Alejandro Garcia v. State

• Court: Court of Appeals of Texas
• Decided: November 2, 2015
• Docket: 06-15-00187-CR
• Status: Published

Opinion

0 FI LED GREGG cown~ TEl(.1\8

NO. 43527-8

STATE OF TEXAS § IN THE DISTRICT CO FILED IN 6th COURT OF APPEALS § TEXARKANA, TEXAS vs. § 124TH JUDICIAL DISTRICT 11/2/2015 9:14:43 AM § DEBBIE AUTREY ALEJANDRO GARCIA § GREGG COUNTY, TEXASClerk

NOTICE OF APPEAL AND MOTION FOR SUSPENSION OF RULES PURSUANT TO TEX. R. APP. PRO. RULE 2

TO THE HONORABLE JUDGE OF SAID COURT:

Now comes Alejandro Garcia, Defendant in the above styled and numbered cause, and

gives this written notice of appeal to the Court of Appeals of the State of Texas from the

judgment of conviction and sentence herein rendered against Alejandro Garcia.

Appellant requests a suspension of the rules pursuant to Tex. R. App. Pro. Rule 2 to allow

this notice of appeal to be considered timely filed. Appellant was sentenced 24 July 2015.

Motion for New Trial and Motion in Arrest of Judgment was timely filed 13 August 2015. On 3

September 2015 counsel was notified in person that appellant did not wish to continue his

appeal. Appellant reaffirmed the decision to counsel 4 September 2015. Appellant filed a pro se

untitled motion asking for new counsel and requesting his appeal continue, however, he did not

inform appellate counsel of his decision, nor was appellate counsel served with this motion.

Appellate Counsel first became aware of the change of heart of Appellant on 29 October

2015. Appellant now files this Notice of Appeal.

Respectfully submitted,

ROBERT L COLE JR P. 0. Box 829 LONGVIEW, TX 75606 Tel: (903) 236-6288 Fax: (903) 236-5441 0 0

By:_~-----------­ Robert L. Cole, Jr. State Bar No. 04547800 rcolejd@gmail.com Attorney for Alejandro Garcia

CERTIFICATE OF SERVICE

This is to certify that on October 30, 2015, a true and correct copy of the above and

foregoing document was served on the District Attorney's Office, Gregg County, Gregg County

Courthouse, by hand delivery. FI LED GREGG COUNTY, TEXAS

AUG 1 3 2015 NO. 43527-B ':2>'.'=0o·cwc~M STATE OF TEXAS § IN THE DISTRICT COUR'f~~ § vs. § 124th JUDICIAL DISTRICT § ALEJANDRO GARCIA § GREGG COUNTY, TEXAS

MOTION FOR NEW TRIAL AND MOTION IN ARREST OF JUDGMENT

COMES NOW, Alejandro Garcia, the Defendant in the above styled and numbered

cause, and files this Motion for New Trial and Motion in Arrest of Judgment pursuant to Rules

21 and 22 of the Texas Rules of Appellate Procedure, and in support thereof would show this

court the following:

1. The Defendant was sentenced on 24 July 2015. This Motion, filed within the

thirty-day timetable, is therefore timely. A hearing must be commenced before the 75th day

after the sentence, which is 7 October 2015, or this motion is overruled by operation oflaw.

2. The verdict in this cause is contrary to the law and the evidence. See Tex. R.

App. P. 21.3.

3. The trial court has the discretion to grant a new trial in the interests of justice, as

the Court of Criminal Appeals has emphasized:

For more than one hundred and twenty years, our trial judges have had the discretion to

grant new trials in the interest of justice. In Mullins v. State, 37 Tex. 337, 339-340

( 1872-73 ), the Supreme Court, which at that time had criminal jurisdiction, held:

... The discretion of the District Court, in granting new trials, is almost the only

protection to the citizen against the illegal or oppressive verdicts of prejudiced, careless, or ignorant juries, and we think the District Court should never hesitate

to use that discretion whenever the ends of justice have not been attained by those

verdicts.

State v. Gonzalez, 855 S.W.2d 692 (Tex. Crim. App. 1993).

4. For the foregoing reasons, and for such other reasons that may arise on the

hearing of this Motion, Defendant requests a new trial.

WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Court set aside

the judgment of conviction entered in this cause and order a new trial on the merits.

ROBERT L COLE JR P. 0. Box 829 LONGVIEW, TX 75606 Tel: (903) 236-6288 Fax: (903) 236-5441

By: f:Ltl2 @4v Robert L. Cole, Jr. State Bar No. 04547800 rcolejd@gmail.com Attorney for Alejandro Garcia

CERTIFICATE OF PRESENTMENT

By signature above, I hereby certify that a true and correct copy of the above and

foregoing has been hand-delivered to the Office for the 124th Judicial District Court of Gregg

County, on this day, August 13, 2015. CERTIFICATE OF SERVICE

This is to certify that on August 13, 2015, a true and correct copy of the above and

foregoing document was served on the District Attorney's Office, Gregg County, Gregg County

Courthouse, by hand delivery.

Robert L. Cole, Jr. f