Sergio Fonza-Carey v. State

Opinion

Electronically Submitted

11/18/2015 5:02:29 PM

Gregg County District Clerk By: Britnie Minor ,deputy

CAUSE NO. 43866-A

THE STATE OF TEXAS § IN THE 188TH DISTRICT COURT FILED IN

6th COURT OF APPEALS

vs. § IN AND FOR TEXARKANA, TEXAS 11/23/2015 3:13:59 PM

SERGIO FONZA-CAREY § GREGG COUNTY, TEXAS DEBBIE AUTREY

Clerk

NOT:ICE OF APPEAL

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW the Defendant in the above entitled and numbered cause, by and through Defendant's Attorney of Record, and shows the Court the following:

I.

The defendant was convicted of the offense of Unlawful Possession of Firearm by Felon and sentenced to two years' confinement in the Texas Department of Criminal Justice- Insti tutional Division on the 20th day of August, 2015.

II.

That the Defendant properly and timely filed his Motion for a New Trial.

III.

That the Defendant hereby gives written Notice of Appeal from said judgment of conviction and sentence to the 188th District Court of Gregg County, Texas and to the Court of Appeals for the Sixth Judicial District of Texas at Texarkana, Texas, within 90 days of the date of sentencing.

RESPECTFULLY SUBMITTED,

ATTORNEY FOR DEFENDANT 140 E. TYLER STREET, SUITE 240 LONGVIEW, TX 75601 903-753-7071 FAX 903 -753-8 783 STATE BAR # 06249300

CERTIFICATE OF SERVICE

As Attorney of Record for Defendant, I do hereby Certify that a true and correct copy of the above and foregoing document was this date provided to the Gregg County District Attorney's Office, Gregg County Courthouse, Longview, TX .

Date: .11-;j>jff

13. Trial was by: Court

14. Punishment assessed: Two years' confinement in the Texas Department of Criminal Justice-Institutional Division.

15. Whether appeal is from a pretrial order: No 16. Whether appeal involves validity of a statute, ordinance or rule: No 17. Whether court reporter's record has been or will be requested: Yes 18. Whether trial was electronically recorded: No 19. Court reporter: Grelyn Freeman 20. Whether motion and affidavit of indigence filed: No

Respectfully submitted,

CAUSE NO. 43866-A

THE STATE OF TEXAS § IN THE 188111 DISTRICT COURT vs. § INANDFOR SERGIO FONZA-CAREY § GREGG COUNTY, TEXAS ORDER

BE IT REMEMBERED, that on the - - - day of - - - - - - - - , 20 , came on to be considered the above and

foregoing Written Notice of Appeal. After consideration of the same, it is the opinion of the Court that Defendant's Notice of Appeal be:

GRANTED.

DENIED, to which ruling the Defendant excepts.

SET FOR HEARING ON THE - - - day of 20 , at o'clock SIGNED:

JUDGE PRESIDING

FILED()\/\/

GREGG COUNTY, TEXAS

CAUSE NO. 43866-A

THE STATE OF TEXAS § IN THE 188m DISTRICT,.Gfim~~~~ vs. § INANDFOR SERGIO FONZA-CAREY § GREGG COUNTY, TEXAS MOTION FOR NEW TRIAL

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW SERGIO FONZA-CAREY, Defendant, by and through his attorney for appeal, and files this Motion for New Trial in this case.

I.

Defendant would show the Court that there has been material error committed that is calculated to injure the rights of Defendant.

II.

Defendant would show the Court that both the guilt/innocence verdict and the punishment verdict are contrary to the law and the evidence on the case.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendant prays that this Motion for new

trial be set for hearing, and, upon hearing, that the Court grants his a new trial.

Respectfully submitted,

u.....w ~•""'<! ~;

Clement Dunn

4 £.ur. 61

Attorney at Law

140 E. Tyler Street, Suite 240 Longview, TX 75601

(903) 753-7071 Fax (903) 753-8783 State Bar # 06249300

CERTIFICATE OF SERVICE

As Attorney of Record for Defendant, I do hereby Certify that a true and correct copy of the foregoing document was this date provided to the Gregg County District Attorney's Office.

CL.wy.b ~c.d..wf

Clement Dunn

Attorney at Law

140 E. Tyler Street, Suite 240 Longview, TX 75601

(903) 753-7071 Fax (903) 753-8783 State Bar# 06249300

Electronically Submitted

11/18/2015 5:02:29 PM

Gregg County District Clerk By: Britnie Minor ,deputy

CAUSE NO. 43866-A

THE STATE OF TEXAS § IN THE 188m DISTRICT COURT vs. § INANDFOR SERGIO FONZA-CAREY § GREGG COUNTY, TEXAS

DEFENDANT'S REQUEST FOR CLERK'S AND COURT REPORTER'S RECORD AND EXHIBITS ON APPEAL

COMES NOW, the Defendant and files this his Request for Clerk's and Court Reporter's Record and Exhibits on Appeal, pursuant to the Texas Rules of Appellate Procedure, and requests that the Clerk and Court Reporter of this Court make and prepare the following matters for inclusion in the appellate record:

I. Indictment or criminal information. 2. All motions and pleadings filed by the Defendant, including the following:

Motion for Discovery.

Motion for Production and Inspection of Evidence and Information which may lead to Evidence (Brady v. Maryland).

Defendant's Motion for List of State's Witnesses.

Defendant's Motion for court reporter to transcribe proceedings.

Defendant's Motion for Election as to Punishment.

Defendant's Motion for Severance.

Defendant's Motion for Continuance.

Defendant's Motion to Suppress Evidence Defendant's Motion to Suppress Statements.

Defendant's Motion to Suppress Extraneous Offenses.

Defendant's Motion in Limine.

Defendant's Exceptions to the Indictment and Motion to Quash.

Defendant's Motion Challenging in Court Identification.

Defendant's Application for Probation from the jury.

Motion to Disclose Identity of Informer.

All written trial objections.

Motion to Shuffle Jury Panel.

Motion for Hearing to Determine Qualification of Reputation/Character Witnesses.

Defendant's Written Rule 609(f) Request.

Defendant' s Motion for Change of Venue and Supporting Affidavits.

Motion for an Instructed Verdict.

3. States's pleadings, including the Motions in Limine and all Rulings of the Court thereon.

4. Court's dockets sheet and all docket entries made by the Court.

5. List of entire persons, including the lists of the Court, The State, and the Defendant.

6. The strike list reflecting the strikes made by the State and the list reflecting the names of the venire persons who sat as jurors at this trial.

7. Transcription of the Voir Dire Examination of the composition of the jury panel, including all statements and agreements made by the Court, the State, the Defendant, the Defense counsel, and the venire persons.

8. Transcription of the hearing challenging the compositions of the jury on Constitutional and statutory grounds, including Batson grounds, and the ruling of the Court Thereon.

9. Transcription of the Opening Statements made by counsel for the Defendant.

I 0. Transcription of the testimony of all witnesses, and all Evidence introduced, dwing all pre-trial hearings and the hearings on the State's Motion to Revoke the Defendant's Community Supervision, including the following:

Hearings on the Defendant's Motion to Suppress.

Hearings on admissibility of in court identification.

Hearing on admissibility of extraneous offenses.

Hearing on admissibility of a Defendant's statement.

Hearing challenging the sufficiency of the indictment of criminal information.

All hearings conducted on each defense motion.

Transcription of the testimony of all witnesses, and all evidence introduced, during the trial and/or hearings, including the hearings to determine guilt/innocence and the punishment and the hearing on the State' s Application to Revoke Community Supervision.

Transcription of the testimony of all witnesses and all evidence introduced at hearings held outside the presence of the jury, including the rulings of the Court.

All verbal and written communications between the Trial Court and the jury. All communications between the Trial Court, the Defendant, counsel for the Defendant, and counsel for the State.

All defense objections, verbal and in writing, made by the Defendant to the Court's Charge submitted to the jury during the trial, on the issues of guilt/innocence and punishment, and all rulings of the Court thereon.

All defense requested instructions, verbal and in writing, made by the Defendant to the Court's charge submitted to the jury during the trial on the issues of guilt/innocence and punishment and all ruling of the Court thereon.

All jury arguments of counsel for the State and counsel for the Defendant, during the hearings to determine guilt/innocence and punishment.

The respective verdicts of the jury at the hearings to determine guilt/innocence and punishment.

All notes and other communications sent by the jury to the Court, the Court's responses thereto and all defense objections and requested instructions made by the defense to each such jury note and the response of the Court.

A transcription of all hearings in conjunction with the Defendant's probation revocation hearing.

All defense pleadings in conjunction with the Defendant's plea of guilty including the waiver of jury, plea of guilty/nolo contendere, and judicial confession; the plea bargain agreement;

and the Court's admonition of rights.

A transcription of all hearings in conjunction with the Defendant's probation revocation hearing. The judgment and sentence of the Court. Defendant's original Motion for New Trial and all amended Motions for New Trial.

Transcription of all testimony and all evidence introduced at the hearing on the Defendant's Motion for New Trial and Amended Motion for New Trial, and Amended Motion for New Trial, and the Order of the Court thereon.

Defendant's Notice of Appeal. The originals of all exhibits introduced into evidence before the jury. The originals of all exhibits introduced into evidence before the Court. Defendant' s affidavit oflndigency and Motion for Free Transcript. Defendant's Request for Clerk's and Court Reporter's Record and Exhibits on Appeal.

WHEREFORE, PREMISES CONSIDERED, the Defendant respectfully prays that the

Clerk and the Court Reporter of this Court will make and prepare the foregoing materials and include them in the appellate in this cause on appeal.

Respectfully submitted,

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing document was this date provided to the Gregg County District Attorney' s Office, Gregg County Courthouse, Longview, TX.

Date: /l ._15-J5

CAUSE NO. 43866-A

THE STATE OF TEXAS § IN THE 188™ DISTRICT COURT vs. § INANDFOR SERGIO FONZA-CAREY § GREGG COUNTY, TEXAS

ORDER

The foregoing Defendant's Request for Clerk's and Court Record and Exhibits on Appeal filed by the Defendant was properly and timely brought to the attention of the Court and the Court finds that same has merit. It is hereby ordered that the Clerk and each Court Reporter involved in the proceedings herein make and prepare all matters set forth in the Defendant's Request for Clerk's and Court Reporter's Record and Exhibits on Appeal, and file said matters with the Clerk of the Court of Appeals immediately upon completion, and that the Clerk and each Court Reporter furnish a copy of said documents to counsel for Defendant.

Signed and entered this the _ _day of _ _ _ _2015.

Judge

Electronically Submitted

11/18/2015 5:02:29 PM

Gregg County District Clerk By: Britnie Minor ,deputy

CAUSE NO. 43866-A

THE STATE OF TEXAS § IN THE 188TH DISTRICT COURT vs. § INANDFOR SERGIO FONZA-CAREY § GREGG COUNTY, TEXAS

DEFENDANT DOCKETING STATEMENT

TO THE HONORABLE COURT OF APPEALS:

COMES NOW, The Appellant and respectfully submits the following docketing statement in the appeal of this cause of follows :

1. Appellant's Name: SERGIO FONZA-CAREY

2. Appellant' s Counsel: Clement Dunn 140 E. Tyler Street, Suite 240 Longview, TX 75601

903-753-7071Fax903-753-8783 State Bar # 06249300

3. Counsel is Retained 4. Date Motion for New Trial filed in Trial Court: 09-17-15 5. Date Notice of Appeal filed: 11-18-15 6. Trail Court's Name: l 88t11 DISTRICT COURT, GREGG COUNTY, TEXAS 7. Trial Court's County: Gregg County, Texas 8. Name of Judge who tried case: Judge David Brabham

9. Date trial court imposed or suspended sentence in open court or date judgment or order appealed from was signed: 08-20-15

10. Offense charge: Unlawful Possession of Firearm by Felon 11. Date of Offense: 12-25-12 12. Defendant's plea: Guilty

13. Trial was by: Court

14. Punishment assessed: Two years' confinement in the Texas Department of Criminal Justice-Institutional Division.

15. Whether appeal is from a pretrial order: No 16. Whether appeal involves validity of a statute, ordinance or rule: No 17. Whether court reporter's record has been or will be requested: Yes 18. Whether trial was electronically recorded: No 19. Court reporter: Grelyn Freeman 20. Whether motion and affidavit of indigence filed: No

Respectfully submitted,

CERTIFICATE OF SERVICE

As Attorney of Record for Defendant, I do hereby certify that a true and correct copy of the above and forgoing document was this date provided to the Gregg County District Attorney, Gregg County Courthouse, Longview, TX.

Date: //·/d"/5