Michael Cortez v. State

Opinion

ACCEPTED

13-15-0008-CR

THIRTEENTH COURT OF APPEALS FILED CORPUS CHRISTI, TEXAS IN THE 13TH COURT OF APPEALS 7/10/2015 12:26:36 PM CORPUS CHRISTI - EDINBURG CECILE FOY GSANGER CLERK

07/10/15 APPEAL NUMBER CECILE FOY GSANGER, CLERK BY cholloway 13-14-00008-CR RECEIVED IN 13th COURT OF APPEALS

CORPUS CHRISTI/EDINBURG, TEXAS TRIAL COURT NUMBER 7/10/2015 12:26:36 PM B-14-20420-0-CR-B CECILE FOY GSANGER Clerk

IN THE COURT OF APPEALS

THIRTEENTH SUPREME JUDICIAL DISTRICT OF THE STATE OF TEXAS

MICHAEL CORTEZ

APPELLANT

VS.

THE STATE OF TEXAS

APPELLEE

APPEAL FROM THE 36TH JUDICIAL DISTRICT COURT OF ARANSAS COUNTY, TEXAS

AMENDED BRIEF OF APPELLANT 2nd

With Correct Service Date Second Amended Ander’s Brief With Request for Extension of Time And Motion to Withdraw, Statement that a Motion for Pro Se Access to the Appellate Record and Rules for Petition For Discretionary Review Have Been Provided to the Appellant

RICK HOLSTEIN

819 N. Upper Broadway

Corpus Christi, Texas

(361) 883-8649

Bar No. 09915150

COUNSEL ON APPEAL

ORAL ARGUMENT WAIVED

TABLE OF CONTENTS

Table of Cases and Lists of Authorities ii Table of Parties and Counsel iii Certificate of Counsel 1 Statement of the Case 2 Statement Regarding Oral Argument 2 Special Statement to the Court 2 Statement of Facts 3 Summary of Argument 3 Argument 3 Conclusion 4 Certificate of Service 5

TABLE OF CASES AND LIST OF AUTHORITIES 1. Anders v. California, 386 U.S. 738 (1967) 1 2. Gainous v. State, 436S.W.2d 137 (Tex. Crim. App. 1969) 1

3. Strickland v. Washington, 446, 691-692, 104 S. Ct. 3 2052, 80 L.Ed. 2d. 674 (1984)

4. Ingham v. State, 679 S.W.2d 503 (Tex. Crim. App. 1984) 3

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TABLE OF PARTIES AND COUNSEL

Appellant- Michael Cortez, TDCJ-ID 0389278, Hughes Unit, Rt. 2, Box 4400, Gatesville, Texas, 76597.

Appellant's Court Appointed Counsel- James Rick Holstein, 819 N. upper Broadway Street, Corpus Christi, Texas 78401.

Appellant’s Initial Trial Counsel-Ms. Michelle Ochoa Texas Riogrande Legal Aid, Inc. 331a N. Washington St. Beeville, Texas 78102

Appellant’s Trial Attorney- Robert Flynn, Corpus Christi, Texas, 78401.

Jose Aliseda, District Attorney, 156th Judicial District, 103 W. Washington, Beeville, Texas, 78102.

James Sales III, Asst. District Attorney, 156th Judicial District, 103 W. Washington, Beeville, Texas, 78102.

Deborah Branch, Asst. District Attorney, 156th Judicial District, 103 W. Washington, Beeville, Texas, 78102.

Honorable Starr Bauer, Judge 36th Judicial District Court, P.O. Box 700, Sinton, Texas 78387.

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13-15-00008-CR

MICHAEL CORTEZ ' IN THE COURT OF APPEALS

APPELLANT '

'

VS. ' 13TH SUPREME JUDICIAL ' DISTRICT

'

THE STATE OF TEXAS ' APPELLEE ' OF THE STATE OF TEXAS

SECOND AMENDED BRIEF OF APPELLANT TO THE HONORABLE JUDGES OF SAID COURT:

COMES NOW, MICHAEL CORTEZ, hereinafter referred to as Appellant and respectfully submits this his trial brief. In support thereof, Appellant shows the following:

CERTIFICATE OF COUNSEL

In compliance with the requirements of Anders v. California, 386 U.S. 738 (1967) and Gainous v. State, 436 S.W. 2d 137 (Tex. Crim. App. 1969), the undersigned appointed Counsel on Appeal for Appellant states that Counsel has diligently reviewed the entire record in this cause and the law applicable thereto and in his opinion that there are no grounds of error upon which an appeal can be predicated.

The undersigned has served a copy of this brief upon Appellant. At that time the undersigned informed Appellant by letter that it is the view of counsel that the

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appeal is wholly without merit, but that he has the right to review the record and file a pro se appellant brief within 30 days of the date of the filing of this brief, if he so desires. Appellant has been provided with a pro se motion for access to the appellate o record and the undersigned requests this Court to grant Appellant an extension of time for filing of a pro se brief of thirty days from the date of the filing of this brief, if he so desires and to allow the undersigned to withdraw as counsel.

STATEMENT OF THE CASE

On April 24, 2014 Appellant was indicted on three counts of aggravated assault with a deadly weapon. (C.R. Vol. I, pp. 3-4) Notice of two prior felony convictions and intent to enhance was filed on June 23, 2014. (Id. Pp. 39-40) On December 15, 2014 the case came on for trial by jury and on December 16, 2015 the Jury found Appellant guilty on all three counts of aggravated assault with a deadly weapon. (Id. Pp. 102-104) On December 17, 2014 the jury assessed a sentence of 45 years on each count. (Id. Pp. 109-111)

STATEMENT REGARDING ORAL ARGUMENT As this is an Ander’s Brief oral argument would not be beneficial.

SPECIAL STATEMENT TO THE COURT (ISSUES PRESENTED)

After diligent search, counsel has determined that the appeal in this cause is

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has no non-frivolous or meritorious ground. Counsel has reviewed the clerk’s record and the reporter’s record of the pretrial, trial and believes no harmful or jurisdictional error is apparent. No procedural error is apparent. The Indictment complies with the law. There is legally sufficient evidence to support the Jury’s findings and Court’s judgment; there was no evidence to support abuse of discretion by the Court. The judgment has no errors. The record and transcript reflect no reversible or harmful error. Appellant’s counsel has reviewed the conduct of trial counsel and is of the opinion that it meets the standard of conduct set out in Strickland v. Washington, 466 U.S. 668, Ingham v. State, 679 S.W.2d503(Tex.Crim.App.1984).

STATEMENT OF FACTS

Review of the Record and Transcript found no non-frivolous basis for an appeal. See Special Statement to the Court.

SUMMARY OF ARGUMENT

Review of the Record and Transcript found no non-frivolous basis for an appeal. See Special Statement to the Court.

ARGUMENT

Review of the Record and Transcript found no non-frivolous basis for an appeal. See Special Statement to the Court.

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CONCLUSION

Although appellant’s Counsel has found no grounds for relief, counsel requests that the Court grant an Extension of Time to File Brief, for thirty days from the date of filing of this brief, to allow appellant the opportunity to file a pro se brief. Therefore Rick Holstein, Counsel for Appellant, respectfully requests this Court acknowledge and approve this, his request to withdraw from his court appointed duty of providing further legal representation to Appellant on Appeal. In addition too providing this brief and the record, Counsel is providing Appellant with the Rules for Petition for Discretionary Review and a motion for Pro Se Access to the Appellate record.

Respectfully submitted

/s/_Rick Holstein_______

Rick Holstein

819 N. Upper Broadway St.

Corpus Christi, Texas 78401 Telephone: (361) 883-8649 ` Facsimile:(361) 883-3199 Bar No. 09915150

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CERTIFICATE OF COMPLIANCE OF WORD COUNT

In accordance with Texas Rule of Appellate Procedure 9.4(i), the undersigned attorney of record certifies that the foregoing brief contains 655 words, excluding those words identified as not being counted in appellate rule of procedure 9.4(i)(1), and was prepared on Microsoft Word 2008 for Mac. ®.

/s/_Rick Holstein____________ Rick Holstein

CERTIFICATE OF SERVICE

I, certify that a true and correct copy of the above foregoing motion has been delivered to the following:

Mr. Jose Aliseda, District Attorney, 156th Judicial District, 103 W. Washington, Beeville, Texas, 78102.

On this day July 10, 2015.

s/Rick Holstein

Rick Holstein