ACCEPTED
03-14-00411-CR
6549042
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/18/2015 4:05:11 PM
JEFFREY D. KYLE
NO. 03-14-00411-CR CLERK
(Trial Court No. A-11-0535-S)
FILED IN
IN THE 3rd COURT OF APPEALS
AUSTIN, TEXAS
COURT OF APPEALS 8/18/2015 4:05:11 PM
JEFFREY D. KYLE
FOR THE THIRD Clerk
SUPREME JUDICIAL DISTRICT OF TEXAS
MANUEL RUIZ CONSTANCIO,
Appellant.
vs.
THE STATE OF TEXAS,
Appellee.
From the 51ST Judicial District Court
ofTom Green County, Texas
The Honorable Jay Weatherby, Judge Presiding
BRIEF OF APPELLANT
ORAL ARGUMENT NOT REQUESTED
SHAWNTELL McKILLOP
25 West Beauregard Avenue
San Angelo, Texas 76903
Telephone: (325) 658-1991
Facsimile: (325) 655-1391
Texas State Bar No.24007655
E-Mail: mckillopattomey@hotmail.com
Court Appointed Attorney for Appellant
1
IDENTITY OF PARTIES AND COUNSEL
In order that the members of the Court may determine disqualifications
or refusal pursuant to Rule 74(a) of the Texas Rules of Appellate Procedure,
Appellant certifies that the following is a complete list of all parties interested
in the outcome and their attorneys of record:
Mr. George McCrea
Tom Green County District Attorney
124 West Beauregard A venue
San Angelo, Texas 76903
APPELLEE
Kirk Hawkins
P.O. Box 3645
San Angelo, Texas 76902
State Bar No. 09250400
DEFENSE AND TRIAL ATTORNEY
Mr. Manuel Ruiz Constancio
TDCJNumber 01938566
John Middleton Transfer Facility
13055 FM 3522
Abilene, Texas 79601
APPELLANT
Shawntell McKillop
25 West Beauregard Avenue
San Angelo, Texas 76903
State Bar No.24007655
ATTORNEY FOR APPELLANT
The Honorable Jay Weatherby
Tom Green County Courthouse
112 West Beauregard Avenue
San Angelo, Texas 76903
TRIAL JUDGE
2
TABLE OF CONTENTS
Index of Authorities 3
Statement of the Case 4
Statement of the Facts 6
Sufficiency of the Evidence 9
Objections 9
Effectiveness of Counsel 9
Punishment 11
Conclusion 11
Prayer 11
2
INDEX OF AUTHORITIES
CASE Page
Anders v. California 386 US 738, 87 S. Ct. 1396, 18 L.Ed 2"ct 493
(1963) 5
Delacruz v. State 167 SW3d 905 at 906 (Tx.App.-Texarkana 2005) 5
High v. State 573 SW2d 807 (Tx.Crim.App. 1978 5
Stafford v. State 813 SW2d 503 (Tx.Crim.App. 1991) 5
Strickland v. Washington 466 US 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984) 12
Winchester v. State 246 SW3d 386 At 388 (Tx.App.-Amarillo 2008) 12
STATUTES
Rule 74(a), Texas Rules of Appellate Procedure 5
Penal Code, Section 20.03 4
3
STATEMENT OF THE CASE
The Appellant, Manuel Ruiz Constancio, was originally indicted July 6,
2011 for the offense of aggravated robbery a prior conviction under Texas
Penal Code §20.03, a first degree felony enhanced (C.R.at 8). On or about June
5, 2012, Appellant plead guilty to the offense of Robbery, a lesser included
second degree felony offense of the original indicted offense. (C.R.at 9) After
hearing testimony, the Court found that the evidence substantiated Appellant's
guilt, further deferred proceedings without entering an adjudication of guilty,
and placed Appellant on adult probation for a period often (10) years. (C.R.at
9)
On August 19, 2013, the State filed a motion to revoke deferred
adjudication and to proceed to adjudicate guilt alleging Manuel Ruiz Constancio
violated the terms and conditions of probation (C.R.at 33-35). On April 24,
2014, before the Honorable Jay Weatherby, Presiding Judge of the 51 51 District
Court, Appellant entered a plea of not true to each of the allegations in the
motion to adjudicate guilt. After hearing testimony and considering the
evidence, the Court sentenced the Manuel Ruiz Constancio to 10 years in the
State Jail Division ofthe Texas Department of Criminal Justice (IV R.R.at 25).
4
Appellant filed a motion for new trial on April 29, 2014. On June 6,
2014,the Court appointed Shawntell McKillop to represent Appellant on this
appeal.
Counsel has reviewed the record, interviewed the Appellant, spoken with
Appellant's trial counsel. Counsel can find no arguable grounds on which to
appeal. Counsel will attempt to comply with the guidelines regarding such
appeals as set forth in High v. State 573 SW2d 807 (Tx.Crim.App. 1978),
Anders v. California 386 US 738, 87 S. Ct. 1396, 18 L.Ed 2nd 493 (1963), and
Staffordv. State 813 SW2d 503 (Tx.Crim.App. 1991).
The record consists ofthe Clerk's record in one (1) volume of66 pages
which will be referred to as "C.R.", and the reporter's record which consist of
four (4) volumes, which will be referred to as "R.R.". Volume one contains the
master index; Volume two is the transcription of Appellant's jury trial from
January 24, 2014 on Cause No. A-11-0535-S; Volume three is the transcription
of Appellant's jury trial from January 25, 2014 on Cause No. A-11-0535-S;
Volume four is the record from the final hearing on the State's motion to
adjudicate on April 34, 2014; Volume five contains the exhibits from both
hearings.
5
STATEMENT OF THE FACTS
On August 19, 2013, the State filed a motion to revoke deferred
adjudication and to proceed to adjudicate guilt alleging Manuel Ruiz
Constancioviolated the terms and conditions of probation (C.R. at 33-35). The
State's motion contained four allegations: (1) on or about July 14, 2013,
Appellant had committed the offense of indecency with a child younger than
seventeen (17) years of age; (2) Appellant failed to complete 240 hours of
community service; (3) Appellant failed to report in person to the Concho
Valley Community Supervision and Corrections Department; and (4) Appellant
failed to complete a required "theft by check" course (C.R. at 33-35). The State
ultimately abandoned the fourth allegation. (IV R.R. at 28-29) The Court heard
evidence as to the remaining three allegations of the State's motion to revoke
deferred adjudication.
On January 25, 2014, after the conclusion of a two-day jury trial Manuel
Constancio was found guilty of Indecency with a Child by Sexual Contact
District Court Cause Number A-13-1024-SA (III R.R. 108).
On April 24, 2014, the final hearing on the State's motion to revoke and
adjudication of guilt was reconvened from the jury trial regarding Cause No. A-
6
13-1024-SA (IV R.R. at 5-7). The Court took judicial notice of the testimony
and evidence the Court heard during that matter and proceeded to hear evidence
regarding the remaining allegations in the State's motion to revoke deferred
adjudication.
The State called Lara Allen, a probation officer with the Concho Valley
Community Supervisions and Corrections Department(IV R.R. at 8). She
testified generally that Appellant had violated conditions of his probation by
failing to complete the monthly requisite of community serviceand that he
failed to report in person to the Concho Valley Community Supervisions and
Corrections Department. Specifically, Ms. Allen testified that Appellant was
required to complete ten (10) community service hours per month until he
completed the 240 hours (IV R.R. at 11 ). On cross-examination, Ms.· Allen
admitted that Appellant had three (3) years to complete his required community
service hours and had, in less than one year, completed but fifty-five and a half
hours ofthe 240 he was ordered to serve (IV R.R. at 13-14).
Additionally, Ms. Allen stated that Appellant failed to report in person
for at least one scheduled office visit with his probation officer during the week
of June 5, 2015. When asked for the Departments' recommendation, Ms. Allen
recommended revocation, due to Appellant's non-compliance with his probation
7
conditions and for being convicted of sexual indecency with a child (IV R.R. at
12).
Appellant, Manuel Ruiz Constancio, testified on his own behalf.
Appellant testified that, as far as his community service hours were concerned,
he worked in the custodial department at the Keys Building and his supervisor's
name was Ray (IV R.R. IV at 15). Appellant testified that he failed to complete
the required minimum of ten hours community service hours for the month of
June 2013 because his supervisor, Ray, had verbally told Appellant he was
caught up on his hours. When Appellant met with his probation officer in July,
he was given the opportunity to get caught up on his hours (IV R.R. at 16).
Appellant further testified that he had made an effort to tum his life around and
start his own business, in addition to working other jobs to support his family
(IV R.R. at 16).
On cross-examination, Appellant denied committing both the underlying
offense of robbery and the offense of indecency with a child, of which he had
been previously convicted (IV R.R. at 18). Appellant stated thathe did plead
guilty to the underlying offense ofrobbery, but only to get probation and avoid
possible jail time (IV R.R. at 18).
After considering all the evidence, the Court found that Appellant
violated the terms and conditions of his probation, revoked probation, and
8
entered a finding of guilt (IV R.R. at 25). The Court sentenced Appellant to (10)
ten years in the Institutional Division of The Texas Department of Criminal
Justice (IV R.R. at 25).
SUFFICIENCY OF THE EVIDENCE
On June 5, 2012, Appellant signed a written stipulation of evidence
admitting guilt. Appellant's guilty plea and the Court's findings that he had
violated the terms of his probation were sufficient to adjudicate guilt.
OBJECTIONS
There were no objections made by either party during the trial.
EFFECTIVENESS OF COUNSEL
This Court evaluates ineffective assistance of counsel claims based on the
standard or review established by the United States Supreme Court in Strickland v.
Washington and adopted by the Texas Court of Criminal Appeals. Strickland v.
Washington, 466 U.S. 688 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.
Crim. App. 1999).
In Strickland, the United States Supreme Court established a two-part test
applied in reviewing ineffective assistance of counsel claims on appeal.
Strickland v. Washington, 466 U.S. at 687. The two part test known as the
Strickland Standard provides as follows: "First, the defendant must show that
9
counsel's performance was deficient. This requires a showing that counsel made
errors so serious that counsel was not functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires showing that
counsel's errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable. Unless a defendant makes both showings, it carmot be
said that the conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable." !d.
This Court applies the Strickland Standard as interpreted by the Texas
Court of Criminal Appeals. This Court requires a defendant to first show the
perfonnance of the defendant's trail counsel was deficient. After successfully
illustrating trial counsel's deficient performance, the defendant must show this
deficient performance actually prejudiced the defendant. Thompson v. State, 9
S.W.3d 808, 812 (Tex. Crim. App. 1999); Strickland v. Washington, 466 U.S. at
694. The defendant is required to prove by a preponderance of the evidence that
his trial counsel rendered ineffective assistance of counsel. Bone v. State, 77
S.W.3d 828, 833 (Tex. Crim. App. 2002.
The trial court appointed attorney Kirk Hawkins to represent Appellant on
August 29, 2013 on the State's motion to revoke deferred adjudication (C.R. 36).
Appellant's counsel cross-examined the State's witnesses extensively as
10
well as thoroughly questioning Appellant, himself. Mr. Hawkins attempted to
prove to the Court that Appellant had made a sincere effort to tum his life
around and asked the Court for leniency in the sentence of this matter (IV R.R.
24). The Trial Counsel's performance far exceeded the standards for effective
assistance of counsel based on the definition of ineffective assistance as per
Stafford v. State 813 SW2d 503 (Tx.Crim.App. 1991) and Strickland v.
Washington 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
The record reflects that Attorney Kirk Hawkins effectively represented
Appellant throughout the entire case. The record does not indicate that Attorney
Hawkins was deficient in any way. In this counsel's opinion, in the event that
Mr.Hawkins's performance was somehow deficient, the evidence from the record
does not indicate it prejudiced Appellant in any manner.
PUNISHMENT
The courts have traditionally held that punishment assessed within the
range set by the legislature in a valid statute is not excessive, cruel, or unusual.
Winchester v. State 246 SW3d 386 at 388 (Tx.App.-Amarillo 2008), petition for
discretionary review refused, Delacruz v. State 167 SW3d 905 at 906 (Tx.App.-
Texarkana 2005). The maximum sentence for this charge would be twenty
11
years, with a minimum of two. The Court assessed punishment within the
statutory range for this offense.
CONCLUSION
After reviewing the record of the case, Appellant's counsel can find no
reversible error.
PRAYER
Shawntell McKillop, Counsel for Manuel Ruiz Constancio, prays this Court
acknowledge and approve her request to withdraw from her court appointed
duty of providing farther legal representation to appellant on original appeal.
Appellant Manuel Ruiz Constancio prays for additional time to review the
Anders Brief submitted on behalf of Appellant and the opportunity to file a pro
se Appellant's Brief on Original Appeal on his own behalf.
Respectfully submitted,
/s/Shawntell McKillop
Shawntell McKillop
25 West Beauregard Avenue
San Angelo, Texas 76903
(325) 658-1991
STATE BARNO. 24007655
E-Mail: mckillopattomey@hotmail.com
12
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the above was served on Mr.
George McCrea, 1191h District Attorney, Tom Green County Courthouse, Court
Street Annex, 124 West Beauregard, San Angelo, Texas 76903; and on
Appellant, Mr. Manuel Constancio, 1536 East IH-10, Fort Stockton, Texas
76901, on this 17th day of August, 2015.
I further certify that I have mailed a notice to the Appellant at the above-
referenced address on August 17, 2015, informing of my intention of filing a
frivolous appeal and advising her of her rights to file her own brief and to
review the record.
Is/ Shawntell McKillop
Shawntell McKillop
CERTIFICATE OF COMPLIANCE
I certify that the above and foregoing Appellant's Brief contains 1,742
words.
Is/ Shawntell McKillop
Shawntell McKillop
NOTICE TO APPELLANT, MANUEL CONSTANCIO
YOU HAVE THE RIGHT TO FILE YOUR OWN BRIEF IN THIS
CAUSE. YOU ALSO HAVE THE RIGHT TO REVIEW THE COURT
RECORD AND THE COURT REPORTER'S RECORD. YOU HAVE
THIRTY (30) DAYS FROM THE DATE OF THE FILING OF THIS
BRIEF IN WHICH TO PREPARE AND SUBMIT YOUR OWN BRIEF.
/s/Shawntell McKillop
Shawntell McKillop
13
SHAWNTELL MCKILLOP
ATTORNEY-AT-LAW
25 W. Beauregard Ave.
San Angelo, Texas 76903-5832
Phone: (325) 658-1991 Fax: (325) 655-1391
Email: mckillopattomey@hotmail.com http://www .mckillopattomey.com
August 17,2015
Mr. Manuel Ruiz Constancio CMRR No.7014 2120 0001 8641 1231
TDCJ # 01938566
Fort Stockton Unit
1536 East IH-10
Fort Stockton TX, 79735
Re: Manuel Ruiz Constancio v. The State Of Texas
Dear Mr. Constancio:
Enclosed please fmd a copy ofthe motion to withdraw as counsel and brief pursuant
to Anders v. California that I have prepared and filed in your case. After a diligent
search of both the clerk's record and reporter's record in your case and a review of
the applicable law, it is my opinion that no reversible error occurred at your trial.
Whenever appellate counsel files a motion such as this, the law provides the
appellant the right to review the record and file a response identifying to the appellate
court any grounds he thinks are non-frivolous issues to be raised on his behalf that
the appellate court should consider in deciding whether the case presents any
meritorious grounds for appeal. Because I have filed this motion and brief, you now
have the right to review the record and file a response or brief if you so choose. To
assist you in obtaining the record if you wish to review it, I have enclosed a Motion
for Pro Se Access to the Appellate Record for you to file. In order to obtain the
appellate record, you must sign and date the motion and mail it to the Third Court of
Appeals within ten days of the date of this letter at the following address:
1
Jeffrey D. Kyle, Clerk
Third Court of Appeals
Post Office Box 12547
Austin, Texas 78711
The Court of Appeals will then direct the clerk ofthe trial court to provide you with
a copy of the appellate record. Your response will be due to be filed in the Third
Court of Appeals within 30 days ofthe date the clerk provides the record to you.
Whether or not you file a response, the law requires the Court of Appeals to review
the record to determine if the Court agrees with my assessment that no meritorious
grounds for appeal exist, i.e., that no reversible error exists.. If the Court does not
agree, but instead believes there are non-frivolous issues to be raised on your behalf,
the Court must abate the appeal to have another attorney appointed to review the
record on your behalf.
Should the Court of Appeals ultimately determine that there are no meritorious
grounds to be raised and that your appeal is frivolous, the Court will affirm your
conviction and sentence. You may then file a pro se petition for discretionary review
with the Texas Court of Criminal Appeals. Such petition must be filed within 30
days of the date the Court of Appeals renders its judgment.
Feel free to write me if you have any questions about the procedure utilized in your
appeal. I will do my best to answer any questions you may have.
Sincerely,
~cKill~:>
Attorney at Law
Enclosures: Copy of Anders Brief
Copy of Certificate of Service
Motion to Withdraw
Original plus copies of Pro Se Motion for Access to the Appellate
Record
2
NO. 03-14-00411-CR
MANUEL RUIZ CONSTANCIO § 1N THE COURT OF APPEALS
§
v. § THIRD JUDICIAL DISTRICT
§
THE STATE OF TEXAS § SITTlNG AT AUSTlN, TEXAS
MOTION FOR PROSE ACCESS TO THE APPELLATE RECORD
To the Honorable Third Court of Appeals, now comes Manuel Ruiz Constancio and requests this
court provide me with a copy of the clerks record and reporters record so that I may prepare a
brief on my behalf.
My Current Address is: TDCJ # 01938566, Fort Stockton Unit,1536 East IH-10, Fort Stockton
TX, 79735
Respectfully Submitted,
Manuel Ruiz Constancio
CERTIFICATE OF SERVICE
This is to certify that on _ _ _ _ _ _ _ _ , 2015, a true and correct copy of the
above and foregoing document was served on the District Attorney's Office, Tom Green County
124 W. Beauregard San Angelo TX 76903-5835.
Manuel Ruiz Constancio
NO. 03-14-00411-CR
MANUEL RUIZ CONSTANCIO § IN THE COURT OF APPEALS
§
v. § THIRD JUDICIAL DISTRICT
§
THE STATE OF TEXAS § SITTING AT AUSTIN, TEXAS
MOTION FOR PRO SE ACCESS TO THE APPELLATE RECORD
To the Honorable Third Court of Appeals, now comes Manuel Ruiz Constancio and requests this
court provide me with a copy of the clerks record and reporters record so that I may prepare a
brief on my behalf.
My Current Address is: IDCJ # 01938566, Fort Stockton Unit,1536 East IH-10, Fort Stockton
TX, 79735
Respectfully Submitted,
Manuel Ruiz Constancio
CERTIFICATE OF SERVICE
This is to certify that on _ _ _ _ _ _ _ ___, 2015, a true and correct copy of the
above and foregoing document was served on the District Attorney's Office, Tom Green County
124 W. Beauregard San Angelo TX 76903-5835.
Manuel Ruiz Constancio
NO. 03-14-00411-CR
MANUEL RUIZ CONSTANCIO § IN THE COURT OF APPEALS
§
v. § THIRD JUDICIAL DISTRICT
§
THE STATE OF TEXAS § SITTING AT AUSTIN, TEXAS
MOTION FOR PROSE ACCESS TO THE APPELLATE RECORD
To the Honorable Third Court of Appeals, now comes Manuel Ruiz Constancio and requests this
court provide me with a copy of the clerks record and reporters record so that I may prepare a
brief on my behalf.
My Current Address is: TDCJ # 01938566, Fort Stockton Unit,1536 East IH-10, Fort Stockton
TX, 79735
Respectfully Submitted,
Manuel Ruiz Constancio
CERTIFICATE OF SERVICE
This is to certify that on _ _ _ _ _ _ _ _, 2015, a true and correct copy of the
above and foregoing document was served on the District Attorney's Office, Tom Green County
124 W. Beauregard San Angelo TX 76903-5835.
Manuel Ruiz Constancio
CAUSE NO. 03-14-00411-CR
MANUEL RUIZ CONSTANCIO § IN THE COURT OF APPEALS
§
vs. § THIRD JUDICIAL DISTRICT
§
THE STATE OF TEXAS § SITTING AT AUSTIN, TEXAS
CERTIFICATE OF COUNSEL
In compliance with the requirements of Anders v. California, 386 U.S. 378
(1967), I, Shawntell McKillop court-appointed cmmsel for appellant, MANUEL
RUIZ CONSTANCIO in the above-referenced appeal, do hereby verify, in writing,
to the Court that I have:
1. notified appellant that I filed a motion to withdraw as cmmsel with an
accompanying Anders brief, and provided a copy of each to appellant;
2. informed appellant of his right to file a pro se response identifying what he
believes to be meritorious grounds to be raised in his appeal, should he so
desire;
3. advised 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,
/s/Shawntell McKillop
Shawntell McKillop