CAUSE NO. 13
- 15
- 00 256
- 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 D istrict Court of Victoria County, Texas Hon. Jack W. Marr , Judge Presiding

__________________________________________________________________ ANDERS BRIEF

__________________________________________________________________ Luis A. Martinez Bar No. 24010213 P.O. Box 41 0 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 ACCEPTED 13-15-00256-CR THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS 10/26/2015 9:59:56 PM Dorian E. Ramirez

CLERKi 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 Dis trict Attorney DeWitt County Courthouse 307 N. Gonzalez Cuero, Texas 77954
APPELLATE DEFENSE ATTY: HON. LUIS A. MARTINEZ P.O. Box 410 Victoria, Texas 77902ii TABLE OF CONTENTS
IDENT ITY OF PARTIES AND COUNSEL

................................ ............................ i TABLE OF CONT E NTS

................................ ................................ ......................... ii LIST OF AUTHORITIES

................................ ................................ ....................... iii CERTIFICATE OF COUNSEL

................................ ................................ .............. iv I. REC ORD BEFORE COURT

................................ ................................ .... 2 II. STATEM ENT OF CASE

................................ ................................ .......... 2 III. ISSUE PRESENTED

................................ ................................ ................ 3 IV. STATEMENT OF FACTS

................................ ................................ ........ 4 V. SUMMARY OF THE ARGUMENT

................................ ...................... 10 V I. ARGUMENT AND AUTHORITIES

................................ ...................... 10 ISSUE NUMBER ONE:
T HERE ARE NO ERRORS THAT W OULD RESULT IN REVER SAL OF THE ORDER OF THE TRIAL COU RT
... ........... ........................................ 1 0
VI. PRAY ER AND REQUEST TO WITHDRAW........................

... ........ 12
VII I. CERTIFICATE OF SERVICE...

... ...... ....................................... 14

IX

. CERTIFICATE OF COMPLIANC E............

................................. 15iii 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 40 3 (Tex .Cri m.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)

................................ ................................ ................... 3iv CERTIFICATE OF COUNSEL I, Luis A. Martinez, court

- appointed counsel for Appellant, ELIO GARZA , for purposes of this appeal, certify t hat I have diligently searched the Reporter’ s Record and Clerk’s Record in T rial 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 reflect ed 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 b oth 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 ma y 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 Chris ti, Texas 78401.CAUSE NO. 13
- 15
- 00 256
- 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 Jud icial D istrict 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 appointe d 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 24 th Judicial District Court of Victoria County, Texas, the Hon orable Jack W. Marr , Judge Presiding in which the Appellant,
ELIO GARZA , was the Defendant and the State of Texas was the Plaintiff. As
req uired by the applicable rules, the parties will be called "Appellant" and the
"State."
I.
RECORD BEFORE COURT Th e 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 t o 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 gu ilty of Aggravated Assault with a Deadly Weapon and3 sentencing him to ten years in the Institutional Division of the Texas Department of Criminal Justice

. Appe llant 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 2 9, 2014. [CR

- 9 ]. A Plea Memorandum was executed and filed by Appellant on, or a bout,
Au gust 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 ]. Subse quently, 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 Appe llant’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 . [C R

- 79 ].
III.
ISSUES PRESENTED
ISSUE NUMBER ONE: T HERE ARE NO ERRORS T HAT WOULD RESULT IN REVERSAL OF T HE ORDER OF THE TRIAL COURT .4 IV.
STATEMENT OF THE FACTS The Trial Court inquired of Appellant whether he was the same person indic ted for aggravated assault with a deadly weapon by the DeWitt County grand jury by indictment filed on May 29, 2014, to which Appellant responded, “ye s.” [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 g uilty , but was placed on probation for s ix 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 th is cause, a plea of “Not True” was entered o n 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 , testif ied 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 speak er, 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 guil t indicating that Appellant, on or about, December 19, 2014, committed the offense of possession of marijuana in Guada lupe 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 Appell ant 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 violatio n 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 probat ion. [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 St ate’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 re garding 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 th e 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 ar ound taking people down and demanding money from them. [RR

- III

- 53]. Appellant could not recall the date when that7 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 partic ipated in that. [ RR

- III

- 56]. Appellant’s trial counsel asked Appellant if he ended up pleading guilty to the marijuana charge; Appellant8 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 tha t, “[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 arres t 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 moneta ry 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 be fore, Appellant responded, I had no papers to let me know that I needed to do that. They9 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 askin g 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 Cou nty 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 paragraph s one, two and three of the State’s motion to adjudicate guilt and p etition 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 senten ce in this
matter and accordingly has filed this Anders Brief

. V I . 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 und ersigned 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. Sta te , 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 fac tual 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 observ ed 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 writ ten 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 t hat 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 d etermined in12 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 revocatio n. See Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980)

. Thus, in order to prevail, ap pellant 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.
VI I . 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 to13 have a n 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 dec ide 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 Vict oria, 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 ARZA14 VII I . CERTI FICATE OF SERVICE This is to certify that a true copy of the foregoing document was serve d upon the Honorable Robert C. Lassmann , Assistant DeWitt County Crimina l 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

Vi a Electronic Mail, rclassmann1@sbcglobal.net HON. ROBERT LASSMAN 24 th Judicial District Attorney DeWitt Cou nty 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 Appellant15 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