Christopher Ray Olivarez v. State

Case Information

CAUSE NUMBER 12-15-00107-CR FILED IN 12th COURT OF APPEALS TYLER, TEXAS IN THE COURT OF APPEALS FOR THE 11/23/2015 12:03:06 PM PAM ESTES Clerk TWELFTH APPELLATE DISTRICT OF TEXAS

AT TYLER

CHRISTOPHER RAY OLIVAREZ VS.

THE STATE OF TEXAS

CAUSE NUMBER 31,900 IN THE $3^{\text{RD}}$ JUDICIAL DISTRICT COURT ANDERSON COUNTY, TEXAS

APPELLANT'S BRIEF

Colin D. McFall Attorney at Law 513 North Church Street Palestine, Texas 75801-2962 Telephone: 903-723-1923 Facsimile: 903-723-0269 Email: cmcfall@mcfall-law-office.com Counsel for Appellant

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IDENTITY OF PARTIES AND COUNSEL

Pursuant to Rule 38.1 (a), Texas Rules of Appellate Procedure, Appellnt provides a complete list of all parties and the names and addresses of Counsel:

| Defendant | Christopher Ray Olivarez | | :-- | :-- | | and Appellant: | | | Defendant's Trial | Colin D. McFall | | and Appellate Counsel: | Attorney at Law | | | 513 North Church Street | | | Palestine, Texas 75801-2965 | | | Telephone: 903-723-1923 | | | Facsimile: 903-723-0269 | | State's Trial | Scott Holden | | and Appellate Counsel: | Anderson County District Attorney's Office | | | 500 North Church Street, Suite 38 | | | Palestine, Texas 75801 | | | Telephone: 903-723-7400 | | | Facsimile: 903-723-7818 |

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ..... 2 TABLE OF CONTENTS ..... 3 INDEX OF AUTHORITIES ..... 4 STATEMENT OF THE CASE ..... 5 STATEMENT REGARDING ORAL ARGUMENT ..... 7 ISSUE PRESENTED I. THE APPELLATE COURT SHOULD ALLOW COUNSEL, UPON MAKING THE DETERMINATION THERE WAS NO ERROR IN THE TRIAL COURT, TO WITHDRAW AND APPELLANT ALLOWED A REASONABLE TIME TO FILE A PRO SE BRIEF ..... 8 STATEMENT OF FACTS ..... 9 SUMMARY OF THE ARGUMENT ..... 11 ARGUMENT ..... 13 PRAYER ..... 15 CERTIFICATE OF COMPLIANCE ..... 16 CERTIFICATE OF SERVICE ..... 17

INDEX OF AUTHORITIES

CASES

PA ge

UNITED STATES Anders v. California, 386 U.S.738, 1967 ..... 14 TEXAS Harvey v. State, 611 S.W.2d 108, 111 (Tex.Cr.App.1981) ..... 14 Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App.1984) ..... 14 Miller v. State, 412 S.W.2d 650 (Tex.Crim.App.196) ..... 13 RULES AND STATUTES PAGE TEXAS HEALTH AND SAFETY CODE Section 481.112(c), Texas Health and Safety Code ..... 13 TEXAS PENAL CODE Section 12.32, Texas Penal Code ..... 14 TEXAS RULES OF APPELLATE PROCEDURE Rule 9.4(i) (3), Texas Rules of Appellate Procedure. ..... 16 Rule 38.1(a), Texas Rules of Appellate Procedure. ..... 2 Rule 38.1(e), Texas Rules of Appellate Procedure. ..... 7

STATEMENT OF THE CASE

On the ${18}^{\text{th}}$ day of September 2014, an Anderson County Grand Jury returned a single count Indictment, charging Appellant withManufacture or Delivery of Substance In Penalty Group I, one gram or more but less than four grams, in a drug free zone. (C.R., Vol. 1, Pg. 5).

On the ${17}^{\text{th}}$ day of March 2015, Appellant plead guilty to thesingle count of Manufacture or Delivery of Substance In Penalty Group I, one gram or more but less than four grams. (R.R., Vol. 3, Pg. 50, L. 23). In addition, Appellant plead True (R.R., Vol. 3, Pg. 120, L. 23), to a single enhancement paragraph contained within the State's Notice of Enhancement Paragraphs to be Submitted to Fact Finder at Punishment. (C.R., Vol. 1, Pg. 37). However, in exchange for the pleas of guilty and true, the state abandoned the drug free zone enhancement. (R.R., Vol. 3, Pg. 47, L. 2). The parties selected a jury and engaged in a contested sentencing hearing.

On the ${18}^{\text{th}}$ day of March 2015, the Jury assessed Appellant's punishment at twenty-five (25) years confinement within the Institutional Division of the Texas Department of Criminal Justice.(R.R., Vol. 4, Pg. 81, L. 23).

On the ${18}^{\text{th}}$ day of March, Appellant filed the Trial Court's Certificate of

Defendant's Right of Appeal. (C.R., Vol. 1, Pg. 49). On the ${17}^{\text{th}}$ day of April 2015, Appellant filed a Notice of Appeal. (C.R., Vol. 1, Pg. 75), Request for the Clerk's Record and Designation of Matters for Inclusion (C.R., Vol. 1, Pg. 62), Request for the Reporter's Record (C.R., Vol. 1, Pg. 66), Defendants Motion for New Trial (C.R., Vol. 1, Pg. 68), and Appellant filed Defendant's Motion for a Free Reporter's Record on Appeal (C.R., Vol. 1, Pg.71).

STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Rule 38.1 (e), Texas Rules of Appellate Procedure, Appellant provides the following Statement Regarding Oral Argument

Appellant does not requestOral Argument.

ISSUE PRESENTED

THE APPELLATE COURT SHOULD ALLOW COUNSEL, UPON MAKING THE DETERMINATION THERE WAS NO ERROR IN THE TRIAL COURT, TO WITHDRAW AND APPELLANT ALLOWED A REASONABLE TIME TO FILE A PRO SE BRIEF.

STATEMENT OF FACTS

On or about the $5^{\text{th}}$ day of July 2014 (R.R., Vol. 3, Pg. 127, L. 4), Corporal Ricki Baker (R.R., Vol. 3, Pg. 125, L. 9) and Officer Justin Blanks(R.R., Vol. 3, Pg. 129, L. 15) of the Palestine Police Department(R.R., Vol. 3, Pg. 125, L. 9), received information from a confidential informant that he would be traveling eastbound on Palestine Avenue towards Executive Inn & Sites in a gray Pontiac G6 with Appellant as the passenger(R.R., Vol. 3, Pg. 128, L. 6), who would be transporting methamphetamine(R.R., Vol. 4, Pg. 5, L. 11) and have a shotgun with him. (R.R., Vol. 3, Pg. 148, L. 5).

Corporal Ricki Baker and Officer Justin Blanks observed the grey Pontiac G6 traveling eastbound on East Palestine Avenue and pulled in behind the vehicle (R.R., Vol. 3, Pg. 130, L. 24) and performed a traffic stop(R.R., Vol. 3, Pg. 132, L. 23) on a Pontiac G6 (R.R., Vol. 3, Pg. 131, L. 17) upon observing no rear license plate (R.R., Vol. 3, Pg. 130, L. 24). The vehicle was driven by Marcus Howard (R.R., Vol. 3, Pg. 131, L. 17). Appellant was the passenger in the vehicle.(R.R., Vol. 3, Pg. 135, L. 5). On approach, Corporal Ricki Baker observed a full size shotgun (R.R., Vol. 3, Pg. 135, L. 7) in the vehicle. Officers immediately detained (R.R., Vol. 3, Pg. 136, L. 15) both occupants of the vehicle. Corporal Ricki Baker

requested and received consert to search the vehicle from Marcus Howard. (R.R., Vol. 3, Pg. 137, L. 6). A digital scale (R.R., Vol. 3, Pg. 138, L. 20) was found in a tool bag (R.R., Vol. 3, Pg. 137, L. 11) in the passenger side (R.R., Vol. 3, Pg. 137, L. 9) floorboard (R.R., Vol. 3, Pg. 137, L. 11), and two bags of marijuana and one bag of methamphetamine, weighing approximately four grams (R.R., Vol. 4, Pg. 16, L. 13), were found in the glove compartment.(R.R., Vol. 3, Pg. 138, L. 15). Appellant claimed the tool bag with the scak inside. (R.R., Vol. 3, Pg. 148, L. 9), but denied knowledge of the narcotics(R.R., Vol. 3, Pg. 150, L. 10).

SUMMARY OF THE ARGUMENT

THE APPELLATE COURT SHOULD ALLOW

COUNSEL, UPON MAKING THE DETERMINATION THERE WAS NO ERROR IN THE TRIAL COURT, TO WITHDRAW AND APPELLANT ALLOWED A REASONABLE TIME TO FILE A PRO SE BRIEF. Counsel has undertaken a careful scrutiny of the Reporter's Record and the Clerk's Record. Counsel is unable toidentify an arguable basis for appeal.

A plea of guilty to a felony charge before a jury admits the existence of all facts necessary to establish guilt. Appellant plead guilty to Manufacture or Delivery of Substance In Penalty Group I, one gram or more but less than four grams a second degree felony. Appellant's plea of guilty was before a jury. Therefore, Appellant admitted to all of the facts necessary for the jury to establish his guilt.

An appeal, based upon an argument that the Trial Court abused its discretion in finding Appellant guilty, is frivolous.

Appellant also plead true to an enhancement paragraph. If, an Appellant pleads true to an enhancement paragraph, the State's burden of proof is satisfied.

In addition, the jury assessed punishment within the rangeof punishment. Generally, the Appellate Court will not disturb a penalty assessed within the range of punishment.

For the above stated reasons, an appeal, based upon the argument that the Trial Court abused its discretion in sentencing Appelant, is frivolous.

Counsel has made a full and careful review of all matters in the instant cause and cannot find any reasonable point of error to legitimately raise for purposes of appeal. As a result, Counsel has filed the instant Anders Brief.

ARGUMENT

THE APPELLATE COURT SHOULD ALLOW

COUNSEL, UPON MAKING THE DETERMINATION THERE WAS NO ERROR IN THE TRIAL COURT, TO WITHDRAW AND APPELLANT ALLOWED A REASONABLE TIME TO FILE A PRO SE BRIEF. Counsel has undertaken a conscientious examinationof the Reporter's Record and the Clerk's Record. Counsel is unable to indentify an arguable basis for appeal.

It is the established rule that a plea of guilty to a felony charge before a jury admits the existence of all facts necessary to establish guiltMiller v. State, 412 S.W.2d 650 (Tex.Crim.App.196).

Appellant plead guilty (R.R., Vol. 3, Pg. 50, L. 23), to Manufacture or Delivery of Substance In Penalty Group I, one gram or more but less than four grams (R.R., Vol. 3, Pg. 50, L. 23), a second degree felony. Section 481.112(c), Texas Health and Safety Code. Appellant's plea of guilty to the felony charge was before a jury. (R.R., Vol. 3, Pg. 120, L. 10). Therefore, Appellant admitted to all of the facts necessary for the jury to establish his guilt.

For the above stated reasons, an appeal, based upon an argument that the Trial Court abused its discretion infinding Appellant guilty, is frivolous.

Appellant also plead true(R.R., Vol. 3, Pg. 120, L. 23), to a single enhancement paragraph contained withinthe State's Notice of Enhancement Paragraphs to be Submitted to Fact Finder at Punishment.(C.R., Vol. 1, Pg. 37).

If, an Appellant pleads true to an enhancement paragraph, the State's burden of proof is satisfied. The plea of true is sufficient proof. Harvey v. State, 611 S.W.2d 108, 111 (Tex.Cr.App.1981). Furthermore, the jury assessed punishment within the range authorized by the legislature for aFirst Degree Felony. Section 12.32, Texas Penal Code. Generally, the Appellate Court will not disturba penalty assessed within the range of punishment. Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App.1984).

For the above stated reasons, an appeal, based upon the argument that the Trial Court abused its discretion in sentencing Appellant, is frivolous.

Counsel has made a full and careful review of all matters in the instant cause and cannot find any reasonable point of error to legitimately raise for purposes of appeal. As a result, Counsel has filed the instant Anders Brief.Anders v. California, 386 U.S. 738, 1967.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Counsel prays the Court accept the instant Anders Brief, grant Counsel's Motion to Withdraw, and allow Appellant a reasonable amount of time to file a Pro SeBrief.

CERTIFICATE OF COMPLIANCE

I, Colin D. McFall, Attorney of Record for the above styled Appellant, pursuant to Rule 9.4(i)(3), Texas Rules of Appellate Procedure, hereby certify the number of words within Appellant's Brief at one thousand eight hundred ninety five $(1,895)$ .

CERTIFICATE OF SERVICE

I, Colin D. McFall, Appellate Attorney of Record for the above styled Appellant, hereby certify service of a true and correct copy of the above and foregoing document, with an explanation that he is entitled,to review the record, and, if he so feels fit, to file a Pro Se Brief on his own behalf, at Hutchins Unit, 1500 East Langdon Road, Dallas, Texas 75241 ,by first class mail, on the ${23}^{\text{rd}}$ day of November 2014.

Counsel also certifies service of a true and correct copy of the above and foregoing document uponScott Holden, First Assistant, Anderson County Criminal District Attorney, by email delivery, to sholden@co.anderson.tx.us on the ${23}^{\text{rd}}$ day of November 2015.

RESPECTFULLY SUBMITTED,

Anderson County Courthouse 500 North Church Street, Suite 38 Palestine, Texas 75801 Assistant Criminal District Attorney Telephone: 903-723-7400 Texas Bar Number: $24027498$ Facsimile: 903-723-7818

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.