ACCEPTED
13-15-00256-CR
FILED THIRTEENTH COURT OF APPEALS
IN THE 13TH COURT OF APPEALS CORPUS CHRISTI, TEXAS
CORPUS CHRISTI 10/26/2015 9:59:56 PM
Dorian E. Ramirez
10/26/15 CLERK
DORIAN E. RAMIREZ, CLERK
CAUSE NO. 13-15-00256-CR
BY DTELLO
__________________________________________________________________
RECEIVED IN
13th COURT OF APPEALS
IN THE COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
FOR THE 10/26/2015 9:59:56 PM
THIRTEENTH JUDICIAL DISTRICT OF TEXAS
DORIAN E. RAMIREZ
AT CORPUS CHRISTI Clerk
__________________________________________________________________
ELIO GARZA,
APPELLANT,
VS.
THE STATE OF TEXAS,
APPELLEE.
__________________________________________________________________
On Appeal in Cause No. 14-05-11,998 in the
24th Judicial District Court of Victoria County, Texas
Hon. Jack W. Marr, Judge Presiding
__________________________________________________________________
ANDERS BRIEF
__________________________________________________________________
Luis A. Martinez
Bar No. 24010213
P.O. Box 410
Victoria, Texas 77902
(361) 676-2750 telephone
(361) 575-8454 telefax
Email:
Lamvictoriacounty@gmail.com
ATTORNEY FOR APPELLANT
ELIO GARZA
October 26, 2015
ORAL ARGUMENT NOT REQUESTED
IDENTITY OF JUDGE, PARTIES AND COUNSEL
Pursuant to TEX. R. APP. P. 68.4(a), the parties to the suit are as
follow:
APPELLANT ELIO GARZA
APPELLEE THE STATE OF TEXAS
TRIAL JUDGE HON. JACK W. MARR
STATE’S ATTY AT TRIAL: HON. MICHAEL SHEPPARD
HON. REID MANNING
24th Judicial District Attorney
DeWitt County Courthouse
307 N. Gonzalez
Cuero, Texas 77954
DEFENSE ATTY AT TRIAL: HON. CHRIS ISLES
710 Buffalo Street, Suite 802
Corpus Christi, Texas 78401
APPELLATE STATE’S ATTY: HON. ROBERT LASSMAN
24th Judicial District Attorney
DeWitt County Courthouse
307 N. Gonzalez
Cuero, Texas 77954
APPELLATE DEFENSE ATTY: HON. LUIS A. MARTINEZ
P.O. Box 410
Victoria, Texas 77902
i
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................................ i
TABLE OF CONTENTS ......................................................................................... ii
LIST OF AUTHORITIES ....................................................................................... iii
CERTIFICATE OF COUNSEL .............................................................................. iv
I. RECORD BEFORE COURT .................................................................... 2
II. STATEMENT OF CASE .......................................................................... 2
III. ISSUE PRESENTED ................................................................................ 3
IV. STATEMENT OF FACTS........................................................................ 4
V. SUMMARY OF THE ARGUMENT ...................................................... 10
VI. ARGUMENT AND AUTHORITIES ...................................................... 10
ISSUE NUMBER ONE:
THERE ARE NO ERRORS THAT WOULD RESULT IN REVERSAL OF THE
ORDER OF THE TRIAL COURT…………..………………………………….10
VI. PRAYER AND REQUEST TO WITHDRAW……………………...........12
VIII. CERTIFICATE OF SERVICE…………………………………………… 14
IX. CERTIFICATE OF COMPLIANCE………………………………………15
ii
LIST OF AUTHORITIES
Cases: Page
Anders v. California, 386 U.S. 738 (1967) ...................................................... 10, 12
Gagnon v. Scarpelli, 411 U.S. 778 (1973) ........................................................... 11
Hawkins v. State, 112 S.W.3d 340( Tex.App.–Corpus Christi 2003, no pet.) ...... 10
In re: Schulman, 252 S.W.3d 403 (Tex.Crim.App. 2008) .................................... 10
Jones v. State, 571 S.W.2d 191(Tex.Crim.App. 1978) ......................................... 12
Rickels v. State, 202 S.W.3d 759 (Tex. Crim. App. 2006) .............................. 11, 12
Sanchez v. State, 603 S.W.2d 869 (Tex.Crim.App. 1980) .................................. 12
Stafford v. State, 813 S.W.2d 503 (Tex.Crim.App. 1991) .................................... 10
Williams v. State, 976 S.W.2d 871 (Tex. App.—Corpus Christi 1998) ................ 12
Rules and Statutes:
TEX. PEN. CODE §22.02(a)(2) ................................................................................... 3
iii
CERTIFICATE OF COUNSEL
I, Luis A. Martinez, court-appointed counsel for Appellant, ELIO GARZA,
for purposes of this appeal, certify that I have diligently searched the Reporter’s
Record and Clerk’s Record in Trial Court Cause Number 14-05-11,998, researched
the law applicable to the facts and issues presented, if any, and it is my
professional opinion that no reversible error is reflected by the record.
I am of the professional opinion this appeal is without merit and frivolous,
and in compliance with applicable law pertaining to appeals of this type, I have set
forth all points which might arguably support an appeal, request permission to
withdraw, and acknowledge that I have forwarded a copy of this brief to Appellant,
ELIO GARZA, to his last known address, for the purposes of raising any points he
chooses, and filing a pro se brief.
By this certification, and by separate letter sent both in English and
Spanish, Appellant is being informed that he may file a pro se appellate brief
if he chooses, and any pro se brief must be filed with this Court within 30 days
of the filing of this Anders brief. Appellant is further advised that he may
request further time to file his pro se brief, and such request must be made in
writing and filed with the 13th Court of Appeals at: The Thirteenth Court of
Appeals, Corpus Christi Division, 901 Leopard, Nueces County Courthouse,
10th Floor, Corpus Christi, Texas 78401.
iv
CAUSE NO. 13-15-00256-CR
__________________________________________________________________
IN THE COURT OF APPEALS
FOR THE
THIRTEENTH JUDICIAL DISTRICT OF TEXAS
AT CORPUS CHRISTI
__________________________________________________________________
ELIO GARZA,
APPELLANT,
VS.
THE STATE OF TEXAS,
APPELLEE.
__________________________________________________________________
On Appeal in Cause No. 14-05-11,998 in the
th
24 Judicial District Court of Victoria County, Texas
Hon. Jack W. Marr, Judge Presiding
__________________________________________________________________
ANDERS BRIEF
TO THE HONORABLE COURT OF APPEALS:
Appellant, ELIO GARZA, by and through his court appointed counsel,
Luis A. Martinez, respectfully submits this ANDERS BRIEF in appeal of the
judgment and sentence of the Trial Court adjudicating him guilty of Aggravated
Assault with a Deadly Weapon and sentencing him to the Texas Department of
Criminal Justice-Institutional Division.
This is an appeal from the 24th Judicial District Court of Victoria County,
Texas, the Honorable Jack W. Marr, Judge Presiding in which the Appellant,
ELIO GARZA, was the Defendant and the State of Texas was the Plaintiff. As
required by the applicable rules, the parties will be called "Appellant" and the
"State."
I.
RECORD BEFORE COURT
The Clerk's Record consists of one volume and citation to this record will be
referenced in this brief by use of the abbreviation "CR" referring to the Clerk’s
Record and then the appropriate page number. For example, page 10 of the
Clerk’s Record shall be cited as CR-10.
The Reporter's Record furnished to Appellant consists of a total of four (4)
volumes. Citation to the Reporter's Record will be referenced in this brief by use of
the abbreviation "RR", followed by a roman numeral to indicate the volume,
followed by the appropriate page number. For example, page 10 of the Reporter’s
Record, volume two, shall be cited as RR-II-10.
II.
STATEMENT OF THE CASE
Appellant wishes to appeal the trial court’s judgment and sentence
adjudicating him guilty of Aggravated Assault with a Deadly Weapon and
2
sentencing him to ten years in the Institutional Division of the Texas Department
of Criminal Justice.
Appellant was charged by indictment with Aggravated Assault with a
Deadly Weapon pursuant to TEX. PEN. CODE §22.02(a)(2). [CR-9]. Said
indictment was filed on, or about, May 29, 2014. [CR-9].
A Plea Memorandum was executed and filed by Appellant on, or about,
August 14, 2014. [CR-17]. Appellant was placed on six (6) years of deferred
adjudication, assessed a $1,000.00 fine and court costs. [CR-35].
Subsequently, on or about, January 20, 2015, the State filed its State’s
Motion to Adjudicate Guilt and Petition for Revocation of Probated Sentence.
[CR-42]. Following a hearing on the motion, the Trial Court found it “True” that
Appellant had violated paragraphs I, II, III. and VII. of the State’s motion. [CR-
73].
The Trial Court certified that Appellant’s case was not a plea-bargain case
and that he had the right of appeal. [CR-72].
A Notice of Appeal was timely filed on, or about, May 20, 2015. [CR-79].
III.
ISSUES PRESENTED
ISSUE NUMBER ONE:
THERE ARE NO ERRORS THAT WOULD RESULT IN REVERSAL OF THE ORDER
OF THE TRIAL COURT.
3
IV.
STATEMENT OF THE FACTS
The Trial Court inquired of Appellant whether he was the same person
indicted for aggravated assault with a deadly weapon by the DeWitt County grand
jury by indictment filed on May 29, 2014, to which Appellant responded, “yes.”
[RR-III-10].1 Appellant indicated he was the person placed on deferred
adjudication and placed on probation for six years for the offense of Aggravated
Assault with a Deadly Weapon. Appellant agreed that he entered a plea of guilty,
but was placed on probation for six years. [RR-III-11].
The Trial Court read the Motion to Adjudicate filed by the District Attorney
for DeWitt County aloud to Appellant. [RR-III-12-15]. As to each count of the
motion to adjudicate filed in this cause, a plea of “Not True” was entered on
Appellant’s behalf. [RR-III-16-23].
Testimony of Leslie Vavra
Leslie Vavra, employed as a probation officer for the 24th Judicial District
Community Supervision and Corrections Department for 14 years, testified on
behalf of the State. [RR-III-29-30].
Ms. Vavra identified Appellant in open court. [RR-III-30]. Ms. Vavra
testified she was familiar with Appellant’s probation file. [RR-III-30]. Ms. Vavra
1
A translator translated for Appellant from the English to Spanish and Spanish to English
throughout the hearing on the State’s Motion to Adjudicate in this matter.
4
testified that because Appellant was a Spanish speaker, the terms and conditions of
probation were explained to Appellant the day after Appellant’s case was
addressed in Court. [RR-III-31].
Ms. Vavra was asked if her probation records indicated any new criminal
offenses committed by Appellant since he had been placed on probation. [RR-III-
34]. The State directed Ms. Vavra’s attention to Paragraph 1 of the State’s motion
to adjudicate guilt indicating that Appellant, on or about, December 19, 2014,
committed the offense of possession of marijuana in Guadalupe County, Texas.
[RR-III-35]. Ms. Vavros indicated that records indicated that Appellant was
convicted of the offense. [RR-III-39].
Ms. Vavros was asked by the State if she was familiar with Appellant’s
violation of Condition No. 11, in that Appellant failed to report for the months of
September, October and December of 2014. [RR-III-39]. Ms. Vavros indicated,
“Yes.” [RR-III-40].
As to Paragraph 4, the State asked Ms. Vavros whether the offense report
admitted into evidence indicated a violation of curfew. Ms. Vavros responded,
“Yes, because based on the report it shows he was arrested at 11:28 p.m.” [RR-III-
40].
As to Condition No. 24, Ms. Vavros testified that Appellant had not worked
any community service hours since being placed on probation. [RR-III-40].
5
Testimony of Lisa Segar
Lisa Segar of the Victoria Sheriff’s Office testified next on behalf of the
State. [RR-III-43]. Ms. Segar was shown State’s Exhibit 4. Ms. Segar identified
it as a ten print fingerprint card belonging to Elio Garza. [RR-III-44]. State’s
Exhibit 4 was admitted without objection. [RR-III-44].
The State next showed Ms. Segar State’s Exhibit 3. Ms. Segar testified she
was familiar with the document, had the opportunity to compare the fingerprints
between State’s Exhibit 3 and 4, and that they were the same. Ms. Segar was
asked if she could conclude that Elio Garza was the same person as Jesus Perez.
[RR-III-45]. She responded, “Yes, sir.” [RR-III-46].
Testimony of Appellant
After being admonished regarding his right to testify and the Trial Court
finding that Appellant understood he had a right not to testify, Appellant testified
on his own behalf. [RR-III-52].
Appellant testified that Chuy Perez is a nickname. [RR-III-53].
With respect to the possession of marijuana charge, Appellant testified that a
man named Pancho and Roy got in his truck and aimed a gun at his head. They
wanted money and Appellant told them he had no money. Pancho and Roy belong
to the Zeta cartel. The Zeta group go around taking people down and demanding
money from them. [RR-III-53]. Appellant could not recall the date when that
6
occurred. [RR-III-54]. Appellant stated he was in Yorktown when he was
threatened. Appellant did not know the last names of the men, but that those were
the two that got into his house. [RR-III-54].
From there, Appellant testified that “a policeman got him.” The policeman
removed Appellant’s clothes, but handcuffs on his and drew blood from Appellant.
[RR-III-55]. Appellant indicated that he had “tracks” where the blood was drawn.
Appellant indicated that needles were put in between the index finger and thumb
on both hands. [RR-III-55]. When asked why a policeman had approached him,
Appellant responded, “I told him I wasn’t sick. I didn’t have anything but he still
came….I told him I was not a drug addict. I didn’t do drugs. I am not depressed.
I have no diabetes. I’m not sick of anything. Then he brought me over here and he
gave me a low—a lower bid because he knew that I was helpless. I was—my
strength, I had no strength. That was a problem.” [RR-III-56].
Appellant continued that “Pancho and Roy brought me here and they wanted
me to give them the name or the place of the wife so that they could have sex with
her.” [RR-III-56]. Appellant recounted that Pancho and Roy took him to what
appeared to be a pasture and laid him on his back until the policeman came. [RR-
III-56]. Appellant indicated that the Zeta cartel men turned him over to the police
and that the police participated in that. [RR-III-56]. Appellant’s trial counsel
asked Appellant if he ended up pleading guilty to the marijuana charge; Appellant
7
responded, “Yes. I had to. I had to.” [RR-III-57]. When asked why he had to,
Appellant responded, “The policeman said that if I didn’t give myself as guilty
that—that he could kill me if he wanted to.” [RR-III-57]. Appellant said the
policeman told he when they were in the patrol car and other things. [RR-III-57].
Appellant also explained to the Trial Court that, “[T]he fact that probation
was broken I had nothing to do with it. Immigration lost all my papers. I didn’t
know where to report.” [RR-III-58].
Appellant’s counsel asked of him regarding the allegation that he failed to
report his November 24 arrest within five days. Appellant responded, “They were
the same ones. They want money and how can I give them money when I don’t
have any.” [RR-III-59]. When asked what prevented Appellant from reporting
his arrest, Appellant responded, “The papers that immigration threw away I didn’t
know when to report and besides I don’t know how to read English. Immigration
told me that none of the papers that I had would do me no good.” [RR-III-59].
When asked about being behind in various court costs and monetary
obligations, Appellant responded, “I can pay that but how can I pay it if I’m locked
up. If I go outside I’ll be all right I can pay, but here I can’t pay a thing.” [RR-III-
60].
Appellant was next asked by his trial counsel why he was late paying before,
Appellant responded, I had no papers to let me know that I needed to do that. They
8
took the papers right out of my hand and pitched them in the trash can and I told
them these are important papers to me. I couldn’t say anything else. I mean, these
people kill. What can I do.” [RR-III-60]. Appellant’s counsel followed up by
asking if Appellant was simply saying that he didn’t know where to report,
Appellant testified, “No. No. I didn’t. Here they’re telling me that it’s closed but
how was I to know.” [RR-III-60].
Appellant’s counsel next asked about why he was behind on his community
service, Appellant responded, “I didn’t know where. I didn’t know anything. This
is what I was asking you where can I help myself. I don’t know where to help
myself. I don’t know the rules. I never been in jail or locked up in my life.
Nothing but work.” [RR-III-61].
During the cross-examination of Appellant, he confirmed that a Spanish
speaker with the probation department met Appellant in the DeWitt County Jail.
[RR-III-62]. He confirmed that the rules of probation were explained to him. Id.
The Trial Court’s Ruling
At the end of the hearing, the Trial Court found that paragraphs one, two and
three of the State’s motion to adjudicate guilt and petition for revocation were
“True.” The Trial Court adjudicated Appellant and found him guilty of aggravated
assault with a deadly weapon. [RR-III-65]. The Trial Court sentenced Appellant
to ten years in the Texas Department of Criminal Justice. [RR-III-66].
9
V.
SUMMARY OF THE ARGUMENT
The undersigned has diligently reviewed the record, both Clerk’s and
Reporter’s Record. After such review, it is the undersigned’s opinion that there are
no errors that would result in the reversal of the revocation and sentence in this
matter and accordingly has filed this Anders Brief.
VI.
ARGUMENT AND AUTHORITIES
ISSUE NUMBER ONE:
There are no errors that would result in reversal of the judgment and
sentence of the trial court.
In accordance with In re: Schulman, the undersigned has provided record
references to the facts and proceedings in this matter. See In re: Schulman, 252
S.W.3d 403, 407 n.9 (Tex.Crim.App. 2008) see also Hawkins v. State, 112 S.W.3d
340, 343-44( Tex.App.–Corpus Christi 2003, no pet.) Stafford v. State, 813 S.W.2d
503-510, n. 3 (Tex.Crim.App. 1991). After the review of the record in this case, it
is the undersigned’s belief that there are no reasonably arguable factual or
evidentiary issues that would result in the reversal the Trial Court’s decision to
adjudicate Appellant in this matter. Further, there is no reasonably arguable issue
that would affect the sentencing in this matter.
10
It appears from the record that Due Process was afforded Appellant during
the motion to adjudicate hearing. In Gagnon v. Scarpelli, the Supreme Court
enunciated the minimum requirements of due process which must be observed in
community supervision revocation hearings: (1) written notice of the claimed
violations of probation; (2) disclosure to the probationer of the evidence against
him; (3) opportunity to be heard in person and to present witnesses and evidence,
and the right to confront and cross-examine adverse witnesses; (4) a neutral and
detached hearing body; and (5) a written statement by the fact finders as to the
evidence relied on and the reasons for revoking probation. Gagnon v. Scarpelli,
411 U.S. 778, 786 (1973).
The record supports that Appellant was afforded all the requirements of Due
Process. He was given written notice of the claimed violations of probation, made
aware of the charges and evidence regarding the State’s motion and was given the
opportunity to be heard and to present evidence and cross-examine the State’s
witnesses. The record does not support that the Trial Court was anything other
than neutral and detached. Further, Appellant was provided reasons for the
revocation in writing.
Appellate review of an order revoking community supervision is limited to
determining whether the trial court abused its discretion. See Rickels v. State, 202
S.W.3d 759, 763 (Tex. Crim. App. 2006). The central issue to be determined in
11
reviewing a trial court's exercise of discretion in a community supervision
revocation case is whether the defendant was afforded due process of law. An
order revoking community supervision must be supported by a preponderance of
the evidence, meaning the greater weight of the credible evidence that would create
a reasonable belief that the defendant has violated a condition of probation. Id. at
763-64.
A finding of a single violation of community supervision is sufficient to
support revocation. See Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App.
[Panel Op.] 1980). Thus, in order to prevail, appellant must successfully challenge
all the findings that support the revocation order. See Jones v. State, 571 S.W.2d
191, 193-94 (Tex. Crim. App. [Panel Op.] 1978)(emphasis added). The record
does not support that Appellant could successfully challenge each and all of the
findings that support the Trial Court’s revocation order.
VII.
PRAYER AND REQUEST TO WITHDRAW
In accordance with the principles set forth in Anders v. California, 386 U.S.
738 (1967); Williams v. State, 976 S.W.2d 871 (Tex.App.–Corpus Christi 1998),
Counsel believes there are no reasonably arguable factual or evidentiary issues
disclosed by the record in this case which would amount to reversible error.
A Defendant’s right to assistance of counsel does not include the right to
12
have an attorney urge frivolous or non-meritorious claims. As such, Counsel
requests this Court allow him to withdraw from further representation of
Appellant.
Counsel requests that this Court undertake a full examination of the trial
court proceedings and decide whether the case is in fact wholly frivolous and
without merit, and allow Appellant sufficient time to review the record, research
any point he wishes to raise, and submit his own brief.
Respectfully submitted,
LUIS A. MARTINEZ, P.C.
P.O. Box 410
Victoria, Texas 77902-0410
(361) 676-2750 (Telephone)
(361) 575-8454 (Telecopier)
Email:
Lamvictoriacounty@gmail.com
BY:
_____________________________
Luis A. Martinez
State Bar No. 24010213
ATTORNEY FOR APPELLANT
ELIO GARZA
13
VIII.
CERTIFICATE OF SERVICE
This is to certify that a true copy of the foregoing document was served upon
the Honorable Robert C. Lassmann, Assistant DeWitt County Criminal District
Attorney, and upon the Appellant, Mr. Elio Garza, in the manner indicated below,
on this 26th day of October, 2015, pursuant to the Texas Rules of Appellate
Procedure.
___________________________________
Luis A. Martinez
Via Electronic Mail, rclassmann1@sbcglobal.net
HON. ROBERT LASSMAN
24th Judicial District Attorney
DeWitt County Courthouse
307 N. Gonzalez
Cuero, Texas 77954
Attorney for the State on Appeal
Via Certified Mail, RRR
Mr. Elio Garza
TDCJ#: 02002797
ID-TDCJ, Willacy Unit
1695 South Buffalo Drive
Raymondville, Texas 78580
Appellant
14
IX.
CERTIFICATE OF COMPLIANCE
I certify that the following document uses fourteen (14) point font for text
and twelve (12) point font for footnotes. I further certify that the word count in
this document for those matters not excluded by Rule 9.4 is less than the minimum
allowed for an appellant’s brief and is 2,128 words.
_______________________
Luis A. Martinez
15