### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 22
- 00308
- CR

Edgar Caballero , Appellant

v. The State of Texas , Appellee

FROM THE 21ST DISTRICT COURT OF BASTROP COUNTY NO. 17057, THE HONORABLE CHRISTOPHER DARROW DUGGAN , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N Following a bench trial, the district court convicted appellant Edgar Caballero of the offense of m urder and sentenced him to forty years ’ imprisonment. See Tex. Penal Code § 19.02. This appeal followed. Cab allero ’s c ourt -appointed counsel on appeal has filed a motion to wit hdraw and a brief pursuant to Anders v. California, 386 U.S. 738, 744 (1967). The brief meets the requirements of Anders by presenting a professional evaluation of the record demonstrating why th er e are no arguable grounds to be advanced. See id . at 744 -45; see also Penson v. Ohio , 488 U.S. 75, 81

– 82 (1988); Garner v. State , 300 S.W.3d 763, 766 (Tex. Crim. App. 2009). Counsel has certified to this Court that he h as provided Caballero with a copy o f the motion and brief, advised him of his right to examine th e ap pellate record and file a pro se response, and supplied him with a form motion for pro se access to the appellate record. See Kelly v. State , 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014).2 Cab allero has filed a pro se response disputing counsel ’ s contention that the appeal is frivolous

. Among other c ontentions , he c laims that the indictme nt is “ vague, ” that th e verdict is “ contrary to the State of Texas law, ” that one of the State ’ s wit ness es , his ex

- wife, was biased agai nst him , and that he had “ no hate towards the deceased, ” who he asserts had a history of violence

. Upon recei ving an Anders brief, we must conduct a full examination of the record to determine whether the appeal is who lly fr ivolous. See Penson , 488 U.S. at 80 ; Bledsoe

v. State , 178 S.W.3d 824, 826

– 27 (Tex. Crim. App. 2005) ; Stafford v. State , 813 S.W.2d 5 03,
511 (Tex. Crim. App. 1991). The indictment alleged in two paragraphs that on or about October 13, 2019, Caballe ro eit her (1) intentionally or knowingly cause d the death of Angel Martinez by striking Martinez with the de fendant’s hand or other unknown object or (2) with intent to cause serious bodily injury to Martinez, commi t t ed an act clearly dangerous to human
li fe tha t caused the death of Martinez, by striking Mart inez with the defendant’s hand or other unknown object. During the bench trial, t he district court heard evidence that on the night of October 13, 2019, Caballero and his ex

- wife, Magdalena Caballero , a rrived at Magdalena ’ s home in Bastrop , where she lived with her children, mother , and stepfathe r, Angel Mar t inez. Magdalena testified that while she wa s getting the children ready for bed, Caballer o asked her if she needed anything from the store before h e drov e back to his apartment in Waco

. Magdalena told him that she did not , and Caballero left

. Shortly thereafter, Magdalena and her mother found Martinez on the ground outside their home , covered in blood

. Magdalena called 911 and then tried to find C aballe ro , who was “ n owhere on the property ” and was not answering Magdalena ’ s phone calls.3 One of the paramedics who responded to the 911 cal l was Kathy Birdwell, who testified that when she and her par tner arrived at the scene, Martinez “ was laying on his back beside his car covered in blood, not res ponsive at that time. ” His face was “ tremendously mangled , ” his “ nose was bloody, ” his “ tongue was torn , ” and h is “ ear was almost ripped off of his head

. ” Birdwell testified that it appeared to her that Martinez ha d b een hit in the h ead multiple times , possibly with a rock that Bird well observed o n the ground near Martinez that was also covered in blood

. Martinez was intubated and transported by helicopter to a hospital in
A ustin. Approxima tely two weeks later, h e died from his injuries. The medical examiner testified that the cause of death was “ blunt head trauma ” and that Mart inez ’ s wounds were consistent with blows to the face using a fist or some other object

. A copy of the medical

exa miner ’ s report was admit ted into evidence. On the night of the incident , Detective Zachary Koenig and Officer Luke Briscoe of the Waco Police Department were dispatched to Caballero ’ s apartment to interview him. During the interview, Caballero admitted hi tting Martinez in the fa ce multiple times but claimed that Martine z hit him firs t. Koenig testified that Caballero told him that he and Martinez were sitting in Caballero ’ s car , with Caballero in the driver ’ s seat and Martinez in the front passenger seat, when Caballero “ made co mments ” about Martinez ’ s wife and Martinez responded by punching Caballero in the face. Caballero then “ proceeded to punch his father

- in

- law about four times

. ” Koenig added :

He said after about the first two

— and he was saying thes e were good hits

— he said after the first two hits he believed the father

- in

- law was probably unconscious. And then he said he may have gone overboard by continuing to punch him about two more times. So four times total.4 Also during the interview, Caballer o walked the officers to his car and “ pointed out to Of ficer Brisco e several places where there was blood in the vehicle

. ” Caballero also demonstrated how, after p unching Martinez, he “ walked around the vehicle and opened up the passenger door, where the ex - father

- in

- law basical ly fell out on the ground, and he said he was unresponsive at that point. ” Caballero left Martinez on the ground but “ told him to go ahead and call the police

. ” Both Briscoe and Koe nig testified that during the interview, they did not observe any apparen t injuries to Cab allero , either on his face or elsewhere

. A copy of Cabellero ’ s interview with the officers, taken from Briscoe ’ s body camera, was admitted into evidence. Several days later, Investigators Kevin Little a nd James Miller of the Bastrop
Count y Sheriff ’s Departme nt went to Waco to d o a follow

- up interview with Caballero , again at his apartment

. Martinez was still ali ve at the time and Caballero was not yet under arrest

. Miller testified , “ We knocked on the door. We met Mr. Caballero. He invi ted us in. He invited us to have a seat on his couch and then we spoke with him. ” During the interview, an audio recording of which was admitted into evidence, Caballero again admitted to hitting Martinez multiple time s

a fter Martin ez hit him first. Cab allero told the officers that Martinez hit him “ once ” and that he

“ retaliated ” by hit ting Martinez “ at lea st three times. ” At the conclusion of trial, the district court found Caballero guilty of murder and further found that the State proved that Caballer o ’ s conduct was not justified by self

- defense

. Following a hearing on punishment, during which Caballero and other witnesses for the defense testified, the district court sentenced Caballero to forty years ’ imprisonment as noted above. We have reviewed th e record , counsel’s brief , and the pro se response . We agree with counsel that the appeal is frivolous and without merit. We find nothing in the record that5 might arguably support the appeal. We grant counsel’s mo tion to withdraw and affirm the judgment of conviction.

__________________________________________ Gisela D. Triana , Justice Before Justices B ake r, Triana, and Jones* Affirmed Filed: May 31, 2023 Do Not Publish

* Before J. Woodfin Jones, Chief Justice (Retired), Third Court of Appeals, sitting by assignment. See Tex. Gov’t Code § 74.003 (b).