Martin Balleza v. State

• Court: Court of Appeals of Texas
• Decided: February 19, 2020
• Docket: 04-18-00733-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-18-00733-CR

Martin BALLEZA, Appellant

v.

The STATE of Texas, Appellee

From the 399th Judicial District Court, Bexar County, Texas Trial Court No. 2017CR12645 Honorable Frank J. Castro, Judge Presiding

Opinion by: Patricia O. Alvarez, Justice

Sitting: Sandee Bryan Marion, Chief Justice Patricia O. Alvarez, Justice Luz Elena Chapa, Justice

Delivered and Filed: February 19, 2020

AFFIRMED

Appellant appeals from an order adjudicating his guilt and sentencing him to ninety-nine

years and ten years’ consecutive confinement for continuous sexual abuse of young children and

sexual assault of a child. He appeals his convictions. Having reviewed counsel’s Anders brief,

Appellant’s pro se brief, and the record, we affirm the trial court’s judgment.

BACKGROUND

Appellant Martin Balleza was charged by indictment in Cause Number 2017CR12645 with

two counts: Count I for continuous sexual abuse of young children; Count II for sexual assault of 04-18-00733-CR

a child. Balleza pled not guilty, and a jury convicted him on both counts. The court then sentenced

Balleza to confinement in the Texas Department of Criminal Justice—Institutional Division for

ninety-nine years for continuous sexual abuse of young children and ten years for sexual assault

of a child, with the sentences to run consecutively.

Balleza timely filed a notice of appeal. The trial court appointed appellate counsel, and

court-appointed counsel filed an Anders brief. Balleza filed a pro se brief.

COURT-APPOINTED APPELLATE COUNSEL’S ANDERS BRIEF

Balleza’s appellate counsel filed a brief containing a professional evaluation of the record

in accordance with Anders v. California, 386 U.S. 738 (1967); counsel also filed a motion to

withdraw. In the brief, counsel recites the relevant facts with citations to the record.

Counsel reviewed the case and examined the jury selection process, pretrial motions, the

outcry hearing, the extraneous offense hearing, business records objections, the voluntariness of

Balleza’s statements, spousal privilege, the motion for directed verdict, the motion for new trial,

and the possibility of ineffective assistance of trial counsel. Based on counsel’s review, counsel

determined that there are no arguable errors in the trial of this cause and that Balleza’s appeal

would be frivolous and without merit. See Nichols v. State, 954 S.W.2d 83, 85 (Tex. App.—San

Antonio 1997, no pet.).

We conclude appellate counsel’s brief meets the Anders requirements. See Anders, 386

U.S. at 744; see also High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978);

Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). Counsel provided Balleza with a

copy of the brief and counsel’s motion to withdraw, and informed Balleza of his right to review

the record and file a pro se brief. See Nichols, 954 S.W.2d at 85–86; see also Bruns v. State, 924

S.W.2d 176, 177 n.1 (Tex. App.—San Antonio 1996, no pet.). Counsel advised Balleza of his

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right to request a copy of the record and provided Balleza with a motion to request a copy of the

record. See Kelly v. State, 436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014).

Appellant elected to file a pro se brief. On June 17, 2019, appellant filed a pro se motion

requesting access to the appellate record. On August 1, 2019, written notice was filed certifying

that a complete copy of the record was sent to appellant. Appellant’s pro se brief was due to be

filed on September 3, 2019. He filed a motion to extend on September 3, 2019, which was granted.

Appellant’s pro se brief was then due no later than October 4, 2019. Balleza filed his brief on

October 15, 2019. The State filed a waiver on October 16, 2019.

APPELLANT’S PRO SE BRIEF

Balleza’s pro se brief was untimely. We nevertheless review the issue presented.

Balleza raises the issue of a speedy trial violation, since he was arrested in August 2016

and tried in October 2018. The trial record shows that the grand jury indicted Balleza on November

27, 2017, and that trial was originally set for October 1, 2018. It does not reflect that Balleza ever

asserted his right to a speedy trial. In fact, Balleza’s trial counsel requested a continuance on the

first day of trial due to a scheduling conflict with the federal court. The State objected, and the

trial went forward as planned. Balleza fails to articulate any prejudice now. See State v. Munoz,

991 S.W.2d 818, 825 (Tex. Crim. App. 1999) (citing Barker v. Wingo, 407 U.S. 514 (1972)).

Balleza’s pro se brief presents no arguable grounds for appeal.

CONCLUSION

Having reviewed the entire record, the Anders brief, and the pro se brief, we conclude that

there are no arguable grounds for appeal and the appeal is wholly frivolous and without merit. See

Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).

We affirm the trial court’s judgments and we grant appellate counsel’s motion to withdraw.

See Nichols, 954 S.W.2d at 85–86; Bruns, 924 S.W.2d at 177 n.1.

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No substitute counsel will be appointed. Should Appellant wish to seek further review of

this case by the Court of Criminal Appeals, he must file a petition for discretionary review either

through a retained attorney or by representing himself. Any petition for discretionary review must

be filed within thirty days from the date of either (1) this opinion or (2) the last timely motion for

rehearing or motion for en banc reconsideration is overruled by this court. See TEX. R. APP.

P. 68.2. Any petition for discretionary review must be filed with the clerk of the Court of Criminal

Appeals. Id. R. 68.3(a). Any petition for discretionary review must comply with the requirements

of Rule 68.4 of the Texas Rules of Appellate Procedure. Id. R. 68.4.

Patricia O. Alvarez, Justice

Do not publish

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