in the courts' denial of the Defendant's Motion For
Instructed Verdict; the evidence is factually sufficient to support the
courts' judgement.
The Court of Criminal Appeals has stated:
"A challenge to the trial judge's ruling on a Motion For An Instructed
Verdict is in actuality to the sufficiency of the evidence to support the conviction.
In reviewing the sufficiency of the evidence, we consider all the evidence, both
state and defense, in the light most favorable to the verdict." Madden v. State 799
SW2nct 683 (Tx.Crim.Apl990).
In another case, the Court of Criminal Appeals stated:
" ... the Jackson v. Virginia legal-sufficiency standard is the only
Page 17
standard that a reviewing court should apply in determining whether the evidence
is sufficient to support each element of a criminal offense that the state is required
to prove beyond a reasonable doubt." Brooks v. State 323 SW3rd 893
(Tx.Crim.Ap2010).
In Jackson v. Virginia, the United States Supreme Court was reviewing a
state judge's verdict that a Defendant was guilty of pre-meditated murder. The
United States Supreme Court ruled that:
" ... a federal habeas corpus court faced with a record of historical facts that
supports conflicting inferences must presume- even if it does not affirmatively
appear in the record- that the trier of fact resolved any such conflicts in favor of
the prosecution, and must defer to that resolution. Applying these criteria, we
hold that a rational trier of fact could reasonably have found that the petitioner
cmrunitted murder in the first degree under Virginia law." Jackson v. Virginia
443U.S.307 (1979).
In our case, the arresting officer testified that the Defendant was speeding
and the officer pursued him in his Sheriffs patrol car with lights flashing and
sirens sounding. The officer testified that the Defendant continued to travel at a
high rate of speed and made several turns before finally stopping. The deputy also
testified that, under questioning after his arrest, the Defendant saw the officer turn
around and attempt to stop him. The deputy said that the Defendant also stated
that if he got far enough ahead of the pursuing officer that the officer would give
up the chase.
The Defense offered evidence that the Defendant, under initial questioning,
Page 18
stated that he was not aware that he was being pursued by the Sheriff's Deputy-
that it was only after repeated questions about his intent that he made the above
statements about trying to outrun the pursuit.
The Defense also presented evidence that the Defendant suffered from
mental retardation and was susceptible to manipulation under pressure. However,
in reviewing all of the evidence in the light most favorable to the verdict, this
court is required to defer to the trial judge's determination.
Page 19
PRAYER
Ji1mny Stewart, therefore, respectfully submits that the appeal is frivolous
and requests that this court enter an order permitting him to withdraw from
representation from the Appellant.
Dated this November 25, 2015.
Page 20
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing document has this the
25th day of November, 2015, been served upon Jason Ferguson, Assistant District
Attorney of record.
Jason Ferguson
Assistant District Atty.
124 W. Beauregard
San Angelo, Texas
76903
Certificate of Compliance
I certify that this Appellant's Brief contains 3,011 words, pursuant to the
Texas Rules of Appellate Procedure 9.4I2B.
Page 21
ACCEPTED
03-15-00467-CR
8046846
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/2/2015 10:20:20 AM
JEFFREY D. KYLE
CLERK
No. 03-15-00467-CR
AMADOR FERNANDEZ § IN THE COURT OF APPEALS
§
v. § THIRD JUDICIAL DISTRICT
§
THE STATE OF TEXAS § SITTING AT AUSTIN, TEXAS
CERTIFICATE OF COUNSEL
In compliance with the requirements of Andrews v. California, 386 U.S. 387
(1967), I, Jimmy Stewart, comi-appointed counsel for appellant, AMADOR
FERNANDEZ, in the above-referenced appeal, do hereby verify, in writing, to the
Court that I have:
1. notified appellant that I have 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 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 appellant 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 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,