ACCEPTED 07-15-000142-cr SEVENTH COURT OF APPEALS AMARILLO, TEXAS 6/8/2015 5:39:51 PM Vivian Long, Clerk
NO. 07-15-00142-CR June 8, 2015
IN THE COURT OF APPEALS FOR THE SEVENTH SUPREME JUDICIAL DISTRICT AT AMARILLO, TEXAS
KEVIN COBB, Appellant
vs.
THE STATE OF TEXAS, Appellee
Appeal from the County Court at Law Number 4 Cause No. C-1-CR-14-152804 Burnet County, Texas The Honorable Mike Denton, Judge Presiding
APPELLANT'S BRIEF
Gary E. Prust State Bar No. 24056166 1607 Nueces Street Austin, Texas 78701 (512) 469-0092 Fax: (512) 469-9102 gary@prustlaw.com
ATTORNEY FOR APPELLANT
i IDENTITY OF THE PARTIES
APPELLANT: Kevin Gene Cobb 202 B Old Lexington Rd. Elgin, TX 78621
TRIAL COUNSEL FOR APPELLANT: Ms. Donna Keith SBN 00789335 605 W. Oltorf Austin, TX 78704
APPELLATE COUNSEL FOR APPELLANT: Mr. Gary E. Prust SBN 24056166 1607 Nueces St. Austin, TX 78701
TRIAL COUNSEL FOR APPELLEE: Ms. Laura Gorman SBN 24057970 Ms. Neha Naik SBN 24077916 Travis County Attorney’s Office 314 W. 11th St. Austin, TX 78701
APPELLATE COUNSEL FOR APPELLEE: Mr. David Escamilla SBN 6662300 Travis County Attorney 314 W. 11th St. Austin, TX 78701
ii TABLE OF CONTENTS
Identity of the Parties ………………………………………………………………ii
Table of Contents ………………………………………………………………… iii
Table of Authorities ……………………………………………………………… iv
Statement of the Case ………………………………………………………………1
Statement Regarding Oral Argument …………………………………………….. 1
Issue Presented …………………………………………………………………… 2
Summary of the Facts …………………………………………………………….. 2
Summary of Possible Arguable Issue ……………………………………………. 4
Prayer ……………………………………………………………………………… 5
Certificate of Service ……………………………………………………………… 6
Certificate of Compliance ………………………………………………………… 6
iii STATEMENT OF THE CASE
Nature of the case: This is an appeal from a misdemeanor criminal conviction for
violation of a protective order. See Tex. Pen. Code § 25.07 (Vernon 2013).
Course of the proceedings: Appellant was arrested on September 23, 2014 for the
warrant issued on August 18, 2014. C.R. 7-8. The Complaint and Information were
filed September 24, 2014. C.R. 10-11. Jury trial was held from January 26 through
27 of 2015. I R.R. at 1. Appellant was then found guilty and punishment assessed
by the jury at 365 days confinement and a $4000 fine. C.R. at 37.
Trial court’s disposition: The trial court imposed the verdict of the jury.
STATEMENT REGARDING ORAL ARGUMENT
Appellant does not request oral argument. There are no novel, unique, or
complex issues involved in this appeal.
1 STATEMENT OF THE CASE
Nature of the case: This is an appeal from a misdemeanor criminal conviction for
violation of a protective order. See Tex. Pen. Code § 25.07 (Vernon 2013).
Course of the proceedings: Appellant was arrested on September 23, 2014 for the
warrant issued on August 18, 2014. C.R. 7-8. The Complaint and Information were
filed September 24, 2014. C.R. 10-11. Jury trial was held from January 26 through
27 of 2015. I R.R. at 1. Appellant was then found guilty and punishment assessed
by the jury at 365 days confinement and a $4000 fine. C.R. at 37.
Trial court’s disposition: The trial court imposed the verdict of the jury.
Appellant does not request oral argument. There are no novel, unique, or
1 ISSUE PRESENTED
Because this brief is being filed in accordance of the dictates of Anders vs.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 492; Benson v. Ohio, 488 U.S.
75, 109 S.Ct. 346, 102 L.Ed.2d 300, 1978; and High v. State, 573 S.W.2d 807
(Tex. Crim. App. 1978), no issues are presented for review. A summary of facts
and a discussion of potentially arguable issues will be presented to justify the
conclusion of Appellant’s attorney that there are no arguable appeal issues and
therefore this appeal is frivolous.
SUMMARY OF FACTS
Ms. Evelen Gamboa worked at a gentleman’s club in Travis County Texas
on August 7, 2014. III R.R. at 12. She started working there about two years prior,
at the suggestion of Appellant. III R.R. at 13. Sometime in 2013, Ms. Gamboa
obtained a protective order from a district court in Williamson County which was
in effect on August 7, 2014. III R.R. at 13-14.
On that day, a bartender told Ms. Gamboa an individual later shown as
Appellant was asking to speak with her. III R.R. at 15. She then talked with Mr.
Aaron Fawcett, a manager at the club, who approach Appellant while she ran to the
back of the club. III R.R. at 16.
Mr. Fawcett knew a protective order was in place and had it in Ms.
2 Gamboa’s employee file. III R.R. at 20. He testified Appellant was there looking
for her because he wanted something she might have at her home. III R.R. at 21.
Mr. Fawcett further testified, over Appellant’s objection, that Mr. Cobb made a
statement to the effect he knew he was not supposed to be there.1 Mr. Fawcett also
testified Appellant knew about a protective order. III R.R. at 23-24.
Detective Jenkinson with the Travis County Sheriff’s Office responded to a
call to the gentleman’s club Ms. Gamboa worked at. III R.R. at 29. Appellant was
not there when he arrived but he did speak with Ms. Gamboa and with Mr.
Fawcett. III R.R. at 29. The club showed the detective a copy of the protective
order it had in Ms. Gamboa’s file. III R.R. at 30. However, no copy of the
protective order was entered into the local and national databases commonly used
by law enforcement agencies. III R.R. at 30-31.
Detective Inocencio Flores works with the Travis County Sheriff’s Office
and investigates cases involving family violence and protective orders. III R.R. at
32-34. The Detective met with Ms. Gamboa, who provided a written statement. III
R.R. at 37. Mr. Fawcett also communicated with the detective by providing
information via email and faxing in a statement relating to the events on August 7,
2014. III R.R. at 38. Notably, the detective reported the protective order was not
signed by Appellant. III R.R. at 39. 1 The question actually asked was whether “defendant know there was a protective order” and that Appellant knew he was not supposed to be at the club. III R.R. 23. But these questions were not preserved for appellate review. See TEX. R. APP. P. 33.1(a).
3 recourse in this matter.
Respectfully submitted,
/s/ Gary E. Prust
Gary E. Prust SBN 24056166 1607 Nueces Street Austin, Texas 78701 (512) 469-0092 Fax: (512) 469-9102 gary@prustlaw.com Attorney for Appellant
CERTIFICATE OF SERVICE
In compliance with Rule 9.5(d) of the Texas Rules of Appellate Procedure, the undersigned attorney certifies that a true and correct copy of the foregoing Brief was served upon the Travis County Attorney via facsimile transmission to (512)854-9316, in accordance Rule 9.5(b) of the Texas Rules of Appellate Procedure on this the 8th day of June, 2015.
Gary E. Prust
CERTIFICATE OF COMPLIANCE
Pursuant to TEX. R. APP. PROC. 9.4(i)(3), I hereby certify this brief contains 1,101 words. This is a computer-generated document created in Microsoft Word, using 14-point typeface. In making this this certificate, I rely on the word count provided by the software use to prepare the document.
/s/ Gary E Prust
6 opponent. Id.; Tex. R. Evid. 801(e)(2). Therefore, there was a lack of evidence
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ACCEPTED 07-15-000142-cr SEVENTH COURT OF APPEALS AMARILLO, TEXAS 6/8/2015 5:39:51 PM Vivian Long, Clerk
NO. 07-15-00142-CR June 8, 2015
IN THE COURT OF APPEALS FOR THE SEVENTH SUPREME JUDICIAL DISTRICT AT AMARILLO, TEXAS
KEVIN COBB, Appellant
vs.
THE STATE OF TEXAS, Appellee
Appeal from the County Court at Law Number 4 Cause No. C-1-CR-14-152804 Burnet County, Texas The Honorable Mike Denton, Judge Presiding
APPELLANT'S BRIEF
Gary E. Prust State Bar No. 24056166 1607 Nueces Street Austin, Texas 78701 (512) 469-0092 Fax: (512) 469-9102 gary@prustlaw.com
ATTORNEY FOR APPELLANT
i IDENTITY OF THE PARTIES
APPELLANT: Kevin Gene Cobb 202 B Old Lexington Rd. Elgin, TX 78621
TRIAL COUNSEL FOR APPELLANT: Ms. Donna Keith SBN 00789335 605 W. Oltorf Austin, TX 78704
APPELLATE COUNSEL FOR APPELLANT: Mr. Gary E. Prust SBN 24056166 1607 Nueces St. Austin, TX 78701
TRIAL COUNSEL FOR APPELLEE: Ms. Laura Gorman SBN 24057970 Ms. Neha Naik SBN 24077916 Travis County Attorney’s Office 314 W. 11th St. Austin, TX 78701
APPELLATE COUNSEL FOR APPELLEE: Mr. David Escamilla SBN 6662300 Travis County Attorney 314 W. 11th St. Austin, TX 78701
ii TABLE OF CONTENTS
Identity of the Parties ………………………………………………………………ii
Table of Contents ………………………………………………………………… iii
Table of Authorities ……………………………………………………………… iv
Statement of the Case ………………………………………………………………1
Statement Regarding Oral Argument …………………………………………….. 1
Issue Presented …………………………………………………………………… 2
Summary of the Facts …………………………………………………………….. 2
Summary of Possible Arguable Issue ……………………………………………. 4
Prayer ……………………………………………………………………………… 5
Certificate of Service ……………………………………………………………… 6
Certificate of Compliance ………………………………………………………… 6
iii STATEMENT OF THE CASE
Nature of the case: This is an appeal from a misdemeanor criminal conviction for
violation of a protective order. See Tex. Pen. Code § 25.07 (Vernon 2013).
Course of the proceedings: Appellant was arrested on September 23, 2014 for the
warrant issued on August 18, 2014. C.R. 7-8. The Complaint and Information were
filed September 24, 2014. C.R. 10-11. Jury trial was held from January 26 through
27 of 2015. I R.R. at 1. Appellant was then found guilty and punishment assessed
by the jury at 365 days confinement and a $4000 fine. C.R. at 37.
Trial court’s disposition: The trial court imposed the verdict of the jury.
STATEMENT REGARDING ORAL ARGUMENT
Appellant does not request oral argument. There are no novel, unique, or
complex issues involved in this appeal.
1 STATEMENT OF THE CASE
Nature of the case: This is an appeal from a misdemeanor criminal conviction for
violation of a protective order. See Tex. Pen. Code § 25.07 (Vernon 2013).
Course of the proceedings: Appellant was arrested on September 23, 2014 for the
warrant issued on August 18, 2014. C.R. 7-8. The Complaint and Information were
filed September 24, 2014. C.R. 10-11. Jury trial was held from January 26 through
27 of 2015. I R.R. at 1. Appellant was then found guilty and punishment assessed
by the jury at 365 days confinement and a $4000 fine. C.R. at 37.
Trial court’s disposition: The trial court imposed the verdict of the jury.
Appellant does not request oral argument. There are no novel, unique, or
1 ISSUE PRESENTED
Because this brief is being filed in accordance of the dictates of Anders vs.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 492; Benson v. Ohio, 488 U.S.
75, 109 S.Ct. 346, 102 L.Ed.2d 300, 1978; and High v. State, 573 S.W.2d 807
(Tex. Crim. App. 1978), no issues are presented for review. A summary of facts
and a discussion of potentially arguable issues will be presented to justify the
conclusion of Appellant’s attorney that there are no arguable appeal issues and
therefore this appeal is frivolous.
SUMMARY OF FACTS
Ms. Evelen Gamboa worked at a gentleman’s club in Travis County Texas
on August 7, 2014. III R.R. at 12. She started working there about two years prior,
at the suggestion of Appellant. III R.R. at 13. Sometime in 2013, Ms. Gamboa
obtained a protective order from a district court in Williamson County which was
in effect on August 7, 2014. III R.R. at 13-14.
On that day, a bartender told Ms. Gamboa an individual later shown as
Appellant was asking to speak with her. III R.R. at 15. She then talked with Mr.
Aaron Fawcett, a manager at the club, who approach Appellant while she ran to the
back of the club. III R.R. at 16.
Mr. Fawcett knew a protective order was in place and had it in Ms.
2 Gamboa’s employee file. III R.R. at 20. He testified Appellant was there looking
for her because he wanted something she might have at her home. III R.R. at 21.
Mr. Fawcett further testified, over Appellant’s objection, that Mr. Cobb made a
statement to the effect he knew he was not supposed to be there.1 Mr. Fawcett also
testified Appellant knew about a protective order. III R.R. at 23-24.
Detective Jenkinson with the Travis County Sheriff’s Office responded to a
call to the gentleman’s club Ms. Gamboa worked at. III R.R. at 29. Appellant was
not there when he arrived but he did speak with Ms. Gamboa and with Mr.
Fawcett. III R.R. at 29. The club showed the detective a copy of the protective
order it had in Ms. Gamboa’s file. III R.R. at 30. However, no copy of the
protective order was entered into the local and national databases commonly used
by law enforcement agencies. III R.R. at 30-31.
Detective Inocencio Flores works with the Travis County Sheriff’s Office
and investigates cases involving family violence and protective orders. III R.R. at
32-34. The Detective met with Ms. Gamboa, who provided a written statement. III
R.R. at 37. Mr. Fawcett also communicated with the detective by providing
information via email and faxing in a statement relating to the events on August 7,
2014. III R.R. at 38. Notably, the detective reported the protective order was not
signed by Appellant. III R.R. at 39. 1 The question actually asked was whether “defendant know there was a protective order” and that Appellant knew he was not supposed to be at the club. III R.R. 23. But these questions were not preserved for appellate review. See TEX. R. APP. P. 33.1(a).
3 recourse in this matter.
Respectfully submitted,
/s/ Gary E. Prust
Gary E. Prust SBN 24056166 1607 Nueces Street Austin, Texas 78701 (512) 469-0092 Fax: (512) 469-9102 gary@prustlaw.com Attorney for Appellant
CERTIFICATE OF SERVICE
In compliance with Rule 9.5(d) of the Texas Rules of Appellate Procedure, the undersigned attorney certifies that a true and correct copy of the foregoing Brief was served upon the Travis County Attorney via facsimile transmission to (512)854-9316, in accordance Rule 9.5(b) of the Texas Rules of Appellate Procedure on this the 8th day of June, 2015.
Gary E. Prust
CERTIFICATE OF COMPLIANCE
Pursuant to TEX. R. APP. PROC. 9.4(i)(3), I hereby certify this brief contains 1,101 words. This is a computer-generated document created in Microsoft Word, using 14-point typeface. In making this this certificate, I rely on the word count provided by the software use to prepare the document.
/s/ Gary E Prust
6 opponent. Id.; Tex. R. Evid. 801(e)(2). Therefore, there was a lack of evidence
Appellant knew about the protective order and to stay away from Ms. Gamboa’s
place of employment. However, Appellant objected to statement against interest.
III R.R. at 21-22; TEX. R. EVID. 803(24). The trial court indulged this objection and
noted the question called for an answer that is not hearsay and would not need the
exception. III. R.R. at 22. Appellant’s objection was overruled. III R.R. at 23.
The State then proceeded to ask (1) whether Appellant knew there was a
protective order and (2) whether Appellant admitted he knew he was not allowed
to be at the club. III R.R. at 23. The State did not ask what statement was made by
Appellant. Accordingly, the witness did not answer with a statement by Appellant.
The witness properly answered the questions asked by the State. Those questions
elicited knowledge of Appellant, not a statement. In any event, Appellant did not
renew his objection to the questions or the entry into evidence of the answers. III.
R.R. at 23-24. This error is not preserved for review. TEX. R. APP. P. 33.1 (a).
PRAYER
For all of the foregoing reasons, Appellant’s attorney, Gary E. Prust,
respectfully prays this Honorable Court grant his Motion to Withdraw submitted
with this brief. Appellant’s attorney sent a letter to Appellant’s last known address
advising him of the consequences of filing an Anders brief and informing of his
5 recourse in this matter.
Gary E. Prust SBN 24056166 1607 Nueces Street Austin, Texas 78701 (512) 469-0092 Fax: (512) 469-9102 gary@prustlaw.com Attorney for Appellant
In compliance with Rule 9.5(d) of the Texas Rules of Appellate Procedure, the undersigned attorney certifies that a true and correct copy of the foregoing Brief was served upon the Travis County Attorney via facsimile transmission to (512)854-9316, in accordance Rule 9.5(b) of the Texas Rules of Appellate Procedure on this the 8th day of June, 2015.
Pursuant to TEX. R. APP. PROC. 9.4(i)(3), I hereby certify this brief contains 1,101 words. This is a computer-generated document created in Microsoft Word, using 14-point typeface. In making this this certificate, I rely on the word count provided by the software use to prepare the document.