Jucup, Mario Lopez

/6 Z 3-M
CCA NO. PD-1623-14

uhibilMAL
IN THE
COURT OF CRIMINAL APPEALS OF TEXAS
AT, AUSTIN, TEXAS

DECEIVE
COURT OF CRI?#!AL APPEALS

02 2015
MARION LOPEZ JUCUP
Appellant
isS^oatei Clerk.
VS.

THE STATE OF TEXAS

FILED IN
COURT OF CRIMINAL APPEALS

mar o c iz:5
IN APPEAL NO. 05-13-00878-CR
FROM THE
COURT OF APPEALS OF TEXAS Abel Acosta, Clerk
FOR THE 5TH JUDICIAL DISTRICT
AT DALLAS, TEXAS

APPELLANT'S PRO SE PETITION FOR DISCRETIONARY REVIEW

Mario Lopez Jucup
TD'CJ No. 1870734
Hughes Unit
Rt. 2, Box 4400
Gatesville, Texas 76597

APPELLANT PRO SE
 IDENTITY OF JUDGE, PARTIES, AND COUNSEL

Trial Court Judge: Mark C. Stoltz

THE STATE OF TEXAS
represented by:

Craig Watkins
Dallas County District Attorney
133 N. Riverfront Blvd., LB 19
Dallas, TX 75202-4313
(at trial and on appeal)
Jason Fine, ADA
(at trial)

UNKNOWN, ADA
(on appeal)

MARIO LOPEZ JUCUP (Appellant)
TDCJ No. 1870734
Hughes Unit
Rt. 2, Box 4400
Gatesville, TX 76597
represented by:

Hugho Aguilar
Attorney-At-Law
1327 Empire Centeral Dr.
Dallas, TX 75247
(pre-trial only)
Juantia Edgecomb
Attorney-at-Law
(UNKNOWN ADDRESS)
Navarro County, Texas
(pre-trial apperance only)
PRO SE
(at trial and on PDR)

April E. Smith
Attorney-At-Law
P.O. Box 870550
Mesquite, TX 75187-0550
(on appeal only)
 TABLE OF CONTENTS

PAGE

Identity of Judge, Parties, and Counsel i

Table of Contents ii

Index of Authorites iii-iv

Statement Regarding Oral Argument v

Statement of the Case vi

Statement of Procedural History vii

GROUNDS FOR REVIEW viii

SUMMARY OF THE ARGUMENT 1-2

GROUND ONE: COUNSEL'S DUTIES IN ANDERS APPEALS 2-12

Introduction 3-4
Conditional Request for Self-Representation 4-5
Incorrect Admonishments = Involuntary Waiver of Counsel..6
Should Have Granted Motion to Dismiss Counsel..... ..7
No Admonishments and No Counsel Appointed for Jury Waiver.7-8
Incorrect Back-Time 8-10
Undefined Current Anders Standards (Reasons for Review)..10-12

GROUND TWO: APPELLATE COURT'S DUTIES IN ANDERS APPEALS 12-15

Introduction . 13
Selective Examination of the Record 13
How Much of the Record Does the Court of Appeals f?
Have to Read 14
Arguable Issue ^ Harmful or Reversible Error.... 14-15
Favorable Reformation of the Judgment 15

PRAYER 16

Verification / Certificate of Service (TO DA & COURT) 16

Certificate of Translation and Adoption 16

APPENDIX - COA OPINION
 INDEX OF AUTHORTIES

CASE LAW PAGE

Aldrich v. State, 296 S.W.3d 225
(Tex.App. - Fort Worth 2008) 7
Alford v. State, 367 S.W.3d 855
(Tex.App. - Houston [14th Dist] 2012) 5
Anders v. California, 385 U.S. 738 (1967) PASSIM

Asberry v. State, 813 S.W.2d 526
(Tex.App. - Dallas 1991) 9
Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App.2005) 3,13,14
Bray v. State, 179 S.W.3d 725
(Tex.App. - Fort Worth 2005). 15
Brewer v. Williams, 97 S.Ct. 1232 (1977) 5,6
Boykin v. Alabama, 395 U.S. 238 (1969) 8,12
Burgees v. State, 790 S.W.2d 856
(Tex.App. - Houston [14th Dist] 1990), aff.
816 S.W.2d 424 (Tex.Cim.App.1991). 8

Ex parte Bynum, 772 S.W.2d 113 (Tex.Grim.App.1989) 9
Cerf v. State, 366 S.W.3d 778
(Tex.App. - Amarillo 2012) 6

Evans v. State, 933 S.W.2d 334
(Tex.App. - Waco 1996)
Faretta v. California, 95 S.Ct. 2525 (1975).. 5
Godlinez v. Moran, 113 S.Ct. 2680 (1993) 6
High v. State, 573 S.W.2d 807 (Tex.Crim.App.[panel Op.] 1978)..4,11,12
Jones v. State, 775 S.W.2d 199 (Tex.Crim.App. 1990) 9
Jones v. State, 545 S.W.2d 771 (Tex.Crim. App.1975) 9
Kelly v. State, 436 S.W.3d 313 (Tex.Crim.App.2014) 3,10,11
Marquez v. State, 921 S.W.2d 217 (Tex.Crim.App.1996) 6
Marvin v. State, 851 S.W.2d 275 (Tex.Crim.App.1993) 8,12
Ex parte McCain, 67 S.W.3d 204 (Tex.Crim. App. Aoo"^) 8
McCoy v. COA, 486 U.S. 429 (1988) 11,15
Meza v. State, 206 S.W.3d 684 (Tex.CritfApp .Itfbb ) 3,10
Moore v. State, 320 S.W.3d 520
(Tex.App. - Amarillo 2010) 15
Moore v. State, 916 S.W.2d 696
(Tex.App. - Beaumont 1996) 8
Ex parte Owens, 206 S;W.3d 670 (Tex.Crim.App.2006) .3
Pension v. Ohio, 488 U.S. 75 (1988) 10
Smith v. Bobbins, 528 U.S. 259 (2000) 4,11,14,15
Rompilla v. Beard, 125 S.Ct. 2456 (2005) 7
Scarbough v. State, 777 S.W.2d 83 (Tex.Crim.1989) 5
In re Schulman, 252 S.W.3d 403 (Tex.Crim.App.2008) 3,10,13,15
Sims v. State, 326 S.W.3d 707
(Tex.App. - Texarkana 2010) 6
Taulung v. State, 979 S.W.2d 854
(Tex.App. - Waco 1998) 15
U.S. v. Wagner, 163 F.3d 551 (7th Cir 1996). 14
Walker v. State, 962 S.W.2d 124
(Tex.App. - Houston [1st Dist] 1997) 6
Ex parte Williams, 704 S.W.2d 773 (Tex.Crim.App.1986) 6
Wilson v. State, 40 S.W.3d 192
(Tex.App. - Texarkana 2001) 14
STATUSES fPAGE
Texas Code Criminal Procedure
Art. 1.13(c) 3>7>8
Art. 1.051(h) --6
Art. 26 .04( i)(1) ?
Art. 42.03 § 2 ' 1°
Texas Rules o f Evidence
Rule 201 •. J0
404(a)(2) I
405 • \
412 b
 STATEMENT REGARDING ORAL ARGUMENT

Appellant request oral argument because it would benfit the
Court to be able to discuss the differnet standards for Anders
Appeals that have been spoken of in the past and determine which
standard is the best fif for Texas. Moreover, Oral Arugument
would as^isit the Court in applying the Anders standards to tine,
differed ©issues pointed out by Appellant. Simply put, oral argument
would help simply the facts and clarify the issues.
 STATEMENT OF THE CASE

This is an Anders appeal following a bench trial where the
Appelant, Mario Lopez Jucup, represented himself at trial. Appellant,
who speaks Spanish, was accussed of continueous sexual abuse
of his step-daughter and complained prior to trial that court-
appointed trial counsel had not consulted with him about-the

facts of the case. Appellant requested the trial court to appoint
counsel that was appointed to represent him in a different coun-it"
on similar charges (that had spoken to Appelant about the facts).
Appellant only requested to represnt himself becuase the trial
court refused to appoint different counsel. As a result of that

and Appellant not knowing the law, avialable evidence did not

get properly introduced at trial that would have supported Appellant's
testimony (that the charges were fabricated due to jeaslousy
within the family and the mother's use of sexual activties with

her children as a test of family members loyalty)*
 STATEMENT OF PROCEDURAL HISTORY

In Cause No. F10-55339-R the Appellant, Mario Lopez Jucup,

was charged with the offense of continueous sexual abuse of a

child. The Appelant was convicted of that offense on May 29,

2013. A notice of appeal was timely filed on the same date.

On June 19, 2014 court-appointed appellate counsel filed

a motion to withdraw and Anders brief. & copy of the Anders
brief was provided to Appellant along with a copy of the appellate

record and an extension of time to file a PROARespose. Appeallant
was not able to file a complete PRO SE Response because during

that time period he was in transiet between several TDCJ units
for in-process and medical treatment. Moreover, Appellant does
not fully understand the english language.

On Novemebr 24, 2014, the 5ftb Distsrict GOurt of Appet^s-
of Texas ISSUED its Memorandum Opinion and AFFIRMED the convicion

(as modified). NO MOTION FOR REHEARING WAS FILED. On December 12,

2014 this Court of Crminal Appeals granted Appellant an extesnion

of time until February 27, 2015 to file this PRO SE PDR. Then,

On January 22, 2015 this Court suspened Rule 9.3(b) and permitted
Appelant to file only one,original
inal of this PDR.
PDR. This PDR /was
was

FILED, by placing it in the pr ison mail system on *£T IK&B&eD ZC2JDl£~
 GROUNDS FOR REVIEW

GROUND ONE: IN AN ANDERS APPEAL, WHAT LEVEL OF "DUE DILIGENCE"
IS SUFFICIENT FOR COURT-APPOINTED APPELLATE COUNSEL'S
ASSAYING THE RECORD FOR ERROR AND DID COUNSEL IN
THIS CASE EXERCISE THAT LEVEL OF "DUE DILIGENCE"
WHEN HER ANDERS BRIEF FAILED TO DISCLOSE RECORD
FACTS SUPPORTING THAT:

1) Appellant did not clearly and unequivocally assert
his right to self-repr^gntation at. trial when his request
was conditioned upon the trial court's refusal to appoint
differnet counsel. 2 RR 13, 17, 20; 3 RR 8-9,13;
2) Appellant's waiver of counsel was not intelligently,
knowingly, and voluntarily executed when the trial court
incorrectly admonished Appellant that trial counsel could
never introduce evidnce of the victim's charcter and that
Appellant could never reassert his right to counsel once
the court approved the waiver of counsel. 2 RR 14; 3 RR 10, 18;
3) The trial court should have granted Appellant's motion
to dismiss counsel when appointed trial counsel admitted
that he had not consulted with Appellant about the facts
of the charge. 1 CR 48, 50; 2 RR 16, 3 RR 8, 13, 14, 18;
4) The trial court violated Article 1.13(c) of the Texas
Code of Criminal Procedure when the court failed to appoint
counsel to advise Appellant prior to accepting the jury waiver
.(even if it was prior counsel) and the jury waiver was not
/iltelligently, knowingly, and voluntarily executed whenthe
trial court never admonished Appellant about his Sixth Amendment
right to a jury trial. 1 CR 57; 3 RR 19-20;

5) There was a clerical error in the Judgment concerning
the back-time, where it failed to incldue the time period
a detainer was lodged with TDGJ for this offense -- which
reformation of the Judgment would be favorbale to Appellant.
1 CR 10, 60; 2 RR 7, 8; 5 RR 13; 6 RR sx4, cxl.

GROUND TWO: IN AN ANDERS APPEAL, WHAT DEGREE OF INDEPENDENT
EXAMINATION MUST THE COURT OF APPESL MAKE OF THE
RECORD AND HOW DOES A COURT MEASURE IF AN "ARGUABLE
ISSUE" HAS ENOUGH MERIT SO THAT THE APPEAL IS NOT
"WHOLLY FRIVOLOUS" (MUST IT BE HARMFUL, OR REVERSIBLE
ERROR OR IS REFORMATION OF THE JUDGMENT FAVORABLE
TO AN APPELLANT SUFFICIENT); AND, WHEN THE COURT
OF APPEALS IN THIS CASE OVERLOOKED THE ISSUES RAISED
BY APPELLANT (IN GROUND ONE) DID THE COURT TRUELY
FOLLOW THE CORRECT ANDERS STANDARDS?
 SUMMARY OF THE ARGUMENT

The right to counsel, both at trial and on appeal, is centeral

to our system of criminal justice. This case concerns both.

Appellant, Mario Lopez Jucup, was, and is, indigent. Thus, at

all times it was the duty of the trial court to appoint counsel

to represent Appellant. It has been said that one reason counsel

is so necessary is the need to deal with the complex mix of technical

rules that govern trials and appeals. That is exactly the breakdown

experenced in this case. At trial, due to the absense of counsel,

evidence that supported Appellant's testimony that the charges
were fabricated due to jealousy within the family and the mother's
use of sexual activities with her children as a test of family

members' loyalty was hot'correctly admitted into evidence. 6 RR cxl.

And, then on appeal, the lack of clear guidelines for Anders

appeals resulted in an Anders brief that failed to disclose record

facts to the court of appeals that arguably would have supported

that there was a denial of the right to counsel and a denial

of the right to a trial by jury.

The right to counsel is so important that courts must indulge
every reasonable presumption against the waiver of counsel. Yet,

both the trial court and appellate counsel have ignored that

maxim in this case. Afterall, the record is replete with references

that Appellant's requesst to represent himself was confflintaional
on the trial court's refusal to replace court-appointed counsel

and that the waiver of counsel was not intelligently, knowingly,

and voluntarily executed. All Appellant really wanted was a
court-appointed attorney that would talk to him about the facts
of the charge -- which trial counsel pratically admitted he had
not consulted with Appellant about the facts. Nevertheless,
the trial court refused to appoint Appellant's court-appointed
counsel from a differnet county that was present at trial and
ready to proceed to trial. Then, court-appointed appellate counsel
failed to disclose these facts to the court of appeals, even

in an Anders brief.

And, the court of appeals failed to uncover these facts
during its independent examination of the record. The problem
is that there are no set standards to guide court-appointed counsel

and the appellate court in their examination of the record.
Exactly what kind of facts are they looking for as they examine
the record? In other words, what eactly makes an appeal "wholly
frivolous" --is the reformation of the judgment favorable to an

appellant to correct back-time an "arguable issue"? In answering
these type of questions, this Court can clarify the amount of
due diligence in assaying the record that is sufficent, for both
appellant counsel and the appellate court in Anders appeals.

ARGUMENT

GROUND ONE: IN AN ANDERS APPEAL, WHAT LEVEL OF ''DUE: DILIGENCE"
IS SUFFICIENT FOR COURT-APPOINTED APPELLATE COUNSEL'S
ASSAYING THE RECORD FOR ERROR AND DID COUNSEL IN
THIS CASE EXERCISE THAT LEVEL OF "DUE DILIGENCE"
WHEN HER ANDERS BRIEF FAILED TO DISCLOSE RECORD
FACTS SUPPORTING THAT:

1) Appellant did not clearly and unequivocally assert
his right to self-representation at trial when his request
was conditioned upon the trial court's refusal to appoint
different counsel. 2 RR 13, 17, 20; 3 RR 8-9, 13;
2) Appellant's waiver of counsel was not intelligently,
knowingly, voluntarily executed when the trial court incorrectly
admonished Appellant that trial counsel could never introduce
evidence of the victim's character and that Appellant could
t^ever reassert his right to counsel once the court approved
the waiver of counsel. 2 RR 14; 3 RR 10, 18;
 3) The trial court should have granted Appellant's motion
to dismiss counsel when appointed trial counsel admitted
that he had not consulted with Appellant about the facts
of the charge. 1 CR 48, 50; 2 RR 16, 20; 3 RR 8, 13, 14, 18;
4) The trial court.: violated Article 1.13(c) of the Texas
Code of Criminal Procedure when the court failed to appoint
1 counsel to advise Appellant prior to accepting the jury
waiver (even if it was prior counsel) and the jury waiver
was not intelligently, knowingly, and vouluntarily executed
when the trial court never admonished Appellant about his
Sixth Amendment right to a jury trial. 1 CR 57; 3 RR 19-310;
5) There was a clerical error in the Judgment concerning
the backtime, where it failed to include the time period
a detainer was lodged with TDCJ for this offense -- which
reformation of the Judgment would be favorable to Appellant.
1 CR 10, 60; 2 RR 7, 8; 5 RR 13; 6 RR sx4, cxl.

This Court has recently "acknowledged 'that there is a need
for uniform procedures for those cases in which an Anders brief
is filed, especially as the Texas Rules of Appellate Procedure
do not provide any explicit guidance.'" Kelly v. State, 436 S.W.3d
313, (Tex.Crim.App.2014)(quoting In re Schulman, 252 S.W.3d 403,
410 (Tex.Crim.App.2008). In recent years this Court has individually
addressed several of the Anders procedures. See, Kelly, 436 S.W.3d
at (duty to provide Appellant with access to the appellate
record to prepare PRO SE Response), Schulman, 252 S.W.3d at 410-
411 (counsel's duty to file motion to withdraw), Meza v. State,
206 S.W.3d 684, 689 (court of appeals duty to grant motion to
withdraw), Ex parte Owens., 206 S.W.3d 610, £?]_ (Tex.Crim. App. 2006)
(counsel's duty to notify about right to file PRO SE PDR), Bledsoe v.
State, 178 S.W.3d 824, 826-827 (Tex.Crim.App.2005)(court of appeals
duty in writing Opinion). However, the last time this Court
addressed counsel's duty in examing the record and drafting the
Anders brief was in 1978 when the appellate rules where very

different and the trial court reviewed the appellate briefs.
See, High v. State, 573 S.W.2d 807, 811-812 (Tex.Crim.App.[Panel
Op.] 1978). And, since that time the U.S. Supreme Court has clarified
the Constitutional principals that control Anders appeals. See,

Smith v. Robbins, 528 U.S. 259 (2000). It is time for this Court
of Criminal Appeals of Texas to directly address the dutie^ of
court-appointed appellate counsel in Anders appeals in relation
to examining the record and drafting the Anders brief.
This appeal is the perfect example to use to review the
duties of court-appoined appellate counsel in examining the record
and drafting the Anders brief because of the several different
types of issues pointed out by Appellant. To begin with, the
court of appeals did hold that counsel's Anders brief was adequate.
COA Op. pg. 1. Indeed, counsel did present a cursory review
of the record in her Anders brief. Anders Brief pg. 1, 3-6. However,

as pointed out by Appellant herein there are several important
record facts that appellate counsel did not disclose in her Anders
brief. Thus, the question: did court-appointed appellate counsel
have a duty to present these facts to the appellate court in
her Anders brief (with supporting legal authorties)?

CONDITIONAL REQUEST FOR SELF-REPRESENTATION

The important facts that counsel failed to disclose in her
Anders brief mostly relate to Appellant's request to represent
himself that was conditional. Primarly, appellate counsel failed
to disclose to the court of appeals that facts existed that arguably
could have raised the very issue that Appellant's request to
represent himslef was conditioned upon the trial court's refusal
to replace trial counsel. 1 CR 48-51 (motion to dismiss counsel and
supporting affidaivit); 2 RR 16-17 ("If I have no other option,
can I not represent myself?), 20 ("How can I go to trial if he
doesn't know anything that's happened?"), 21 ("From what I'm
understanding is even though I don't have a legal law degree,
I can speak for myself. 'V 3 RR 8-9 ("WhatX've seen is that nothing
is going in my favor so I need to face my situation, and if I
fail, it's going to be because of what I say. ...during the time
that I've been here in this county, my attorney came to see me .

for about five minutes. ... And five minuets ago he told me I-r:.

wasvstupid. And. I honestly don't feel well with those words
so I need to face my situation by myself."\; 13 ("If I cannot
be given another one, of course, yes. ... Ithink that's one of
my rights, that if I'm not comfortable with him X can -- that
I can find a legal attroeny that I know can advise me. That's
why I have to face my personal situation."). These facts arguably
support that Appellant's request to represent himself at trial
was not clearly and unequivocally asserted. See, Alford v. State,
367 S.W.3d 855 (Tex.App. - Houston [14th Dist] 2012); See also,
Faretta v. California, 95 S.Ct. 2525, 2541 (1975), Scarbough v.
State, 777 S.W.2d 83, 92 (Tex.Crim.App.1989). Moreover, it is
well-established that courts must consider every reasonable presumption

against a waiver of counsel. See, Brewer v. Williams, 97 S.Ct. 1232,
1242 (1977)(same standard for pre-trial and trial). Appellate
counsel should have presented these facts in her Anders brief
that would have supported a presumption that Appellant did not
clearly and unequivocally invoke his right to represnt himself.
1 "Arvter-g" rpfprs to Anders v. California, 385 U.S. /38 (1967) throughout. ,
2' Awellant'fPRO SE Response did noL include these issues because, as
demonstrated by the record, Appellnat needs an interpreter to understand
Slish and was it tarnsiet Stween TDCJ units, leaving him unable
to complete a response on his own or to seek the help of another Inmate.
INCORRECT ADMONISHMENTS = INVOLUNTARY WAIVER OF COUNSEL

Appellate counsel also failed to disclose in her Anders .

brief that the trial court's admonishment concerning the waiver
of <&unsel were not always correct. The trial court incorrectly

admonished Appellant that Appellant could never reasserlhis right

to counsel once the court approved the waiver. 3 RR 10, 18;

See cf., Tex. Code Crim. Proc, art. 1.051(h); Marquez v. State,
921 S.W.2d 217, 221-22 n.4 (Tex.Crim.App.1996), Walker v. State,
962 S.W.2d 124, 127-128 (Tex.App. - Houston [1st Dist] 1997).
Additionally, the trial court incorrectly told Appellant that

trial counsel could never introduce evidence at trial concerning
3
the character of the alleged victim. 2 RR 13-14; See cf., Tex.

R. Evid. 404(a)(2), 405, 412. The trial court probably did not

have a duty to make these types of admonishments; however, once

the trial court choose to make them, the admonishments had to

be accurate. See, Ex parte Williams, 704 S.W.2d 773 (Ter..Criri.
App.l986)(incorrect admonishment about probation for guilty plea),
Sims v. State, 326 S.W.3d 707 (Tex.App. - Texarkana 2010)(incorrect
admonishment about right to appeal). Again, courts must indulge
every reasonable presumption against the validity of a waiver
of counsel. See, Brewer, 97 S.Ct. at 1242, Cerf v. State, 366 S.W.3d

778, TbyV^(Tex.App. - Amarillo 2012). These facts support that
Appellant's waiver of the right to counsel was not intelligently,
knowingly, and voluntarily executed. See, Godlinez v. Moran,
113 S.Ct. 2680, 2687 (1993). Appellate counsel should have presented
these facts in her Anders brief.

3. In his Affidaivt supporting his motion to dismiss counsel Appellant explained he,
{O^n+e^an investigator to establish the character of the complaintant, (eg), Does
the complaintant have a history of embelishing the truth, does this accusation
further a private agenda of the complaintant (etc)." 1 CR 50.
SHOULD HAVE GRANTED MOTION TO DISMISS COUNSEL

Moreover, counsel failed to disclose in her Anders brief

facts -fceto*- arguably would support that the trial court should

have granted Appellant's request to "dismiss" court-appointed
counsel (and appoint new counsel). Appellant's main complaint
was that trial counsel had not consulted with Appellant about

the facts of the charge. 1 CR 48, 50; 2 RR 13, 20; 3 RR 8-9, 13.

In response to those accusations, rather than refute that he

had consulted with Appellant about the facts, trial counsel explained

that he had gathered informationfcabout the facts of the charge

from Appellant's counsel from another county. 3 RR 14. Can
trial counsel rely upon a different attorney to consult with

a criminal defendant and to investigate the facts? No, the attorney

that the trial court appoints to represent a criminal defendant

must himself consult with the defedant and persoanlly investigate

the facts. See, Tex. Crim. Proc, art. 26.04(j)(l); Rompilla
Beard, 125 S.Ct. 2456 (2005), Aldrich v. State, 296 S.W.3d 225,
244-245 (Tex.App. Fort Worth 2009). Yet, no where in her Anders
brief did appellate counsel disclose these facts to the court
of appeals.

NO ADMONISHMENTS AND NO COUNSEL APPOINTED FOR JURY WAIVER

Perhaps most importantly, appellate counsel did not present
in her Anders brief that the waiver of a jury was executed(and
accepted) without counsel. Article 1.13(c) requires that:

4. Appellant specfically requested the trial court to appoint, Juanita Edgecomb,
who was his court-appointed attorney from Corsicana because she was
already familar with the facts of the charge and was presnt at trail.
3 RR 13, 18.
 "... before a defendant charged with a felony who has
no attroeny can agree to waive a jury, the court must
appoint an attorney to represent him."
Tex. Code Crim. Proc, art. 1.13(c); See also, Ex parte McCain,

67 S.W.3d 204, 212 n.3 (Tex.Crim.App. Xo6>- )(Dissent by Holcomb, J.)
(majority did not address that Article 1.13(c) is still mandatory
when a defendant chooses to represnt himself), Burgess v. State,
790 S.W.2d 856, 861 (Tex.App. - Houston [14th Dist] 1990)(parties
viewed Art. 1.13(e) to apply when defendant represented himself),
aff. on other grounds, 816 S.W.2d 424 (Tex.Crim.App.1991); cf.,
Moore v. State, 916 S.W.2d 696, 697 (Tex.App. - Beaumont 1996).
The trial court in this case "discharged"1 appointed trial counsel

prior to any discussion about a jury waiver. 3 RR 19-20. Indeed,
the jury waiver form, that has a blank for &&£&&£& counsel to
sign, has no signature of any defense counsel. 1 CR 57. This
is type of error that may be raised for the.first time on direct
appeal. See ie., Marvin v. State, 851 S.W.2d 275 (Tex.Crim.App.1993)
;.— ; Additionally, the trial court did not speficially admonish
Appelant about his Sixth Amendment right to a jury trial.. 3 RR 19-20.
The trial court simply accepted the waiver of a jury. The trial
court had a duty to admonish Appellant about his Sixth Amendment
right to a jury trial and without that admonishment the jury
waiver was not intelligently, knowingly, and voluntarily executed.
See ie., Boykin v. Alabama, 395 U.S. 238, 243 (1969)(admonishment
about right to jury trial must be "spread on the reocrd" for
a voluntary guilty plea). These are the type of facts (and law)
that appellate counsel had a duty to present in an Anders brief.

INCORRECT BACK-TIME

Finally, court-appointed appellate counsel failed to disclose
in her Anders brief that the Judgment had a clerical error in
the recording of the awarded back-time. In sentencing Appellant
the trial court orally awarded "credit for all your back-time."

5 RR 13. ANd, the record demonstrates that a detainer was lodged
with TDCJ for this offense on August 1, 2011. 1 CR 10 ("TWX" stamp)
Yet, the Judgment only credited back-time from October 1, 2012

until May 29, 2013 (the date of sentencing). 1 CR 60. This
was a clerical error in the Judgment -- the correction of which

would be favorable to Appellant.

It is well-established that a criminal defendant is entitled

to back-time credit for when a detainer was lodged against him

for the charged offense. See, Ex parte Bynum, 772 S.W.2d 113,
lib (Tex.Crim.App.1989) . And, the record-kas.se multiple references
that Appellant was incarated in TDCJ's Sanchez State Jail in

El Paso, Texas during the investigation of this offense. 2 RR 7-8;
6 RR sx4, cxl(offense report and affidavit of Evelyn Brister).
Moreover, the arrest warrant itslef list Appellant's address as

the State Jail in El Paso. 1 CR 10. Yet, the Judgment only

includes back-time from when Appellant was "arressted" by the

Dallas County Sheriff on October 1, 2012 (and transported from

the Navarro County Jail to the Dallas COunty Jail). 1 CR 10,
2 RR 7. The trial court had a mandatory duty to include the

time period of the detainer in .the credited back-time. See, Tex.

Code Crim. Proc, art. 42.03 § 2; Jones v. State, 545 S.W.2d 771

(Tex.Crim.App.1975). Just as the court of appeals correctWhe
clerical error in the Judgement about the sex offender registration,

so the court of appeals could have corrected this clerical error

for the first time on appeal. See, Jones v. State, 775 S.W.2d 199
(Tex.Crim.App.1990), Asberry v. State, 813 S.W.2d 526, 529-530
(Tex.App. - Dallas 1991). Appellate counsel should have disclosed
this concern in her Anders brief.

UNDEFINED CURRENT ANDERS STANDARDS

Court-appointed appellate counsel's Anders brief should
"set[] out the attorneys due diligence investigation" to allow
the appellate court to make a "determination whether counsel
has exrcised sufficient diligence in assaying the record for
error..." Kelly, 436 S.W.3d at n.17 (quoting Meza v.State,
206 S.W.3d at 687 and citing Pension v. Ohio, 488 U.S. 75, 82-83
(1988)), Schulman, 252 S.W.3d at 407. Additonally, the purpose
of an Anders brief is to:

"assur[e] the appellate court that the attorney has
indeed made a thorough and consientious examination
of the record, has provided the appellate court with
appropriate facts of the case and its procedural
history, and has pointed out any potentionally plausible
points of error."
Schulman, 252 S.W.3d at 406. While this court appears to have
set forth some standards of "due diligence" and "potentially
plausible points of error", the Court given' no guidaae to what
a "sufficiently]" diligent examination of the record is measured
by nor what type of issue would be considered a,/(pptentially plausible
point of error." The Court should grant review to set forth
specfic standards of the level of due diligence counsel must
exercise in assyaing the record for error and define what constitutes
a potentionally plausible point of error or "arguable issue."
There have been many platitudes made about counsel's duty
to zealously represent her client. See ie., Kelly, 436 S.W.3d
at n.18 (quoting Schulman, 252 S.W.3d at 411); See also,
~, Appellant asks the Court to take JUDICAL NOTICE oFthe address of the TDCJ's
Sanchez State Jail in El Paso, Texas. See, Tex. R. Evid.
McCoy v. COA, 486 U.S. 429, 438 (1988). These include statements
made about the type of attitude with which appellate counsel should
approach her examination of the record. See, Robbins, 528 U.S. at 293
(Dissent by Souter, J.)(counsel's examination of the record should
be with "An advocate's eye, identifying and weighing potential
issues for appeal. This is • revisJ^not by a dispassionate legal
mind but a committed representative, pledged to [her] client's
intrest, primed to attack the conviction on any grounds the record
may reveal."), McCoy, 486 U.S. at 444 ("a zealous advocate will
resolve all doubts and ambigous legal questions in favor of
his or her client."), High, 573 S.W.2d at 812 ("if necessary
advocating a change in the rules of law if rational arguments
can be advanced in support of the change."). However, there
is not set, or measurable standard of diligence, that has been
definded to determine if counsel has sufficiently invetigated
the rec<&rd. And, inspite of these wonderful ideas about zealous
representation, it is the common practice for appellate courts
in Texas to simply repeat the formulaic terms that "the brief
presents a professional evaluation of the record showing why,
in effect, there -are no arguable grounds to advance." COA Op. pg 2.
This formulaic terminology used by the court of appeals, is
used in no small part as a result d& the fact that the last
time this Court directly addressed court-apponted counsel's duty
in examining the record and drafting an ANders brief was in 1978.
At that time, this Court held that an Anders brief must:
"discuss the evidence aduced at the trial, point out
where pertianet testimony may be found in the record,
refer to pages in the record where objections were(
made, the nature of the objection, the trial court s
ruling, and discuss.[] why the trial court s ruling
was correct..."
"High, 573 S.W.2d at 813. Yet, much has changed in Texas' criminal
law jurisprudence in the past 35 years. For instance, it has

been clarified that there are some types of errors that may be

raised for the first time on appeal. See, Marvin, 851, S.W.2d at <*^°Q .
Not to mention that today the vast majority of Anders appeals

involve guily plea cases -- where, similar to this case, the

major concern is the voluntariness of the waiver of several consitutional

rights. See, Boykin, 359 U.S. at 243. The old requirments of High,

that focused on trial testimony:, simpl^do* not address the realities
of todays criminal law jurisprudence.

To address this situation the 5th Circuit, U.S. Court of

Appeals, has established specific guidelines for court-appointed

appellate counsel to follow in drafting Anders briefs. See,

Such detailed guidelines might not be appropriate in Texas. Nevertheless,

some form of specfic guidelines that provides the court of appeals

with an accurate measuring standard to determine if appellate

counsel has exercised sufficient, or.due, diligence is assaying

the record for error should be established by this Court. Therefore,

this Court should -ggefenreview in this case to set forth the proper

procedures and standards for Anders appeals.

GROUND TWO: IN AN ANDERS APPEAL,, WHAT DEGREE OF INDEPENDENT
EXAMINATION MUST A COURT OF APPEASL MAKE OF THE
RECORD AND HOW DOES A COURT MEASU&IF AN "ARGUABLE
ISSUE" HAS ENOUGH MERIT SO THAT THE APPEAL IS NOT
"WHOLLY FRIVOLOUS" (MUST IT BE HARMFUL, OR REVERSIBLE
ERROR OR IS REFORMATION OF THE JUDGEMNT FAVORBALE
TO AN APPELLANT SUFFICIENT).; AND, WHEN THE COURT OF
APPEALS IN THIS CASE OVERLOOKED THE ISSUED RAISED
BY APPELLANT (IN GROUNDONE) DID THE COURT TRUELY
FOLLOW THE CORRECT ANDERS STANDARDS?

6. High required counsel to explain why the error was not harmful,
In Ground for Review Two Appellant questions whether it is
proper to base a determination of if an appeal is wholly
frivolous based upon the lack of "harmful error."
 This Court has recently held that it will continue to follow
Anders that requires a court of appeals to conduct "a full examination
of all the proceedings, to decide whether the case in wholly

frivolous." Schulman, 252 S.W.3d at 408-409 (following Anders,

386 U.S. at 744). Yet, this Court has also allowed that the

court of appeals do not have to "show their work" in their Opinions
in Anders appeaasft showing how the court examined the record.
See, Bledsoe, 178 S.W.3d at 826-827. Therefore, in this case,
the court of appeals simply stated in their Opinion that the
court had reviewed the record and agreed with cousel that the

appeal was "frivolous." COA Op. pg. 2. However, as discussed
in Ground for Review One, there are multiple "arguable issues"
that could be raised in this appeal. How did the court of appeals'
independent examination of the record miss these arguable issues?

SELECTIVE EXAMINATION OF THE RECORD

The court of appeals' Opinion addressed a clerical error
in the Judgment and heldit was not an arguable issue (because
it was not favorable to Appellant). Yet, the court of appeals
failed to uncover that in the same Judgment it incorrectly recorded

that Appellant "appeared in person with Counsel" and did not
waive counsel. 1 CR 60-61; cf. 1 CR 58. Why would the court

of appeals be selective in their examination of the record? Could
it be that the failure of the Judgment to state the the waiver
of counsel was voluntary would be favorable, to Appellant's arguable
issues that he presents about the waiver of counsel -- in that,
there would be no presumption of regularity of the Judgment to
overcome? In any event, the court's failure to uncover all
the clerical errors in the Judgement reveals that its "full
examination" of the record was not as in depth as the Opinion
would lead one to believe it was.

HOW MUCH OF THE RECORD DOES THE COURT OF APPEALS HAVE TO READ?

There are three separate concefrrs, other than the pro forma
Opinions, that if this Court addressed them the Court could clarify
the degree of independent examination of the.recordftrequired
by the court of appeals in Anders appeals. First, this Court
could directly address how much of the record a court of appeals
must read during its independent-, examination. This must be
addressed because at least one court of appeals has held that
an appellate court doe^not have to "scour the record for any
possible error." See, Wilson v. State, 40 S.W.3d 192, 198 (Tex.App.-
Texasrakana 2001)(following U.S. v. Wagner, 163 F.3d 551, 552
(7th Cir. 1996). It may sound reasonable to limit the amount
of the record that the court of appeals must actually read; yet,
Anders itself requires "a full examination of all the proceedings."

ARGUABLE ISSUE f HARMFUL OR REVERSIBLE ERROR

SECOND, THERE ARE NO CLEAR GUIDELINES AS TO EXACTLY WHAT
STANDARD MAKES AN APPEAL "WHOLLY FRIVOLOUS". The U.S. Supreme
Court has itself recognized the confusion over what "wholly frivolous"
means in the Anders context. See, Robbins, 528 U.S. at 282.
The Supe-rom Court left it to the states to resolve the problem.
In the past this Court has implied that wholly frivolous could
be defined as an appeal having no harmful, or reversible error.
See, Bledsoe, 178 S.W.3d at 828, High, 573 S.W.2d at 813. However,
the U.S. Supereme Court has at the very least held what wholly
frivolous is NOT:
 "unlikely to prevail on appeal",
"no grave of prejudieal errors", or
"that the appeal would be unsucessful.

See, Robbins, 528 U.S. at 279.*
Most recently, this Court has used the term "potentially

plausible grounds for appeal" to describe what an appellate court

if looking for during its independent examination of the record.

See, Schulman, 252 S.W.3d at 409. Nevertheless, in this case,

the court of appeals looked for "arguable issues" which is perhaps
the most common term appellate courts use to describe whether

an appeal is frivolous. COA Op. pg. 2. Yet, "arguable issue"
is the very term that the Supreme Court recognized as causing

the confusion over what "wholly frivolous" actually means. See,

Robbins, 528 U.S. at 285. Not to mention, if counsel were truely

being a zealous advocate, they could almost alwyas present some

arguable issue, regardless of how convincing it might be. See,
McCoy, 486 U.S. at 446 (Dissent by Brennan, J.), Taulung v. State,
979 S.W.2d 854, 857 (Tex.App. - Waco 1998). Without better guidance
on how wholly frivolous is to be measured the court of appeals
do not know what to look for during their independent examination of record,

FAVORBALE REFORMATION OF THE JUDGMENT

Third, there is split amoung the court of appeals concerning
if reformation of the judgment favorable to an appellant negates

a finding of an appeal being wholly frivolous. See, Moore-v. State,
320 S.W.3d 520 (Tex. App. - Amarillo 2010), Evans v. State, 933 S.W.2d
334-(Tex.App. -.' Waco 1996) (following McCoy, 108 S.Ct. at 1905); cf.
Bray v. State, 179 S.W.3d 725 (Tex. App. - Ft. Worth 2005). In this
case, the back-time issue raised in Ground one would result in
reformatio^eof the judgment favforable to Appellant.
 PRAYER

Thus, Appellant, Mario Lopez Jucup, PRAYS that this Court

GRANT review in this case to" establish "uniform procedures for

those cases in which an Anders brief is filed" for any, one,

or some of the reasons given on one or both the presented, grounds

or upon any ground the Court crafts on its own motion; AND, ANY

AND ALL OTHER RELIEF THIS COURT FINDS PROPER IN THE INTEREST

OF JUSTICE.

Respectfully \Submitted,

Mario Lcmjiz Jucup
TDCJ NoUy>870734
Hughes tWlt
Rt. 2, Bb| 4400
Gatesville, TX 76597

APPELLANT PRO SE

VERIFICATION / CERTIFICATE OF SERVICE (TO DA AND COURT)

I, Mario Lopez Jucup, TDCJ Id No. 1870734, being presntly
incarcerated in the Hughes Unit of TDCJ-CID, in Coryell County,
Texas do declare that the facts in this PDR are true and correct
under the penalty of perjury and that I have caused a copy of
this PDR to be served on the Dallas County District Attorney
and the State Prosecutting Attroeny; AND that I have mailed this
PDR to the Clerk of the Court of Criminal Appeals of Texas by
placing the PDR (and its copies) in the prison mail system to
be mailed 1st Class USPS on the date executed below.

EXECUTED on this the "Z3" day of fk&z

Mario LoxSez Jucup
Appellant PRO SE
CERTIFICATION OF TRANSLATION AND ADOPTION

This PDR has been translated into to Spanish to be read
to the Appellant and the Appellant, Mario Lopez Jucup, understands
that he is adopting this PDR as his own as if he w/rotje it himself
Affirmed as Modified and Opinion Filed November 24, 2014

In The

Court of ideate
Jfiftfi ©tatrtct of Cexaa at ©alias

No. 05-13-00878-CR

MARIO LOPEZ JUCUP, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F10-55339-R

MEMORANDUM OPINION

Before Justices FitzGerald, Lang, and Brown
Opinion by Justice FitzGerald

Mario Lopez Jucup waived a jury and pleaded not guilty to continuous sexual abuse of a

young child.1 After finding appellant guilty, the trial court assessed punishment at thirty years'
imprisonment. On appeal, appellant's attorney filed a brief in which she concludes the appeal is

wholly frivolous and without merit. The brief meets the requirements of Anders v. California.

The brief presents a professional evaluation of the record showing why, in effect, there are no

arguable grounds to advance. Counsel delivered a copy of the brief to appellant.

1See Tex. PenalCode Ann. § 21.02(b) (West Supp. 2013).

2386 U.S. 738(1967).

*See High v. Slate, 573 S.W.2d 807, 811-12 (Tex. Crim. App. [Panel Op.| 1978),

~Z
.$• Appellant filed a pro se response raising several issues. After reviewing counsel's brief,

appellant's pro se response, and the record, we agree the appeal is frivolous and without merit.5

We find nothing in the record that might arguably support the appeal.

Although not an arguable issue, we note the trial court's judgment contains an error. In

addition to assessing punishment, the trial court stated that appellant was subject to the sex

offender registration requirements of Chapter 62 and that the age of the victim was less than

fourteen years of age. The trial court told appellant that he would be required to register as a sex

offender.6 The judgment, however, states the sex offender registration requirements "do not

apply to the Defendant." We modify the judgment to show that sex offender registration

requirements apply and the victim's age was ten years.7
As modified, we affirm the trial court's judgment. We order the trial court to issue an

amended judgment that reflects this change and to include any other language required by the

Texas sex offender registration statutes.

Do Not Publish
Tex. R. App. P. 47
130878F.U05

4 See Kelly v. Stale, 436 S.W.3d 313, 319-21 (Tex. Crim. App. 2014) (identifying duties ofappellate courts and counsel in Anders cases).

5See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005) (explaining appellate court's duty in Anders cases).

6See Tex. Code Crim. Proc. Ann. art. 62.001(5)(A) (West Supp. 2013).

7See TEX. R. APP. P. 43.2(b); Bigley v. Slate, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.
App.—Dallas 1991, pet. refd);
 Court of Appeals
Jftftli JBtsftrtrt of TEexaa at ©alias;

JUDGMENT

MARIO LOPEZ JUCUP, Appellant Appeal from the 265th Judicial District
Court of Dallas County, Texas (Tr.Ct.No.
No. 05-13-00878-CR V. F10-55339-R).
Opinion delivered by Justice FitzGerald,
THE STATE OF TEXAS, Appellee Justices Lang and Brown participating.

Based on the Court's opinion of this date, the trial court's judgment is MODIFIED to
show that Sex Offender Registration Requirements do apply to the defendant and that the age of
the victim as the time of the offense was ten years.

As modified, we AFFIRM the trial court's judgment.

We ORDER the trial court to issue an amended judgment that reflects the above changes
and to include any other language required by the Texas sex offender registration statutes.

Judgment entered November 24, 2014.
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