Guadalupe Pacheco v. State ( 2015 )

ACCEPTED
13-15-00252-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
7/24/2015 3:54:08 PM
CECILE FOY GSANGER
CLERK
CAUSE NO. 13-15-00252-CR
__________________________________________________________________
FILED IN
13th COURT OF APPEALS
IN THE COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
FOR THE 7/24/2015 3:54:08 PM
THIRTEENTH JUDICIAL DISTRICT OF TEXAS
CECILE FOY GSANGER
AT CORPUS CHRISTI Clerk
__________________________________________________________________
GUADALUPE PACHECO,
APPELLANT,
VS.
THE STATE OF TEXAS,
APPELLEE.
__________________________________________________________________
On Appeal in Cause No. 14-10-28,220 -A in the
377th Judicial District Court of Victoria County, Texas
Hon. Elí E. Garza, Judge Presiding
__________________________________________________________________
ANDERS BRIEF
__________________________________________________________________
Luis A. Martinez
Bar No. 24010213
P.O. Box 410
Victoria, Texas 77902
(361) 676-2750 telephone
(361) 575-8454 telefax
Email:
Lamvictoriacounty@gmail.com
ATTORNEY FOR APPELLANT
GUADALUPE PACHECO
July 24, 2015
ORAL ARGUMENT NOT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Appellant submits the names and addresses of all interested parties and
attorneys:
Parties
GUADALUPE PACHECO
TDCJ #01988236
Texas Department of Criminal Justice
Byrd Unit
21 FM 247
Huntsville, Texas 77320
STATE OF TEXAS
c/o THE HON. STEPHEN B. TYLER
205 N. Bridge, Suite 301
Victoria, Texas 77901
Attorneys:
THE HON. JAMES BEELER
Attorney for Appellant (At Trial)
121 E Harbor Drive East
Port Lavaca, Texas 77979
THE HON. LUIS A. MARTINEZ
Attorney for Appellant (On Appeal)
P.O. Box 410
Victoria, Texas 77902-0410
THE HON. JOHNA M. STALLINGS (At Trial)
THE HON. VERONICA SANDERS (At Trial)
THE HON. BRENDAN W. GUY (On Appeal)
Attorneys for the State
Victoria County District Attorney’s Office
205 N. Bridge, Suite 301
Victoria, Texas 77901
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL………………………………… ii.
TABLE OF CONTENTS……………………………………………………. iii.
LIST OF AUTHORITIES…………………………………………………….iv.
CERTIFICATE OF COUNSEL……………………………………………….v.
I. RECORD BEFORE COURT…….………………………………………2
II. STATEMENT OF CASE………….……………………………………..3
III. ISSUES PRESENTED………….………...…...…………………………4
IV. STATEMENT OF FACTS…..…….…………………………………….5
V. SUMMARY OF THE ARGUMENT………………………………… 19
VI. ARGUMENT AND AUTHORITIES .………....………………………19
ISSUE NUMBER ONE:
THERE ARE NO ERRORS THAT WOULD RESULT IN REVERSAL OF THE
ORDER OF THE TRIAL COURT…………..………………………………….19
VI. PRAYER AND REQUEST TO WITHDRAW……………………...........20
VIII. CERTIFICATE OF SERVICE………………………………………… …21
IX. CERTIFICATE OF COMPLIANCE………………………………………22
iii
LIST OF AUTHORITIES
Cases: Page
Anders v. California, 386 U.S. 738 (1967)……………………………………….20
Hawkins v. State, 112 S.W.3d 340, 343-44
( Tex.App.–Corpus Christi 2003, no pet.)……………… ……………….19
In re: Schulman, 252 S.W.3d 403, 407 n.9 (Tex.Crim.App. 2008)………………19
Stafford v. State, 813 S.W.2d 503-510, n. 3 (Tex.Crim.App. 1991) …………......19
Williams v. State, 976 S.W.2d 871 (Tex. App.—Corpus Christi 1998)…………. 20
Rules and Statutes:
TEX. PEN. CODE§22.01(a)(2).………………………………………………………3
TEX. PEN. CODE §22.02(B)(1)…………………………………… …………… …3
TEX. PEN. CODE §38.04(b)(2)………………………………………………………3
iv
CERTIFICATE OF COUNSEL
I, Luis A. Martinez, court-appointed counsel for Appellant, GUADLUPE
PACHECO, for purposes of this appeal, certify that I have diligently searched the
Reporter’s Record and Clerk’s Record in Trial Court Cause Number 14-10-28,220
-A , researched the law applicable to the facts and issues presented, if any, and it is
my professional opinion that no reversible error is reflected by the record.
I am of the professional opinion this appeal is without merit and frivolous,
and in compliance with applicable law pertaining to appeals of this type, I have set
forth all points which might arguably support an appeal, request permission to
withdraw, and acknowledge that I have forwarded a copy of this brief to Appellant,
GUADALUPE PACHECO, to his last known address, for the purposes of raising
any points he chooses, and filing a pro se brief.
By this certification, and by separate letter, Appellant is being informed
that he may file a pro se appellate brief if he chooses, and any pro se brief
must be filed with this Court within 30 days of the filing of this Anders brief.
Appellant is further advised that he may request further time to file his pro se
brief, and such request must be made in writing and filed with the 13th Court
of Appeals at: The Thirteenth Court of Appeals, Corpus Christi Division, 901
Leopard, Nueces County Courthouse, 10th Floor, Corpus Christi, Texas 78401.
v
CAUSE NO. 13-15-00252-CR
__________________________________________________________________
IN THE COURT OF APPEALS
FOR THE
THIRTEENTH JUDICIAL DISTRICT OF TEXAS
AT CORPUS CHRISTI
__________________________________________________________________
GUADALUPE PACHECO,
APPELLANT,
VS.
THE STATE OF TEXAS,
APPELLEE.
__________________________________________________________________
On Appeal in Cause No. 14-10-28, 220-A in the
377th Judicial District Court of Victoria County, Texas
Hon. Elí E. Garza, Judge Presiding
__________________________________________________________________
ANDERS BRIEF
TO THE HONORABLE COURT OF APPEALS:
Appellant, GUADALUPE PACHECO, by and through his court appointed
counsel, Luis A. Martinez, respectfully submits this brief in appeal of the judgment
and sentence of the Trial Court finding him guilty of Aggravated Assault with a
Deadly Weapon and Evading Arrest and sentencing him to the Texas Department
of Criminal Justice-Institutional Division.
1
This is an appeal from the 377th Judicial District Court of Victoria County,
Texas, the Honorable Elí E. Garza, Judge Presiding in which the Appellant,
GUADALUPE PACHECO, was the Defendant and the State of Texas was the
Plaintiff. As required by the applicable rules, the parties will be called "Appellant"
and the "State."
I.
RECORD BEFORE COURT
The Clerk's Record consists of one volume and citation to this record will be
referenced in this brief by use of the abbreviation "CR" referring to the Clerk’s
Record and then the appropriate page number. For example, page 10 of the
Clerk’s Record shall be cited as CR-10.
The Reporter's Record furnished to Appellant consists of a total of six (6)
volumes. Citation to the Reporter's Record will be referenced in this brief by use of
the abbreviation "RR", followed by a roman numeral to indicate the volume,
followed by the appropriate page number. For example, page 10 of the Reporter’s
Record, volume two, shall be cited as RR-II-10.
2
II.
STATEMENT OF THE CASE
Appellant wishes to appeal the trial court’s judgment and sentence
convicting him of two counts of Aggravated Assault with a Deadly Weapon and
Evading Arrest and sentencing him to twenty years and ten years, sentences, fines
and court costs.
Appellant was charged in a multi-count indictment with three counts: Count
1, Aggravated Assault pursuant to TEX. PEN. CODE §22.02(B)(1)1; Count 2
Aggravated Assault pursuant to TEX. PEN. CODE §22.02(B)(1); and Count 3
Evading Arrest Detention with Vehicle pursuant to TEX. PEN. CODE §38.04(b)(2).
Said indictment was filed on, or about, October 2, 2014. [CR-5-6]. Appellant
waived arraignment in writing on, or about, October 28, 2014. [CR-13].
A Plea Memorandum was executed and filed by Appellant on, or about,
February 4, 2015. [CR-20]. On the same day, Appellant was admonished by the
Court and pled guilty to Count 1 and 3 of the indictment. The State abandoned
Count 2 of the indictment. [RR-III-7]. A sentencing hearing was set for February
19, 2015.
1
Prior to sentencing, the Trial Court pointed out that, although the indictment indicated that
Count 2 was a first degree felony, the actual language of the indictment charged a Second
Degree Felony. Defendant agreed and persisted in his plea of guilt. The Trial Court ultimately
convicted and sentenced Appellant on Count 1 of the second degree felony of Aggravated
Assault with a Deadly Weapon pursuant to TEX. PEN. CODE §22.02(a)(2). [CR-27; RR-IV-116].
3
Appellant’s sentencing hearing was commenced on, or about February 19,
2015. The sentencing hearing finished on February 20, 2015. After the
presentation of evidence and argument by the State and Appellant, the Trial Court,
as to Count 1, sentenced Appellant to (20) years in the Institutional Division of the
Texas Department of Criminal Justice, a $10,000.00 fine and court costs. [CR-27-
30]. As to Count 2, the Trial Court sentenced Appellant to (10) years in the
Institutional Division of the Texas Department of Criminal Justice, a $10,000.00
fine and court costs. [CR-31-34].
The Trial Court certified that Appellant’s case was not a plea-bargain case
and that he had the right of appeal. [CR-26].
A Motion for New Trial was filed on, or about, March 20, 2015. [CR-36].
A Notice of Appeal was timely filed on, or about, May 20, 2015. [CR-46].
III.
ISSUES PRESENTED
ISSUE NUMBER ONE:
THERE ARE NO ERRORS THAT WOULD RESULT IN REVERSAL OF THE ORDER
OF THE TRIAL COURT.
4
IV.
STATEMENT OF THE FACTS
The Plea Hearing
A plea hearing was held on, or about, February 4, 2015. Prior to pleading
“Guilty,” Appellant waived his right to have the indictment read aloud. [RR-III-4].
The Trial Court admonished Appellant as to the punishment range for a first degree
felony as well as a third degree felony. [RR-III-4-5].
The Trial Court next inquired of the Appellant of the Plea Bargain
Memorandum. Appellant identified his signature on the Plea Bargain
Memorandum. [RR-III-5]. Appellant indicated that he understood that he was
giving up the right to a trial by jury and the right to confront and cross-examine
witnesses. [RR-III-5]. Appellant indicated that he understood he was giving up
his right against self-incrimination and agreeing to be called as a witness during the
plea hearing. [RR-III-6]. The Trial Court confirmed that Appellant was waiving
his rights both “freely and voluntarily.” [RR-III-6].
Trial Counsel for Appellant indicated to the Trial Court that he felt his client
was “competent to stand trial,” and that “he was waiving his rights freely and
voluntarily.” [RR-III-6].
The Trial Court next confirmed with the State and Appellant that there was
no plea bargain in the case. [RR-III-7].
5
Appellant pled guilty to Court 1 and Count 3 of the indictment, respectively,
Aggravated Assault and Evading Detention with a Vehicle. Count 2 of the
indictment was abandoned by the State. [RR-III-7].
The Trial Court confirmed with Appellant that no one had promised
Appellant anything for his plea and that he was entering a plea of guilty both freely
and voluntarily. [RR-III-8]. Appellant’s trial counsel indicated to the Trial Court
that he was confident that his client was entering the pleas of guilty freely and
voluntarily. [RR-III-8].
The Trial Court next admonished Appellant that he had a right to a jury trial
and that he could request that a jury assess punishment in his case; Appellant
indicated that he understood. [RR-III-8]. Appellant confirmed that he was asking
the Court to assess punishment. [RR-III-8].
Appellant stipulated to the facts of Count 1 and Count 3. [RR-III-10].
Appellant’s attorney joined in the stipulation. [RR-III-11].
The Trial Court found Appellant to be competent, sufficient evidence upon
his plea to find Appellant guilty, accepted both guilty pleas and reset both cases for
a punishment hearing. The Trial Court also indicated that it would consider
Appellant’s motion for deferred adjudication. [RR-III-13].
A punishment hearing was set for February 19, 2015. [RR-III-9].
6
The Punishment Hearing of February 19-20, 2015.
A punishment hearing was called up on February 19, 2015. [RR-IV-5].
Prior to the presentation of witnesses, the State requested, and the Trial Court took,
judicial notice of the PSIR. The Rule was invoked by the State. [RR-IV-7]. The
State also offered State’s Exhibits 1-20 which were admitted into evidence. [RR-
IV-10].
Testimony of Christine Sanchez
Christine Sanchez was first called by the State. Ms. Sanchez testified that
she used to date Appellant, about seven years ago. [RR-IV-10]. She identified
Appellant in open court. [RR-IV-11].
Ms. Sanchez was asked to direct her attention to May 15, 2011. Ms.
Sanchez was at her sister’s house that day when Appellant came over. [RR-IV-
11]. She testified that Appellant was angry with her because she did not want to
“get back with him.” She said he had a pipe. [RR-IV-12]. She further explained
that Appellant wanted her to pick Appellant up, and when she didn’t, he walked to
Ms. Sanchez’s sister’s house. She recounted for the Trial Court that Appellant
threatened to kill her if she didn’t pick him up. [RR-IV-12]. She also testified that
Appellant had gloves on and said he would shoot her if she did not take him where
he wanted to go. Ms. Sanchez further indicated that she was outside with
Appellant, her sister and her niece. [RR-IV-13].
7
Ms. Sanchez said that when Appellant threatened to kill her, her sister kept
Appellant from swinging the pipe he had. [RR-IV-13]. She testified that
Appellant swung a metal pipe at her and hit her car with the pipe. [RR-IV-14, 16].
She identified the car that Appellant hit with the pipe in State’s Exhibit 1-4. [RR-
IV-14-15]. She also recounted that her niece had protected her while Appellant
had swung the pipe at her. [RR-IV-21].
Ms. Sanchez said that she moved more than once because Appellant
threatened to kill her or shoot her. [RR-IV-15].
During cross-examination, she admitted that Appellant did not bring the pipe
with him to Ms. Sanchez’s sister’s house. [RR-IV-19].
The State asked Ms. Sanchez if Appellant was calm or violent when he was
drinking. She responded, “He was violent.” [RR-IV-20]. She agreed with the
State that Appellant was “a violent drunk.” [RR-IV-20]. Ms. Sanchez agreed that,
when drinking, Appellant would get angry, talk out loud, wanted to fight, and
would break things. [RR-IV-21].
When asked by the State how she would feel about Appellant being
sentenced to probation rather than jail, she responded, “I would still fear for my
life.” [RR-IV-22].
Ms. Sanchez also admitted that she had not had contact with Appellant since
May 15, 2011. [RR-IV-24].
8
Testimony of Zachary Caldwell
Officer Zachary Caldwell of the Cy-Fairbanks I.S.D. Police Department was
next called by the State. Officer Caldwell was formerly employed by the Victoria
Police Department. [RR-IV-27].
On August 7, 2005, Officer Caldwell came into contact with Appellant at a
Victoria apartment complex while responding to a call for a possible assault in
progress. [RR-IV-28]. Officer Caldwell spoke to the alleged victim, Cynthia
Moreno, who advised him that she and Appellant got into an altercation, during
which Appellant struck her on the side of the face with a stick. [RR-IV-29].
Officer Caldwell stated that, “she had visible injuries.” [RR-IV-29]. Ms. Moreno
further recounted to Officer Caldwell that Appellant had pulled her to the ground
and started kicking her and stomping her in the face causing pain and injury. [RR-
IV-29].
Officer Caldwell was shown State’s Exhibits 15-17, which he identified as
photographs of Ms. Moreno taken shortly after he arrived on the scene. [RR-IV-
30].
Officer Caldwell searched the scene and found Appellant at the corner of the
apartment complex. When Officer Caldwell came upon Appellant, he was
urinating; he also documented in his report that Appellant had the odor of alcoholic
beverage on his breath and bloodshot eyes. [RR-IV-34]. Appellant appeared to be
9
intoxicated. [RR-IV-35]. Appellant was arrested and transported to the Victoria
County Jail. While at the jail, Officer Caldwell overheard Appellant talking to
another inmate, wherein Appellant stated that he had struck his wife or girlfriend in
the face, breaking her nose. [RR-IV-31].
Caldwell also testified that he would have charged the incident as an
aggravated assault because a deadly weapon was used. Officer Caldwell admitted
that no weapon was ultimately found. [RR-IV-36]. According to Officer
Caldwell, Appellant was subsequently convicted of Assault Causing Bodily Injury.
[RR-IV-33].
Testimony of Veronica Sanchez
Veronica Sanchez next testified on behalf of the State. [RR-IV-38]. She
stated that Appellant was “going out with her aunt [Christine Sanchez].” [RR-IV-
38]. She identified Appellant in open court. [RR-IV-39].
Ms. Sanchez recalled being at her mother’s house on May 15, 2011, when
Appellant showed up at the house. [RR-IV-39]. She testified that Appellant
wanted to talk to her aunt about “getting back with him.” Ms. Sanchez said that
she [her aunt] did not want to talk to him, but agreed to meet him at her house. Her
aunt asked her to go with her. They left the house in her aunt’s car, but Appellant
started to say that he had a gun and he was going to shoot her. Ms. Sanchez, who
was driving her aunt’s car, turned around and went back to her mother’s house.
10
[RR-IV-40]. Ms. Sanchez agreed that her aunt seemed nervous about being around
Appellant. [RR-IV-40].
When Ms. Sanchez arrived at her mother’s home, she told her mother to call
the police. She further testified that Appellant found a pipe and came around the
car. Ms. Sanchez then jumped in front of her aunt and told Appellant that if “he
was going to do anything to her, he had to go through me first.” [RR-IV-41].
Appellant backed off, starting telling he aunt “a whole bunch of stuff,” and started
hitting the car with the pipe. [RR-IV-42]. Ms. Sanchez identified State’s Exhibits
1-4 as photographs of her aunt’s car and State’s Exhibit 5 as the pipe Appellant
grabbed out of her mother’s yard. [RR-IV-43].
Following the May 15, 2011, incident, Ms. Sanchez testified that her aunt
was scared and did not want to go anywhere for fear of seeing Appellant. [RR-IV-
44].
Ms. Sanchez also revealed at the hearing that her aunt, Christine Sanchez, is
disabled due to severe rheumatoid arthritis. [RR-IV-49-50].
Testimony of Karla Melancon
Karla Melancon next testified for the State. She has known Appellant since
they were kids. Later in life they reconnected. [RR-IV-52]. After they met up
again they started dating. [RR-IV-53]. They moved in together after a few
months. [RR-IV-54].
11
She and Appellant would argue with the children around. [RR-VI-54]. Ms.
Melancon testified that Appellant was verbally abusive. [RR-VI-54]. She further
testified that Appellant drank a lot and was “mean and violent,” as in shoving and
pushing her. [RR-VI-56].
On once occasion in 2011, over a meal, Ms. Melancon testified that
Appellant was drunk and angry, being verbally abusive and threw a plate across
the room. [RR-VI-56]. She stated, “any time he drank, we ended up having
problems.” [RR-VI-57].
On another occasion, Appellant was arguing on the phone with someone,
and he made Ms. Melancon pull over to a bar on Ben Jordan Street. He got out
and then got back in the car. When he got back in the vehicle, he was angry and
directed his anger at her. [RR-IV-57].
As they were in the vehicle in an apartment complex, she told Appellant not
to talk to her in the way that he was. He was angry and left the vehicle.
Afterwards, he called her asking her to pick him up; she refused. [RR-IV-58]. She
returned to his mother’s house. Appellant showed up at his mother’s house and
started banging on the doors and windows to let him back in. Ms. Melancon
testified, “He was enraged….Real pumped up, like with an evil look. I never seen
someone look like that ever.” [RR-IV-58]. Ms. Melancon left. [RR-VI-58].
Ms. Melancon testified that there were numerous incidents involving
12
physical abuse. [RR-IV-59]. After her son, Carlos, was born, she, Carlos and
Appellant were traveling in a car and arguing when Appellant closed his fist and
hit her on the face. Appellant hit her a few more times and he said he was going to
kill them all and started driving towards a post. [RR-VI-60]. He picked up speed,
so Ms. Melancon grabbed the steering wheel and caused the car to veer. [RR-VI -
60]. She testified he was mad and continued to hit her. [RR-VI-60]. When she
threw the vehicle into park, Appellant said she was stupid and was going to screw
up the car. [RR-VI-61]. He then started to choke her with both hands. [RR-IV-
62]. He then bit her on the cheek. [RR-IV-62].
Ms. Melancon next testified that she had purchased a vehicle so that
Appellant could do lawn work. [RR-IV-66]. She testified that Appellant would
loan the vehicle to other people. [RR-IV-67]. On June 7, 2014, Appellant had
loaned the truck to other people. She had planned to go over to her mother’s house
to eat. Appellant informed her that he had a job out of town and he was going to
take a look at what the job entailed. [RR-IV-68]. She was left at home without a
phone nor without the truck she had purchased. She testified that Appellant
returned in the early evening with a 12-pack under his arm when he entered the
kitchen. [RR-IV-70]. She expressed her anger at him and he went into a rage. He
hit her with his fists in the face and chest. Her two-year old son was on the couch.
The fight moved towards a kitchen counter where Appellant grabbed a knife, held
13
it above her head, came down and began to saw back and forth. [RR-IV-74]. Her
hand was cut when she grabbed ahold of the knife. They tussled with the knife and
he let go. [RR-IV-77].
She stated that she next went to her son Carlos because he was crying; she
tried to calm him. She confirmed that Appellant continued to attack her while she
was holding her son. [RR-IV-78]. She was shown and identified photographs of
the injuries sustained that evening. [RR-IV-78].
Ms. Melancon also confirmed that in addition to hands, fists and a knife,
Appellant hit her in the back of the head with a wine rack. [RR-IV-80]. She said
that she did not immediately feel pain, but that it began to throb where she had
been hit with the wine rack. [RR-IV-81].
Ms. Melancon pleaded throughout the incident to let her get herself together
and they would go to her mother’s house like nothing had happened. [RR-IV-82].
She went to the bathroom, where she put her hair up and prepared a bag for her
son. She stated that her hair was saturated with blood. [RR-IV-82]. She told
Appellant that there was a hole in the back of her head, but that Appellant did not
seem to care. [RR-IV-82]. She confirmed with the State that she felt her life was
threatened. [RR-IV-84].
Appellant, Ms. Sanchez and Carlos went to her mother’s house. When they
arrived, Appellant told Ms. Melancon that he was only going to allow her to get
14
out of the car; when she exited the vehicle, Appellant locked all the doors to the
car. [RR-IV-84]. Ms. Melancon’s son was still in the car. [RR-IV-84]. Carlos
was eventually removed from the car. [RR-IV-85].
Ms. Melancon was asked how should we feel if Appellant were given
probation and he was able to be out on the streets; Ms. Melancon replied, “I
wouldn’t feel safe.” She also agreed that it was more appropriate that Appellant go
to prison or jail for some time. [RR-IV-90]. She testified that it would not be in
her best interest that Appellant was placed on deferred adjudication probation.
[RR-IV-91].
Testimony of Rosa Barragon
Rosa Barragon, Karla Melancon’s mother, testified next for the State. [RR-
IV-106]. She testified that in June 2014, she and her daughter were supposed to
get together to eat. Her daughter, Appellant and Carlos arrived late. When she
went out to the car she testified that Appellant told her, “that he was going to drive
and maybe end up killing himself, with the baby.... that he was going to crash, or
whatever—He was going to have an accident. He didn’t want to leave the baby.”
[RR-IV-106].
Ms. Barragon later realized that her daughter was injured and her daughter
ended up going to the hospital. [RR-IV-107].
Ms. Barragon also identified Appellant in open court. [RR-IV-108]. Ms.
15
Barragon agreed that she believed Appellant to be a dangerous person. [RR-IV-
114].
Testimony of Officer Adam Garcia
Officer Adam Garcia of the Victoria Police Department, testified next for
the State. [RR-IV-117]. On June 7, 2014, Officer Garcia was dispatched to a
disturbance. [RR-IV-118]. When he arrived at the scene, family or residents
pointed to the vehicle Appellant was in. As Officer Garcia was walking toward the
car, it drove off.
Appellant was eventually stopped. When Appellant was contacted by
officers, he was hostile, verbally pushing away and not complying with officer
commands. Appellant was yelling and cursing. [RR-IV-120]. Eventually,
Appellant became compliant, was secured in handcuffs, searched and read his
Miranda rights. [RR-IV-120].
Testimony of Robert Dial
Officer Robert Dial of the Victoria Police Department was next called to
testify on behalf of the State. On November 20, 2010, Officer Dial was on patrol
and came into contact with Appellant. A caller had advised that while Appellant
was driving a maroon Grand Am, Appellant struck the caller’s fence and left the
scene and drove to his own nearby residence. The caller believed that Appellant
was intoxicated and still in his vehicle. [RR-IV-129-130].
16
Officer Dial walked across the street and made contact with Appellant.
Appellant was in the passenger’s side of the vehicle and had an entire bottle
between his legs. [RR-IV-130.] Appellant was asked to exit the vehicle. When he
did, Appellant was unsteady on his feet and his eyes were glassy, red and
bloodshot. [RR-IV-130]. Appellant denied any knowledge of running into the
fence. [RR-IV-130]. Appellant was arrested for DWI. [RR-IV-130].
Testimony of Gregory Wyatt
Gregory Wyatt, pastor of the Palestine Baptist Church, was called to testify
on Appellant’s behalf. [RR-V-6]. Appellant attends his church. [RR-IV-6].
Pastor Wyatt had counseled with Appellant and Ms. Melancon. [RR-IV-6]. Pastor
Wyatt recommended to the Trial Court that Appellant needed rehabilitation for
alcohol abuse. [RR-V-8].
Pastor Wyatt also testified that Appellant had a serious situation with
diabetes. The church has a nursing board that tested Appellant several times after
which he was sent to the hospital. [RR-V-8-9].
On two occasions, Pastor Wyatt counseled Appellant in jail. [RR-V-9].
During his visits with Appellant formed the opinion that Appellant has a high
regard for the safety and welfare of his child. [RR-V-12].
Testimony of Appellant
Prior to testifying, Appellant was admonished as to his right against self-
17
incrimination. [RR-V-21]. Appellant indicated that he wished to waive his right
against self-incrimination and was doing so freely and voluntarily. [RR-V-22].
Appellant confirmed that he is an alcoholic, a diabetic and suffers from
mood swings. [RR-V-23]. Appellant indicated that he wanted help for those
issues. [RR-V-24].
During cross-examination, Appellant indicated that he had violated
probation in 2005. [RR-V-24]. Appellant also recalled assaulting a police officer
in 1992. Appellant further recalled making threats to kill others in 1991. [RR-V-
26]. Appellant recalled assaulting Cindy Moreno. [RR-V-27]. Appellant also
recalled verbally threatening Christine Sanchez. [RR-V-28].
Appellant also recalled slapping Karla when he accused her of cheating or
flirting, more than one time. [RR-V-29]. He also recalled threatening her. [RR-
V-30].
He agreed that there were times when he drank that he felt it was unsafe to
go home. [RR-V-32].
Appellant confirmed that he had been convicted of driving while intoxicated.
[RR-V-32]. Appellant confirmed that he had been to jail and had not asked if there
was an opportunity to receive treatment. [RR-V-33]. Appellant testified that he
was familiar with AA, but had not gone. [RR-V-33]. Appellant agreed that he
needed help for his alcohol problem. [RR-V-33]. Appellant testified that he had
18
sought help from Gulf Bend who set him up with Texas Rehabilitation. He also
spoke with a psychiatrist. [RR-V-34].
V.
SUMMARY OF THE ARGUMENT
The undersigned has diligently reviewed the record, both Clerk’s and
Reporter’s Record. After such review, it is the undersigned’s opinion that there are
no errors that would result in the reversal of the convictions and sentences in this
matter and, as such, has filed this Anders Brief.
VI.
ARGUMENT AND AUTHORITIES
ISSUE NUMBER ONE:
There are no errors that would result in reversal of the judgment and
sentence of the trial court.
In accordance with In re: Schulman, the undersigned has provided record
references to the facts and proceedings in this matter. See In re: Schulman, 252
S.W.3d 403, 407 n.9 (Tex.Crim.App. 2008) see also Hawkins v. State, 112 S.W.3d
340, 343-44( Tex.App.–Corpus Christi 2003, no pet.) Stafford v. State, 813 S.W.2d
503-510, n. 3 (Tex.Crim.App. 1991). After the review of the record in this case, it
is the undersigned’s belief that there are no reasonably arguable factual or
evidentiary issues that would result in the reversal of the judgment and sentence in
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this matter.
VII.
PRAYER AND REQUEST TO WITHDRAW
In accordance with the principles set forth in Anders v. California, 386 U.S.
738 (1967); Williams v. State, 976 S.W.2d 871 (Tex.App.–Corpus Christi 1998),
Counsel believes there are no reasonably arguable factual or evidentiary issues
disclosed by the record in this case which would amount to reversible error.
A Defendant’s right to assistance of counsel does not include the right to
have an attorney urge frivolous or non-meritorious claims. As such, Counsel
requests this Court allow him to withdraw from further representation of
Appellant.
Counsel requests that this Court undertake a full examination of the trial
court proceedings and decide whether the case is in fact wholly frivolous and
without merit, and allow Appellant sufficient time to review the record, research
any point he wishes to raise, and submit his own brief.
Respectfully submitted,
LUIS A. MARTINEZ, P.C.
P.O. Box 410
Victoria, Texas 77902-0410
(361) 676-2750 (Telephone)
(361) 575-8454 (Telecopier)
Email:
Lamvictoriacounty@gmail.com
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BY:
_____________________________
Luis A. Martinez
State Bar No. 24010213
ATTORNEY FOR APPELLANT
GUADALUPE PACHECO
VIII.
CERTIFICATE OF SERVICE
This is to certify that a true copy of the foregoing document was served upon
the Honorable Brendan W. Guy, Victoria County Criminal District Attorney, and
upon the Appellant, Guadalupe Pacheco, in the manner indicated below, on this
24th day of July, 2015, pursuant to the Texas Rules of Appellate Procedure.
___________________________________
Luis A. Martinez
Via Electronic Mail, bguy@vctx.org
Mr. Brendon W. Guy
Asst. District Attorney
Victoria Co. Dist. Atty’s Office
205 N. Bridge, Suite 301
Victoria, Texas 77901
Attorney for the State on Appeal
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Via Certified Mail, RRR
Mr. Guadalupe Pacheco
TDCJ#: 01988236
Texas Dept. Crim. Justice-ID
Byrd Unit
21 FM 247
Huntsville, Texas 77230
Appellant
IX.
CERTIFICATE OF COMPLIANCE
I certify that the following document utilizes 14 point font for text and 12
point font for footnotes. I further certify that the word count in this document for
those matters not excluded by Rule 9.4 is less than the minimum allowed for an
appellant’s brief and is 3,389 words.
_______________________
Luis A. Martinez
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