Case Information

*0 RECEIVED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 10/26/2015 9:59:56 PM DORIAN E. RAMIREZ Clerk *1 ACCEPTED 13-15-00256-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 10/26/2015 9:59:56 PM Dorian E. Ramirez CLERK CAUSE NO. 13-15-00256-CR __________________________________________________________________

IN THE COURT OF APPEALS FOR THE

THIRTEENTH JUDICIAL DISTRICT OF TEXAS AT CORPUS CHRISTI

__________________________________________________________________

ELIO GARZA,

APPELLANT , VS.

THE STATE OF TEXAS,

APPELLEE . __________________________________________________________________

On Appeal in Cause No. 14-05-11,998 in the 24th Judicial District Court of Victoria County, Texas Hon. Jack W. Marr, Judge Presiding __________________________________________________________________

ANDERS BRIEF

__________________________________________________________________

Luis A. Martinez Bar No. 24010213 P.O. Box 410 Victoria, Texas 77902 (361) 676-2750 telephone (361) 575-8454 telefax Email:

Lamvictoriacounty@gmail.com ATTORNEY FOR APPELLANT E LIO G ARZA October 26, 2015 ORAL ARGUMENT NOT REQUESTED *2

IDENTITY OF JUDGE, PARTIES AND COUNSEL Pursuant to T EX . R. A PP . P. 68.4(a), the parties to the suit are as follow:

APPELLANT ELIO GARZA

APPELLEE THE STATE OF TEXAS

TRIAL JUDGE HON. JACK W. MARR

STATE’S ATTY AT TRIAL: HON. MICHAEL SHEPPARD

HON. REID MANNING 24 th Judicial District Attorney DeWitt County Courthouse 307 N. Gonzalez

Cuero, Texas 77954 DEFENSE ATTY AT TRIAL: HON. CHRIS ISLES

710 Buffalo Street, Suite 802 Corpus Christi, Texas 78401 APPELLATE STATE’S ATTY: HON. ROBERT LASSMAN

24 th Judicial District Attorney DeWitt County Courthouse 307 N. Gonzalez

Cuero, Texas 77954 APPELLATE DEFENSE ATTY: HON. LUIS A. MARTINEZ

P.O. Box 410

Victoria, Texas 77902 i

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................................................ i

TABLE OF CONTENTS ......................................................................................... ii

LIST OF AUTHORITIES ....................................................................................... iii

CERTIFICATE OF COUNSEL .............................................................................. iv

I. RECORD BEFORE COURT .................................................................... 2 II. STATEMENT OF CASE .......................................................................... 2 III. ISSUE PRESENTED ................................................................................ 3 IV. STATEMENT OF FACTS ........................................................................ 4 V. SUMMARY OF THE ARGUMENT ...................................................... 10

VI. ARGUMENT AND AUTHORITIES ...................................................... 10

ISSUE NUMBER ONE:

T HERE ARE NO ERRORS THAT WOULD RESULT IN REVERSAL OF THE

ORDER OF THE TRIAL COURT …………..………………………………….10 VI. PRAYER AND REQUEST TO WITHDRAW……………………...........12

VIII. CERTIFICATE OF SERVICE…………………………………………… 14

IX. CERTIFICATE OF COMPLIANCE………………………………………15

ii *4 LIST OF AUTHORITIES Cases: Page

Anders v. California , 386 U.S. 738 (1967) ...................................................... 10, 12

Gagnon v. Scarpelli , 411 U.S. 778 (1973) ........................................................... 11

Hawkins v. State , 112 S.W.3d 340( Tex.App.–Corpus Christi 2003, no pet.) ...... 10

In re: Schulman , 252 S.W.3d 403 (Tex.Crim.App. 2008) .................................... 10

Jones v. State , 571 S.W.2d 191(Tex.Crim.App. 1978) ......................................... 12

Rickels v. State , 202 S.W.3d 759 (Tex. Crim. App. 2006) .............................. 11, 12

Sanchez v. State , 603 S.W.2d 869 (Tex.Crim.App. 1980) .................................. 12

Stafford v. State , 813 S.W.2d 503 (Tex.Crim.App. 1991) .................................... 10

Williams v. State , 976 S.W.2d 871 (Tex. App.—Corpus Christi 1998) ................ 12

Rules and Statutes:

T EX . P EN . C ODE §22.02(a)(2) ................................................................................... 3

iii *5 CERTIFICATE OF COUNSEL I, Luis A. Martinez, court-appointed counsel for Appellant, ELIO GARZA, for purposes of this appeal, certify that I have diligently searched the Reporter’s

Record and Clerk’s Record in Trial Court Cause Number 14-05-11,998, researched

the law applicable to the facts and issues presented, if any, and it is my

professional opinion that no reversible error is reflected by the record.

I am of the professional opinion this appeal is without merit and frivolous, and in compliance with applicable law pertaining to appeals of this type, I have set

forth all points which might arguably support an appeal, request permission to

withdraw, and acknowledge that I have forwarded a copy of this brief to Appellant,

ELIO GARZA, to his last known address, for the purposes of raising any points he

chooses, and filing a pro se brief.

By this certification, and by separate letter sent both in English and Spanish, Appellant is being informed that he may file a pro se appellate brief

if he chooses, and any pro se brief must be filed with this Court within 30 days

of the filing of this Anders brief. Appellant is further advised that he may

request further time to file his pro se brief, and such request must be made in

writing and filed with the 13 th Court of Appeals at: The Thirteenth Court of

Appeals, Corpus Christi Division, 901 Leopard, Nueces County Courthouse,

10 th Floor, Corpus Christi, Texas 78401.

iv *6 CAUSE NO. 13-15-00256-CR __________________________________________________________________

IN THE COURT OF APPEALS FOR THE

THIRTEENTH JUDICIAL DISTRICT OF TEXAS AT CORPUS CHRISTI

__________________________________________________________________

ELIO GARZA,

APPELLANT, VS.

THE STATE OF TEXAS,

APPELLEE.

__________________________________________________________________

On Appeal in Cause No. 14-05-11,998 in the 24 th Judicial District Court of Victoria County, Texas Hon. Jack W. Marr, Judge Presiding __________________________________________________________________

ANDERS BRIEF TO THE HONORABLE COURT OF APPEALS:

Appellant, ELIO GARZA, by and through his court appointed counsel, Luis A. Martinez , respectfully submits this ANDERS BRIEF in appeal of the

judgment and sentence of the Trial Court adjudicating him guilty of Aggravated

Assault with a Deadly Weapon and sentencing him to the Texas Department of

Criminal Justice-Institutional Division.

This is an appeal from the 24 th Judicial District Court of Victoria County, Texas, the Honorable Jack W. Marr, Judge Presiding in which the Appellant,

ELIO GARZA , was the Defendant and the State of Texas was the Plaintiff. As

required by the applicable rules, the parties will be called "Appellant" and the

"State."

I. RECORD BEFORE COURT The Clerk's Record consists of one volume and citation to this record will be referenced in this brief by use of the abbreviation "CR" referring to the Clerk’s

Record and then the appropriate page number. For example, page 10 of the

Clerk’s Record shall be cited as CR-10.

The Reporter's Record furnished to Appellant consists of a total of four (4) volumes. Citation to the Reporter's Record will be referenced in this brief by use of

the abbreviation "RR", followed by a roman numeral to indicate the volume,

followed by the appropriate page number. For example, page 10 of the Reporter’s

Record, volume two, shall be cited as RR-II-10.

II. STATEMENT OF THE CASE Appellant wishes to appeal the trial court’s judgment and sentence adjudicating him guilty of Aggravated Assault with a Deadly Weapon and

sentencing him to ten years in the Institutional Division of the Texas Department

of Criminal Justice.

Appellant was charged by indictment with Aggravated Assault with a Deadly Weapon pursuant to T EX . P EN . C ODE §22.02(a)(2). [CR-9]. Said

indictment was filed on, or about, May 29, 2014. [CR-9].

A Plea Memorandum was executed and filed by Appellant on, or about, August 14, 2014. [CR-17]. Appellant was placed on six (6) years of deferred

adjudication, assessed a $1,000.00 fine and court costs. [CR-35].

Subsequently, on or about, January 20, 2015, the State filed its State’s Motion to Adjudicate Guilt and Petition for Revocation of Probated Sentence.

[CR-42]. Following a hearing on the motion, the Trial Court found it “True” that

Appellant had violated paragraphs I, II, III. and VII. of the State’s motion. [CR-

73].

The Trial Court certified that Appellant’s case was not a plea-bargain case and that he had the right of appeal. [CR-72].

A Notice of Appeal was timely filed on, or about, May 20, 2015. [CR-79]. III.

ISSUES PRESENTED

ISSUE NUMBER ONE:

T HERE ARE NO ERRORS THAT WOULD RESULT IN REVERSAL OF THE ORDER OF THE TRIAL COURT .

*9 IV.

STATEMENT OF THE FACTS The Trial Court inquired of Appellant whether he was the same person indicted for aggravated assault with a deadly weapon by the DeWitt County grand

jury by indictment filed on May 29, 2014, to which Appellant responded, “yes.”

[RR-III-10]. ^[1] Appellant indicated he was the person placed on deferred

adjudication and placed on probation for six years for the offense of Aggravated

Assault with a Deadly Weapon. Appellant agreed that he entered a plea of guilty,

but was placed on probation for six years. [RR-III-11].

The Trial Court read the Motion to Adjudicate filed by the District Attorney for DeWitt County aloud to Appellant. [RR-III-12-15]. As to each count of the

motion to adjudicate filed in this cause, a plea of “Not True” was entered on

Appellant’s behalf. [RR-III-16-23].

Testimony of Leslie Vavra

Leslie Vavra, employed as a probation officer for the 24 th Judicial District Community Supervision and Corrections Department for 14 years, testified on

behalf of the State. [RR-III-29-30].

Ms. Vavra identified Appellant in open court. [RR-III-30]. Ms. Vavra testified she was familiar with Appellant’s probation file. [RR-III-30]. Ms. Vavra

*10 testified that because Appellant was a Spanish speaker, the terms and conditions of

probation were explained to Appellant the day after Appellant’s case was

addressed in Court. [RR-III-31].

Ms. Vavra was asked if her probation records indicated any new criminal offenses committed by Appellant since he had been placed on probation. [RR-III-

34]. The State directed Ms. Vavra’s attention to Paragraph 1 of the State’s motion

to adjudicate guilt indicating that Appellant, on or about, December 19, 2014,

committed the offense of possession of marijuana in Guadalupe County, Texas.

[RR-III-35]. Ms. Vavros indicated that records indicated that Appellant was

convicted of the offense. [RR-III-39].

Ms. Vavros was asked by the State if she was familiar with Appellant’s violation of Condition No. 11, in that Appellant failed to report for the months of

September, October and December of 2014. [RR-III-39]. Ms. Vavros indicated,

“Yes.” [RR-III-40].

As to Paragraph 4, the State asked Ms. Vavros whether the offense report admitted into evidence indicated a violation of curfew. Ms. Vavros responded,

“Yes, because based on the report it shows he was arrested at 11:28 p.m.” [RR-III-

40].

As to Condition No. 24, Ms. Vavros testified that Appellant had not worked any community service hours since being placed on probation. [RR-III-40].

Testimony of Lisa Segar

Lisa Segar of the Victoria Sheriff’s Office testified next on behalf of the State. [RR-III-43]. Ms. Segar was shown State’s Exhibit 4. Ms. Segar identified

it as a ten print fingerprint card belonging to Elio Garza. [RR-III-44]. State’s

Exhibit 4 was admitted without objection. [RR-III-44].

The State next showed Ms. Segar State’s Exhibit 3. Ms. Segar testified she was familiar with the document, had the opportunity to compare the fingerprints

between State’s Exhibit 3 and 4, and that they were the same. Ms. Segar was

asked if she could conclude that Elio Garza was the same person as Jesus Perez.

[RR-III-45]. She responded, “Yes, sir.” [RR-III-46].

Testimony of Appellant

After being admonished regarding his right to testify and the Trial Court finding that Appellant understood he had a right not to testify, Appellant testified

on his own behalf. [RR-III-52].

Appellant testified that Chuy Perez is a nickname. [RR-III-53].

With respect to the possession of marijuana charge, Appellant testified that a

man named Pancho and Roy got in his truck and aimed a gun at his head. They

wanted money and Appellant told them he had no money. Pancho and Roy belong

to the Zeta cartel. The Zeta group go around taking people down and demanding

money from them. [RR-III-53]. Appellant could not recall the date when that

occurred. [RR-III-54]. Appellant stated he was in Yorktown when he was

threatened. Appellant did not know the last names of the men, but that those were

the two that got into his house. [RR-III-54].

From there, Appellant testified that “a policeman got him.” The policeman removed Appellant’s clothes, but handcuffs on his and drew blood from Appellant.

[RR-III-55]. Appellant indicated that he had “tracks” where the blood was drawn.

Appellant indicated that needles were put in between the index finger and thumb

on both hands. [RR-III-55]. When asked why a policeman had approached him,

Appellant responded, “I told him I wasn’t sick. I didn’t have anything but he still

came….I told him I was not a drug addict. I didn’t do drugs. I am not depressed.

I have no diabetes. I’m not sick of anything. Then he brought me over here and he

gave me a low—a lower bid because he knew that I was helpless. I was—my

strength, I had no strength. That was a problem.” [RR-III-56].

Appellant continued that “Pancho and Roy brought me here and they wanted me to give them the name or the place of the wife so that they could have sex with

her.” [RR-III-56]. Appellant recounted that Pancho and Roy took him to what

appeared to be a pasture and laid him on his back until the policeman came. [RR-

III-56]. Appellant indicated that the Zeta cartel men turned him over to the police

and that the police participated in that. [RR-III-56]. Appellant’s trial counsel

asked Appellant if he ended up pleading guilty to the marijuana charge; Appellant

responded, “Yes. I had to. I had to.” [RR-III-57]. When asked why he had to,

Appellant responded, “The policeman said that if I didn’t give myself as guilty

that—that he could kill me if he wanted to.” [RR-III-57]. Appellant said the

policeman told he when they were in the patrol car and other things. [RR-III-57].

Appellant also explained to the Trial Court that, “[T]he fact that probation was broken I had nothing to do with it. Immigration lost all my papers. I didn’t

know where to report.” [RR-III-58].

Appellant’s counsel asked of him regarding the allegation that he failed to report his November 24 arrest within five days. Appellant responded, “They were

the same ones. They want money and how can I give them money when I don’t

have any.” [RR-III-59]. When asked what prevented Appellant from reporting

his arrest, Appellant responded, “The papers that immigration threw away I didn’t

know when to report and besides I don’t know how to read English. Immigration

told me that none of the papers that I had would do me no good.” [RR-III-59].

When asked about being behind in various court costs and monetary

obligations, Appellant responded, “I can pay that but how can I pay it if I’m locked

up. If I go outside I’ll be all right I can pay, but here I can’t pay a thing.” [RR-III-

60].

Appellant was next asked by his trial counsel why he was late paying before, Appellant responded, I had no papers to let me know that I needed to do that. They

took the papers right out of my hand and pitched them in the trash can and I told

them these are important papers to me. I couldn’t say anything else. I mean, these

people kill. What can I do.” [RR-III-60]. Appellant’s counsel followed up by

asking if Appellant was simply saying that he didn’t know where to report,

Appellant testified, “No. No. I didn’t. Here they’re telling me that it’s closed but

how was I to know.” [RR-III-60].

Appellant’s counsel next asked about why he was behind on his community service, Appellant responded, “I didn’t know where. I didn’t know anything. This

is what I was asking you where can I help myself. I don’t know where to help

myself. I don’t know the rules. I never been in jail or locked up in my life.

Nothing but work.” [RR-III-61].

During the cross-examination of Appellant, he confirmed that a Spanish speaker with the probation department met Appellant in the DeWitt County Jail.

[RR-III-62]. He confirmed that the rules of probation were explained to him. Id.

The Trial Court’s Ruling

At the end of the hearing, the Trial Court found that paragraphs one, two and three of the State’s motion to adjudicate guilt and petition for revocation were

“True.” The Trial Court adjudicated Appellant and found him guilty of aggravated

assault with a deadly weapon. [RR-III-65]. The Trial Court sentenced Appellant

to ten years in the Texas Department of Criminal Justice. [RR-III-66].

V. SUMMARY OF THE ARGUMENT The undersigned has diligently reviewed the record, both Clerk’s and Reporter’s Record. After such review, it is the undersigned’s opinion that there are

no errors that would result in the reversal of the revocation and sentence in this

matter and accordingly has filed this Anders Brief.

VI. ARGUMENT AND AUTHORITIES ISSUE NUMBER ONE:

There are no errors that would result in reversal of the judgment and sentence of the trial court.

In accordance with In re: Schulman , the undersigned has provided record references to the facts and proceedings in this matter. See In re: Schulman , 252

S.W.3d 403, 407 n.9 (Tex.Crim.App. 2008) see also Hawkins v. State , 112 S.W.3d

340, 343-44( Tex.App.–Corpus Christi 2003, no pet.) Stafford v. State , 813 S.W.2d

503-510, n. 3 (Tex.Crim.App. 1991). After the review of the record in this case, it

is the undersigned’s belief that there are no reasonably arguable factual or

evidentiary issues that would result in the reversal the Trial Court’s decision to

adjudicate Appellant in this matter. Further, there is no reasonably arguable issue

that would affect the sentencing in this matter.

It appears from the record that Due Process was afforded Appellant during the motion to adjudicate hearing. In Gagnon v. Scarpelli, the Supreme Court

enunciated the minimum requirements of due process which must be observed in

community supervision revocation hearings: (1) written notice of the claimed

violations of probation; (2) disclosure to the probationer of the evidence against

him; (3) opportunity to be heard in person and to present witnesses and evidence,

and the right to confront and cross-examine adverse witnesses; (4) a neutral and

detached hearing body; and (5) a written statement by the fact finders as to the

evidence relied on and the reasons for revoking probation. Gagnon v. Scarpelli,

411 U.S. 778, 786 (1973).

The record supports that Appellant was afforded all the requirements of Due Process. He was given written notice of the claimed violations of probation, made

aware of the charges and evidence regarding the State’s motion and was given the

opportunity to be heard and to present evidence and cross-examine the State’s

witnesses. The record does not support that the Trial Court was anything other

than neutral and detached. Further, Appellant was provided reasons for the

revocation in writing.

Appellate review of an order revoking community supervision is limited to determining whether the trial court abused its discretion. See Rickels v. State, 202

S.W.3d 759, 763 (Tex. Crim. App. 2006). The central issue to be determined in

reviewing a trial court's exercise of discretion in a community supervision

revocation case is whether the defendant was afforded due process of law. An

order revoking community supervision must be supported by a preponderance of

the evidence, meaning the greater weight of the credible evidence that would create

a reasonable belief that the defendant has violated a condition of probation. Id. at

763-64.

A finding of a single violation of community supervision is sufficient to support revocation. See Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App.

[Panel Op.] 1980). Thus, in order to prevail, appellant must successfully challenge

all the findings that support the revocation order. See Jones v. State, 571 S.W.2d

191, 193-94 (Tex. Crim. App. [Panel Op.] 1978)( emphasis added ). The record

does not support that Appellant could successfully challenge each and all of the

findings that support the Trial Court’s revocation order.

VII. PRAYER AND REQUEST TO WITHDRAW In accordance with the principles set forth in Anders v. California , 386 U.S. 738 (1967); Williams v. State , 976 S.W.2d 871 (Tex.App.–Corpus Christi 1998),

Counsel believes there are no reasonably arguable factual or evidentiary issues

disclosed by the record in this case which would amount to reversible error.

A Defendant’s right to assistance of counsel does not include the right to *18 have an attorney urge frivolous or non-meritorious claims. As such, Counsel

requests this Court allow him to withdraw from further representation of

Appellant.

Counsel requests that this Court undertake a full examination of the trial court proceedings and decide whether the case is in fact wholly frivolous and

without merit, and allow Appellant sufficient time to review the record, research

any point he wishes to raise, and submit his own brief.

Respectfully submitted, LUIS A. MARTINEZ, P.C.

P.O. Box 410

Victoria, Texas 77902-0410 (361) 676-2750 (Telephone) (361) 575-8454 (Telecopier) Email:

Lamvictoriacounty@gmail.com BY:

_____________________________ Luis A. Martinez State Bar No. 24010213 ATTORNEY FOR APPELLANT E LIO G ARZA *19 VIII.

CERTIFICATE OF SERVICE This is to certify that a true copy of the foregoing document was served upon the Honorable Robert C. Lassmann, Assistant DeWitt County Criminal District

Attorney, and upon the Appellant, Mr. Elio Garza, in the manner indicated below,

on this 26 th day of October, 2015, pursuant to the Texas Rules of Appellate

Procedure.

___________________________________ Luis A. Martinez

Via Electronic Mail, rclassmann1@sbcglobal.net HON. ROBERT LASSMAN

24 th Judicial District Attorney

DeWitt County Courthouse

307 N. Gonzalez

Cuero, Texas 77954

Attorney for the State on Appeal

Via Certified Mail, RRR

Mr. Elio Garza

TDCJ#: 02002797

ID-TDCJ, Willacy Unit

1695 South Buffalo Drive

Raymondville, Texas 78580

Appellant

IX. CERTIFICATE OF COMPLIANCE I certify that the following document uses fourteen (14) point font for text and twelve (12) point font for footnotes. I further certify that the word count in

this document for those matters not excluded by Rule 9.4 is less than the minimum

allowed for an appellant’s brief and is 2,128 words.

_______________________ Luis A. Martinez

[1] A translator translated for Appellant from the English to Spanish and Spanish to English throughout the hearing on the State’s Motion to Adjudicate in this matter.