ACCEPTED 13-15-00155-cr THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 12/4/2015 2:45:34 PM Dorian E. Ramirez CLERK
NO. 13-15-00155-CR
IN THE RECEIVED IN 13th COURT OF APPEALS COURT OF APPEALS FOR THE CORPUS CHRISTI/EDINBURG, TEXAS 12/4/2015 2:45:34 PM THIRTEENTH SUPREME JUDICIAL DISTRICT DORIAN E. RAMIREZ Clerk CORPUS CHRISTI, TEXAS ______________________________________________________ F I L E D IN THE 13TH COURT OF APPEALS FRED NICOLAS GONZALEZ, CORPUS CHRISTI
12/04/2015 APPELLANT, DORIAN E. RAMIREZ, CLERK VS. BY smata
THE STATE OF TEXAS,
APPELLEE _______________________________________________________
ON APPEAL FROM THE 206TH JUDICIAL DISTRICT COURT EDINBURG, HIDALGO COUNTY, TEXAS IN TRIAL COURT CAUSE NO. CR-3982-14-D ________________________________________________________
APPELLANT’S BRIEF
FILED UNDER THE AUTHORITY OF ANDERS V. CALIFORNIA, 97 S.CT. 1396 (1967) ________________________________________________________
ALFREDO MORALES, JR. ATTORNEY AT LAW P.O. BOX 52942 MCALLEN, TX 78505-2942 (956) 536-8800 BUS (956) 381-4269 FAX EMAIL: amjr700@gmail.com SBOT NO. 14417290 APPELLANT’S COUNSEL
ORAL ARGUMENT WAIVED IDENTITY OF PARTIES AND COUNSEL
The undersigned counsel of record certifies that the
following listed persons have an interest in the outcome of
this case. These representations are made so that the
justices of this honorable court may properly evaluate said
information to determine the existence of any reason which
would require their disqualification and/or recusal from
the case at bar.
A. PARTIES
Appellant: Fred Nicolas Gonzalez
Appellee: The State of Texas
B. COUNSEL ON APPEAL
For Appellant: Alfredo Morales, Jr. Attorney at Law P. O. Box 52942 McAllen, TX 78505-2942
For Appellee: Theodore Hake Assistant District Attorney Appellate Division Hidalgo County Courthouse 100 N. Closner Edinburg, TX 78539
i TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL . . . . . . . . . . i
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . ii
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . iii - iv
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 1
APPELLANT’S POINTS OF ERROR . . . . . . . . . . . . . 1 - 2
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . 2 - 3
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . 3
ARGUMENTS AND AUTHORITIES TO SUPPORT COUNSEL’S ASSESSMENT OF NO APPEALABLE ISSUES . . . 4 - 8
CONCLUSION . . . . . . . . . . . . . . . . . . . 9 - 10
PRAYER . . . . . . . . . . . . . . . . . . . . . . . 10
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . 11
ii TABLE OF AUTHORITIES
STATUTES
TEX CODE OF CRIMINAL PROCEDURE, ART. 26.13 . . 2, 5
CASES
UNITED STATES SUPREME COURT
Anders v. California, 87 S. Ct. 1396 (1967) . . . . . . . . . 4, 8
Douglas v. California, 83 S. Ct. 814 (1963) . . . . . . . . . . . . 8
Penson v. Ohio, 109 S. Ct. 346 (1988) . . . . . . . . . . . . 8
TEXAS COURT OF CRIMINAL APPEALS
Ex Parte Morrow, 952 S.W.2d 530 (Tex. Crim. App. 1997) . . . . 8
Fuller v. State, 253 S.W.3d 220 (Tex. Crim. App. 2008) . . . 5
Gonzalez v. State, 313 S.W.3d 840 (Tex. Crim. App. 2010) . . . 5
Harris v. State, 656 S.W.2d 481 (Tex. Crim. App. 1983) . . 7
In Re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008) . . . . 8
Jones v. State, 98 S.W.3d 700 (Tex. Crim. App. 2003) . . . . 9
Mitchell v. State, 68 S.W.3d 640 (Tex. Crim. App. 2002) . . . 6
Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991) . . 4, 8
iii TEXAS COURTS OF APPEAL
Arista v. State, 2 S.W.3d 444 (Tex. App. – San Antonio 1999 . . . . . . . . . . . . . . . . . . . 5
Carroll v. State, 176 S.W.3d 249 (Tex. App. – Houston [1st Dist.] 2004) . . . . . . . . . . . . . . . 5
Hodges v. State, 116 S.W.3d 289 (Tex. App. – Corpus Christi 2003) . . . . . . . . . . . . . . . . . . . 6
Lockett v. State, 394 S.W. 577 (Tex. App. – Dallas 2012) . . 5
Ortiz v. State, 849 S.W.2d 921 (Tex. App. – Corpus Christi 1993) . . . . . . . . . . . . . . . 4
Staggs v. State, 314 S.W.3d 155 (Tex. App. – Houston [14th Dist.] 2010 . . . . . . . .. . . . . . . . . 6
Williams v. State, 848 S.W.2d 906 (Tex. App. – Corpus Christi 1993) . . . . . . . . . . . . . . . . . . . 6
iv STATEMENT OF THE CASE
Appellant Fred Nicolas Gonzalez was charged by
indictment with the offense of failure to comply with
sex offender registration. (CR. Vol. 1, p. 5).
On January 30, 2015, Appellant pled guilty to the
offense as charged in the indictment and requested that
a pre-sentence (PSI) report be submitted for the trial
court’s consideration at the punishment phase of the
guilty plea proceedings. (RR. Vol. 5, pp. 5 – 37).
On March 16, 2015, the trial court conducted the
punishment hearing in the case and, after the presentation
of evidence and arguments by State’s and Appellant’s
respective counsel, including a request from the Appellant
for leniency, the trial court assessed punishment for the
charged offense at 10 years confinement in the Texas
Department of Criminal Justice. (RR. Vol. 7, pp. 4 – 10).
Appellant then timely filed his notice of appeal with
the trial court. (CR. Vol. 1, p. 86).
APPELLANT’S POINTS OF ERROR
The undersigned court-appointed counsel for Appellant
has made a determination, based on his complete review,
study, and analysis of the entire appellate record and
pertinent case law, that Appellant’s present appeal
1 contains no potential errors for the appellate court’s
consideration and review and, accordingly, files this
no-merits brief, on behalf of the Appellant, under the
authority of Anders v. California, 87 S.Ct. 1396 (1967).
STATEMENT OF FACTS
Appellant’s guilty plea hearing was held on January
30, 2015. In accordance with Art. 26.13, the trial court,
prior to accepting the his guilty plea, confirmed
Appellant’s mental competence, and then admonished him
on all of the following: nature and classification of the
offense; range of punishment; immigration consequences;
sex offender registration; terms and conditions of the
plea agreement; waiver of jury and other constitutional
rights; discovery compliance and waivers; acceptance of
plea agreement; and, notification of his right to appeal.
Appellant also stipulated to the trial court’s
venue and jurisdiction, and to the underlying facts of
the case and all of the other evidence (in the form of
police reports, witness statements, and other exhibits) to
substantiate his guilty plea.
Additionally, the trial court accepted, as evidence,
the State’s and Appellant’s agreement on the determination
of Appellant’s competence, in which two psychological
2 reports submitted by two independent psychologist
confirmed his mental competence to stand trial, and were
attached as exhibits to the Appellant’s plea documents.
After concluding that the Appellant had entered his
guilty plea knowingly and voluntarily, the trial court
advised Appellant it would accept his guilty plea, and
accordingly, found the Appellant guilty of the charged
offense. The trial court then set the matter for a
separate punishment hearing, given that the Appellant
had requested the preparation of a PSI report. (RR.
Vol. 5, 5- 33).
At Appellant’s punishment hearing, the trial court,
after giving due regard to the PSI report, and hearing
arguments from State’s and Appellant’s counsel, together
with Appellant’s plea for leniency, imposed punishment
at 10 years confinement in the Texas Department of Criminal
Justice. (RR. Vol. 7, pp. 4 – 10).
SUMMARY OF THE ARGUMENT
After a thorough and careful examination of the
appellate record in this cause, together with all of the
exhibits, it is Appellant’s counsel’s professional opinion
and conclusion that the Appellant’s appeal contains no
potential reversible errors, is unmeritorious, and does not
3 warrant appellate review.
ARGUMENT AND AUTHORITIES TO SUPPORT COUNSEL’S ASSESMENT OF NO APPEALABLE ISSUES
has conducted a thorough and careful review of the Clerk’s
Record, the Reporter’s Record, and all of the accompanying
exhibits in this cause to determine the viability of any
potential error for appellate review. Based on counsel’s
evaluation and assessment of the entire appellate record,
he is of the opinion that the Appellant’s case herein
presents no legal issue to support a meritorious appeal
before this honorable court. Nonetheless, mindful of
the Court of Criminal Appeals’ (and this court’s )
decisions interpreting the United States Supreme Court’s
opinion in Anders v. California, 87 S.Ct. 1396 (1967) –
namely, Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App.
1991) and Ortiz v. State, 849 S.W.2d 921 (Tex. App. –
Corpus Christi 1993), he would submit that the following
subject matter areas, which specifically apply in the
context of guilty plea proceedings, were identified,
explored, and researched for any potential colorable claims
for possible appellate review: 1) PLEA ADMONISHMENTS:
based on the appellate record on file with the court, the
4 trial court substantially complied with all of the
requirements set forth in Art. 26.13 of the Texas Code of
Criminal Procedure. Fuller v. State, 253 S.W.3d 220 (Tex.
Crim. 2008); Lockett v. State, 394 S.W.3d 577 (Tex. App. –
Dallas 2012); 2) APPELLANT’S MENTAL COMPETENCE: Appellant
was found mentally competent by two psychologists who
examined him for purposes of the guilty plea hearing.
Accordingly, the record supported his mental competency
to enter a guilty plea in this cause. Gonzalez v. State,
313 S.W.3d 840 (Tex. Crim. App. 2010); Arista v. State, 2
S.W.3d 444 (Tex. App. – San Antonio 1999); 3) APPELLANT’S
REQUEST FOR CHANGE OF COURT-APPOINTED COUNSEL: The
trial court did not err in refusing to change counsel.
a defendant is not entitled to his choice of appointed
counsel. Carroll v. State, 176 S.W.3d 249 (Tex. App. –
Houston [1st Dist.] 2004); 4) TRIAL COURT CONSIDERED PSI
REPORT: Appellant contended that the trial court failed
to consider the PSI report prior to imposing the sentence.
the record demonstrates that the trial court, in fact,
read and considered the report (RR. Vol. 7, p. 5), even
though the statute does not specifically require that it do
so before assessing its sentence. Wright v. State,
873 S.W.3d 77 (Tex. App. – Dallas 1994); 5) GUILTY PLEA
5 SUBSTANTIATION: The evidence presented at the plea hearing,
including the Appellant’s judicial confession and
stipulations, were legally sufficient to substantiate the
Appellant’s guilty plea. Hodges v. State, 116 S.W.3d 289
(Tex. App. – Corpus Christi 2003); Staggs v. State, 314
S.W.3d 155 (Tex. App. – Houston [1st Dist.] 2010); 6)
APPELLANT NOT PROMISED PROBATION: The Appellant contended
his court-appointed lawyer promised him probation if he
pled guilty and requested a PSI report. The appellate
record shows otherwise; the lawyer made it clear at the
hearing that the court was free to consider probation, but
was not required to do so, and that Appellant understood
as much. (RR. Vol. 7, pp. 6 – 7). Accordingly, plea was
entered knowingly and voluntarily, even though he was
under the impression he was going to receive probation.
Williams v. State, 848 S.W.2d 906 (Tex. App. – Corpus
Christi 1993); Assuming, arguendo, that his lawyer gave
him erroneous advice regarding his guilty plea, such issue
is best reserved for review through a habeas corpus
proceeding. Mitchell v. State, 68 S.W.3d 640 (Tex. Crim.
App. 2002). 7) SENTENCE IMPOSED CONSTITUTIONAL: The
Appellant alleged that since the offense to which he pled
guilty is a “small crime” that the punishment imposed was
6 far too harsh and not proportional. The offense to which
Appellant pled guilty is a second degree felony, punishable
by a sentence ranging from 2 to 20 years. Therefore,
the sentence of 10 years imposed by the trial court
is within the applicable range of punishment for a second
degree felony and is, accordingly, appropriate and
constitutional. Harris v. State, 656 S.W.2d 481 (Tex.
Crim. App. 1983).
After a careful review and examination of all these
cited areas and the corresponding appellate record, the
undersigned counsel believes, in his professional opinion,
that no arguable points of error for appellate review
exit.
The record in this case unequivocally reflects and
demonstrates that the Appellant was not only fully aware
of the consequences of his guilty plea, but that his plea
was knowingly, intelligently, and voluntarily made in
accordance with the United States and Texas Constitutions
and the Texas Code of Criminal Procedure. Accordingly,
having been properly admonished by the trial court
regarding his constitutional and statutory rights, and
counsel finding no reversible errors in the plea
proceeding, Appellant’s guilty plea must stand. Ex Parte
7 Morrow, 952 S.W.2d 530 (Tex. Crim. App. 1997).
COURT-APPOINTED COUNSEL IS NOT ALLOWED TO URGE UNMERITORIOUS APPEALS
While an appellant has a right to the appointment
of counsel in a direct appeal when such is provide by
statue, as in the instant case, Douglas v. California, 83
S.Ct. 814 (1963), and it is the appellate attorney’s duty
to zealously represent the interests of the Appellant
on appeal, In Re Schulman, 252 S.W.3d 403 (Tex. Crim. App.
2008), an appointed appellate lawyer is not permitted to
present frivolous and unmeritorious claims in the appeals
courts. Penson v. Ohio, 109 S.C.t 346 (1988); McCoy v.
Wisconsin, 108 S.Ct. 1895 (1988). Accordingly, if, after
a conscientious examination of the appellate record,
court-appointed counsel finds that an appeal is frivolous
and unmeritorious he is duty-bound to advise the
appellate court accordingly, file a “no-merits’ brief with
the court, along with a motion to withdraw from the appeal.
Anders v. California, supra; Stafford v. State, supra.
Following that rule of law, then, counsel for
Appellant herein, would represent to this court, as an
officer of this court, that he has carefully examined and
studied the record for any arguable appellate issues; that
8 he has made reference to the record, stating the reasons
why the Appellant’s appeal has no merit and supporting his
conclusions with applicable case law; and that, in his
professional judgment, there exists no issue which would
warrant appellate review from this court in this particular
case.
Moreover, in accordance with the procedure approved by
the Texas Court of Criminal Appeals, and adopted by this
honorable court, the undersigned appellate counsel will
advise the Appellant of his conclusion that his
(Appellant’s) appeal presents no arguable issues for
appellate review; provide him with a copy of the Anders
brief filed in this cause with this court; and, inform
him of his right to personally examine the record and file
a pro se brief, if he so desires. Jones v. State, 98 S.W.3d
700 (Tex. Crim. App. 2003).
CONCLUSION
The state of the appellate record demonstrates that
the Appellant entered his guilty plea to the offense of
failure to comply with sex offender registration knowingly,
intelligently, and voluntarily.
Therefore, consistent with the Anders requirement,
although several areas and issues were analyzed and
9 researched for potential reversible errors, after a careful
and comprehensive review of the entire record, the
undersigned counsel concludes that there are no points of
error which could arguably support an appeal in the
instant case.
PRAYER
Wherefore, the undersigned counsel requests that
this court review the Appellant’s Brief he has submitted
in this cause to ensure that it complies with the Anders
requirements; that it conduct an independent examination of
the appellate record; that it resolve and dispose of the
appeal in a manner that is consistent with the law; and,
that it allow counsel to withdraw from the appeal.
Respectfully Submitted,
Alfredo Morales, Jr. Attorney at Law P. O. Box 52942 McAllen, TX 78505 (956) 536-8800 BUS (956) 381-4269 FAX Email: amjr700@gmail.com
/S/ Alfredo Morales, Jr. ________________________ ALFREDO MORALES, JR. STATE BAR NO. 14417290
10 CERTIFICATE OF SERVICE
I, Alfredo Morales, Jr., hereby certify that a true
and correct copy of the foregoing Appellant’s Anders Brief
was mailed or hand-delivered to the Hon. Ted Hake, ADA,
Chief, Appellate Division, Hidalgo County District
Attorney’s Office, Hidalgo County Courthouse, 100 N.
Closner, Edinburg, Texas 78539, on this the 4th day of
December 2015.
/S/ Alfredo Morales, Jr. ________________________ ALFREDO MORALES, JR.
CERTIFICATE OF COMPLIANCE
I, Alfredo Morales, Jr., certify that the Appellant’s
Brief filed in this cause complies with the word limitation
imposed under Rule 9.4(2)(B) of the Texas Rules of
Appellate Procedure. Appellant’s counsel would represent
that, relying on the computer-generated program figure, the
total number of words contained in the brief is 2745 words.
/S/ Alfredo Morales, Jr. ________________________ ALFREDO MORALES, JR.