Armando Ochoa v. State ( 2015 )

ACCEPTED
03-14-00740-CR
6167399
THIRD COURT OF APPEALS
AUSTIN, TEXAS
7/22/2015 8:14:07 AM
JEFFREY D. KYLE
CLERK
NO. 03-14-00740-CR
IN THE FILED IN
3rd COURT OF APPEALS
COURT OF APPEALS AUSTIN, TEXAS
THIRD DISTRICT OF TEXAS 7/22/2015 8:14:07 AM
AUSTIN, TEXAS JEFFREY D. KYLE
Clerk
ARMANDO OCHOA § APPELLANT
VS. §
THE STATE OF TEXAS § APPELLEE
APPEAL FROM THE 299TH JUDICIAL DISTRICT COURT
TRAVIS COUNTY, TEXAS
CAUSE NO. D-1-DC-14-202835
STATE’S BRIEF
ROSEMARY LEHMBERG
District Attorney
Travis County, Texas
Rosa Theofanis
Texas Bar No. 24037591
Assistant District Attorney
District Attorney’s Office
P.O. Box 1748
Austin, Texas 78767
Phone: 512.854.3626 Fax: 512.854.4810
Email:Rosa.Theofanis@traviscountytx.gov
AppellateTCDA@traviscountytx.gov
Oral Argument Not Requested
TABLE OF CONTENTS
INDEX OF AUTHORITIES ......................................................................................... 3
STATEMENT OF THE CASE ..................................................................................... 5
STATEMENT OF FACTS............................................................................................ 5
NATURE OF APPEAL................................................................................................. 5
STATE'S RESPONSE TO APPELLANT'S BRIEF.................................................... 6
The State agrees that there is no meritorious ground of error and that this appeal is
frivolous. .................................................................................................... 6
ARGUMENT AND AUTHORITIES............................................................................ 6
PRAYER........................................................................................................................ 8
CERTIFICATE OF COMPLIANCE AND SERVICE ............................................... 9
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INDEX OF AUTHORITIES
Cases
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967)............................................. 5
Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969) ............................................ 5
High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).................................................. 5
Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346 (1988) ....................................................... 6
Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991)............................................. 7
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NO. 03-14-00740-CR
IN THE
COURT OF APPEALS
THIRD DISTRICT OF TEXAS
AUSTIN, TEXAS
ARMANDO OCHOA § APPELLANT
VS. §
THE STATE OF TEXAS § APPELLEE
APPEAL FROM THE 299TH JUDICIAL DISTRICT COURT
TRAVIS COUNTY, TEXAS
CAUSE NO. D-1-DC-14-202835
STATE’S BRIEF
TO THE HONORABLE COURT OF APPEALS:
The State of Texas tenders this response to the brief submitted by the appellant’s
attorney in this case.
4
STATEMENT OF THE CASE
The appellant, Armando Ochoa, was indicted for Assault FamilyViolence enhanced
to a felony by prior convictions. (CR 16-17) The appellant pled not guilty and was tried by
a jury. (5 RR 13) The jury found him guilty as charged. (5 RR 98; CR 60) The appellant
elected to go to the court for punishment and the court assessed a sentence of fourteen
years. (CR 63; CR 68) The appellant filed notice of appeal (CR 72), and the trial court
certified his right to appeal. (CR 62)
The appellant filed his second corrected Anders brief on May 12, 2015. Pursuant to
two extensions of time to file the brief, the appellee’s brief is timely if filed byAugust 12,
2015.
STATEMENT OF FACTS
The State has read and reviewed the clerk’s and reporter’s records. The State
submits that the appellant’s attorney on appeal has comprehensively summarized the
evidence presented at hearing.
NATURE OF APPEAL
The appellant’s counsel has filed a brief which, in the State’s opinion, is in
accordance with Anders v. California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d
807 (Tex. Crim. App. 1978); and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App.
1969). The appellant’s counsel has also moved to withdraw as attorney of record.
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STATE'S RESPONSE TO APPELLANT'S BRIEF
The State agrees that there is no meritorious ground of error and that this appeal
is frivolous.
ARGUMENT AND AUTHORITIES
The State agrees with the appellant that the record does not disclose any
meritorious or arguable error upon which this Court may grant relief.
The appellant’s attorney has complied with the requirements outlined byPenson v.
Ohio, 488 U.S. 75, 109 S. Ct. 346 (1988) and High v. State, 573 S.W.2d 807, supporting
a proper examination of the record. The brief filed by counsel for the appellant provides
a thorough discussion of the proceedings contained in the record, and makes references to
locate testimony and rulings. Counsel further provides citation to legal authority
supporting his discussion. The brief submitted is evidence of counsel’s conscientious
examination of the record as required by the United States Supreme Court. Anders, 386
U.S. at 744, 87 S.Ct. at 1400; Penson, 488 U.S. at 80, 109 S.Ct. at 350. The State agrees
with counsel’s analysis of the facts and legal issues, and the conclusion that this appeal is
frivolous.
The appellant, having been informed of counsel’s view that the appeal is without
merit, has an opportunity to submit arguments pro se to rebut the foregoing conclusions.
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In the event the appellant files such a pro se brief, the State requests a reasonable time to
respond by way of supplemental brief. Absent a pro se brief by the appellant, or upon the
expiration of such time as the court may allow the appellant to file, the State respectfully
requests this Honorable Court to determine that this appeal is wholly frivolous and to
affirm the appellant’s conviction.
If, however, this Court determines that a particular issue needs to be briefed more
thoroughly, the State asks the Court to appoint new counsel and to allow the State the
opportunity to respond to any further briefing. See Stafford v. State, 813 S.W.2d 503
(Tex. Crim. App. 1991).
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PRAYER
WHEREFORE, PREMISES CONSIDERED, the State prays this court to find
that this appeal is frivolous and affirm the appellant’s conviction.
Respectfully submitted,
ROSEMARY LEHMBERG
District Attorney
Travis County, Texas
/s/ Rosa Theofanis
Rosa Theofanis
Texas Bar No. 24037591
Assistant District Attorney
District Attorney’s Office
P.O. Box 1748
Austin, Texas 78767
Phone: 512.854.3626 Fax: 512.854.4810
Email: Rosa.Theofanis@traviscountytx.gov
AppellateTCDA@traviscountytx.gov
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CERTIFICATE OF COMPLIANCE AND SERVICE
I certify that this brief contains 435 words, based upon the computer program
used to generate this brief and excluding words contained in those parts of the brief
that Texas Rule of Appellate Procedure 9.4(i) exempts from inclusion in the word
count, and that this brief is printed in a conventional, 14-point typeface.
I further certify that, on the 22nd day of July, 2015, a true and correct copy of
this brief was served, by U.S. mail, electronic mail, telephonic document
transmission, or electronically through the electronic filing manager, to Appellant’s
attorney, Alexander L. Calhoun, Attorney at Law, 4301 W. William Cannon Drive,
Suite B-150, #260, Austin, Texas 78749, [alcalhoun@earthlink.net].
/s/ Rosa Theofanis
Rosa Theofanis
Assistant District Attorney
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