ACCEPTED 13-15-00071-CR THIRTEENTH COURT OF APPEALS FILED CORPUS CHRISTI, TEXAS IN THE 13TH COURT OF APPEALS 9/30/2015 11:05:06 PM CORPUS CHRISTI Dorian E. Ramirez CLERK 09/21/15 DORIAN E. RAMIREZ, CLERK CAUSE NO. 13-15-00071-CR BY cholloway IN THE COURT OF APPEALS RECEIVED IN THIRTEENTH JUDICIAL DISTRICT OF13thTEXAS COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS ________________________________________________________________________ 9/30/2015 11:05:06 PM APPEAL OF A JUDGMENT IN TRIAL CAUSE DORIAN NO. E. RAMIREZ CR-1850-14-J Clerk FROM THE 430th DISTRICT COURT OF HIDALGO COUNTY, TEXAS PRESIDING ISRAEL RAMON
________________________________________________________________________ MARIBEL ROSALES GOMEZ, Appellant VS. THE STATE OF TEXAS, Appellee ________________________________________________________________________
APPELLANT’S SUPPLEMENTAL ANDERS BRIEF ________________________________________________________________________ Respectfully submitted, Johnathan Ball 6521 N. 10th Street, Suite F McAllen, Texas 78504 (956) 501-6565 (956) 627-2429 (fax) johnballattorney@gmail.com State Bar Number: 24045443 Appellant’s Attorney IDENTIFICATION OF PARTIES AND COUNSEL
1. Appellant is MARIBEL ROSALES GOMEZ, (hereinafter “APPELLANT”) resides at CHRISTINA MELTON CRAIN UNIT1401 State School Road; Gatesville, TX 76599-2999.
2. Appellant’s trial attorney was Laura Martinez Colunga.
3. Appellant’s Appellate lawyer is Johnathan Ball.
4. Appellee is the State of Texas.
5. Appellee is represented by the Hidalgo County Criminal District Attorney, Ricardo Rodriguez. The Appellee’s trial attorneys were Assistant Criminal District Attorneys Gracie Reyna. The Appellee’s appellate attorney is Assistant Criminal District Attorney, Ted Hake. All of their addresses are at the Office of the Hidalgo County Criminal District Attorney, Hidalgo County Courthouse, 100 N. Closner, Room303, Edinburg, Texas 78539.
2 TABLE OF CONTENTS
IDENTIFICATION OF PARTIES AND COUNSEL ....................................................2 TABLE OF CONTENTS ...................................................................................................3 LIST OF AUTHORITIES .................................................................................................4 STATEMENT OF THE CASE .........................................................................................5 STATEMENT REGARDING ORAL ARGUMENT .....................................................5 ISSUES PRESENTED .............................................................................................. ........5 STATEMENT OF FACTS .................................................................................... ..........5 SUMMARY OF THE ARGUMENT...............................................................................6 ARGUMENT......................................................................................................................6 CONCLUSION ...................................................................................................................8 CERTIFICATE OF SERVICE .......................................................................................9
3 INDEX OF AUTHORITIES
Case Law Cited
Anders v. California, 386 U.S. 738 (1967)...............................................................................6
Hernon vs. State, 215 SW.3d 901 (Tex.Crim.App. 2007)..............................................................6
4 STATEMENT OF THE CASE
Appellant pled guilty to the court. 1RR5. There was no plea bargain in place. 1RR5.
The Court assessed punishment at nine years imprisonment. 1RR5. A Motion to Reconsider
the punishment assessed was filed and denied. 1RR4. A timely Motion for New Trial was
filed. 1RR4. The Appellant urged a Motion for New trial based on the punishment assessed
by the Court being “unjust”. 1RR5. The trial court denied the Motion for New Trial. 1RR8.
STATEMENT REGARDING ORAL ARGUMENT
Appellant waives oral argument.
ISSUE PRESENTED
There are no arguments made in this brief. This is an Anders brief.
STATEMENT OF FACTS
Appellant pled guilty to the court to the charge of felony theft. 1RR5. There was no
plea bargain in place. 1RR5. The Court assessed punishment at nine years imprisonment.
1RR5. A Motion to Reconsider the punishment assessed was filed and denied. 1RR4. A
timely Motion for New Trial was filed. 1RR4. The Appellant urged a Motion for New Trial.
arguing the punishment assessed by the Court being “unjust”. 1RR5. Appellant argued the
court should grant the new trial “on the basis of justice, just based on the fact that it was an
unjust punishment [ ] given the offense.” 1RR5. Appellant argued that this was only a theft
case, and no one was “harmed or injured” or “dead”. 1RR5. The State disagreed that “no one
5 was harmed” because the Appellant pled guilty to stealing money from an elderly individual.
1RR6. The Trial Court denied the Motion for New Trial. 1RR8. This appeal of the denial of
the Motion for New Trial ensued.
SUMMARY OF ARGUMENT
There are no non-frivolous appellate issues to be made in this case.
ARGUMENT
Appellant’s counsel has read the record thoroughly. The reporter’s record in this case
is only ten pages. All arguments from Appellant’s trial counsel and the State’s trial counsel
were reviewed and researched by Appellant’s counsel. Appellant’s counsel believes that are
no meritorious, no frivolous claims to argue pursuant to Anders v. California, 386 U.S. 738
(1967). Appellant’s counsel is unaware of, and can locate no authority, supporting
Appellant’s contention that the trial court abused its discretion by imposing a within
punishment range sentence. To the contrary, the general rule is that any sentence within the
statutory range of punishment is not excessive. McNew v. State, 608 S.W.2d 166, 174 (Tex.
Crim. App. 1978).
Appellant’s sole complaint is the Court imposed an just sentence, and as a matter of
justice, the Motion for New Trial should be granted. 1RR5. The State cited the Court to
Hernon vs. State, 215 SW.3d 901 - 907 (Tex.Crim.App. 2007). The State’s reliance on Heron
appears proper. And the Court’s application of the standard for granting new trials as
explained in Hernon appears properly applied to the facts of this case, and arguments set
6 forth by Appellant’s trial counsel.
On the record before Appellant’s counsel, there is no indication Appellant’s
substantial rights were affected in the denial of the Motion for New Trial. On the record
before Appellant’s counsel, there simply does not appear to be any non-frivolous appellate
issues.
Appellant’s counsel has considered the case law relating to sentencing, and motions
for new trial. Appellant’s counsel has looked for a Due Process argument and/or Cruel and
Unusual Punishment argument to be made for this appeal relating to either the sentence
imposed by the court or the denial of the Motion for New Trial. Appellant’s counsel can find
no case law supporting a such a Constitutional claim, nor was one presented to the trial court
as part of the Motion for New Trial. This is the first Anders brief Appellant’s counsel has
filed.
Appellant has been notified, in writing, of the following:
1.
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ACCEPTED 13-15-00071-CR THIRTEENTH COURT OF APPEALS FILED CORPUS CHRISTI, TEXAS IN THE 13TH COURT OF APPEALS 9/30/2015 11:05:06 PM CORPUS CHRISTI Dorian E. Ramirez CLERK 09/21/15 DORIAN E. RAMIREZ, CLERK CAUSE NO. 13-15-00071-CR BY cholloway IN THE COURT OF APPEALS RECEIVED IN THIRTEENTH JUDICIAL DISTRICT OF13thTEXAS COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS ________________________________________________________________________ 9/30/2015 11:05:06 PM APPEAL OF A JUDGMENT IN TRIAL CAUSE DORIAN NO. E. RAMIREZ CR-1850-14-J Clerk FROM THE 430th DISTRICT COURT OF HIDALGO COUNTY, TEXAS PRESIDING ISRAEL RAMON
________________________________________________________________________ MARIBEL ROSALES GOMEZ, Appellant VS. THE STATE OF TEXAS, Appellee ________________________________________________________________________
APPELLANT’S SUPPLEMENTAL ANDERS BRIEF ________________________________________________________________________ Respectfully submitted, Johnathan Ball 6521 N. 10th Street, Suite F McAllen, Texas 78504 (956) 501-6565 (956) 627-2429 (fax) johnballattorney@gmail.com State Bar Number: 24045443 Appellant’s Attorney IDENTIFICATION OF PARTIES AND COUNSEL
1. Appellant is MARIBEL ROSALES GOMEZ, (hereinafter “APPELLANT”) resides at CHRISTINA MELTON CRAIN UNIT1401 State School Road; Gatesville, TX 76599-2999.
2. Appellant’s trial attorney was Laura Martinez Colunga.
3. Appellant’s Appellate lawyer is Johnathan Ball.
4. Appellee is the State of Texas.
5. Appellee is represented by the Hidalgo County Criminal District Attorney, Ricardo Rodriguez. The Appellee’s trial attorneys were Assistant Criminal District Attorneys Gracie Reyna. The Appellee’s appellate attorney is Assistant Criminal District Attorney, Ted Hake. All of their addresses are at the Office of the Hidalgo County Criminal District Attorney, Hidalgo County Courthouse, 100 N. Closner, Room303, Edinburg, Texas 78539.
2 TABLE OF CONTENTS
IDENTIFICATION OF PARTIES AND COUNSEL ....................................................2 TABLE OF CONTENTS ...................................................................................................3 LIST OF AUTHORITIES .................................................................................................4 STATEMENT OF THE CASE .........................................................................................5 STATEMENT REGARDING ORAL ARGUMENT .....................................................5 ISSUES PRESENTED .............................................................................................. ........5 STATEMENT OF FACTS .................................................................................... ..........5 SUMMARY OF THE ARGUMENT...............................................................................6 ARGUMENT......................................................................................................................6 CONCLUSION ...................................................................................................................8 CERTIFICATE OF SERVICE .......................................................................................9
3 INDEX OF AUTHORITIES
Case Law Cited
Anders v. California, 386 U.S. 738 (1967)...............................................................................6
Hernon vs. State, 215 SW.3d 901 (Tex.Crim.App. 2007)..............................................................6
4 STATEMENT OF THE CASE
Appellant pled guilty to the court. 1RR5. There was no plea bargain in place. 1RR5.
The Court assessed punishment at nine years imprisonment. 1RR5. A Motion to Reconsider
the punishment assessed was filed and denied. 1RR4. A timely Motion for New Trial was
filed. 1RR4. The Appellant urged a Motion for New trial based on the punishment assessed
by the Court being “unjust”. 1RR5. The trial court denied the Motion for New Trial. 1RR8.
STATEMENT REGARDING ORAL ARGUMENT
Appellant waives oral argument.
ISSUE PRESENTED
There are no arguments made in this brief. This is an Anders brief.
STATEMENT OF FACTS
Appellant pled guilty to the court to the charge of felony theft. 1RR5. There was no
plea bargain in place. 1RR5. The Court assessed punishment at nine years imprisonment.
1RR5. A Motion to Reconsider the punishment assessed was filed and denied. 1RR4. A
timely Motion for New Trial was filed. 1RR4. The Appellant urged a Motion for New Trial.
arguing the punishment assessed by the Court being “unjust”. 1RR5. Appellant argued the
court should grant the new trial “on the basis of justice, just based on the fact that it was an
unjust punishment [ ] given the offense.” 1RR5. Appellant argued that this was only a theft
case, and no one was “harmed or injured” or “dead”. 1RR5. The State disagreed that “no one
5 was harmed” because the Appellant pled guilty to stealing money from an elderly individual.
1RR6. The Trial Court denied the Motion for New Trial. 1RR8. This appeal of the denial of
the Motion for New Trial ensued.
SUMMARY OF ARGUMENT
There are no non-frivolous appellate issues to be made in this case.
ARGUMENT
Appellant’s counsel has read the record thoroughly. The reporter’s record in this case
is only ten pages. All arguments from Appellant’s trial counsel and the State’s trial counsel
were reviewed and researched by Appellant’s counsel. Appellant’s counsel believes that are
no meritorious, no frivolous claims to argue pursuant to Anders v. California, 386 U.S. 738
(1967). Appellant’s counsel is unaware of, and can locate no authority, supporting
Appellant’s contention that the trial court abused its discretion by imposing a within
punishment range sentence. To the contrary, the general rule is that any sentence within the
statutory range of punishment is not excessive. McNew v. State, 608 S.W.2d 166, 174 (Tex.
Crim. App. 1978).
Appellant’s sole complaint is the Court imposed an just sentence, and as a matter of
justice, the Motion for New Trial should be granted. 1RR5. The State cited the Court to
Hernon vs. State, 215 SW.3d 901 - 907 (Tex.Crim.App. 2007). The State’s reliance on Heron
appears proper. And the Court’s application of the standard for granting new trials as
explained in Hernon appears properly applied to the facts of this case, and arguments set
6 forth by Appellant’s trial counsel.
On the record before Appellant’s counsel, there is no indication Appellant’s
substantial rights were affected in the denial of the Motion for New Trial. On the record
before Appellant’s counsel, there simply does not appear to be any non-frivolous appellate
issues.
Appellant’s counsel has considered the case law relating to sentencing, and motions
for new trial. Appellant’s counsel has looked for a Due Process argument and/or Cruel and
Unusual Punishment argument to be made for this appeal relating to either the sentence
imposed by the court or the denial of the Motion for New Trial. Appellant’s counsel can find
no case law supporting a such a Constitutional claim, nor was one presented to the trial court
as part of the Motion for New Trial. This is the first Anders brief Appellant’s counsel has
filed.
Appellant has been notified, in writing, of the following:
1. She has the right to file a response to this Motion to Withdraw within thirty
days from today’s date (September 30, 2015);
2. She has the right to review the appellate record in preparation of filing a
response to this Motion to Withdraw;
3. Appellant was mailed (on September 30, 2015) a Motion for Pro Se Access to
the Appellate Record and was informed she must file the Motion within ten
7 days. The address for the 13th Court of Appeals is listed in the Motion for Pro
Se Access to Appellate Record;
4. Finally, if she chose to file an appeal pro se, and the 13th Court of Appeals
holds the appeal is frivolous, she may still seek a Petition for Discretionary
Review with the Texas Court of Criminal Appeals, whose mailing address is
Court of Criminal Appeals, P.O. Box 12308 Austin, Texas 78711.
CONCLUSION
Appellant’s counsel believes this appeal should be dismissed.
PRAYER
Wherefore, premises considered, the Appellant prays this court dismiss this appeal.
Respectfully submitted, /S/JOHNATHAN BALL JOHNATHAN BALL 6521 N. 10th Street, Suite F McAllen, Texas 78504 (956) 501-6565 (956) 627-2429 (fax) johnballattorney@gmail.com State Bar Number: 24045443 Appellant’s Attorney
8 CERTIFICATE OF SERVICE I certify that a true and correct copy of Appellant’s Brief has been submitted to the Hidalgo County District Attorney’s Office on September 30, 2015, to wit: Glenn Devino at glenn.devino@da.co.hidalgo.tx.us, whose address is 100 N Closner Blvd # 303, Edinburg, TX 78539. /S/JOHNATHAN BALL JOHNATHAN BALL
CERTIFICATE OF COMPLIANCE
I certify that the word court for this brief is 770 words.
/S/JOHNATHAN BALL JOHNATHAN BALL