Eberto A. Mendez v. State ( 2015 )

ACCEPTED
04-14-00917-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
4/13/2015 3:01:54 PM
KEITH HOTTLE
CLERK
NO. 04-14-00917-CR
FILED IN
4th COURT OF APPEALS
IN THE SAN ANTONIO, TEXAS
FOURTH COURT OF APPEALS 4/13/2015 3:01:54 PM
OF TEXAS KEITH E. HOTTLE
AT SAN ANTONIO, TEXAS Clerk
EBERTO A. MENDEZ,
Appellant
VS.
THE STATE OF TEXAS,
Appellee
Trial Court No. 2011CR5500
Appeal from the 175th District Court
of Bexar County, Texas
Hon. Mary D. Roman, Presiding
BRIEF IN SUPPORT OF MOTION TO WITHDRAW
RICHARD B. DULANY, JR.
Texas Bar No. 06196400
Assistant Public Defender
Bexar County Public Defender’s Office
101 W. Nueva St., Suite 310
San Antonio, Texas 78205
ORAL ARGUMENT WAIVED (210) 335-0701
FAX (210) 335-0707
richard.dulany@bexar.org
ATTORNEY FOR APPELLANT
Identity of Parties and Counsel
Pursuant to TEX. R. APP. P. 38.1(a), the parties are:
APPELLANT
EBERTO A. MENDEZ
TDCJ# 01965661
Dominguez State Jail
6535 Cagnon Road
San Antonio, TX 78252-2202
APPELLANT’S ATTORNEY
AT THE REVOCATION HEARING:
John Garcia (State Bar No. 50511937)
615 East Houston Street
San Antonio, TX 78298
ON APPEAL:
Richard B. Dulany, Jr. (State Bar No. 06196400)
Assistant Public Defender
Bexar County Public Defender’s Office
101 W. Nueva St., Ste. 310
San Antonio, TX 78205
STATE’S ATTORNEY’S
AT THE REVOCATION HEARING:
Sade Mitchell (State Bar No. 24076564)
Assistant District Attorney
Paul Elizondo Tower
101 W. Nueva, Fourth Floor
San Antonio, TX 78205
ON APPEAL:
Nicolas A. LaHood, Bexar County District Attorney
(or his appellate section)
Bexar County District Attorney’s Office
Appellate Division
101 W. Nueva St., Ste. 710
San Antonio, TX 78205
ii
TRIAL COURT:
AT THE REVOCATION HEARING:
Hon. Mary D. Roman, Judge Presiding
175th District Court
Cadena-Reeves Justice Center
300 Dolorosa St., Fourth Floor
San Antonio, TX 78205
iii
Table of Contents
Page
Identity of Parties and Counsel ............................................................................. ii-iii
Table of Contents ......................................................................................................iv
Table of Authorities .............................................................................................. v-vi
A Note on Record References................................................................................. vii
Certificate of Compliance ....................................................................................... vii
Statement of the Case............................................................................................. 1-2
No Meritorious Issues Presented for Review ............................................................ 3
Pursuant to Anders v. California, 386 U.S. 738 (1967) and High v.
State, 573 S.W.2d 807 (Tex. Crim. App. 1978), counsel for Appellant
has diligently searched the record and upon researching all applicable
law has determined that this appeal is without merit and frivolous.
Summary of Facts .................................................................................................. 3-5
Summary of the Argument.........................................................................................5
Summary of the Facts Pertinent to Anders v. California ........................................... 5
Argument and Authorities.................................................................................... 6-11
Conclusion ......................................................................................................... 11-12
Prayer .......................................................................................................................13
Certificate of Service ...............................................................................................14
Appendix ..................................................................................................................15
iv
Table of Authorities
Cases
Anders v. California, 386 U.S. 738 (1967) ...................................................... passim
Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002) .............................................8
Cobb v. State, 851 S.W.2d 871 (Tex. Crim. App. 1993) ...........................................6
Cole v. State, 578 S.W.2d 127 (Tex. Crim. App. 1979) ............................................6
Duncan v. State, 321 S.W.3d 53 (Tex.App. – Houston [1st Dist.] 2010, pet. ref’d).6,
7
Ex parte Beck, 922 S.W.2d 181 (Tex. Crim. App. 1996) ........................................11
Ex parte Raborn, 658 S.W.2d 602 (Tex. Crim. App. 1983)..................................7, 8
Ex parte Wilson, 724 S.W.2d 72 (Tex. Crim. App. 1987).........................................8
Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) ...10
Harris v. State, 656 S.W.2d 481 (Tex. Crim. App. 1983) .......................................10
Hays v. State, 933 S.W.2d 659 (Tex. App. – San Antonio 1996, no pet.) ................6
Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986) ....................................7
Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999) ..................................8
High v. State, 537 S.W.2d 807 (Tex.Crim.App. 1978).................................. iv, 3, 12
Johnson v. United States, 360 F.2d 844 (D.C. Cir. 1966) .......................................11
Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014) .........................................12
Lugaro v. State, 904 S.W.2d 842 (Tex. App. – Corpus Christi 1995, no pet.) .........7
v
McMahon v. State, 528 S.W.2d 771 (Tex. Crim. App. 1975) .................................12
Mercado v. State, 718 S.W.2d 291 (Tex. Crim. App. 1986) .....................................9
Nix v. State, 65 S.W.3d 664 (Tex.Crim.App. 2001) ..................................................7
Puga v. State, 916 S.W.2d 547 (Tex.App. – San Antonio 1996, no pet.) .................9
Rylander v. State, 101 S.W.3d 107 (Tex. Crim. App. 2003) .....................................9
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) .7,
10
Wilkerson v. State, 726 S.W.2d 542 (Tex. Crim. App. 1986) ...................................8
Yabrra v. State, 890 S.W.2d 98 (Tex. App. – San Antonio 1994, pet. ref’d) ...........7
Statutes
TEX. CODE CRIM. PROC. ANN. art. 4.05 (West 2005)...............................................11
TEX. CODE CRIM. PROC. ANN. art. 21.02 (West 2009) .............................................11
TEX. CODE CRIM. PROC. ANN. art. 42.12, § 21(d) (West 2015) .................................7
TEX. CONST. art. I § 13 .............................................................................................10
TEX. CONST. art. V § 16 ...........................................................................................11
TEX. GOV’T CODE ANN. § 24.139(b) (West 2009)...................................................11
TEX. GOV’T CODE ANN. § 24.268 (West 2009) .......................................................11
TEX. PENAL CODE ANN. § 12.34 (West 2015) ...........................................................9
TEX. PENAL CODE ANN. § 22.01(b) (West 2015) .......................................................9
U.S. CONST. art. VIII................................................................................................10
vi
A Note on Record References
The reporter’s record in this case consists of one volume, from the hearing
on the motion to adjudicate guilt and revoke probation. Reference to the reporter’s
record will be: (RR at ___). A reference to the clerk’s record will be: (CR at ___).
A reference to the supplemental clerk’s record will be: (SCR at ___).
Certificate of Compliance
Pursuant to TEX. R. APP. P. 9.4(i)(1) & (i)(2)(B), the word count, from the
beginning of the Summary of Facts until, but excluding, the signature block, is:
2,243. The total word count is 3,862.
vii
TO THE FOURTH COURT OF APPEALS OF TEXAS:
The undersigned attorney submits this brief in support of his motion to
withdraw. This is an appeal from a judgment adjudicating Appellant guilty of
family violence assault by choking/strangulation, after revoking his community
supervision (probation), upon his plea of true. 1
Statement of the Case
The Appellant, Eberto A. Mendez, was charged by indictment with family
violence assault by choking/strangulation. (CR at 4). The indictment alleged that
the offense was committed on or about September 17, 2010. (CR at 4). The
indictment was filed on June 28, 2011. (CR at 4).
On October 3, 2011, Appellant entered a negotiated no contest plea to the
charged offense (count one only). (CR at 8). The trial court, the Honorable Mary
Roman presiding, followed the terms of the plea agreement, adjudicated Appellant
guilty, and placed him on community supervision for six years with a $750 fine.
(CR at 11, 27-28). The term of community supervision began on November 4,
2011. (CR at 29).
On October 17, 2014, the State filed a “Motion to Enter Adjudication of
Guilt And Revoke Community Supervision (Adult Probation).” (CR at 31). The
motion alleged that Appellant violated several of the conditions of community
1
In this brief, the terms “community supervision” and “probation” are used interchangeably.
1
supervision, including Condition No. 5, which asserted that he failed to report to
the Supervision Officer for the months of June, July, August or September 2014.
(CR at 31).
On November 5, 2014, the trial court, the Honorable Mary Roman presiding,
held an evidentiary hearing on the motion to revoke. (RR at 1). The trial court
revoked Appellant’s probation upon his plea of “true” to the allegation that he
failed to report to the Supervising Officer, in violation of Condition No. 5 of his
community supervision agreement. (RR at 6-7). The State waived the remaining
allegations in the motion to adjudicate. (RR at 5). The trial court sentenced
Appellant to imprisonment in the Institutional Division of the Texas Department of
Criminal Justice for five years, with no fine. (RR at 6-7)(CR at 38-39). The
sentence runs concurrently with the five-year sentence imposed in cause number
2011-CR-5500. (RR at 7)(CR at 38).
On December 12, 2014, Appellant timely filed a pro se notice of appeal. 2
(CR at 52-53). The trial court certified that Appellant has a limited right of appeal
the adjudication of guilt following a deferred adjudication. (SCR at 6). On
December 29, 2014, the trial court appointed the Bexar County Public Defender’s
Office to represent Appellant on appeal. (CR at 62). This appeal follows.
2
The notice of appeal was mailed to the trial court clerk on December 4, 2014. (CR at 54).
2
No Meritorious Issues Present for Review
In compliance with the requirements of Anders v. California, 386 U.S. 738
(1967) and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978), the
undersigned, court-appointed attorney states that he has diligently reviewed the
entire record in this cause and the law applicable thereto, and, in his opinion, has
determined that this appeal is wholly frivolous and without merit in that the record
reflects no reversible error, and no issues for review upon which an appeal may be
predicated.
Summary of Facts
Eberto A. Mendez, the Appellant, was charged by indictment with tfamily
violence assault by choking/strangulation. (CR at 4). The indictment alleged that
the offense was committed on or about September 17, 2010. (CR at 4). On October
3, 2011, Appellant entered a negotiated no contest plea to the charged offense. (CR
at 8, 11). The trial court, the Honorable Mary Roman presiding, adjudicated
Appellant guilty as alleged in count one of the indictment and placed him on
probation for six years, with a $750.00 fine. (CR at 27-28). The term of
Appellant’s probation began on November 4, 2011. (CR at 29).
On October 17, 2014, the State filed a “Motion to Enter Adjudication of
Guilt And Revoke Community Supervision (Adult Probation).” (CR at 31-32). The
motion alleged inter alia that Appellant violated Condition No. 5 by failing to
3
report to the Supervision Officer for the months of June, July, August or
September 2014. (CR at 31).
A revocation hearing was held in the trial court on November 5, 2014, the
Hon. Mary Roman, presiding. (RR at 1). Appellant was represented by counsel.
(RR at 2). The attorney for the State proceeded on the allegation that Appellant
violated Condition No. 5 by failing to report to the Supervision Officer. (RR at 5).
The trial court asked Appellant how he pled to the allegation, “true or not true?”
(RR at 4-5). Appellant replied, “True, Your Honor.” (RR at 6). The State did not
proceed on the remaining allegations. (RR at 5).
In exchange for his plea of “true,” Appellant and the State agreed that the
State would recommend that Appellant be sentenced to five years of imprisonment
in this cause, to run concurrently with the sentence imposed in cause number 2009-
CR-2760. (RR at 6). The trial court found the allegation that Appellant violated a
condition of his probation to be true. (RR at 6-7). The trial court revoked
Appellant’s probation and sentenced him to five years of imprisonment in the
Texas Department of Criminal Justice. (RR at 7)(CR at 38-39).
The trial court certified that Appellant has a limited right to appeal the order
revoking probation only. (SCR at 6). On December 12, 2014, Appellant timely
filed a pro se notice of appeal. (CR at 52-53). On December 29, 2014, the trial
4
court appointed the Bexar County Public Defender’s Office to represent Appellant
on appeal. (CR at 62). This appeal follows.
Summary of the Argument
In the professional opinion of the undersigned counsel for Appellant, after a
diligent search of the record and of the applicable law, there is no reversible error
reflected in the record. Therefore, this appeal is without merit and frivolous.
Summary of Facts Pertinent to Anders v. California
The record in this case clearly reflects that the trial court had before it
Appellant’s plea of true to the allegation that he violated Condition No. 5 of his
probation by failing to report to the Supervision Officer as directed. Appellant’s
plea of true to that allegation, standing alone, was sufficient to support the trial
court’s decision to revoke his probation.
Moreover, the record does not indicate that Appellant received ineffective
assistance of counsel, and does not indicate that there are any jurisdictional defects.
The record reflects that Appellant’s plea of true was voluntary. The sentence
imposed was also within statutory range of punishment. In short, undersigned
counsel can find no meritorious issues for review to raise on Appellant’s behalf. As
such, this appeal is frivolous and without merit.
5
Argument and Authorities
In a probation revocation hearing, the State must prove by a preponderance
of the evidence that the probationer violated a condition of his or her probation.
Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993). The evidence meets
this standard when the greater weight of the credible evidence creates a reasonable
belief that a defendant has violated a condition of his community supervision.
Duncan v. State, 321 S.W.3d 53, 57 (Tex. App. ––Houston [1st Dist.] 2010, pet.
ref’d). To support the trial court's order to adjudicate guilt, the State need only
establish one sufficient ground for revocation. Id.
A plea of true to a violation, standing alone, is sufficient to support the trial
court’s order revoking Appellant’s probation and adjudicating him guilty. Cole v.
State, 578 S.W.2d 127, 128 (Tex. Crim. App. 1979); Hays v. State, 933 S.W.2d
659, 661 (Tex. App. – San Antonio 1996, no pet.); Duncan, 321 S.W.3d at 58.
There is no reason for a trial court to disregard a plea of true, even if defensive
issues are later presented. Id.
Here, Appellant pleaded true to allegations that he violated Condition No. 5
of his probation by failing to report to the Supervision Officer. (RR at 6). His plea
of true, standing alone, provides sufficient evidence to support revocation. Cole,
578 S.W.2d 129. So, unless Appellant can show either that counsel was ineffective
6
at the revocation hearing, or that there is a jurisdictional defect, 3 he has no
appealable issues.
The record does not indicate ineffective assistance of counsel.
A defendant in a revocation proceeding is entitled to effective assistance of
counsel, unless counsel is waived. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 21(d)
(West 2015); see Lugaro v. State, 904 S.W.2d 842, 843 (Tex. App. – Corpus
Christi 1995, no pet.). In a claim that a defendant received ineffective assistance of
counsel, the defendant bears the burden of establishing ineffective assistance by a
preponderance of the evidence. Yabrra v. State, 890 S.W.2d 98, 112 (Tex. App. –
San Antonio 1994, pet. ref’d). The test for ineffective assistance of counsel is
derived from the Supreme Court case Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by the Texas Court of Criminal
Appeals in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). In
order for counsel to be deemed ineffective, it must be shown that counsel’s
representation “fell below an objective standard of reasonableness” and there is the
probability that, but for counsel’s deficient performance, the result would have
been different. Id. at 55. The test is applied to the “totality of the representation”
rather than to isolated acts or omissions of trial counsel, Ex parte Raborn, 658
3
Jurisdictional defects which render a judgment void may be raised in the context of an appeal
of a probation revocation. Nix v. State, 65 S.W.3d 664, 668 (Tex. Crim. App. 2001); Duncan,
321 S.W.3d at 57.
7
S.W.2d 602, 605 (Tex. Crim. App. 1983), and is applied at the time of the
proceeding, not through hindsight. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex.
Crim. App. 1986). It is rare for the record in a direct appeal to contain sufficient
information to permit an appellate court to evaluate the merits of a claim of
ineffective assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
The Strickland test requires an accused to show that his or her counsel’s
representation fell below an objective standard of reasonableness and that the
deficient performance prejudiced the defense. In meeting the second prong, that
defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. Ex
parte Wilson, 724 S.W.2d 72, 74 n. 1 (Tex. Crim. App. 1987). Thus, the defendant
must show that he was prejudiced as a result of deficient attorney performance.
Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999).
The undersigned counsel has searched the record, and has not found any
facts that suggest that reversible error occurred in the revocation proceeding.
Appellant may argue that trial counsel should not have allowed him to plead true,
since that plea standing alone gave the trial court authority to adjudicate him guilty
and revoke his probation. However, that argument would not be meritorious. The
appellate court will not second-guess trial counsel’s strategy, nor is the court privy
to the reasons counsel may have advised Appellant to plead true. Judicial scrutiny
8
of counsel’s performance must be highly deferential, and a reviewing court “must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance[.]” Rylander v. State, 101 S.W.3d 107, 110
(Tex. Crim. App. 2003). Thus, “the defendant must overcome the presumption
that, under the circumstances, the challenged action ‘might be considered sound
trial strategy.’” Id.
With regard to any challenge to the propriety of the sentence, trial counsel
failed to preserve error by failing to object or file a motion for new trial. Mercado
v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986). However, when the
punishment assessed by the court is within the statutory range for the underlying
offense, “it is not within the province of an appellate court to pass upon the
propriety of the sentence.” Puga v. State, 916 S.W.2d 547, 550 (Tex.App. – San
Antonio 1996, no pet.).
Appellant was convicted of family violence assault by
choking/strangulation, a third-degree felony. See TEX. PENAL CODE ANN. §
22.01(b)(2)(B) (West 2015). The punishment range for that offense is
imprisonment in the Texas Department of Criminal Justice for any term of not
more than 10 years or less than 2 years, with a possible fine not to exceed $10,000.
TEX. PENAL CODE ANN. § 12.34 (West 2015). The sentence actually imposed—5
years of imprisonment, with no fine—was well within the statutory range. (RR at
9
7)(CR at 38-39). Moreover, the trial court gave Appellant credit for the time he had
already served. (RR at 7)(CR at 38-39).
The punishment is within the range established by the Legislature, and, as
such, does not violate the constitutional prohibitions against cruel and unusual
punishment under either U.S. CONST. art. VIII or TEX. CONST. art. I § 13; Harris v.
State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983). Nor does the undersigned
attorney discern anything in the record to suggest that the punishment assessed is
grossly disproportionate to the crime. See Harmelin v. Michigan, 501 U.S. 957,
111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991). Additionally, no objection was made to
the punishment assessed at the revocation hearing. (RR at 7).
The facts in the present case do not support an assertion that Appellant
received ineffective assistance from his revocation counsel. The totality of the
representation appears to be sound. Appellant’s plea of true was entered as part of
an agreement that revocation counsel negotiated with the attorney for the State.
(RR at 6). In addition, revocation counsel made sure that the sentence imposed in
this cause ran concurrently with the sentence imposed in cause number 2011-CR-
5500, and made sure that Appellant was given credit for his “back time.” (RR at 7-
8). For these reasons, the record does not support a finding that defense counsel’s
performance fell below an objective standard of reasonableness under Strickland.
Therefore, it is unnecessary to reach the second prong of the analysis.
10
There are no jurisdictional defects.
A defect which renders a sentence void may be raised at any time. Ex parte
Beck, 922 S.W.2d 181, 182 (Tex. Crim. App. 1996). But the sentence in this case is
not void on any ground and there are no jurisdictional defects apparent from the
record. The 175th District Court of Bexar County, Texas, has jurisdiction over
felony cases, such as this one. TEX. CODE CRIM. PROC. ANN. art. 4.05 (West 2005);
TEX. GOV’T CODE ANN. §§ 24.139, 24.268 (West 2009). The indictment was in
proper form, pursuant to TEX. CODE CRIM. PROC. ANN. art. 21.02 (West 2009), and
correctly alleged the offense of family violence assault by choking/strangulation.
(CR at 4). The indictment conferred jurisdiction on the trial court by virtue of TEX.
CONST. art. V § 16.
Conclusion
After a thorough review of the record, the undersigned attorney is unable to
identify any potentially meritorious points on appeal. It is the professional opinion
of the undersigned counsel that the appeal is frivolous and without merit. 4 See
Anders v. California, 386 U.S. 738 (1967).
Counsel has executed an attached Certificate of Service certifying that he is
sending Appellant a copy of his Motion to Withdraw, and a copy of this Brief, with
4
See Johnson v. United States, 360 F.2d 844, 846 n. 2 (D.C. Cir. 1966) (Burger, J. concurring):
“An attorney owes his first duty to the court . . . His oath requires him to be absolutely honest
even though his client’s interests may seem to require a contrary course.”
11
an explanation of Appellant’s further rights regarding this appeal. High v. State,
537 S.W.2d 807 (Tex. Crim. App. 1978). Pursuant to the requirements of Anders v.
California, 386 U.S. at 744-45, and High v. State, 573 S.W.2d at 813, counsel has
documented that he has furnished Appellant with a copy of this brief. He has
notified Appellant of his right to obtain and review the record, and to file any brief
that he deems appropriate.
He has also provided Appellant with a motion for pro se access to the
appellate record to file with this Court if Appellant decides that he does wish to
review the record and file a pro se brief. See Kelly v. State, 436 S.W.3d 313, 318-
19 (Tex. Crim. App. 2014). Counsel for Appellant has attached documentation of
the letter advising Appellant of his rights and remedies, with instructions for filing
the motion for pro se access to the appellate record. See Anders, 386 U.S. at 744;
McMahon v. State, 528 S.W.2d 771, 772 (Tex. Crim. App. 1975); Kelly, 436
S.W.3d at 318-19.
12
Prayer
Counsel respectfully requests that he be allowed to withdraw from
representation of Appellant, and for all other relief that is fair and just.
Respectfully submitted,
/s/ Richard B. Dulany, Jr.
___________________________________
RICHARD B. DULANY, JR.
Assistant Public Defender
Bexar County Public Defender’s Office
101 W. Nueva St., Suite 310
San Antonio, Texas 78205
(210) 335-0701
FAX (210) 335-0707
richard.dulany@bexar.org
Texas Bar No. 06196400
ATTORNEY FOR APPELLANT
13
Certificate of Service
I hereby certify that a true and correct copy of the foregoing Appellant’s
Brief In Support of Motion to Withdraw has been delivered by electronic service to
the Bexar County District Attorney’s Office, Appellate Division, Paul Elizondo
Tower, 300 101 W. Nueva St., Suite 710, San Antonio, Texas 78205, on April 13,
2015.
I further certify that a true and correct copy of the foregoing brief, as well as
counsel’s motion to withdraw and letter outlining Appellant’s right to file a pro se
brief, and a motion for pro se access to the appellate record, were sent to: Eberto
A. Mendez, TDCJ# 01965661, Dominguez State Jail, 6535 Cagnon Road, San
Antonio, TX 78252-2202, by certified mail, return receipt requested, Article No.
7012 1640 0002 4217 9888, on April 13, 2015.
/s/ Richard B. Dulany, Jr.
____________________________________
RICHARD B. DULANY, JR.
14
Appendix –
Letter advising Eberto A. Mendez of his rights under Anders v. California, with a
motion for pro se access to the appellate record.
15
NO. 04-14-00917-CR
IN THE
FOURTH COURT OF APPEALS
OF TEXAS
AT SAN ANTONIO, TEXAS
EBERTO A. MENDEZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
APPELLANT’S MOTION FOR PRO SE
ACCESS TO THE APPELLATE RECORD
TO THE HONORABLE COURT OF APPEALS:
COMES NOW the Appellant in the above styled and numbered cause and
files this Motion for Pro Se Access to the Appellate Record.
I.
Appellant’s appointed counsel has filed a motion to withdraw and brief in
support of the motion, pursuant to Anders v. California, 386 U.S. 738 (1967).
II.
The undersigned Appellant wishes to exercise his right to review the
appellate record in preparing his pro se response to the Anders brief that court-
appointed counsel has filed. The undersigned Appellant now moves this Court to
provide him with free, pro se access to the appellate record, including the clerk’s
record and reporter’s record. See Kelly v. State, 436 S.W.3d 313, 318-19 (Tex.
Crim. App. 2014).
III.
The undersigned Appellant is presently incarcerated and lacks access to a
computer. For that reason, he respectfully requests that a paper copy of the
appellate record be provided to him. He also asks for a 30-day extension of time to
file his pro se brief.
IV.
This motion is addressed to the Fourth Court of Appeals, Cadena-Reeves
Justice Center, 300 Dolorosa St., Suite 3200, San Antonio, Texas 78205. This
motion is delivered to the Fourth Court of Appeals by U.S. Mail, on this the _____
day of _________, 2015.
WHEREFORE, PREMISES CONSIDERED, the Appellant respectfully
prays that the Court grant this Motion for Pro Se Access to the Appellate Record.
Respectfully submitted,
______________________________
Eberto A. Mendez
TDCJ# 01965661
Dominguez State Jail
6535 Cagnon Road
San Antonio, TX 78252-2202
APPELLANT PRO SE