Armando Ochoa v. State

Opinion

ACCEPTED

03-14-00740-CR

6167399

THIRD COURT OF APPEALS

AUSTIN, TEXAS

7/22/2015 8:14:07 AM

JEFFREY D. KYLE

CLERK

NO. 03-14-00740-CR

IN THE FILED IN 3rd COURT OF APPEALS

COURT OF APPEALS AUSTIN, TEXAS THIRD DISTRICT OF TEXAS 7/22/2015 8:14:07 AM AUSTIN, TEXAS JEFFREY D. KYLE Clerk

ARMANDO OCHOA § APPELLANT VS. § THE STATE OF TEXAS § APPELLEE

APPEAL FROM THE 299TH JUDICIAL DISTRICT COURT TRAVIS COUNTY, TEXAS

CAUSE NO. D-1-DC-14-202835

STATE’S BRIEF

ROSEMARY LEHMBERG

District Attorney

Travis County, Texas

Rosa Theofanis

Texas Bar No. 24037591

Assistant District Attorney District Attorney’s Office P.O. Box 1748

Austin, Texas 78767

Phone: 512.854.3626 Fax: 512.854.4810 Email:Rosa.Theofanis@traviscountytx.gov AppellateTCDA@traviscountytx.gov Oral Argument Not Requested

TABLE OF CONTENTS

INDEX OF AUTHORITIES ......................................................................................... 3 STATEMENT OF THE CASE ..................................................................................... 5 STATEMENT OF FACTS............................................................................................ 5 NATURE OF APPEAL................................................................................................. 5 STATE'S RESPONSE TO APPELLANT'S BRIEF.................................................... 6 The State agrees that there is no meritorious ground of error and that this appeal is frivolous. .................................................................................................... 6 ARGUMENT AND AUTHORITIES............................................................................ 6 PRAYER........................................................................................................................ 8 CERTIFICATE OF COMPLIANCE AND SERVICE ............................................... 9

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INDEX OF AUTHORITIES

Cases Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967)............................................. 5 Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969) ............................................ 5 High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).................................................. 5 Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346 (1988) ....................................................... 6 Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991)............................................. 7

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NO. 03-14-00740-CR

IN THE

COURT OF APPEALS

THIRD DISTRICT OF TEXAS

AUSTIN, TEXAS

ARMANDO OCHOA § APPELLANT VS. § THE STATE OF TEXAS § APPELLEE

APPEAL FROM THE 299TH JUDICIAL DISTRICT COURT TRAVIS COUNTY, TEXAS

CAUSE NO. D-1-DC-14-202835

STATE’S BRIEF

TO THE HONORABLE COURT OF APPEALS:

The State of Texas tenders this response to the brief submitted by the appellant’s attorney in this case.

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STATEMENT OF THE CASE

The appellant, Armando Ochoa, was indicted for Assault FamilyViolence enhanced to a felony by prior convictions. (CR 16-17) The appellant pled not guilty and was tried by a jury. (5 RR 13) The jury found him guilty as charged. (5 RR 98; CR 60) The appellant elected to go to the court for punishment and the court assessed a sentence of fourteen years. (CR 63; CR 68) The appellant filed notice of appeal (CR 72), and the trial court certified his right to appeal. (CR 62)

The appellant filed his second corrected Anders brief on May 12, 2015. Pursuant to two extensions of time to file the brief, the appellee’s brief is timely if filed byAugust 12, 2015.

STATEMENT OF FACTS

The State has read and reviewed the clerk’s and reporter’s records. The State submits that the appellant’s attorney on appeal has comprehensively summarized the evidence presented at hearing.

NATURE OF APPEAL

The appellant’s counsel has filed a brief which, in the State’s opinion, is in accordance with Anders v. California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). The appellant’s counsel has also moved to withdraw as attorney of record.

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STATE'S RESPONSE TO APPELLANT'S BRIEF

The State agrees that there is no meritorious ground of error and that this appeal is frivolous.

ARGUMENT AND AUTHORITIES

The State agrees with the appellant that the record does not disclose any meritorious or arguable error upon which this Court may grant relief.

The appellant’s attorney has complied with the requirements outlined byPenson v.

Ohio, 488 U.S. 75, 109 S.Ct. 346 (1988) and High v. State, 573 S.W.2d 807, supporting a proper examination of the record. The brief filed by counsel for the appellant provides a thorough discussion of the proceedings contained in the record, and makes references to locate testimony and rulings. Counsel further provides citation to legal authority supporting his discussion. The brief submitted is evidence of counsel’s conscientious examination of the record as required by the United States Supreme Court. Anders, 386 U.S. at 744, 87 S.Ct. at 1400; Penson, 488 U.S. at 80, 109 S.Ct. at 350. The State agrees with counsel’s analysis of the facts and legal issues, and the conclusion that this appeal is frivolous.

The appellant, having been informed of counsel’s view that the appeal is without merit, has an opportunity to submit arguments pro se to rebut the foregoing conclusions.

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In the event the appellant files such a pro se brief, the State requests a reasonable time to respond by way of supplemental brief. Absent a pro se brief by the appellant, or upon the expiration of such time as the court may allow the appellant to file, the State respectfully requests this Honorable Court to determine that this appeal is wholly frivolous and to affirm the appellant’s conviction.

If, however, this Court determines that a particular issue needs to be briefed more thoroughly, the State asks the Court to appoint new counsel and to allow the State the opportunity to respond to any further briefing. See Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991).

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PRAYER

WHEREFORE, PREMISES CONSIDERED, the State prays this court to find that this appeal is frivolous and affirm the appellant’s conviction.

Respectfully submitted,

ROSEMARY LEHMBERG

District Attorney

Travis County, Texas

/s/ Rosa Theofanis

Rosa Theofanis

Texas Bar No. 24037591

Assistant District Attorney District Attorney’s Office P.O. Box 1748

Austin, Texas 78767

Phone: 512.854.3626 Fax: 512.854.4810 Email: Rosa.Theofanis@traviscountytx.gov AppellateTCDA@traviscountytx.gov

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CERTIFICATE OF COMPLIANCE AND SERVICE I certify that this brief contains 435 words, based upon the computer program used to generate this brief and excluding words contained in those parts of the brief that Texas Rule of Appellate Procedure 9.4(i) exempts from inclusion in the word count, and that this brief is printed in a conventional, 14-point typeface.

I further certify that, on the 22nd day of July, 2015, a true and correct copy of this brief was served, by U.S. mail, electronic mail, telephonic document transmission, or electronically through the electronic filing manager, to Appellant’s attorney, Alexander L. Calhoun, Attorney at Law, 4301 W. William Cannon Drive, Suite B-150, #260, Austin, Texas 78749, [alcalhoun@earthlink.net].

/s/ Rosa Theofanis

Rosa Theofanis

Assistant District Attorney