Ambrocio Mata v. State ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-14-00066-CR
AMBROCIO MATA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 362nd District Court
Denton County, Texas
Trial Court No. F-2013-0090-D, Honorable Bruce McFarling, Presiding
September 3, 2014
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant Ambrocio Mata was convicted after a jury trial of aggravated sexual
assault of a child and sentenced to fifty-five years confinement and a fine of $10,000.
He has appealed that conviction.
Appellant’s appointed counsel has filed a motion to withdraw, together with an
Anders1 brief, wherein he certified that, after diligently searching the record, he
concluded that the appeal was without merit. Along with his brief, appellate counsel
attached a copy of a letter sent to appellant informing him of counsel’s belief that there
1
Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
was no reversible error and of appellant’s right to file a response or brief pro se.
Counsel also noted in the letter that he had furnished a copy of the record to appellant.
By letter, this court notified appellant of his right to tender his own brief or response and,
upon appellant’s motion, granted him until August 8, 2014, to do so. Appellant timely
filed a response.
In compliance with the principles enunciated in Anders, appellate counsel
discussed various phases of the trial and potential areas of appeal including the
indictment, pretrial issues, jury selection, adverse evidentiary rulings during trial, jury
instructions, the punishment assessed, the sufficiency of the evidence, and whether
counsel was effective. Counsel has satisfactorily explained why each potential
argument lacks merit.
Appellant also raised six potential areas of appeal including violation of his
Miranda rights, the fact that the record lacked any DNA evidence, ineffective assistance
of counsel, the failure of his attorney to conduct discovery, appellant’s inability to
communicate in English, and the failure of the court reporter to memorialize the trial
court’s reading of its charge to the jury. Upon our review of the record, we discovered
that there was no objection at trial to the lack of Miranda warnings. So too did we
uncover both a written and video waiver of appellant’s constitutional rights.
As to the lack of DNA evidence supporting his conviction, we note that the
testimony of the child complainant alone was sufficient to sustain the conviction. See
Cantu v. State, 366 S.W.3d 771, 775-76 (Tex. App.—Amarillo 2012, no pet.) (so
holding). Furthermore, appellant gave a statement to police and testified at trial that the
child performed oral sex on him.
2
Similarly revealed by the record was the presence of an interpreter at trial. As for
the ineffective assistance of counsel allegation, the only specific complaint uttered
involved counsel’s purported failure to conduct discovery. Yet, appellant failed to
describe the nature of the discovery in question or its relevance.
As for the complaint about the reading of the charge not being recorded, the
transcript discloses that the charge was read. And, while the substance of what was
said does not appear in the reporter’s record, there was no request that it be
memorialized or objection to the reporter not recording it. This is of import since
withholding complaint at trial about the reporter’s failure to record an aspect of the
proceeding waives the complaint. See e.g., Valle v. State, 109 S.W.3d 500, 508-09
(Tex. Crim. App. 2003) (stating that the failure to request recordation of a bench
conference waives the complaint). We see neither a request nor objection here. And,
though appellant cites article 36.27 of the Texas Code of Criminal Procedure as support
for his argument, that provision pertains to recording the trial court’s response to a jury
question.
We have also conducted our own review of the record to assess the accuracy of
appellate counsel’s conclusions and to uncover any reversible error pursuant to In re
Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008) and Stafford v. State, 813 S.W.2d
503 (Tex. Crim. App. 1991). Our own review failed to reveal error.
Accordingly, the motion to withdraw is granted, and the judgment is affirmed.2
Per Curiam
Do not publish.
2
Appellant has a right to file a petition for discretionary review with the Court of Criminal Appeals.
3