ACCEPTED 05-17-00757-cr FIFTH COURT OF APPEALS DALLAS, TEXAS 3/23/2018 10:17 PM LISA MATZ
5th Court of Appeals CLERK
FILED: 03/27/2018 Lisa Matz, Clerk No. 05-17-00757-CR
IN THE COURT OF APPEALS RECEIVED IN FOR THE FIFTH DISTRICT OF TEXAS 5th COURT OF APPEALS DALLAS, TEXAS AT DALLAS 3/23/2018 10:17:45 PM ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗ LISA MATZ Clerk MIGUEL GUERRERO REYES, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
On Appeal from the 292nd Judicial District Court Hon. Brandon Birmingham, Judge Presiding Dallas County, Texas In Cause No. F-16-53482-V ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
AMENDED BRIEF IN SUPPORT OF MOTION TO WITHDRAW ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Counsel of Record:
TARA CUNNINGHAM Attorney for Appellant State Bar No. 24068757 325 N Saint Paul St, Ste 2750 Dallas, TX 75201 (214) 457-0359 TaraCunningham@gmail.com LIST OF PARTIES APPELLANT Miguel Guerrero Reyes
APPELLEE The State of Texas
DEFENSE COUNSEL AT TRIAL James Guinan 5005 Greenville Ave Suite 200 Dallas, TX 75206
STATE’S ATTORNEY AT TRIAL Brandie Wade Dallas County District Attorney’s Office 133 N. Riverfront Blvd., LB-19 Dallas, Texas 75207-4399
APPELLANT’S ATTORNEY ON APPEAL Tara Cunningham 325 N Saint Paul St, Ste 2750 Dallas, TX 75201
STATE’S ATTORNEY ON APPEAL Faith Johnson (or her designated representative) Dallas County District Attorney’s Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas 75207-4399
i Table of Contents
List of Parties………………………………………………………………………..i Table of Contents ................................................................................................................... ii Table of Authorities ............................................................................................................. iiii Statement of the Case ........................................................................................................... iv Statement of Facts .................................................................................................................. 1 Summary of the Argument…………………………………………………………..3 Argument……………………………………………………………………………3 Conclusion............................................................................................................................... 7 Certificate of Compliance ...................................................................................................... 8 Certificate of Service .............................................................................................................. 8
ii Table of Authorities Cases Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)……..………6 Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974)…………………………….……..6 Griffin v. State, 614 S.W.2d 155, 158 (Tex. Crim. App. 1981)…………………………4 Hernandez v. State, 726 S.W.2d 53 (Tex.Cr.App.1986)..........................................................5 Jack v. State, 871 S.W.2d 741 (Tx.Cr.App. 1994)……………...………………………6 Jeffery v. State, 903 S.W.2d 776 (Tex.App.-Dallas 1995, no pet.)………………………6 Jackson v. Virginia, 443 U.S. 307 (1979)………………………………………………4 Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984)..................5
Statutes
Tex. Penal Code Sec. 21.11…………………………………………………………..3 Tex. Code Crim. Proc. Sec. 12.33……………………………………………………5 Tex. Code Crim. Proc. art. 46B.003(a)(1) and (2)…………………………………….6
iii Statement Regarding Oral Argument
Counsel waives oral argument herein since the facts and legal arguments are
adequately presented in the brief.
TO THE HONORABLE COURT OF APPEALS:
COMES NOW Miguel Guerrero Reyes, Appellant in the above styled and
numbered cause, and respectfully submits this brief in support of Motion to
Withdraw.
Statement of the Case
Appellant was indicted for Indecency with a Child, the date of offense being
April 3, 2016. (CR1:10). Appellant entered a plea of not guilty. (RR4: 49). A jury
found Appellant guilty and the trial court sentenced Appellant to 12 years’
confinement. (CR1: 96). The sentence was imposed and the court entered judgment
on June 23, 2017. (CR1:96). Appellant timely filed his notice of appeal. (CR1:102).
iv Statement of Facts
Background of Offense:
Appellant went to the home of his boss, Oscar Regalado. (RR4: 131). Mr.
Regalado was not home, but his three children were there alone. (RR4:66-67). While
eating breakfast, one of the children, who was eight year-old, saw Appellant walk into
the apartment and go into the bedroom where his sister, Complainant, was at.
(RR5:166-167). Appellant was intoxicated. (RR5:166-167). Nine year-old,
Complainant, said that Appellant came into the bedroom while she was lying in bed
and touched her vagina. (RR4:155-156). When she kicked, Appellant left the
apartment. (RR4:156). Shortly after that, Oscar Regalado came home and
Complainant told him what happened. (RR4:74-76, 157). The police were called.
(RR4:82-83). When Appellant was questioned by police several hours later, he
admitted to touching Complainant’s vagina and wrote a confession after being advised
of his Miranda rights. (RR5:102-105).
Charging Instruments:
The indictment alleges that appellant “did unlawfully, with the intent to arouse
and gratify the sexual desire of the defendant, engage in sexual contact with
[Complainant’s name removed for privacy], hereinafter called complainant, a child
younger than 17 years and not then the spouse of the defendant, by contact between
1 the hand of the defendant and the genitals of the complainant”. (CR1:10). There was
no objection made to the indictments and no motion to quash filed.
Voluntariness of Confession:
Before Appellant met with police, he had been drinking heavily and had not
had much sleep. (RR5:165-167). However, nearly eight hours had passed before
Appellant finally talked to the detective. (RR5:15). He told the detective that he was
fine. (RR5:59). He did not have slurred speech or show other signs of impairment.
(RR5:26-28). After being advised of his Miranda rights in Spanish, Appellant
voluntarily waived those rights and wrote a confession. (RR5:29-31).
Punishment
The jury found Appellant guilty and the court set punishment at twelve (12)
years’ confinement in the penitentiary. (CR1:10).
Effective Assistance of Counsel:
There is nothing in the record to indicate that appellant was denied the
effective assistance of counsel at his trial. Appellant does not appear to be misled by
trial counsel in the record that he would receive special treatment or leniency. At trial,
defense counsel asked questions attempting to establish that Appellant was too
intoxicated to give a reliable statement to detectives. (RR5:112-183). He also pointed
2 out inconsistencies in the state’s witness’s testimony and called defense witnesses to
testify that the complainant lied. (RR5:125-128).
Free access — add to your briefcase to read the full text and ask questions with AI
ACCEPTED 05-17-00757-cr FIFTH COURT OF APPEALS DALLAS, TEXAS 3/23/2018 10:17 PM LISA MATZ
5th Court of Appeals CLERK
FILED: 03/27/2018 Lisa Matz, Clerk No. 05-17-00757-CR
IN THE COURT OF APPEALS RECEIVED IN FOR THE FIFTH DISTRICT OF TEXAS 5th COURT OF APPEALS DALLAS, TEXAS AT DALLAS 3/23/2018 10:17:45 PM ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗ LISA MATZ Clerk MIGUEL GUERRERO REYES, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
On Appeal from the 292nd Judicial District Court Hon. Brandon Birmingham, Judge Presiding Dallas County, Texas In Cause No. F-16-53482-V ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
AMENDED BRIEF IN SUPPORT OF MOTION TO WITHDRAW ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Counsel of Record:
TARA CUNNINGHAM Attorney for Appellant State Bar No. 24068757 325 N Saint Paul St, Ste 2750 Dallas, TX 75201 (214) 457-0359 TaraCunningham@gmail.com LIST OF PARTIES APPELLANT Miguel Guerrero Reyes
APPELLEE The State of Texas
DEFENSE COUNSEL AT TRIAL James Guinan 5005 Greenville Ave Suite 200 Dallas, TX 75206
STATE’S ATTORNEY AT TRIAL Brandie Wade Dallas County District Attorney’s Office 133 N. Riverfront Blvd., LB-19 Dallas, Texas 75207-4399
APPELLANT’S ATTORNEY ON APPEAL Tara Cunningham 325 N Saint Paul St, Ste 2750 Dallas, TX 75201
STATE’S ATTORNEY ON APPEAL Faith Johnson (or her designated representative) Dallas County District Attorney’s Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas 75207-4399
i Table of Contents
List of Parties………………………………………………………………………..i Table of Contents ................................................................................................................... ii Table of Authorities ............................................................................................................. iiii Statement of the Case ........................................................................................................... iv Statement of Facts .................................................................................................................. 1 Summary of the Argument…………………………………………………………..3 Argument……………………………………………………………………………3 Conclusion............................................................................................................................... 7 Certificate of Compliance ...................................................................................................... 8 Certificate of Service .............................................................................................................. 8
ii Table of Authorities Cases Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)……..………6 Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974)…………………………….……..6 Griffin v. State, 614 S.W.2d 155, 158 (Tex. Crim. App. 1981)…………………………4 Hernandez v. State, 726 S.W.2d 53 (Tex.Cr.App.1986)..........................................................5 Jack v. State, 871 S.W.2d 741 (Tx.Cr.App. 1994)……………...………………………6 Jeffery v. State, 903 S.W.2d 776 (Tex.App.-Dallas 1995, no pet.)………………………6 Jackson v. Virginia, 443 U.S. 307 (1979)………………………………………………4 Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984)..................5
Statutes
Tex. Penal Code Sec. 21.11…………………………………………………………..3 Tex. Code Crim. Proc. Sec. 12.33……………………………………………………5 Tex. Code Crim. Proc. art. 46B.003(a)(1) and (2)…………………………………….6
iii Statement Regarding Oral Argument
Counsel waives oral argument herein since the facts and legal arguments are
adequately presented in the brief.
TO THE HONORABLE COURT OF APPEALS:
COMES NOW Miguel Guerrero Reyes, Appellant in the above styled and
numbered cause, and respectfully submits this brief in support of Motion to
Withdraw.
Statement of the Case
Appellant was indicted for Indecency with a Child, the date of offense being
April 3, 2016. (CR1:10). Appellant entered a plea of not guilty. (RR4: 49). A jury
found Appellant guilty and the trial court sentenced Appellant to 12 years’
confinement. (CR1: 96). The sentence was imposed and the court entered judgment
on June 23, 2017. (CR1:96). Appellant timely filed his notice of appeal. (CR1:102).
iv Statement of Facts
Background of Offense:
Appellant went to the home of his boss, Oscar Regalado. (RR4: 131). Mr.
Regalado was not home, but his three children were there alone. (RR4:66-67). While
eating breakfast, one of the children, who was eight year-old, saw Appellant walk into
the apartment and go into the bedroom where his sister, Complainant, was at.
(RR5:166-167). Appellant was intoxicated. (RR5:166-167). Nine year-old,
Complainant, said that Appellant came into the bedroom while she was lying in bed
and touched her vagina. (RR4:155-156). When she kicked, Appellant left the
apartment. (RR4:156). Shortly after that, Oscar Regalado came home and
Complainant told him what happened. (RR4:74-76, 157). The police were called.
(RR4:82-83). When Appellant was questioned by police several hours later, he
admitted to touching Complainant’s vagina and wrote a confession after being advised
of his Miranda rights. (RR5:102-105).
Charging Instruments:
The indictment alleges that appellant “did unlawfully, with the intent to arouse
and gratify the sexual desire of the defendant, engage in sexual contact with
[Complainant’s name removed for privacy], hereinafter called complainant, a child
younger than 17 years and not then the spouse of the defendant, by contact between
1 the hand of the defendant and the genitals of the complainant”. (CR1:10). There was
no objection made to the indictments and no motion to quash filed.
Voluntariness of Confession:
Before Appellant met with police, he had been drinking heavily and had not
had much sleep. (RR5:165-167). However, nearly eight hours had passed before
Appellant finally talked to the detective. (RR5:15). He told the detective that he was
fine. (RR5:59). He did not have slurred speech or show other signs of impairment.
(RR5:26-28). After being advised of his Miranda rights in Spanish, Appellant
voluntarily waived those rights and wrote a confession. (RR5:29-31).
Punishment
The jury found Appellant guilty and the court set punishment at twelve (12)
years’ confinement in the penitentiary. (CR1:10).
Effective Assistance of Counsel:
There is nothing in the record to indicate that appellant was denied the
effective assistance of counsel at his trial. Appellant does not appear to be misled by
trial counsel in the record that he would receive special treatment or leniency. At trial,
defense counsel asked questions attempting to establish that Appellant was too
intoxicated to give a reliable statement to detectives. (RR5:112-183). He also pointed
2 out inconsistencies in the state’s witness’s testimony and called defense witnesses to
testify that the complainant lied. (RR5:125-128).
Competency to Stand Trial:
From the record, appellant appeared to be competent to stand trial by showing
a rational as well as factual understanding of the proceedings against him and that he
had a present ability to consult with his lawyer with a reasonable degree of rational
understanding. No evidence was presented to prove appellant was incompetent.
Summary of the Argument
After thorough examination of the clerk’s record and reporter’s record, there is no
point of error that can be supported by the record.
Argument
The indictment alleges that appellant “did unlawfully, with the intent to arouse
and gratify the sexual desire of the defendant, engage in sexual contact with
[Complainant’s name removed for privacy], hereinafter called complainant, a child
younger than 17 years and not then the spouse of the defendant, by contact between
the hand of the defendant and the genitals of the complainant”. (CR1:10). The
indictment contains all the elements required for the offense. Tex. Penal Code Sec.
21.11.
3 There was no objection made to the indictments and no motion to quash filed.
No error is found in the indictments.
Sufficiency of Evidence:
Texas has adopted the Jackson v. Virginia, 443 U.S. 307 (1979) standard of
review for assessing the legal sufficiency of evidence in a criminal case. Griffin v. State,
614 S.W.2d 155, 158 (Tex. Crim. App. 1981). Under that standard, "the relevant
question is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19 (1979).
The complainant, testified that Appellant touched her vagina. (RR4:155-156).
As soon as her father Oscar Regalado arrived back home she made an outcry to him
about what happened. (RR4:74-76, 157). He testified that Complainant told him
Appellant touched her vagina. (RR4:74-76). Further, after being advised of his
Miranda rights, Appellant confessed to police that he touched Complainant’s vagina
and that he felt bad about it because he knew it was wrong. (RR5:29-31, 80). It
appears that the Jackson standard has been met.
Before Appellant met with police, he had been drinking heavily and had not
had much sleep. (RR5:165-167). However, nearly eight hours had passed before
Appellant finally talked to the detective. (RR5:15). He told the detective that he was 4 fine. (RR5:59). He did not have slurred speech or show other signs of impairment.
(RR5:26-28). After being advised of his Miranda rights in Spanish, Appellant
voluntarily waived those rights and wrote a confession. (RR5:29-31). His confession
was voluntary.
Punishment Range
The punishment range for a first degree offense is 2-20 years in the Texas
Department of Criminal Justice. Tex. Code Crim. Proc. Sec. 12.33. The jury found
Appellant guilty and the court set punishment at twelve (12) years’ confinement in the
penitentiary. (CR1:10). This sentence is within the range of punishment for the
offense. Tex. Code. Crim. Proc. 12.33. Sentencing is within the discretion of the
court. No objection was made to the punishment assessed which cannot be shown to
be cruel or unusual, and no error is found.
There is nothing in the record to indicate that Appellant was denied the
effective assistance of counsel at his trial. Ineffective assistance of counsel is judged by
the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674(1984), and Hernandez v. State, 726 S.W.2d 53 (Tex.Cr.App.1986). Appellant does
not appear to be misled by trial counsel in the record that he would receive special
treatment or leniency. At trial, defense counsel asked questions attempting to establish
that Appellant was too intoxicated to give a reliable statement to detectives. (RR5:112- 5 183). He also pointed out inconsistencies in the state’s witness’s testimony and called
defense witnesses to testify that the complainant lied. (RR5:125-128). Appellant’s trial
counsel appears to meet the Strickland standard.
From the record, appellant appeared to be competent to stand trial by showing
a rational as well as factual understanding of the proceedings against him and that he
had a present ability to consult with his lawyer with a reasonable degree of rational
understanding. Tex. Code Crim. Proc. art. 46B.003(a)(1) and (2). No evidence was
presented to prove appellant was incompetent.
Other Relevant Facts:
There are no jurisdictional defects. There are no non-jurisdictional defects
arising at or after entry of Appellant’s pleas. See Jack v. State, 871 S.W.2d 741
(Tx.Cr.App. 1994).
STATEMENT OF ATTORNEY TO THE COURT
This brief is filed by counsel appointed by the court to represent appellant on appeal
in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967), and Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974). Counsel has also filed
with this Court a Motion to Withdraw as Court Appointed Counsel on Appeal in
accordance with the procedures and standards set out in Jeffery v. State, 903 S.W.2d 776
6 (Tex.App.-Dallas 1995, no pet.). After thorough examination of the clerk’s record and
reporter’s record, counsel can find no point of error that can be supported by the
record. Counsel has discussed the evidence and the documents in the record, citing
references to the record.
PRAYER WHEREFORE, premises considered, the undersigned counsel requests the Court of
Appeals review the record on appeal, consider the Motion to Withdraw as Court
Appointed Counsel, review the foregoing Brief in Support of Motion to Withdraw
and grant the Motion to Withdraw.
Respectfully submitted,
/s/Tara Cunningham TARA CUNNINGHAM Attorney for Appellant State Bar No. 24068757 325 N Saint Paul St, Ste 2750 Dallas, TX 75201 (214) 457-0359 TaraCunningham@gmail.com
7 Certificate of Compliance
I certify that this brief contains 1,847 words. This word count includes all
necessary parts outlined in Texas Rule of Appellate Procedure 9.4(i)(1), and it was
conducted with Microsoft Word 2007.
/s/Tara Cunningham Tara Cunningham
Certificate of Service I hereby certify that a true copy of the foregoing brief was served on the Dallas
County Criminal District Attorney’s Office (Appellate Section), 133 N. Riverfront
Blvd., LB-19, 10th Floor, Dallas, Texas, 75207, by electronic transmission on March
22, 2018.