Jeffery Olivera v. State ( 2021 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00270-CR
__________________
JEFFERY OLIVERA, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 9th District Court
Montgomery County, Texas
Trial Cause No. 18-11-14965-CR
__________________________________________________________________
MEMORANDUM OPINION
Jeffery Olivera filed an appeal from his conviction for aggravated assault
against a family member involving his use of a deadly weapon.1 After Olivera filed
his notice of appeal, the trial court appointed an attorney to represent him in the
appeal. After the attorney the trial court appointed reviewed the record of the
1
See Tex. Penal Code Ann. § 22.02(b)(1).
1
proceedings in the trial court, he filed a brief in which he represents no arguable
grounds exist to support the filing of a merits-based brief in Olivera’s appeal. 2
The brief contains a professional evaluation of the record. It also explains
why, based on his review, no arguable issues exist to support a claim arguing the
judgment the trial court entered should be reversed. The record reflects that Olivera’s
attorney sent Olivera a copy of the brief and explained how he could obtain the
record of the proceedings in the trial court and then file a pro se response in his
appeal. Subsequently, the Clerk of the Ninth Court of Appeals sent Olivera a copy
of the District Clerk’s Record and the Reporter’s Records in the appeal. After
Olivera reviewed them, he filed a response. In his response, Olivera argues (1) the
evidence in the trial is insufficient to support the jury’s verdict, (2) the attorney who
represented him in his trial rendered ineffective assistance of counsel, and (3) the
attorney who represented him in his trial failed to object when, in final argument,
the prosecutor asked the jury to convict Olivera to protect the victim’s children from
Olivera by its verdict.
The proceedings in the trial court reflect that a grand jury indicted Olivera in
January 2019 and charged him with committing an aggravated assault against a
family member involving the defendant’s use or exhibition of a deadly weapon, a
knife. The indictment alleged that Olivera intentionally, knowingly, or recklessly
2
See Anders v. California, 386 U.S. 738, 744 (1967).
2
injured the victim “by cutting her with a knife[.]” The indictment also alleges that
Olivera and the victim were in a dating relationship when the assault occurred.3
The month before the trial commenced, Olivera elected to have the trial court
assess his punishment should he be found guilty in the trial. In July 2019, the case
went to trial. Olivera pleaded “not guilty” to the indictment shortly before the State
called its first witness. At the conclusion of the guilt-innocence phase of the trial, the
jury found him guilty of the allegations in the indictment. After that, the trial court
discharged the jury and conducted a punishment hearing.
At the beginning of the punishment hearing, Olivera pleaded true to four
enhancement paragraphs in his indictment. Five witnesses testified in the
punishment phase of the trial. After hearing the punishment evidence and final
argument, the trial court assessed a sentence of fifty-years confinement in the Texas
Department of Criminal Justice Institutional Division. 4
3
See Tex. Penal Code Ann. § 22.02(b)(1); see also Tex. Fam. Code Ann. §
71.0021(b).
4
Generally, aggravated assault is a second-degree felony and second-degree
felonies have a punishment range of two to twenty years. Tex. Penal Code Ann. §§
12.33(a), 22.02(b). But Olivera’s indictment includes four enhancement paragraphs,
which the State alleged to increase the punishment range that applies to second-
degree felonies. When the punishment trial commenced, Olivera pleaded true to four
enhancement allegations, increasing the punishment range in his case to a possible
punishment of 99 years or life. Id. § 12.42(d).
3
After Olivera appealed, the attorney the trial court appointed to represent him
on his appeal filed a brief presenting the attorney’s professional evaluation of the
record. In the brief, Olivera’s attorney concludes that Olivera’s appeal is frivolous.5
After filing the brief, Olivera’s attorney notified Olivera of his right to file a pro se
response. Olivera then obtained the appellate record that is relevant to his appeal and
filed a pro se response.
We have reviewed the record, Olivera’s brief, and Olivera’s pro se response.
Based on this, we agree with Olivera’s attorney that no arguable issues can be argued
to support a merits-based argument being made in his appeal. Having determined
that Olivera’s appeal is frivolous, we also conclude he is not entitled to have another
attorney appointed to represent him in his appeal.6 Accordingly, the trial court’s
judgment is
AFFIRMED.
_________________________
HOLLIS HORTON
Justice
Submitted on April 8, 2021
Opinion Delivered April 21, 2021
Do Not Publish
Before Kreger, Horton and Johnson, JJ.
5
See Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807 (Tex. Crim. App.
1978).
6
Cf. Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). Olivera
may challenge our decision in this case by filing a petition for discretionary review.
See Tex. R. App. P. 68.
4