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