Christopher Ray Olivarez v. State

Opinion

ACCEPTED 12-15-00108-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 11/23/2015 7:00:37 PM Pam Estes CLERK

CAUSE NUMBER 12-15-00108-CR RECEIVED IN 12th COURT OF APPEALS TYLER, TEXAS 11/23/2015 7:00:37 PM IN THE COURT OF APPEALS FOR THE PAM ESTES Clerk

TWELFTH APPELLATE DISTRICT OF TEXAS

AT TYLER 11/23/2015

CHRISTOPHER RAY OLIVAREZ

VS.

THE STATE OF TEXAS

CAUSE NUMBER 3 0,3 80

IN THE 3RD JUDICIAL DISTRICT COURT

ANDERSON COUNTY, TEXAS

APPELLANT'S BRIEF

Colin D. McFall Attorney at Law 513 North Church Street Palestine, Texas 75801-2962 Telephone: 903-723-1923 Facsimile: 903-723-0269 Email: cmcfall@mcfall-law-office.com Counsel for Appellant

Page - 1 - of 23 IDENTITY OF PARTIES AND COUNSEL

Pursuant to Rule 38.1 (a), Texas Rules of Appellate Procedure, Appelhnt

provides a complete list of all parties and the names and addresses of Counsel:

Defendant Christopher Ray Olivarez and Appellant:

Defendant's Trial Colin D. McFall and Appellate Counsel: Attorney at Law 513 North Church Street Palestine, Texas 75801-2965 Telephone: 903-723-1923 Facsimile: 903-723-0269

State's Trial Scott Holden and Appellate Counsel: Anderson County District Attorney's Office 500 North Church Street, Suite 38 Palestine, Texas 75801 Telephone: 903-723-7400 Facsimile: 903-723-7818

Page - 2 - of 23 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL 2

TABLE OF CONTENTS 3

INDEX OF AUTHORITIES 4

STATEMENT OF THE CASE 6

STATEMENT REGARDING ORAL ARGUMENT 10

ISSUE PRESENTED

I. THE APPELLATE COURT SHOULD ALLOW COUNSEL, UPON

MAKING THE DETERMINATION THERE WAS NO ERROR IN

THE TRIAL COURT, TO WITHDRAW AND APPELLANT

ALLOWED A REASONABLE TIME TO FILE A PRO SE

BRIEF 11

STATEMENT OF FACTS 12

SUMMARY OF THE ARGUMENT 14

ARGUMENT 17

PRAYER 21

CERTIFICATE OF COMPLIANCE.. 22

CERTIFICATE OF SERVICE 23

Page - 3 - of 23 INDEX OF AUTHORITIES

CASES PAGE

UNITED STATES

Anders v. California, 386 U.S 738, 1967 20

TEXAS

Cardona v. State, 665 S.W.2d 492, 494 (Tex.Crim.App.1984) 18

Cole v. State, 578 S.W.2d 127, 128 (Tex.Crim.App.[Panel Op.] 1979 .19

Harris v. State, 160 S.W.3d 621, 626 (Tex.App.-Waco 2005, no pet.) 18

Hays v. State, 933 S.W.2d 659, 661

(Tex.App-San Antonio 1996, no pat.) 19

Jackson v. State, 680 S.W.2d 809,814 (Tex.Crim.App.1984) .19

Jones v. State, 571 S.W.2d 19 193-94

(Tex.Crim.App. [Panel Op.] 1978) 18

Jones v. State, 589 S.W.2d 419, 421 (Tex.Crim.App.1979) 18

Leach v. State, 170 S.W.3d 669, 672

(Tex.App.-Fort Worth 2005, pet ref d.) 18

Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App.2006.) .17, 18

Sanchez v. State, 603 S.W.2d 869, 871 (Tex.Crim.App.1980) 18

Page - 4 - of 23 Watts v. State, 645 S.W.2d 461, 463 (Tex.Crim.App.1983 19

RULES AND STATUTES PAGE

TEXAS CODE OF CRIMINAL PROCEDURE

Article 42.12, 5(b), Texas Code of Criminal Procedure 17

TEXAS PENAL CODE

Section 12.33, Texas Penal Code 19

TEXAS RULES OF APPELLATE PROCEDURE

Rule 9.4(i) (3), Texas Rules of Appellate Procedure 22

Rule 38.1(a), Texas Rules of Appellate Procedure 2

Rule 38.1(e), Texas Rules of Appellate Procedure 10

Page - 5 - of 23 SIOZ-£Z-II STATEMENT OF THE CASE

On the 18th day of November 2010, an Anderson County Grand Juryreturned

a single count Indictment, charging Appellant withBurglary of a Habitation, a

second-degree felony. (C.R., Vol. 1, Pg. 6).

On the 19th day of August 2011, Appellant plead guilty to the single count of

Burglary of a Habitation. However, :in exchange for his plea of Guilty, the Court

deferred adjudicating guilt, and sentenced Appellant to eight (8) years of Deferred

Adjudication Community Supervision.(C.R., Vol. 1, Pg. 24).

On the 12th day of July 2012, Appellee filed a Motion to Proceed with

Adjudication of Guilt and Sentence.(C.R., Vol. 1, Pg. 39). On the 9th day of

October 2012, Appellant with the assistance of Counsel(C.R., Vol. 1, Pg. 58),

waived a hearing on the Motion to Proceal with Adjudication of Guilt and

Sentence., and agreed to a modification of Appellant's community supervision.

(C.R., Vol. 1, Pg. 60). As a result of the modification, the Court dismissed the

Motion to Proceed with Adjudication of Guilt and Sentence.(C.R., Vol. 1, Pg. 62).

On the 25th day of February 2013, Appellee filed a Motion to Proceed with

Adjudication of Guilt and Sentence.(C.R., Vol. 1, Pg. 67). Once again, with the

assistance of Counsel(C.R., Vol. 1, F'g. 74), waived a hearing on the Motion to

Page - 6 - of 23 SIOZ-£Z-II Proceed with Adjudication of Guilt and Sentence, and agreed to a modification of

Appellant's community supervision.(C.R., Vol. 1, Pg. 79). In exchange for the

agreed modification, the Court dismissed the Motion to Proceed with Adjudication

of Guilt and Sentence. (C.R., Vol. 1, Pg. 85).

On the 3rd day of March 2014, the Court again modified Appellant's

conditions of Community Supervision (C.R., Vol. 1, Pg. 920).

On. the 28th day of July 2014, Appellee filed yet another Motion to Proceed

with Adjudication ofGuilt and Sentence (C.R., Vol. 1, Pg. 94), arid then filed a

State's First AmendedMotion to Proceed with Adjudication of Guilt and Sentence,

on the 27th day of August 2014. (C.R., Vol. 1, Pg. 102).

On the 17th day of March 2015, the Trial Court heard the State's First

Amended Motion to Proceed with Adjudication of Guilt and Sentence(R.R., Vol. 3,

Pg. 46, L. 13). The Trial Court confirmed Appellant was the same individual

presently on probation in cause number 30,380.(R.R., Vol. 3, Pg. 47, L. 8).

Appellant then waived the reading of the State's First Amended Motion to Proceed

with Adjudication of Guilt and Sentence(R.R., Vol. 3, Pg. 47, L. 14) and plead true

to the allegations contained therein.(R.R., Vol. 3, Pg. 47, L. 19). An allegation of

the State's First Amended Motion to Proceed with Adjudication of Guilt and

Page - 7 - of 23 SIOZ-£Z-II Sentence was Manufacture or Delivery of Substance In Penalty Group I, one gram

or more but less than four grams, on or about the 5th day of July 2014. (C.R., Vol. 1,

Pg. 102).

Over the next two days, the trial courtheard testimony in Appellant's Jury

Trial, in Cause Number 31,900 (12-15-00107-CR on appeal). Appellant presented

his mother as a witness, Adelfa Arzola(R.R., Vol. 3, Pg. 173, L. 8). Both the

Appellee (R.R., Vol. 4, Pg. 86, L. 18) and Appellant (R.R., Vol. 4, Pg. 86, L. 24)

requested the trial court take judicial notice of the testimonypresented in the jury

trial and consider said testimony in the Sentencing Hearing on th€State's First

Amended Motion to Proceed with Adjudicatbn of Guilt and Sentence.

On the 18th day of March 2015, the Court sentence Appellant totwenty (20)

years confinement within the Institutional Division of the Texas Department of

Criminal Justice. (R.R., Vol. 4, Pg. 88, L. 9).

On the 18th day of March, Appellant filed the Trial Court's Certificate of

Defendant's Right of Appeal. (C.R., Vol. 1, Pg.116).

On the 17th day of April 2015, Appellant filed allotice of Appeal. (C.R.,

Vol. 1, Pg. 133), Request for the Clerk's Record and Designation of Matters for

Inclusion (C.R., Vol. 1, Pg. 123), Request for the Reporter's Record (C.R., Vol. 1,

Page - 8 - of 23 SIOZ-£Z-II Pg. 121), Defendant's Motion for New Trial (C.R., Vol. 1, Pg.127), and Appellant

filed Defendant's Motion for a Free Reporter's Record on Appeal (C.R., Vol. 1, Pg.

130).

Page - 9 - of 23 SIOZ-£Z-II STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Rule 38.1 (e), Texas Rules of Appellate Procedure, Appellant

provides the following Statement Regarding Oral Argument

Appellant does not request Oral Argument

Page - 10 - of 23 SIOZ-£Z-II ISSUE PRESENTED

THE APPELLATE COURT SHOULD ALLOW

COUNSEL, UPON MAKING THE DETERMINATION

THERE WAS NO ERROR IN THE TRIAL COURT, TO

WITHDRAW AND APPELLANT ALLOWED A

REASONABLE TIME TO FILE A PRO SE BRIEF.

Page - 11 - of 23 STATEMENT OF FACTS

On or about the 5th day of July 2014 (R.R., Vol. 3, Pg. 127, L. 4), Corporal

Ricki Baker (R.R., Vol. 3, Pg. 125, L. 9) and Officer Justin Blanks (R..R., Vol. 3,

Pg. 129, L. 15) of the Palestine Police Department(R.R., Vol. 3, Pg. 125, L. 9),

received information from a confidential informant thathe would be traveling

eastbound on Palestine Avenue towards Executive Inn & Suites in a gray Pontiac

G6 with Appellant as the passenger(R.R., Vol. 3, Pg. 128, L. 6), who would be

transporting methamphetamine(R.R., Vol. 4, Pg. 5, L. 11) and have a shotgun with

him. (R.R., Vol. 3, Pg. 148, L. 5).

Corporal Ricki Baker and Officer Justin Blanks observed the grey Pontiac

G6 traveling eastbound on East Palestine Avenue and pulled in behind the vehicle

(R.R., Vol. 3, Pg. 130, L. 24) and performed a traffic stop (R.R., Vol. 3, Pg. 132, L.

23) on a Pontiac G6 (R.R., Vol. 3, Pg. 131, L. 17) upon observing no rear license

plate (R.R., Vol. 3, Pg. 130, L. 24). The vehicle was driven byMarcus Howard

(R.R., Vol. 3, Pg. 131, L. 17). Appellant was the passenger in the vehicle. (R.R.,

Vol. 3, Pg. 135, L. 5). On approach, Corporal Ricki Baker observed a full size

shotgun (R.R., Vol. 3, Pg. 135, L. 7) in the vehicle. Officers immediately detained

(R.R., Vol. 3, Pg. 136, L. 15) both occupants of the vehicle. CorporalRicki Baker

Page - 12 - of 23 requested and received consent to search the vehicle from Mrcus Howard. (R.R.,

Vol. 3, Pg. 137, L. 6). A digital scale (R.R., Vol. 3, Pg. 138, L. 20) was found in a

tool bag (R.R., Vol. 3, Pg. 137, L. 11) in the passenger side (R.R., Vol. 3, Pg. 137,

L. 9) floorboard (R.R., Vol. 3, Pg. 137, L. 11), and two bags of marijuana and one

bag of methamphetamine, weighing approximately four grams (R.R., Vol. 4, Pg.

16, L. 13), were found in the glove compartment.(R.R., Vol. 3, Pg. 138, L. 15).

Appellant claimed the tool bag with the scale inside.(R.R., Vol. 3, Pg. 148, L. 9),

but denied knowledge of the narcotics(R.R., Vol. 3, Pg. 150, L. 10).

Page - 13 - of 23 SIOZ-£Z-II SUMMARY OF THE ARGUMENT

REASONABLE TIME TO FILE A PRO SE l3RIEF.

Counsel has undertaken a conscientious examinationof the record and is

unable to identify an arguable basis for appeal.

A Trial Court's detcrmination to proceed with an adjudication of guilt is

reviewable in the same manner as a revocation hearing. Appellate review of an

Order adjudicating guilt and revoking community supervision is limited to

determining whether the Trial Court abused its dicretion. The trial court abuses its

discretion in revoking community supervision if, as to every ground alleged, the

State fails to meet its burden of proof.

An Order adjudicating guilt and revoking community supervision must be

supported by a preponderance of the evidence, meaning the greater weight of the

credible evidence, which would create a reasonable belief that the Defendant has

violated a condition of community supervision In determining the sufficiency of

Page - 14 - of 23 SIOZ-£Z-II the evidence to sustain a revocation we view the evidence in the light most

favorable to the trial court's ruling.

A finding of a single violation of community supervision is sufficient to

support revocation. Thus, in order to prevail, an Appellant must successfully

challenge all the findngs that support the revocation order.

A plea of true to even one of the State's allegations is sufficient to support a

revocation of deferred adjudication community supervision. When Appellant pleas

true, the sufficiency of the evidence I o support therevocation may not be

challenged.

For the above stated reasons, an appeal, based upon an argument that the

Trial Court abused its discretion infinding the alleged allegations true and

adjudicating Appellant guilty,is frivolous.

Furthermore, the court assessed punishment within the range authorized by

the legislature for a Second Degree Felony. Generally, the Appellate Court will not

disturb a penalty assessed within the range of punishment

For the above stated reasons, an appeal, based upon the argumentthat the

Trial Court abused its discretion in sentencing Appelint, is frivolous.

Counsel has made a full and careful review of all matters in tit instant cause

Page - 15 - of 23 SIOZ-£Z-II and cannot find any reasonable point of error to legitimately raise for purposes of

appeal. As a result, Counsel has filed the instant Anders Brief.

Page - 16 - of 23 ARGUMENT

Counsel has undertaken a conscientious examinationof the Reporter's

Record and the Clerk's Record. Counselis unable to identify an arguable basis for

appeal.

A Trial Court's determination to proceed with an adjudication of guilt is

reviewable in the same manner as a revocation hearing.See Article 42.12, 5(b),

Texas Code of Criminal Procedure Appellate review of an Order adjudicating guilt

and 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.Crirn.App.2006). In determining questions concerning sufficiency of the

evidence in revocation cases, the burden of proof is by a preponderance of the

evidence„ Id. An Order adjudicating guilt and revoling community supervision

must be supported by a preponderance of the evidence, meaning the greater weight

Page - 17 - of 23 of the credible evidence which would create a reasonable belief that the Defendant

has violated a condition of community supervision/d. at 763-64. In determining

the sufficiency of the evidence to sustain a revocation, we view the evidence in the

light most favorable to the trial court's ruling.Jones v. State, 589 S.W.2d 419, 421

(Tex. Crim. App. 1979).

In the instant appeal, a Jury found Appellantguilty, after he plead guilty, to

the same offense, alleged in the State's First Amended Motion to Proceed with

Adjudication of Guilt and Sentence.

A finding of a single violation of community supervision is sufficient to

support revocation. See Sanchez v. State, 603 S.W.2d 869, 871

(Tex.Crirn.App.1980); Leach v. State, 170 S.W.3d 669, 672 (Tex.App,Fort Worth

2005, pet. ref d.). The trial court abuses its discretion in revoking community

supervision if, as to every ground alleged, the State fails to meetits burden of proof

Cardona v. State, 665 S.W.2d 492, 494 (Tex.Crim.App.1984). Thus, in order to

prevail, an Appellant 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); Harris v. State, 160 S.W.3d 621, 626 (Tex.App.-Waco 2005, no

pet.).

Page - 18 - of 23 A plea of true to even one of the State's allegations is sufficient to support a

revocation of deferred adjudication community supervisionSee Watts v. State, 645

S.W.2d 461, 463 (Tex.Crim.App.1983). WhenAppellant pleas true, the sufficiency

of the evidence to support the revocation may not be challengedCoie v. State, 578

S.W.2d 127, 128 (Tex.Crim.App.[Panel Op.] 1979;Hays v. State, 933 S.W.2d 659,

661 (Tex.App-San Antonio 1996, no pat.).

Appellant plead true to the allegations contained within theState's First

Amended Motion to Proceed with Adjudication of Guilt and Sentence.

For the above stated reasons, an appeal, based upon an argument that the

Trial Court abused its discretion infinding the alleged allegations true and

adj udicating Appellant guilty,is frivolous.

Furthermore, the court assessed punishment within the range authorized by

the legislature for a Second Degree Felony. Section 12.33, Texas Penal Code.

Generally, the Appellate Court will not disturb a penalty assessed within the range

of punishment. Jackson v. State, 680 ,S.W.2d 809, 814 (Tex.CrimApp.1984).

For the above stated reasons, an appeal, based upon the argument that the

Trial Court abused its discretion in sentencing Appellant, is frivolous.

Counsel has made a full and careful review of all matters in tI2 instant cause

Page - 19 - of 23 SIOZ-£Z-II and cannot find any reasonable point of error to legitimately raise for purposes of

appeal. As a result, Counsel has filed the instant Anders Brief.Anders v.

California, 386 U.S. 738, 1967.

Page - 20 - of 23 SIOZ-£Z-II PRAYER

WHEREFORE, PREMISES CONSIDERED, Counsel prays the Court accept

the instant Anders Brief, grant Counsel's Motion to Withdraw, and allow Appellant

a reasonable amount of time to file a Pro Se Brief.

Page - 21 - of 23 SIOZ-£Z-II CERTIFICATE OF COMPLIANCE

I, Colin D. McFall, Attorney of Record for the above styled Appellant,

pursuant to Rule 9.4(i(3), Texas Rules of Appellate Procedure, hereby certify the

number of words within Appellant's Brief at two thousand seven hundred thirty

(2,730).

Page - 22 - of 23 SIOZ-£Z-II CERTIFICATE OF SERVICE

I, Colin D. McFall, Appellate Attorney of Record for the above styled

Appellant, hereby certify service of a true and correct copy of the above and

foregoing document, with an explanation that he is entitled,to review the record,

and, if he so feels fit, to file a Pro Se Brief on his own behalf at Hutchins Unit,

1500 East Langdon Road, Dallas, Texas 75241,by first class mail, on the 23rd day

of November 2014.

Counsel also certifies service of a true and correct copy of the above and

foregoing document upon Scott Holden, First Assistant, Anderson County Criminal

District Attorney, by email delivery, to sholden@co.anderson.tx.us, on the 23rd day

of November 2015.

RESPECTFULLY SUBMITTED,

Anderson County Courthouse 500 North Church Street, Suite 38 OLIN D. CFALL Palestine, Texas 75801 Assistant Criminal District Attorney Telephone: 903-723-7400 Texas Bar Number: 24027498 Facsimile: 903-723-7818

Page - 23 - of 23