Michael Cortez v. State ( 2015 )

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
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