ACCEPTED 03-14-00543-CR 3697154 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/8/2015 1:02:29 PM JEFFREY D. KYLE CLERK NO. 03-14-00543-CR
IN THE FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS COURT OF APPEALS 1/8/2015 1:02:29 PM JEFFREY D. KYLE THIRD DISTRICT OF TEXAS Clerk
AUSTIN, TEXAS
KEVIN PICHARDO § APPELLANT
VS. §
THE STATE OF TEXAS § APPELLEE
APPEAL FROM THE 167th DISTRICT COURT
TRAVIS COUNTY, TEXAS
CAUSE NO. D-1-DC-13-203348
STATE’S BRIEF
ROSEMARY LEHMBERG District Attorney Travis County, Texas
Lisa Stewart Assistant District Attorney State Bar No. 06022700 Lisa.Stewart@traviscountytx.gov AppellateTCDA@traviscountytx.gov P.O. Box 1748 Austin, Texas 78767 (512) 854-9400 Fax No. (512) 854-4810 Oral Argument Not Requested TABLE OF CONTENTS
TABLE OF CONTENTS .................................................................................................. 2
INDEX OF AUTHORITIES ............................................................................................ 3
STATEMENT OF THE CASE ........................................................................................ 4
STATEMENT OF FACTS ............................................................................................... 5
NATURE OF APPEAL..................................................................................................... 8
STATE’S RESPONSE TO APPELLANT’S BRIEF ..................................................... 9
THE STATE AGREES THAT THERE ARE NO MERITORIOUS GROUNDS OF ERROR AND THAT THIS APPEAL IS FRIVOLOUS............... 9
PRAYER........................................................................................................................... 10
CERTIFICATE OF COMPLIANCE ............................................................................ 11
CERTIFICATE OF SERVICE ...................................................................................... 11
2 INDEX OF AUTHORITIES
Cases
Anders v. California, 386 U.S. 738 (1967) ................................................................................. 8, 9
Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969) ............................................................. 8
High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978)............................................................... 8, 9
Penson v. Ohio, 488 U.S. 75 (1988) ............................................................................................... 9
Stafford v. State, 813 S.W.2d 503 (Tex.Crim.App. 1991).............................................................. 9
Rules
Tex.R.App.Proc. 9.4(e) ................................................................................................................. 10
Tex.R.App.Proc. 9.4(i)(3) ............................................................................................................. 10
3 NO. 03-13-00543-CR
IN THE
COURT OF APPEALS
THIRD DISTRICT OF TEXAS
APPEAL FROM THE 167TH JUDICIAL DISTRICT COURT
TO THE HONORABLE COURT OF APPEALS:
Now comes the State of Texas and files its brief in response to the
appellant’s brief.
STATEMENT OF THE CASE The State charged appellant with assault on a public servant. (CR 11-12).
Appellant waived a jury trial and had a trial before the court. (CR 44). Both sides
presented evidence to the court. (RR II). The trial judge found appellant guilty of
4 resisting arrest and imposed a 10-day sentence.1 (CR 56-57). Appellant timely
filed a pro se notice of appeal. (CR 58-60). The trial court certified appellant’s
right to appeal. (CR 49).
STATEMENT OF FACTS The State charged appellant with assault on a public servant. The indictment
specifically alleged, in relevant part, that on or about June 16, 2013, appellant
intentionally, knowingly, or recklessly caused bodily injury to Ronald Enriquez by
“grabbing and squeezing [him] on or about the head, and by pushing [him] on or
about the torso,” and that appellant knew Enriquez was a public servant, a peace
officer, lawfully discharging an official duty, to-wit: attempting to arrest appellant.
(CR 11). Appellant pled not guilty to the charged offense. (RR II: 6).
Austin Police Officer Ronald Enriquez was assigned to patrol the Sixth
Street entertainment district on June 16, 2013. (RR II: 8). During his evening
shift, Enriquez responded to a disturbance call outside of a nightclub called the 512
Bar. (RR II: 8-9). When Enriquez arrived on the scene, a group of police officers
were attempting to separate two large groups of people involved in an altercation
outside the bar. (RR II: 9). The police officers, including Enriquez, determined
1 The Clerk’s Record contains two copies of the judgment. The first copy, in the Clerk’s Record at pp. 51-52, incorrectly reflects that appellant pled guilty to the offense of resisting arrest. Although this judgment is in the record, it does not bear a file stamp. The second judgment, in the Clerk’s Record at pp. 56-57, correctly reflects that appellant pled not guilty. This judgment was filed August 11, 2014.
5 the scene was under control and no further officer intervention was required. (RR
II: 10-11). But, appellant2 attempted to reengage into the disturbance instead of
walking away. (RR II: 11). Enriquez announced he was “police” and commanded
appellant to “stay back” and “go home.” (RR II: 11). Enriquez instructed
appellant numerous times to go with his friends and go home for the night. (RR II:
11).
Appellant, however, appeared highly agitated and angry towards someone
involved in the disturbance. (RR II: 11). Appellant was yelling, screaming, visibly
angry and pulling away from his friends. (RR II: 12). Appellant appeared
intoxicated, was uncooperative, and smelled of alcohol. (RR II: 12). Enriquez told
appellant to turn around and leave, but he wouldn’t. (RR II: 12).
Enriquez pleaded with appellant’s friends to remove him from the scene.
(RR II: 12). But, appellant struggled with his friends to break free of them and run
back to the disturbance. (RR II: 12). Appellant cursed at Enriquez. (RR II: 12).
At this point, Enriquez decided to arrest appellant for public intoxication to get him
under control. (RR II: 13). As Enriquez grabbed appellant’s arm to place him
under arrest, appellant pulled his arm away in a manner that Enriquez perceived as
threatening. (RR II: 13). Enriquez immediately lunged forward and pushed
appellant against a wall to gain control of him. (RR II: 13). But, Enriquez failed
2 Enriquez identified appellant in court. (RR II: 10).
6 to get control of appellant, so he threw him onto the ground. (RR II: 14).
Although Enriquez was on top of appellant who was on the ground on his back,
appellant put Enriquez in a headlock and used his arms to squeeze Enriquez’s head
on his (appellant’s) chest. (RR II: 14).
Appellant’s friends tried to pull Enriquez off of appellant, but Enriquez
couldn’t move because appellant was holding onto him. (RR II: 15). Enriquez
began to punch appellant in the face, the only available “target,” to try to break free
from appellant’s grip.
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ACCEPTED 03-14-00543-CR 3697154 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/8/2015 1:02:29 PM JEFFREY D. KYLE CLERK NO. 03-14-00543-CR
IN THE FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS COURT OF APPEALS 1/8/2015 1:02:29 PM JEFFREY D. KYLE THIRD DISTRICT OF TEXAS Clerk
AUSTIN, TEXAS
KEVIN PICHARDO § APPELLANT
VS. §
THE STATE OF TEXAS § APPELLEE
APPEAL FROM THE 167th DISTRICT COURT
TRAVIS COUNTY, TEXAS
CAUSE NO. D-1-DC-13-203348
STATE’S BRIEF
ROSEMARY LEHMBERG District Attorney Travis County, Texas
Lisa Stewart Assistant District Attorney State Bar No. 06022700 Lisa.Stewart@traviscountytx.gov AppellateTCDA@traviscountytx.gov P.O. Box 1748 Austin, Texas 78767 (512) 854-9400 Fax No. (512) 854-4810 Oral Argument Not Requested TABLE OF CONTENTS
TABLE OF CONTENTS .................................................................................................. 2
INDEX OF AUTHORITIES ............................................................................................ 3
STATEMENT OF THE CASE ........................................................................................ 4
STATEMENT OF FACTS ............................................................................................... 5
NATURE OF APPEAL..................................................................................................... 8
STATE’S RESPONSE TO APPELLANT’S BRIEF ..................................................... 9
THE STATE AGREES THAT THERE ARE NO MERITORIOUS GROUNDS OF ERROR AND THAT THIS APPEAL IS FRIVOLOUS............... 9
PRAYER........................................................................................................................... 10
CERTIFICATE OF COMPLIANCE ............................................................................ 11
CERTIFICATE OF SERVICE ...................................................................................... 11
2 INDEX OF AUTHORITIES
Cases
Anders v. California, 386 U.S. 738 (1967) ................................................................................. 8, 9
Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969) ............................................................. 8
High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978)............................................................... 8, 9
Penson v. Ohio, 488 U.S. 75 (1988) ............................................................................................... 9
Stafford v. State, 813 S.W.2d 503 (Tex.Crim.App. 1991).............................................................. 9
Rules
Tex.R.App.Proc. 9.4(e) ................................................................................................................. 10
Tex.R.App.Proc. 9.4(i)(3) ............................................................................................................. 10
3 NO. 03-13-00543-CR
IN THE
COURT OF APPEALS
THIRD DISTRICT OF TEXAS
APPEAL FROM THE 167TH JUDICIAL DISTRICT COURT
TO THE HONORABLE COURT OF APPEALS:
Now comes the State of Texas and files its brief in response to the
appellant’s brief.
STATEMENT OF THE CASE The State charged appellant with assault on a public servant. (CR 11-12).
Appellant waived a jury trial and had a trial before the court. (CR 44). Both sides
presented evidence to the court. (RR II). The trial judge found appellant guilty of
4 resisting arrest and imposed a 10-day sentence.1 (CR 56-57). Appellant timely
filed a pro se notice of appeal. (CR 58-60). The trial court certified appellant’s
right to appeal. (CR 49).
STATEMENT OF FACTS The State charged appellant with assault on a public servant. The indictment
specifically alleged, in relevant part, that on or about June 16, 2013, appellant
intentionally, knowingly, or recklessly caused bodily injury to Ronald Enriquez by
“grabbing and squeezing [him] on or about the head, and by pushing [him] on or
about the torso,” and that appellant knew Enriquez was a public servant, a peace
officer, lawfully discharging an official duty, to-wit: attempting to arrest appellant.
(CR 11). Appellant pled not guilty to the charged offense. (RR II: 6).
Austin Police Officer Ronald Enriquez was assigned to patrol the Sixth
Street entertainment district on June 16, 2013. (RR II: 8). During his evening
shift, Enriquez responded to a disturbance call outside of a nightclub called the 512
Bar. (RR II: 8-9). When Enriquez arrived on the scene, a group of police officers
were attempting to separate two large groups of people involved in an altercation
outside the bar. (RR II: 9). The police officers, including Enriquez, determined
1 The Clerk’s Record contains two copies of the judgment. The first copy, in the Clerk’s Record at pp. 51-52, incorrectly reflects that appellant pled guilty to the offense of resisting arrest. Although this judgment is in the record, it does not bear a file stamp. The second judgment, in the Clerk’s Record at pp. 56-57, correctly reflects that appellant pled not guilty. This judgment was filed August 11, 2014.
5 the scene was under control and no further officer intervention was required. (RR
II: 10-11). But, appellant2 attempted to reengage into the disturbance instead of
walking away. (RR II: 11). Enriquez announced he was “police” and commanded
appellant to “stay back” and “go home.” (RR II: 11). Enriquez instructed
appellant numerous times to go with his friends and go home for the night. (RR II:
11).
Appellant, however, appeared highly agitated and angry towards someone
involved in the disturbance. (RR II: 11). Appellant was yelling, screaming, visibly
angry and pulling away from his friends. (RR II: 12). Appellant appeared
intoxicated, was uncooperative, and smelled of alcohol. (RR II: 12). Enriquez told
appellant to turn around and leave, but he wouldn’t. (RR II: 12).
Enriquez pleaded with appellant’s friends to remove him from the scene.
(RR II: 12). But, appellant struggled with his friends to break free of them and run
back to the disturbance. (RR II: 12). Appellant cursed at Enriquez. (RR II: 12).
At this point, Enriquez decided to arrest appellant for public intoxication to get him
under control. (RR II: 13). As Enriquez grabbed appellant’s arm to place him
under arrest, appellant pulled his arm away in a manner that Enriquez perceived as
threatening. (RR II: 13). Enriquez immediately lunged forward and pushed
appellant against a wall to gain control of him. (RR II: 13). But, Enriquez failed
2 Enriquez identified appellant in court. (RR II: 10).
6 to get control of appellant, so he threw him onto the ground. (RR II: 14).
Although Enriquez was on top of appellant who was on the ground on his back,
appellant put Enriquez in a headlock and used his arms to squeeze Enriquez’s head
on his (appellant’s) chest. (RR II: 14).
Appellant’s friends tried to pull Enriquez off of appellant, but Enriquez
couldn’t move because appellant was holding onto him. (RR II: 15). Enriquez
began to punch appellant in the face, the only available “target,” to try to break free
from appellant’s grip. (RR II: 15-16). Other police officers arrived on the scene
and helped Enriquez break free of appellant’s hold. (RR II: 16). At this point,
Enriquez and two other police officers struggled with appellant and placed him
under arrest. (RR II: 16-17, 19).
Austin Police Officer Christopher Kelly also responded to the disturbance at
the 512 Bar. (RR II: 37). The scene was very chaotic, and Kelly observed several
officers on the ground with an individual. (RR II: 39).
In his defense, appellant called his friend Neal James, who had been with
appellant the night of this offense, to testify. James testified that appellant was
calm that night and that the police officers assaulted appellant. (RR II: 88). James
did not see appellant put Enriquez in a headlock or resist arrest. (RR II: 89).
James tried to remove appellant from the situation with the officers. (RR II: 89).
7 James testified appellant was unable to leave the scene, rather than unwilling. (RR
II: 89).
After argument from both parties, the judge found appellant guilty of the
lesser included offense of resisting arrest, a Class A misdemeanor. (RR II: 98).
The State had no evidence at punishment and deferred to the court. (RR II: 98).
The defense also did not offer any punishment evidence but asked for time served,
which was two days, as punishment. (RR II: 98). The court sentenced appellant to
ten days in jail, with credit for time served, and no fine. (RR II: 98). The court
allowed the balance of appellant’s jail time to be served on the weekends. (RR II:
98).
NATURE OF APPEAL 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), in that it presents a comprehensive review of possible legal
issues in this trial. In her brief, appellant’s counsel states that she has filed a
motion to withdraw along with the brief and requests this Court to permit her to
withdraw if the Court finds the appeal to be frivolous. Appellate counsel also
states in her brief that she has served appellant with a copy of her appellate brief
and advised him of his rights on appeal.
8 STATE’S RESPONSE TO APPELLANT’S BRIEF
THE STATE AGREES THAT THERE ARE NO MERITORIOUS GROUNDS OF ERROR AND THAT THIS APPEAL IS FRIVOLOUS.
The State agrees with appellant’s counsel that the record does not disclose
any reversible error upon which this Court may grant relief. Appellant’s attorney
has complied with the requirements outlined by Penson v. Ohio, 488 U.S. 75
(1988), and High, 573 S.W.2d 807, supporting a proper examination of the record.
The brief filed by counsel for appellant provides a discussion of the proceedings
contained in the record and makes references to locate testimony and rulings. 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; Penson,
488 U.S. at 80. The State agrees with counsel’s conclusion that this appeal is
frivolous.
Appellant, having been informed of his counsel’s view that his appeal is
without merit, has an opportunity to submit arguments pro se to rebut the
foregoing conclusions. In the event 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 appellant, or upon the expiration of such time as the court may allow
appellant to file, the State respectfully requests this Honorable Court to determine
that this appeal is wholly frivolous and to affirm appellant’s conviction.
9 If, however, this Court determines that a particular issue needs to be briefed
more thoroughly, the State asks the Court to appoint new counsel for appellant 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).
PRAYER WHEREFORE PREMISES CONSIDERED, the State prays this court to
find that this appeal is frivolous and to affirm the judgment of the trial court.
Respectfully submitted,
/s/ Lisa Stewart Lisa Stewart Assistant District Attorney State Bar No. 06022700 P.O. Box 1748 Austin, Texas 78767 (512) 854-9400 Fax No. (512) 854-4810 Lisa.Stewart@traviscountytx.gov AppellateTCDA@traviscountytx.gov
10 CERTIFICATE OF COMPLIANCE Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the State certifies
that the length of this brief is 1,188 words. The State also certifies, pursuant to
Texas Rule of Appellate Procedure 9.4(e), a conventional typeface 14-point was
used to generate this brief.
/s/ Lisa Stewart Lisa Stewart Assistant District Attorney
CERTIFICATE OF SERVICE I hereby certify that, on the 8th day of January, 2015, a true and correct copy
of this brief was served, by U.S. mail, electronic mail, facsimile, or electronically
through the electronic filing manager, Chantal Eldridge, 6526 Needham Lane,
Austin, Texas 78739, celdridge1@austin.rr.com, or FAX: (512) 402-5559.