Christopher Ray Olivarez v. State

Opinion

ACCEPTED

12-15-00107-CR

TWELFTH COURT OF APPEALS

TYLER, TEXAS

11/23/2015 12:03:06 PM

Pam Estes

CLERK

CAUSE NUMBER 12-15-00107-CR FILED IN 12th COURT OF APPEALS

TYLER, TEXAS

11/23/2015 12:03:06 PM

IN THE COURT OF APPEALS FOR THE PAM ESTES Clerk

TWELFTH APPELLATE DISTRICT OF TEXAS

AT TYLER

CHRISTOPHER RAY OLIVAREZ VS.

THE STATE OF TEXAS

CAUSE NUMBER 31,900 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

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

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL 2 TABLE OF CONTENTS ...3 INDEX OF AUTHORITIES 4 STATEMENT OF THE CASE 5 STATEMENT REGARDING ORAL ARGUMENT 7 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 8 STATEMENT OF FACTS 9 SUMMARY OF THE ARGUMENT 11 ARGUMENT .13 PRAYER 15 CERTIFICATE OF COMPLIANCE... .. 16 CERTIFICATE OF SERVICE 17

INDEX OF AUTHORITIES

CASES PAGE UNITED STATES Anders v. California, 386 U.S. 738, 1967 .14 TEXAS Harvey v. State, 611 S.W.2d 108, 111 (Tex.Cr.App.1981) .14 Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App.1984) 14 Miller v. State, 412 S.W.2d 650 (Tex.Crim.App.196) 13 RULES AND STATUTES PAGE TEXAS HEALTH AND SAFETY CODE Section 481.112(c), Texas Health and Safety Code 13 TEXAS PENAL CODE Section 12.32, Texas Penal Code 14 TEXAS RULES OF APPELLATE PROCEDURE Rule 9.4(i) (3), Texas Rules of Appellate Procedure, 16 Rule 38.1(a), Texas Rules of Appellate Procedure 2 Rule 38.1(e), Texas Rules of Appellate Procedure 7

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STATEMENT OF THE CASE

C)n the 18th day of September 2014, an Anderson County Grand Juryreturned a single count Indictment, charging Appellant withManufacture or Delivery of Substance In Penalty Group I, ow gram or more but less than four grams, in a drug free zone. (C.R., Vol. 1, Pg. 5).

On the 17th day of March 2015, Appellant plead guilty to thesingle count of Manufacture or Delivery of Substance In Penalty Group I, one gram or more but less than four grams (R.R., Vol. 3, Pg. 50, L. 23). In addition, Appellant plead True (R.R., Vol. 3, Pg. 120, L. 23), to a single enhancement paragraph contained within the State's Notice of Enhancement Paragraphs to be Submitted to Fact Finder at Punishment. (C.R., Vol. 1, Pg. 37). However, in exchange for the pleas of guilty and true, the state abancbned the drug free zone enhancement (R.R., Vol. 3, Pg. 47, L. 2). The parties selected a jury and engaged in a contested sentencing hearing.

On the 1 8th day of March 2015, the Jury assessed Appellant's punishment at twenty-five (25) years confinement within the Institutional Division of the Texas Department of Criminal Justice.(R. R., Vol. 4, Pg. 81, L. 23).

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

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Defendant's Right of Appeal. (C.R., Vol. 1, Pg. 49). On the 17th day of April 2015,

Appellant filed allotice of Appeal. (C.R., Vol. 1, Pg. 75), Request for the Clerk's Record and Designation of Matters for Inclusion (C.R., Vol. 1, Pg. 62), Request for the Reporter's Record (C.R., Vol. 1, Pg. 66), Defendants Motion for New Trial (C.R., Vol. 1, Pg. 68), and Appellant filed Defendant's Motion for a Free Reporter's Record on Appeal (C.R., Vol. 1, Pg.71).

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STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Rule 38.1 (e), Texas Rules of AppellateProcedure, Appellant provides the following Statement Regarding Oral Argument Appellant does not requestOral Argument

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ISSUE PRESENTED

THE APPELLATE COURT SHOULD ALLOW COUNSEL, UPON MAKING THE DETERMINATION THERE WAS NO ERROR IN THE TRIAL COURT, TO WITHDRAW ANT) APPELLANT ALLOWED A REASONABLE TIME TO FILE A PRO SE BRIEF.

Page - 8 -of 17

STATEMENT OF FACTS

On or about the Stn 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 that he would be traveling eastbound on Palestine Avenue towards Executive Inn & Stites 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 by Marcus 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. Corporal Ricki Baker requested and received consent to search the vehicle from Marcus 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.F',., 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 scab inside. (R.R., Vol. 3, Pg. 148, L. 9), but denied knowledge of the narcotics(R.R., Vol. 3, Pg. 150, L. 10).

SUMMARY OF THE ARGUMENT

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.

Counsel has undertaken a careful scrutiny of the Reporter's Record and the Clerk's Record. Counsel is unable toidentify an arguable basis for appeal.

A plea of guilty to a felony charge before a jury admits the existence of all facts necessary to establish guilt. Appellant plead guiltyto Manufacture or Delivery of Substance In Penalty Group I, one gram or more but less than four grams a second degree felony. Appellant's plea of guilty was before a jury. Therefore, Appellant admitted to all of the facts necessary for the jury to establish his guilt.

An appeal, based upon an argument that the Trial Court abused its discretion in finding Appellant guilty, is frivolous.

Appellant also plead true to an enhancement paragraph. If, an Appellant pleads true to an enhancementparagraph, the State's burden of proof is satisfied.

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In addition, the jury assessed punishment within the rangeof punishment.

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 argument that the Trial Court abused its discretion in sentencing Appelant, is frivolous.

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

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ARGUMENT

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.

Counsel has undertaken a conscientious examinationof the Reporter's Record and the Clerk's Record. Counsel is unable to indentify an arguable basis for appeal.

It is the established rule that a plea of guilty to a felony charge before a jury admits the existence of all facts necessary to establish guiltMiller v. State, 412 S.W.2d 650 (Tex.Crim.App.196).

Appellant plead guilty(R.R., Vol. 3, Pg. 50, L. 23), to Manufacture or Delivery of Substance In Penalty Group I, one gram or more but less than four grams (R.R., Vol. 3, Pg. 50, L. 23), a second degree felony.Section 481.112(c), Texas Health and Safety Code. Appellant's plea of guilty to the felony charge was before a jury. (R.R., Vol. 3, Pg. 120, L. 10). Therefore, Appellant admitted to all of the facts necessary for the jury to establish his guilt.

For the above stated reasons, an appeal, based upon an argument that the Trial Court abused its discretion infinding Appellant guilty, is frivolous.

Appellant also plead true (R.R., Vol. 3, Pg. 120, L. 23), to a single enhancement paragraph contained withinthe State's Notice of Enhancement Paragraphs to be Submitted to Fact Finder at Punishment.(C.R., Vol. 1, Pg. 37).

If, an Appellant pleads true to an enhancement paragraph, the State's burden of proof is satisfied. The plea of true is sufficient proof. Harvey v. State, 611 S.W.2d 108, 111 (Tex.Cr.App.1981) Furthermore, the jury assessed punishment within the range authorized by the legislature for aFirst Degree Felony. Section 12.32, Texas Penal Code. Generally, the Appellate Court will not disturba penalty assessed within the range ofpunishment. Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App.1984).

For the above stated reasons, an appeal, based upon the argument that the Trial Court abused its discretion h sentencing Appellant, is frivolous.

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

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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.

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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 one thousand eight hundred ninety five (1,895).

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.u4 on the 23rd day of November 2015. RESPECTFULLY SUBMITTED,

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