Raul Castanon Salazu v. State

• Court: Court of Appeals of Texas
• Decided: December 10, 2015
• Docket: 12-16-00036-CR
• Status: Published

Opinion

NO: 14-50562-86-F THESTATEOFTEXAS IN THE 86'h JUDICIAL vs DISTRICT COURT OF RAUL CASTANON SALAZU KAUFMAN CO., TEXAS

FILED IN 5th COURT OF APPEALS CERTIFICATE TO BE FILED WITH NOTICE OF DALLAS, TEXAS APPEAL IN COURT OF APPEALS 12/10/2015 2:44:43 PM The records of my office show: LISA MATZ Clerk

(1) WRITIEN Notice of Appeal was given on the 9TH day of December ,2015. NOTE: ATTACH COPY OF NOTICE OF APPEAL TO THIS FORM. (2) The defendant named above was convicted in this Court of the offense of: SEX ABUSE OF CHILD CONTINUOUS: VICTIM UNDER 14 (3) The date the sentence was imposed or imposition of sentence was suspended or other order appealed from was the th 8 day of December, 2015. (4) The Honorable Casey Blair presided at the trial. (5) The State is represented on appeal by: Erleigh Norville Wiley Address: Kaufman County District Attorney, 100 W Mulberry St, Kaufman, TX State Bar 15113280 Telephone Number: 972-932-0260 (6) The Defendant is represented on appeal by: Taryn Davis Address: 109 N Jackson St, Kaufman, TX 75142 State Bar No. 00792449 Telephone Number: 972-962-0653 (7) Defendant's Counsel is: Retained _.:.:.X_ _ Appointed ProSe (8) The Trial was before the Court: Without A Jury A Jury on Guilt Only _X:...:...__ __ A Jury on Punishment Only A Jury on Both Guilt and Punishment._ _ __ (9) Motion For NewT rial filed: X Yes No If yes, date filed:....::D::.!e::.!::cc!:.em=bc!:.er:....;9~,..::2::::0..:..1=.,5_ _ _ _ _ __ NOTE: IF MOTION FOR NEW TRIAL WAS FILED AFTER NOTICE OF APPEAL, PLEASE GIVE WRITTEN NOTICE TO THIS COURT IMMEDIATELY. (10) Defendant lncarcerated:. _ __:.:X_ __ Yes._ _ _ _ __ No

If no, defendant free on appeal bond of$ - - - - - - - posted on the _ _ _ _ _ _ _ day of

(11) Defendant_X__ has has not been declared indigent. (12) Court Reporter: Beth Woods Address: 100 WEST MULBERRY, KAUFMAN, TEXAS 75142 Date Filed December 10, 2015 J\ffi~~ ' ~ MICHELLE LOPEZ DEPUTY CLERK KAUFMAN COUNTY, TEXAS NO. 14-50562-86-F

STATE OF TEXAS § IN THE DISTRICT COURT § vs. § 86TH JUDICIAL DISTRICT § RAULCASTANONSALAZU §

NOTICE OF APPEAL X J~· < ·' ::u ._... (llCJ;:,, G> .., '. TO THE HONORABLE JUDGE OF SAID COURT: :x rn :L c: c-? :::u :;..--:: 0 -o :::J;:-< rr· -•• ~i ::o

Now comes Raul Castanon Salazu, Defendant in the above styled an~ umbered CAuse, __,c.:; -< c..;:)

and gives this written notice of appeal to the Court of Appeals of the State of Texas from the

judgment of conviction and sentence herein rendered against Raul Castanon Salazu.

Respectfully submitted,

Duggan Jones Noriega, PC 3626 N. Hall St. Ste 820

jose@djtexlaw.com Attorney for Raul Castanon Salazu

CERTIFICATE OF SERVICE

This is to certify that on December 9, 2015, a true and correct copy of the above and

foregoing document was served on the District Attorney's Office, Kaufman County, Daniel

Floyd, by hand delivery. NO. 14-50562-86-F

STATE OF TEXAS § IN THE DISTRICT COUR § vs. § 86TH JUDICIAL DISTRICT ' § RAULCASTANONSALAZU § KAUFMAN COUNTY, TEXAS

MOTION FOR NEW TRIAL AND MOTION IN ARREST OF JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Raul Castanon Salazu, the Defendant in the above styled and numbered

cause, and files this Motion for New Trial and Motion in Arrest of Judgment pursuant to Rules

21 and 22 of the Texas Rules of Appellate Procedure, and in support thereof would show this

court the following:

1. The Defendant was sentenced on December 8, 2015. This Motion, filed within

the thirty-day timetable, is therefore timely. A hearing must be commenced before the 75th day

after the sentence, which is [* _ _ _ _ *], or this motion is overruled by operation of law.

2. The verdict in this cause is contrary to the law and the evidence. See Tex. R.

App. P. 21.3.

3. The trial court has the discretion to grant a new trial in the interests of justice, as

the Court of Criminal Appeals has emphasized:

For more than one hundred and twenty years, our trial judges have had the discretion to

grant new trials in the interest of justice. In Mullins v. State, 37 Tex. 337, 339-340

( 1872-73 ), the Supreme Court, which at that time had criminal jurisdiction, held:

... The discretion of the District Court, in granting new trials, is almost the only

protection to the citizen against the illegal or oppressive verdicts of prejudiced, careless, or ignorant juries, and we think the District Court should never hesitate

to use that discretion whenever the ends of justice have not been attained by those

verdicts.

State v. Gonzalez, 855 S.W.2d 692 (Tex. Crim. App. 1993).

4. For the foregoing reasons, and for such other reasons that may arise on the

hearing of this Motion, Defendant requests a new trial.

WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Court set aside

the judgment of conviction entered in this cause and order a new trial on the merits.

Duggan Jones Noriega, PC 3626 N. Hall St. Ste 820 Dallas, Texas 75219 Tel: (214) 494-1647 Fax: (214) 540-8284

By:JoseP.~ega r . \() I

State Bar No. 24068539 jose@djtexlaw.com Attorney for Raul Castanon Salazu

CERTIFICATE OF PRESENTMENT

By signature above, I hereby certify that a true and correct copy of the above and

foregoing has been hand-delivered to the Office for the 86th Judicial District Court of Kaufman

County, on this day, December 9, 2015.

CERTIFICATE OF SERVICE This is to certify that on December 9, 2015, a true and correct copy of the above and

foregoing document was served on the District Attorney's Office, Kaufman County, Daniel

Floyd, by hand delivery.

00J r Jose P. Noriega

ORDER FOR A SETTING

On _ _ _ _ _ _ _ _ _ _ _ _ , 2016, the Defendant filed a Motion for New

Trial and Motion in Arrest of Judgment. The Court finds that the party is entitled to a hearing on

this matter, and it is THEREFORE ORDERED that a hearing on this motion is set for

_ _ _ _ _ _ _,,at _ _ _ _ __

Signed on _ _ _ _ _ _ _ _ _ _ _ __

JUDGE PRESIDING NO. 14-50562-86-F

STATE OF TEXAS § IN THE DISTRICT COURT § vs. § 86TH JUDICIAL DISTRICT § RAUL CASTANON SALAZU § KAUFMAN COUNTY, TEXAS

ORDER

On _ _ _ _ _ _., 2016, came on to be considered Raul Castanon Salazu's Motion

for New Trial and Motion in Arrest of Judgment~ and said motion is hereby

(Granted) (Denied)

JUDGE PRESIDING CASE No. 14-50562-86-F

THE STATE OF TEXAS § IN THE 86TH DISTRICT COURT § v. § OF § SALAZU, RAUL CASTANON § KAUFMAN COUNTY, TEXAS § STATE ID No.: TX-50546933 § JUDGMENT OF CONVICTION BY JURY Date Judgment Judge Presiding: HON. CASEY BLAIR Entered: 12/08/2015 Attorney for Attorney for State: Erleigh Norville Wiley Defendant: Jose Noriega Offense for which Defendant Convicted: SEX ABUSE OF CHILD CONTINUOUS: VlCTIM UNDER 14 Charging Instrument: Statute for Offense: Indictment 21.02 PC Date of Offense: 01/01/2008 ' Degree of Offense: Plea to Offense: i ':r: ("") c: .. I r·c;; -o (j)t~~ 1st Degree Felony Not Guilty ;:-:; :X Verdict of Jury: Findings on Deadly Weapon: IJ I m;r ::::.Jn~ ::;r,._( .r:- .. ~

-"'l:;c Cj '0 Guilty = m ·= ........ C".'J 1 Plea to 1" Enhancement Plea to znd Enhancement/Habitual -< CD Paragraph: Paragraph: 51 Findings on 1 Enhancement Findings on 2na Enhancement/Habitual Paragraph: Paragraph: Punished Assessed b:t:: Date Sentence Imposed: Date Sentence to Commence: Judge 12/08/2015 12/08/2015 Punishment and Place of Confinement: 65 YEARS IN THE INSTITUTIONAL DIVISION THIS SENTENCE SHALL RUN CONCURRENTLY.

[ ] SENTENCE OF CONFINEMENT SUSPENDED, DEFENDANT PLACED ON COMMUNITY SUPERVISION FOR YEARS. Fine: Court Costs: Restitution: Restitution Payable to: $5000.00 $461.00 $0 nla [x] Attachment A, Order to Withdraw Funds, is incorporated into this judgment and made a part hereof. Sex Offender Registration Requirements do apply to the Defendant. Tex. CoDE CRIM. PROC. chapter 62. The age of the victim at the time of the offense was 5 years of age. If Defendant is to serve sentence in TDCJ, enter incarceration periods in chronological order. Time Credited: From 08/07/2014 to 12108/2015 All pertinent Information, names and assessments indicated above are incorporated into the language of the judgment below by reference. This cause was called for trial in Kaufman County, Texas. The State appeared by her District Attorney. Counsel/ Waiver of Counsel (select one) [X] Defendant appeared in person with Counsel. [ ] Defendant knowingly, intelligently, and voluntarily waived the right to representation by counsel in writing in open court. It appeared to the Court that Defendant was mentally competent and had pleaded as shown above to the charging instrument. Both parties announced ready for trial. A jury was selected, impaneled, and sworn. The INDICTMENT was read to the jury, and Defendant entered a plea to the charged offense. The Court received the plea and entered it of record. The jury heard the evidence submitted and argument of counsel. The Court charged the jury as to its duty to determine the guilt or innocence of Defendant, and the jury retired to consider the evidence. Upon returning to open court, the jury delivered its verdict in the presence of Defendant and defense counsel, if any. The Court received the verdict and ORDERED it entered upon the minutes of the Court. Punishment Assessed bv Jury I Court I No election (select one} 0 Jury. Defendant entered a plea and filed a written election to have the jury assess punishment. The jury heard evidence relative to the question of punishment. The Court charged the jury and it retired to consider the question of punishment. After due deliberation, the jury was brought into Court, and, In open court, it returned its verdict as indicated above. [X] Court. Defendant elected to have the Court assess punishment. After hearing evidence relative to the question of punishment, the Court assessed Defendant's punishment as indicated above. 0 No Election. Defendant did not file a written election as to whether the judge or jury should assess punishment After hearing evidence relative to the question of punishment, the Court assessed Defendant's punishment as indicated above. The Court FINDS Defendant committed the above offense and ORDERS, ADJUDGES AND DECREES that Defendant is GUlLTV of the above offense. The Court FINDS the Presentence Investigation, if so ordered, was done according to the applicable provisions of TEX. CoDE CRIM. PROC. art. 42.12 § 9. The Court ORDERS Defendant punished as indicated above. The Court ORDERS Defendant to pay all fines, court costs, and restitution as indicated above. Punishment Options (select one) [X] Confinement in State Jail or Institutional Division. The Court ORDERS the authorized agent of the State of Texas or the Sheriff of this County to take, safely convey, and deliver Defendant to the Director, Institutional Division, TDCJ. The Court ORDERS Defendant to be confined for the period and in the manner indicated above. The Court ORDERs Defendant remanded to the custody of the Sheriff of this county until the Sheriff can obey the directions of this sentence. The Court ORDERS that upon release from confinement, Defendant proceed immediately to the Kaufman County Clerk Court Collections Department. Once there, the Court ORDERS Defendant to pay, or make arrangements to pay, any remaining unpaid fines, court costs, and restitution as ordered by the Court above. [ ] County Jail-Confinement I Confinement in Lieu of Payment. The Court ORDERS Defendant immediately committed to the custody of the Sheriff of Kaufman County, Texas on the date the sentence is to commence. Defendant shall be confined in the Kaufman County Jail for the period indicated above. The Court ORDERS that upon release from confinement, Defendant shall proceed immediately to the Kaufman County Clerk Court Collections Department. Once there, the Court ORDERS Defendant to pay, or make arrangements to pay, any remaining unpaid fines, court costs, and restitution as ordered by the Court above. ( ] Fine Only Payment. The punishment assessed against Defendant is for a FINE ONLv. The Court OROERS Defendant to proceed immediately to the Office of the Kaufman County Clerk Court Collections Department. Once there, the Court ORDERs Defendant to pay or make arrangements to pay all fines and court costs as ordered by the Court in this cause. Execution I Suspension of Sentence (select one) [X] The Court ORDERS Defendant's sentence EXECUTED. [ ] The Court ORDERS Defendant's sentence of confinement SUSPENDED. The Court ORDERS Defendant placed on community supervision for the adjudged period (above) so long as Defendant abides by and does not violate the terms and conditions of community supervision. The order setting forth the terms and conditions of community supervision is incorporated into this judgment by reference. The Court ORDERS that Defendant is given credit noted above on this sentence for the time spent incarcerated. Furthermore, the following special findings or orders apply: (X] Attached findings or additional orders are herein incorporated by Attachment B.

;'- Signed on the £day of

Right Thumb This is to certify that the fingerprints above are the above-named defendant's fi styled and numbere~use.

Done in Court this t:f day of December, 2015. Attachment B to Judgment

VICTIM RESTITUTION SHEET FOR CAUSE NO. 14-50562-86-F CHECK ALL THAT APPLY:

[ ] Restitution payable to DPS Restitution Accounting, P.O. Box 4087, Austin, Texas 78773-0130 Amount of Restitution: $140.00,$180.00, OR $60.00 (CIRCLE THE AMOUNT)

] Restitution payable to Victim 1: Amount: _ _ _ __ NAME: ADDRESS:

ORDERS BY THE COURT REGARDING PAYMENTS Defendant is ordered to pay all fines, court costs, and restitution as set out in the attached judgment or order as follows:

[x] Fine [ l Restitution [x] Court Costs to be paid in installments as arranged with the County Clerk Court Collections.

[ J Fine [ } Restitution [ ] Court Costs to be paid in installments as agreed with the Kaufman County Adult Probation Department.

1Fine [ } Restitution [ 1Court Costs to be paid in full on the day judgment or order is entered. ] Fine [ 1Restitution [ 1Court Costs to be paid within _ _ days of entry of judgment or order. SPECIAL FINDINGS, CONSIDERATIONS, OR ORDERS BY THE COURT [ ] The Court approves the 12.45 agreement entered into by the State and the Defendant and takes offenses contained within said agreement into consideration of sentencing.

{ ] The Court finds that Defendant was prosecuted for an offense under Title 5 of the Penal Code that involved family violence. TEX. CODE CRIM. PROC. art. 42.013.

[ ] The Court finds that a deadly weapon as defined in Section 1.07, Penal Code, was used or exhibited during the commission of the offense or during the immediate flight there from, and that the defendant used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited.

[ ] The Court finds that the allegations contained within the indictment that defendant did commit said offense(s) within a drug free zone pursuant to HSC Sec. 481.134 are true.

[ ] DWI Ignition Motor Interlock. The defendant shall install, on each motor vehicle owned or operated by defendant, a device that uses a deep-lung breath analysis mechanism to make impractical the operation of the motor vehicle if ethyl alcohol is detected in the breath of the operator. This order shall be in effect from the date of this judgment until the date of the first anniversary after the ending of the period of drivers license suspension imposed under Section 521.344, Transportation Code. Defendant shall obtain the device(s) at the defendant's own cost on or before that ending date. Defendant shall provide evidence to the Court on or before that ending date that the device has been installed on each appropriate vehicle, and the devices shall remain on each appropriate vehicle until the first anniversary after the ending of the period of such driver's license suspension. Defendant shall not operate any motor vehicle that is not equipped with that device.

[ } The Court finds that the defendant is/is not presumptively entitled to diligent participation credit in accordance with Section 15(h), Article 42.12. CASE No. 14-50562-86-F

THE STATE OF TEXAS § IN THE 86TH DISTRICT COURT § v. § COURT OF § Raul Castanon Salazu § KAUFMAN COUNTY, TEXAS § STATE ID No.: TX-50546933 §

ATIACHMENT A ORDER TO WITHDRAW FUNDS

TO: INMATE TRUST ACCOUNT, TEXAS DEPARTMENT OF CRIMINAL JUSTICE COPY TO: Raul Castanon Salazu AKA: --------------------- GREETINGS:

THE ABOVE named Texas Department of Criminal Justice offender has of this date been assessed court costs, fees and/or fine and/or restitution in the 86th District Court of Kaufman County, Texas, in the above entitled cause in accordance with the sentence imposed as reflected in the judgment to which this Order is attached. The Court finds that the offender is unable to pay the court costs, fees and/or fines and/or restitution on this date and that the fund should be withdrawn from the offender's Inmate Trust Account. Court Costs, fee and/or fines and/or restitution have been incurred in the amount of $5,461.00.

THE COURT ORDERS that the payment be made out of the offender's Inmate Trust Account as follows: Pay an initial amount equal to the lesser of: (1) 15% of the account balance up to and including $100, plus 25% of any portion of the account balance that is between $100.01 and $500 inclusive, plus 50% of any portion of the account balance that is more than $500; or (2) The total amount of court costs, fees and/or fines and/or restitution that remains unpaid. After the payment of the initial amount, the offender shall pay an amount equal to the lesser of: (1) 10% of each deposit in the offender's Inmate Trust Account; or (2) The total amount of court costs, fees and/or fines and/or restitution that remains unpaid. Payments are to continue until the total amount of the court costs, fees and/or fines and/or restitution are paid, or the offender is released from confinement.

On receipt of a copy of this Judgment, the department (Inmate Trust Account) shall withdraw money from the trust account of the offender, hold same in a separate account, and shall forward said money to the Kaufman County District Clerk, 100 W. Mulberry, Kaufman, Texas 75142 on the earlier of the following Dates: (1) Monthly (2) The date the total amount to be forwarded equals the total amount which remains unpaid; or (3) The date the offender is released. THIS ORDER is entered and incorporated into the Judgment and Sentence of this Court and pursuant to Government Code, Section 501.014, on the tf~ day of~r, 2015.

~~~ Blair, Casey Cause No. 14-50562-86-F

The State of Texas § In the 86th District Court § VS § In and For § Raul Castanon Salazu § Kaufman County, Texas

TRIAL COURT'S CERTIFICATION OF DEFENDANT'S RIGHT OF APPEAL*

I, judge of the trial court, certify this criminal case:

Is not a plea·bargain case, and the defendant has the right of appeal, [or] Is a plea-bargain case, but matters were raised by written motion filed and ruled on before the trial, and not withdrawn or waived, and the defendant has the right of appeal, [or] 0 Is a plea-bargain case, but the trial court has given permission to appeal, and the defendant has the right of appeal, [or] ';;; 0 Is a plea-bargain case, and the defendant has NO right of appeal, [or] ~ ~ c:.l"' ;s::;'"T'I ;;-r= 0 The defendant has waived the right of appeal. \ ~ I ~~ .. ~ -rni :I f/J59 :. .· err, ·qc, -r

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6 :;:::::?"// ?~ Blair, Casey Z Date Signed 12 'i 1" ~ ~ ~~ ~ g; ~i:C) ••.,?0 -.( C'.:'

I have received a copy of this certification. I have also been informed of my rights concerning any appeal of this criminal case, including any right to file a pro se petition for discretionary review pursuant to Rule 68 of the Texas Rules of Appellate Procedure. I have been admonished that my attorney must mail a copy of the court of appeals' judgment and opinion to my last known address and that I have only 30 days in which to file a pro se petition for discretionary review in the Court of Criminal Appeals. TEx. R. APP. P. 68.2 I acknowledge that, if I wish to appeal this case and if J am entitled to do so, it is my duty to inform my appellate attorney, by written communication, of any change in the address at which 1 am currently living or any change in my current prison unit I understand that, because of appellate deadlines, if I fail to timely

'?!, inform my appellate attorney of any change in my address, I may lose the opportu ity to file a pro se petition for discretioni!IY

Dg~ Mailing address: Defendan 's ou sel State Bar of as 10 number(_ ({{)6 g.:> :S CJ\ Telephone number: Mailing address: Fax number (if any): Telephone number: Fax number (if any):

• "A defendant in a criminal case has the right of appeal under these rules. The trial court shall enter a certification of the defendant's right to appeal in every case in which it enters a judgment of guilt or other appealable order. In a plea bargain case -- that is, a case in which a defendant's plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant -- a defendant may appeal only: (A) those matters that were raised by written motion filed and ruled on before trial, or (B) after getting the trial court's permission to appeal." TEXAS RULE OF APPELLATE PROCEDURE 25.2(a)(2).

Person ID: 970931