### IN THE COURT OF APPEALS

SIXTH DISTRICT OF TEXAS

TEXARKANA, TEXAS

MOISES RENTERIA

Appellant

Vs 06

- 15 -00106- CR

THE STATE OF TEXAS

Appellee

ON APPEAL FROM

THE 1 88 TH JUDICIAL DISTRICT COURT

OF GREGG COUNTY, TEXAS

TRIAL COURT NO. 38,802-A

BRIEF ON BEHALF OF APPELLANT

TIM CONE

State Bar #04660350

P.O. Box 413

Gilmer, Texas 75644

(903) 725-6270

e-mail: timcone6@aol.com

ATTORNEY FOR THE APPELLANT ACCEPTED

06-15-00106-CR

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

10/19/2015 12:00:00 AM

DEBBIE AUTREY

CLERK2

IDENTITY OF PARTIES AND COUNSEL

MOISES RENTERIA, #1734349

POLUNSKY UNIT

3872 FM 350

LIVINGSTON, TEXAS 77351

APPELLANT

THOMAS TIBILETTI

P.O. BOX 3663

LONGVIEW, TEXAS 75606

APPELLANT’S COUNSEL AT TRIAL

JENNY HUCKLE

, (FORMER) GREGG COUNTY ASST. CRIM. DIST.

ATTORNEY

101 E. METHVIN

LONGVIEW, TEXAS 75601

APPEL LEE’S COUNSEL AT TRIAL

TIM CONE

P.O. BOX 413

GILMER, TX 75644

APPELLANT’S COUNSEL ON APPEAL

ZAN BROWN

GREGG COUNTY ASSIST. CRIM. DIST. ATTORNEY

101 E. METHVIN

LONGVIEW, TEXAS 75601

APPELLEE’S COUNSEL ON APPEAL3

TABLE OF CONTENTS

Page No.

List of Parties and Counsel................................................

.... 2

Table of Contents.........................................................

...... 3

Index of Authorities......................................................

...... 4

Statement of the Case......................................................

.... 6

Point of Error Number One................................................... 7 ,10

Th e trial court erred in finding the Appellant made a voluntary,

knowing, and intelligent waiver of his right to a jury trial.

Point of Error Number Two................................................... 7,11

The trial court erred in failing to properly hold a hearing regarding

Appellant’s competency to stand trial.

Statement of Facts.........................................................

.... 8

Summary of Argument....................................................... 9

Conclusion an d Prayer.................................

....................... 12

Certificate of Compliance.................................................... 13

Certificate o f Service...................................................

...... 134

INDEX OF AUTHORITIES



### PAGE

U. S.CONSTITUTION :



### 6 th 

### Amendment, U.S. Constitution........................... 10

1 4 TH Amendment, U.S. Constitution.............................. 10

TEXAS CONSTITUTION :

Article 10.............................................................. 10

Article 15............................................................. 10

STATE CASES :

Carpenter v. State , 507 SW2d 794 (Tex.Crim.App. 1974)..... 12

Fuller v. State , 253 SW3d 220 ( Tex.Crim.App. 2008)......... 12

Ex Parte Hagans , 558 SW2d 457 (Tex.Crim.App. 1977)...... 12

Meek v. State , 851 SW2d 868 (Tex.Crim.App. 1993)......... 10

Rojas v. State , 228 SW3d 770 (Tex.App.Amarillo 2007)..... 12

Shaffer v. State , 769 SW2d 943 (Tex.Crim.App. 1989)...... 1 0

Townsends v. State , 427 SW2d 55(Tex.Crim.App. 1968)... 12

STATUTES :

Texas Code of Criminal Procedure, Art. 1.03

.................... 10

Texas Code of Criminal Procedure, Art. 1.04................... 10

Texas Code of Criminal Procedure, Chapter 46................ 115

NO. 06

- 15

- 00106

- CR

IN THE

COURT OF APPEALS

FOR THE

SIXTH JUDICIAL DISTRICT OF TEXAS

MOISES RENT E RIA

,

APPELLANT

VS.

THE STATE OF TEXAS

APPELLEE6

TO THE HONORABLE JUSTICES OF SAID COURT:

COMES NOW, the Appellant by and through his Attorney, namely Tim Cone,

hereinafter referred to as A ppellant, and submits this brief in sup port of reversing the

judgment and sentence pursuant to the provisions of the Texas Rules of Appellate

Procedure in Cause No. 06

- 15

- 00106

- CR in the 1 88 th Judicial District Court of Gregg

County, Tex as

, (Trial Court Ca use No . 38,802

- A ).

STATEMENT OF THE CASE

The Appellant was ind icted by the Gregg County Grand Jury in a two count

indictment for the offense s of Aggravated Sexual Assault and Indecency with a

Child. CR6. On February 17, 2011, the trial court held a hearing on the Appellant’s

Motion to Withdraw (filed by Appellant’ s trial counsel) . CR42, 2RR. The trial court,

sua sponte, ordered a competency evaluation. 2RR11, CR47. On August 1, 2011, the

Appellant executed a waiver of jury trial and, after a bench trial, was found guilty on

both counts of the indictment. 3RR119, CR 55. The trial court assessed punishment at

confinement for life on Count 1 Aggravated Sexual Assault) and twenty years

confinement on Count 2 (Indecency with a Child). 3RR127, CR55. The Appellant

indicated he wished to appeal the judgment of the trial cour t (sort of) and Appellant’s

counsel was appointed for the purpose of appeal. 3RR129. Unfortunately, Appellant’s7

attorney was not timely informed of the appointment and an out of time appeal was

sought and granted. CR85

- 129. The Appellant now appeals the ju dgment and

sentence of the trial court.

For clarity, THE STATE OF TEXAS will be referred to as “the Sta te”, and

Moises Renteria will be referred to as “Defendant” or “Appellant.”

ISSUE S PRESENTED

POINT OF ERROR NUMBER ONE

Th e trial court erred in finding the Appellant made a voluntary, knowing, and

intelligent waiver of his right to a jury trial.

POINT OF ERROR NUMBER TWO

The trial court erred in failing to properly hold a hearing regarding Appella nt’s

competency to stand trial.8

STAT EMENT OF THE FAC TS

Since sufficiency of the evidence is not a point o f error, a fairly short

rendition of the fact s will suffice. It should probably be noted that the complaining

witness was thirteen years old when she gave birth to a child and the DNA analysis

indicated that the Appellant was the father of the child by a probability of 99.99%.

3RR43, State’s exhibit number 8. Therefore, sufficiency of th e evidence seems an

unlikely successful point of error. However, there are other issues in the proceeding

that do indicate errors made by the trial court.

On February 17, 2011, a hearing was scheduled to consider a Motion to

withdraw filed by Appellant’s trial counsel. 2RR. It should probably be pointed out,

although not clear from the record

, that the Appellant does not speak or read the

English language but is fluent in his native Spanish language. Again, although it is

not immediately clear from the re cord, Appellant’s trial counsel is quite fluent in the9

Appellant’s native tongue. The hearing on February 17, 2011, really did not address

the Motion to Withdraw but, instead, related to issues of plea offers and incoherent

rambling by the Appellant that a re easier to read from the record than set out in this

brief. 2RR5

- 6,9

- 10. The trial court appropriately observed that a competency issue

existed and, sua sponte, ordered the Appellant be examined for competency to stand

trial. 2RR10

- 11. The order requirin g the examination improperly states that the

examination was ordered based on the Appellant’s motion. CR47. Dr. Thomas G.

Allen, Ph.D. filed a report indicating he was of the opinion that the Appellant was

competent. CR51. No other judicial proceeding was ever held regarding the issue of

competency.

On August 1, 2011, the trial court held a bench trial. 3RR. The waiver of the

Appellant’s right to a jury trial is set out in the record and is best described as

convoluted and unclear

- and best left to a readin g of the record rather than an attempt

to repeat in this brief. 3RR8

- 18. After the waiver was signed by the Appellant

(CR63), the case was tried as a bench trial. The trial court found the Appellant guilty

of both counts of the indictment and assessed the punishment previously described

and ordered the sentences to run concurrently. 3RR127, CR58.10

SUMMARY OF THE ARGUMENT

The state of mind of the Appellant is related to both points of error. His mental

processes were clearly impaired. Those processes were so clear to the court that the

trial court, sua sponte, ordered a competency evaluation. While the mental health

expert filed a report setting out that the Appellant, in his opinion, was competent, no

hearing was held after the report by the trial court finding the Appellant competent or

even addressing the issue of competency. This is error.

Further

- and again related to t he Appellant’s mental competency

- the process by

which the Appellant executed the jury waiver clearly showed that the Appellant’s

mind was not functioning in a proper manner to voluntarily, knowingly, or

intelligently waive his right to a jury trial . Both o f these error s affect fundamental

rights of the Appellant and require reversal.

POINT OF ERROR NUMBER ON E

The trial cou rt erred in finding the Appellant made a voluntary, knowing, and

intelligent waiver of his right to a jury trial.

ARGUMEN T

The Texas Code of Criminal Procedure, Art 1.03 and 1.04, as well as the Texas

Constitution (Article 10 and 15) and the U.S. Constitution (6 th and 14 th Amendments)

al l clearly set out the fundament al right of an accused to a jury trial. This right is, of11

course , waivable. However, the waiver of the right must be made voluntarily,

knowingly and intelligently

. Shaffer v. State , 769 S.W.2d 943 (Tex.Crim.App. 1989);

Meek v. State , 851 S.W.2d 868 (Tex.Crim.App. 1993)

- this case later reversed on

other grounds. The arg ument in the case at bar that the Appellant did not make a

voluntary, knowing, intelligent waiver of his right to jury trial is simply abundantly

clear from the record. 3RR8

- 18. The record shows that the Appellant did not

understand the concept of a jury t rial, the significance of a jury waiver, or the

consequences of the waiver. The record shows a mind that simply was not

functioning on a rational basis. Appellant’s counsel is somewhat at a loss for further

words to express the point but the record seems c lear on this issue. Since the right to

jury trial is a fundamental right, this error requires reversal.

POINT OF ERROR NUMBER TWO

The trial court erred in failing to properly hold a hearing regarding Appellant’s

competen cy to stand trial.

ARGUMENT

The Texas Code of Criminal Procedure, Chapter 46, sets out the procedure to

be followed regarding issues of competency to stand trial. On February 17, 2011, the12

trial court was to hold a hearing regarding trial counsel’s motion to withdraw. The

Appellant’s basically nonsensical ramblings brought to the trial court’s attention that

the issue of competency existed. These ramblings are set out in the record. 2RR5

- 6,9

-

10. The issue was so obvious, the trial court, sua sponte, ordered the Appellant’s

examination on the issue of competence . While it was appropriate and admirable that

the trial court ordered the examination By Dr. Tom Allen, the trial court must hold a

separate hearing on the issue of competency. Carpenter v. State , 507 S.W.2d 794

(Tex.Crim.App. 1974); Ex Parte Hagans , 558 S.W.2d 457 (Tex.Crim.App. 1977);

Townsend v. State

, 427 S.W.2d 55 (Tex.Crim.App. 1968); Fuller v. State , 253

S.W.3d 220 (Tex.Crim.App 2008); and Rojas v. State, 228 S.W.3d 770 (Tex.App

Amarillo 2007). Dr. Allen’s report is not a judicial finding of competency. After Dr.

Allen filed his report , the issue was simply never again addressed. In fact, the

proceedings held on August 1, 2011, clearly indicate a bona fide issue of competency

of the Appellant regarding the jury waiver. The Appellant simply did not make any

sense regarding the jury waiver issue

- which i ndicated he was not competent. Without

a separate hearing on the issue of competency, the Appellant was denied a

fundamental right and the trial court’s judgment should be reversed.

CONCLUSION AND PRAYER

For the reasons herein alleged, the sentence of the tr ial court should be rev ersed

and reman ded for a new trial

.13

Respectfully submitted,

/s/Tim Cone

____________________ TIM CONE

Attorney At Law

P.O. Box 413

Gilmer, Texas 75644

e

- mail: timcone6@aol.com

ATTORNEY FOR APPELLANT

CERTIFICATE OF COMPLIANCE

I certify that the foregoing document complies with Texas Rules of Appellate

Procedure, Rule 9 regarding length of documents, in that exclusive of caption,

identity of parties and counsel, statement regarding oral argument, table of contents,

index of authorities, statement of the case, statement of issues presented, statement of

jurisdiction, statement of procedural history, signature, proof of service, certification,

certificate o f compliance, and ap pendix, it consists of 971 words.

/s/Tim Cone

______________________

TIM CONE

ATTORNEY FOR APPELLANT

CERTIFICATE OF SERVICE14

This is to certify that a true and correct copy of the foregoing Appellant’s Brie f

has been provided t o th e Honora ble Zan Brown

, Gregg County Assistant Criminal

District Attorney on October 18, 2015

.

/s/Tim Cone

_____________________________ TIM CONE

Attorney At Law