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Christopher Ray Olivarez v. State
12-15-00107-CR
Tex. App.
Nov 23, 2015
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Background

  • On September 18, 2014, an Anderson County grand jury indicted Christopher Ray Olivarez for manufacture or delivery of a Penalty Group I substance (≥1 g but <4 g) in a drug‑free zone.
  • On March 17, 2015 Olivarez pleaded guilty before a jury and pleaded true to a single enhancement paragraph; the State abandoned the drug‑free‑zone enhancement in the plea agreement.
  • A jury‑sentencing hearing was conducted; on March 18, 2015 the jury assessed 25 years’ imprisonment.
  • Appellant filed post‑trial motions, a notice of appeal, and requested the clerk’s and reporter’s records; counsel moved to file an Anders brief concluding no arguable appealable issues.
  • Counsel requests permission to withdraw and asks the court to allow Olivarez a reasonable time to file a pro se brief after counsel’s withdrawal.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether counsel may withdraw after concluding no nonfrivolous issues exist and Anders procedure applies Counsel (appellant) contends a full review reveals no arguable grounds; asks to withdraw and permit pro se filing time State opposes only to the extent not specified; underlying record supports plea and sentence Court should permit Anders withdrawal and allow reasonable time for pro se brief (requested relief)
Whether plea/jury admission precludes appellate attack on guilt Counsel argues guilty plea before jury admits all facts necessary for guilt; appellate challenge to guilt is frivolous State relies on plea and record to assert guilt established Plea before jury admits facts; guilt challenge is frivolous
Whether plea of true to enhancement forecloses challenge to enhancement and sentence Counsel argues plea of true satisfies State’s enhancement proof; punishment within statutory range so sentence not challengeable State relies on plea of true and lawful range Plea of true suffices; sentence within range is generally not disturbed
Whether any arguable points of error exist to support appeal Counsel asserts exhaustive review found none and thus Anders brief appropriate State presumably would defend judgment if appeal pursued No nonfrivolous issues identified; Anders procedure appropriate

Key Cases Cited

  • Anders v. California, 386 U.S. 738 (1967) (procedure when appointed counsel finds appeal frivolous)
  • Miller v. State, 412 S.W.2d 650 (Tex. Crim. App. 1967) (guilty plea to felony admits facts necessary to establish guilt)
  • Harvey v. State, 611 S.W.2d 108 (Tex. Crim. App. 1981) (plea of true to enhancement is sufficient proof)
  • Jackson v. State, 680 S.W.2d 809 (Tex. Crim. App. 1984) (appellate courts generally will not disturb a sentence within the statutory range)
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Case Details

Case Name: Christopher Ray Olivarez v. State
Court Name: Court of Appeals of Texas
Date Published: Nov 23, 2015
Docket Number: 12-15-00107-CR
Court Abbreviation: Tex. App.