### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00513- CR

Mario Alber to Riojas-C ontrer as, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B URNET COUNTY , 424 TH JUDICI AL DISTRICT NO. 406 39, H ONO RAB LE J. ALLAN GARRETT, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

This is an appea l pursuant to Anders v. Calif ornia

. A jury convicted Mario Alberto

1 Riojas-Contreras of the offe nse o f ag g rava ted assault with a deadly wea pon. Punishm ent was 2 assessed at 18 y ear s’ imprisonment.

The jury hear d evidenc e that on the night of J une 30, 2012, Riojas-Contreras shot the victim, J esus Fue ntes, in the back with a .22 caliber rifle following a verba l alterc ation betwee n the
two me n . F u e n tes testified that during the alterc ation, he observe d that Riojas-Contreras was holding

a larg e knife and appea

red to be intox icated. Acc ording to Fue ntes, he eventua lly walked awa y from Riojas -C o n t re ra s, while others who had witnessed the alterc ation (which occur red at a child’s birthday party

) demande d that Riojas-Contreras leave

. Wit n es s es t estified that Riojas-Contreras

386 U.S. 738 (1967). 1 See Tex. P enal Code § 22.02( a)( 2) 2then g ot into his truck and drove it toward tables wher e many children and other g uests wer e sitti ng .

Party attendee s then beg an to shout and throw beer bottles at Riojas-Contreras’ s tr u ck , an d he drove a way . Fue ntes testified that approximately fiftee n mi n u t es later, while he was standing outside, he hea

rd a g unshot, saw Riojas-Contrera s’s truck pa rked a short distance a

way from him, and proce eded to run awa y from what he assumed was an attempt to shoot him. Fue ntes rec ounted that, as he f

led, he wa s struck in the bac k by a bull et. J ulie Veloz, Fue ntes’ cousin, a lso attended 3 the par ty that night a

nd witnessed the shooting. She testified that she saw Riojas-Contreras r eturn
to the party , exit his truck with a “long ” g un in his hand , and walk toward the porch wher e Fue ntes was standing. Veloz rec ounted t hat R iojas-Contrera s fired the g un in Fue ntes’s di rec tion
two or three times befor e returning to his tr u ck an d driving awa y . Veloz’s daug hter, who also observe d the shooting, pr ovided similar testimony

.

As Riojas-Contreras was driving awa y , police office rs arr ived at t h e s ce ne and
appre hended him in his truck shortly there afte r. During t h e co u rs e o f t he arr est, police located a .22 caliber rifle and a knife in the truck. These items wer e admitted into evidenc e, as wer e a series of photogr aphs depicting , among other things, the injury to Fue ntes. Additionally , t h e j ury hear d

rec ording s of two 911 calls rela ted to the incident. Ba sed on this and other evidenc e, the jury found Riojas-Contreras g uilty

of the off ense of ag g rava ted assault with a de adly wea pon.

Fue ntes was subsequently airlifted to a hospital in Austin for emer g ency s u rg ery during 3 which one of

his kidney s had to be re moved. 2During the hear ing on punishment, the hos t o f t h e party rec ounted that RiojasContrera s had near ly hit her chil d wi th his truck when he drove it toward party g oers afte r he had been told to leave

. She further testified that there wer e approximately twenty to twenty -five children
prese nt when Ri ojas-Contrer as returned to the party , ex i t ed h i s vehicle, and bega n firing his rifle. After hear ing this and o t h er ev i d ence, the jury assessed punishment as noted above, and the district court re ndere d judgme nt on the verdic t. This appeal f ollowed. Riojas-Contrera s ’s court-a ppointed counsel has filed a motion to withdraw supported by a brief concluding that the appea l is frivolous and without merit. The brief meets the
requ i re m ents of Anders v. Calif ornia by prese nting a profe ssional evalua tion of the rec ord demonstrating why there are no arg uable g rounds to be advanc ed. Counsel has cer tified to the 4
Court that he has provi d ed copies of t he mot ion and brief t o Riojas-Contreras, advised hi m of hi s rig ht to examine the appellate rec ord and file a pro se response , and supplied him with a form motion for pr o se acc ess to the appellate rec ord. No pro se br ief or othe r written r esponse ha s been f iled, 5 including a

motion for acc ess to the appe llate re cord. We have independe ntly rev i ew ed t he rec ord and have found nothing that might
arg uably support the appea l. We ag ree with counsel that the appea l is frivolous. Counsel’s motion 6 to withdraw is g rante d.

See 386 U.S. at 744-4 5 ; s ee a l so Penson v. Ohio , 488 U.S. 75 (1988); High v. State , 4 573 S.W .2d 807 (Tex. Crim. App. 1978); Currie v. State , 516 S.W .2d 684 (Tex. Crim. App. 1974); Jack son v. State , 485 S.W .2d 553 (Tex. Crim. App. 1972). See Ke lly v. State , 436 S.W .3d 313, 319-20 (Te x . Crim. App. 2014). 5 See Anders , 386 U.S. at 744; Garner v. State , 300 S.W .3d 763, 766 (Tex. Crim. 6 App. 2009); Bledsoe v . State , 178 S.W .3d 824, 826-27 (Te x . Crim. App. 2005). 3The judg ment of convic tion is affirmed.

__________________________________________ Bob Pembe rton, J ustice Be fore J ustices Pury ear , Pemberton, and F ield Affir med Filed: Aug ust 12, 2015 Do Not Publish

4