Jose Aguilera v. State, 01-14-00726-CR

Background

Defendant Jose Aguilera was convicted by a jury of aggravated robbery and sentenced to 8.5 years' imprisonment after a one‑day trial; he filed a timely notice of appeal.
Facts at trial: complainant Reyes was approached by two men who pointed guns, took his wallet (containing cash), struck him, and fired shots; Reyes identified Aguilera in a photo spread and in court as “Rambo.”
Aguilera gave a recorded custodial statement (Miranda warnings given), admitted possession of a revolver, identified a co‑participant (“Pirata”), and admitted being an accomplice to a robbery; the statement and its English translation were admitted by agreement.
Defense filed a sworn motion asserting probation eligibility but did not present evidence at punishment proving no prior felony conviction; the jury was instructed on community supervision and returned a punishment verdict without granting probation.
Appellate counsel filed an Anders brief concluding there are no non‑frivolous appellate issues, raising and analyzing: (1) ineffective assistance for failing to prove probation eligibility; (2) ineffective assistance for not objecting to the statement; (3) admission of the translation under Tex. R. Evid. 1009; and (4) various other claims (indictment sufficiency, evidentiary rulings, jury charge, sufficiency of evidence). Counsel requests permission to withdraw.

Issues

Issue	Appellant's Argument	State's Argument	Held
1. Ineffective assistance — failure to prove probation eligibility	Trial counsel erred by not proving Aguilera never had a prior felony (failed to "prove up" the sworn motion), depriving him of a meaningful chance at community supervision	Defense actually filed the sworn motion; jury was instructed on probation; counsel’s failure to present proof did not create reversible error and prejudice cannot be shown on a direct record	Appellate counsel concludes no non‑frivolous Strickland claim on direct appeal because eligibility is not established on record and prejudice is not shown
2. Ineffective assistance — failure to object to admission of custodial statement	Counsel should have objected and sought suppression of the custodial statement	Statement was admitted by agreement as a strategic decision; record shows Miranda warnings and no clear basis to suppress	Appellate counsel finds no non‑frivolous issue; strategic waiver is entitled to deference
3. Admission of translation under Tex. R. Evid. 1009	1009 requires 45‑day pretrial service of translator affidavit; failure violated the rule so translation admission was error	45‑day timing was waived by agreement and by Aguilera’s decision to proceed to trial; court gave a limiting instruction; court may shorten the deadline for good cause	Appellate counsel concludes no non‑frivolous error: waiver and limiting instruction cured any 1009 timing concern
4. Miscellaneous claims (indictment, evidentiary rulings, jury charge, sufficiency, sentencing, punishment evidence)	Various trial errors and preserved objections warrant appellate review (e.g., law‑of‑parties instruction, Facebook photos, hearsay, admission of other‑acts evidence)	Indictment tracks statute; most objections were either sustained or harmless because similar evidence was admitted; law‑of‑parties instruction was supported by evidence; evidence sufficed to support conviction; sentence within statutory range	Appellate counsel determines these issues are frivolous or, if arguable, lack reversible error—no non‑frivolous appellate issues identified

Key Cases Cited

Anders v. California, 386 U.S. 738 (U.S. 1967) (appointed counsel may move to withdraw if appeal is wholly frivolous but must provide a brief pointing out anything arguable)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑prong standard for ineffective assistance: deficient performance and prejudice)
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) (deference to trial counsel and requirement that ineffectiveness be firmly founded in the record)
Mansfield v. State, 306 S.W.3d 773 (Tex. Crim. App. 2010) (defendant must plead and prove lack of prior felony to be eligible for community supervision)
Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991) (requirements for Anders brief in Texas and counsel’s duty to discuss anything that might arguably support the appeal)
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (standard for assessing jury‑charge error and harm)
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (standards for sufficiency review of the evidence)