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

ELIO GARZA

October 26, 2015

ORAL ARGUMENT NOT REQUESTED

ACCEPTED

13-15-00256-CR

THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

10/26/2015 9:59:56 PM

Dorian E. Ramirez

CLERK

 RECEIVED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 10/26/2015 9:59:56 PM DORIAN E. RAMIREZ Clerk
i

IDENTITY OF JUDGE, PARTIES AND COUNSEL

Pursuant to TEX. R. APP. 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

24th 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

24th 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
ii

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: 

 THERE 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
iii

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:

TEX. PEN. CODE §22.02(a)(2)................................................................................... 3
iv

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 13th Court of Appeals at: The Thirteenth Court of 

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

10th Floor, Corpus Christi, Texas 78401. 
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

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. 
2

This is an appeal from the 24th 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 
3

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 TEX. PEN. CODE §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. [CR73].

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: 

THERE ARE NO ERRORS THAT WOULD RESULT IN REVERSAL OF THE ORDER 

OF THE TRIAL COURT.
4

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 24th 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 

 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. 
5

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-III34]. 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-III40]. 

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].
6

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 
7

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. [RRIII-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 
8

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-III60]. 

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 
9

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]. 
10

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. 
11

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 
12

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 
13

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

ELIO GARZA
14

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

Procedure.

___________________________________

Luis A. Martinez

Via Electronic Mail, rclassmann1@sbcglobal.net

HON. ROBERT LASSMAN

24th 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
15

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