Christopher Ray Olivarez v. State ( 2015 )

ACCEPTED
12-15-00107-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
11/23/2015 12:03:06 PM
Pam Estes
CLERK
CAUSE NUMBER 12-15-00107-CR FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
11/23/2015 12:03:06 PM
IN THE COURT OF APPEALS FOR THE PAM ESTES
Clerk
TWELFTH APPELLATE DISTRICT OF TEXAS
AT TYLER
CHRISTOPHER RAY OLIVAREZ
VS.
THE STATE OF TEXAS
CAUSE NUMBER 31,900
IN THE 3RD JUDICIAL DISTRICT COURT
ANDERSON COUNTY, TEXAS
APPELLANT'S BRIEF
Colin D. McFall
Attorney at Law
513 North Church Street
Palestine, Texas 75801-2962
Telephone: 903-723-1923
Facsimile: 903-723-0269
Email: cmcfall@mcfall-law-office.com
Counsel for Appellant
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IDENTITY OF PARTIES AND COUNSEL
Pursuant to Rule 38.1 (a), Texas Rules of Appellate Procedure, Appelhnt
provides a complete list of all parties and the names and addresses of Counsel:
Defendant Christopher Ray Olivarez
and Appellant:
Defendant's Trial Colin D. McFall
and Appellate Counsel: Attorney at Law
513 North Church Street
Palestine, Texas 75801-2965
Telephone: 903-723-1923
Facsimile: 903-723-0269
State's Trial Scott Holden
and Appellate Counsel: Anderson County District Attorney's Office
500 North Church Street, Suite 38
Palestine, Texas 75801
Telephone: 903-723-7400
Facsimile: 903-723-7818
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL 2
TABLE OF CONTENTS ...3
INDEX OF AUTHORITIES 4
STATEMENT OF THE CASE 5
STATEMENT REGARDING ORAL ARGUMENT 7
ISSUE PRESENTED
I. THE APPELLATE COURT SHOULD ALLOW COUNSEL, UPON
MAKING THE DETERMINATION THERE WAS NO ERROR IN
THE TRIAL COURT, TO WITHDRAW AND APPELLANT
ALLOWED A REASONABLE TIME TO FILE A PRO SE
BRIEF 8
STATEMENT OF FACTS 9
SUMMARY OF THE ARGUMENT 11
ARGUMENT .13
PRAYER 15
CERTIFICATE OF COMPLIANCE... .. 16
CERTIFICATE OF SERVICE 17
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INDEX OF AUTHORITIES
CASES PAGE
UNITED STATES
Anders v. California, 386 U.S. 738, 1967 .14
TEXAS
Harvey v. State, 611 S.W.2d 108, 111 (Tex.Cr.App.1981) .14
Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App.1984) 14
Miller v. State, 412 S.W.2d 650 (Tex.Crim.App.196) 13
RULES AND STATUTES PAGE
TEXAS HEALTH AND SAFETY CODE
Section 481.112(c), Texas Health and Safety Code 13
TEXAS PENAL CODE
Section 12.32, Texas Penal Code 14
TEXAS RULES OF APPELLATE PROCEDURE
Rule 9.4(i) (3), Texas Rules of Appellate Procedure, 16
Rule 38.1(a), Texas Rules of Appellate Procedure 2
Rule 38.1(e), Texas Rules of Appellate Procedure 7
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STATEMENT OF THE CASE
C)n the 18th day of September 2014, an Anderson County Grand Juryreturned
a single count Indictment, charging Appellant withManufacture or Delivery of
Substance In Penalty Group I, ow gram or more but less than four grams, in a drug
free zone. (C.R., Vol. 1, Pg. 5).
On the 17th day of March 2015, Appellant plead guilty to thesingle count of
Manufacture or Delivery of Substance In Penalty Group I, one gram or more but
less than four grams (R.R., Vol. 3, Pg. 50, L. 23). In addition, Appellant plead
True (R.R., Vol. 3, Pg. 120, L. 23), to a single enhancement paragraph contained
within the State's Notice of Enhancement Paragraphs to be Submitted to Fact
Finder at Punishment. (C.R., Vol. 1, Pg. 37). However, in exchange for the pleas of
guilty and true, the state abancbned the drug free zone enhancement (R.R., Vol. 3,
Pg. 47, L. 2). The parties selected a jury and engaged in a contested sentencing
hearing.
On the 1 8th day of March 2015, the Jury assessed Appellant's punishment at
twenty-five (25) years confinement within the Institutional Division of the Texas
Department of Criminal Justice.(R. R., Vol. 4, Pg. 81, L. 23).
On the 18th day of March, Appellant filed the Trial Court's Certificate of
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Defendant's Right of Appeal. (C.R., Vol. 1, Pg. 49). On the 17th day of April 2015,
Appellant filed allotice of Appeal. (C.R., Vol. 1, Pg. 75), Request for the Clerk's
Record and Designation of Matters for Inclusion (C.R., Vol. 1, Pg. 62), Request for
the Reporter's Record (C.R., Vol. 1, Pg. 66), Defendants Motion for New Trial
(C.R., Vol. 1, Pg. 68), and Appellant filed Defendant's Motion for a Free
Reporter's Record on Appeal (C.R., Vol. 1, Pg.71).
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STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Rule 38.1 (e), Texas Rules of AppellateProcedure, Appellant
provides the following Statement Regarding Oral Argument
Appellant does not requestOral Argument
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ISSUE PRESENTED
THE APPELLATE COURT SHOULD ALLOW
COUNSEL, UPON MAKING THE DETERMINATION
THERE WAS NO ERROR IN THE TRIAL COURT, TO
WITHDRAW ANT) APPELLANT ALLOWED A
REASONABLE TIME TO FILE A PRO SE BRIEF.
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STATEMENT OF FACTS
On or about the Stn day of July 2014 (R.R., Vol. 3, Pg. 127, L. 4), Corporal
Ricki Baker (R.R., Vol. 3, Pg. 125, L. 9) and Officer Justin Blanks (R.R., Vol. 3,
Pg. 129, L. 15) of the Palestine Police Department(R.R., Vol. 3, Pg. 125, L. 9),
received information from a confidential informant that he would be traveling
eastbound on Palestine Avenue towards Executive Inn & Stites in a gray Pontiac
G6 with Appellant as the passenger(R.R., Vol. 3, Pg. 128, L. 6), who would be
transporting methamphetamine(R.R., Vol. 4, Pg. 5, L. 11) and have a shotgun with
him. (R.R., Vol. 3, Pg. 148, L. 5).
Corporal Ricki Baker and Officer Justin Blanks observed the grey Pontiac
G6 traveling eastbound on East Palestine Avenue and pulled in behind the vehicle
(R.R., Vol. 3, Pg. 130, L. 24) and performed a traffic stop (R.R., Vol. 3, Pg. 132, L.
23) on a Pontiac G6 (R.R., Vol. 3, Pg. 131, L. 17) upon observing no rear license
plate (R.R., Vol. 3, Pg. 130, L. 24). The vehicle was driven by Marcus Howard
(R.R., Vol. 3, Pg. 131, L. 17). Appellant was the passenger in the vehicle.(R.R.,
Vol. 3, Pg. 135, L. 5). On approach, Corporal Ricki Baker observed a full size
shotgun (R.R., Vol. 3, Pg. 135, L. 7) in the vehicle. Officers immediately detained
(R.R., Vol. 3, Pg. 136, L. 15) both occupants of the vehicle. Corporal Ricki Baker
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requested and received consent to search the vehicle from Marcus Howard. (R.R.,
Vol. 3, Pg. 137, L. 6). A digital scale (R.R., Vol. 3, Pg. 138, L. 20) was found in a
tool bag (R.R., Vol. 3, Pg. 137, L. 11) in the passenger side (R.R., Vol. 3, Pg. 137,
L. 9) floorboard (R.R., Vol. 3, Pg. 137, L. 11), and two bags of marijuana and one
bag of methamphetamine weighing approximately four grams (R.F',., Vol. 4, Pg.
16, L. 13), were found in the glove compartment.(R.R., Vol. 3, Pg. 138, L. 15).
Appellant claimed the tool bag with the scab inside. (R.R., Vol. 3, Pg. 148, L. 9),
but denied knowledge of the narcotics(R.R., Vol. 3, Pg. 150, L. 10).
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SUMMARY OF THE ARGUMENT
THE APPELLATE COURT SHOULD ALLOW
COUNSEL, UPON MAKING THE DETERMINATION
THERE WAS NO ERROR IN THE TRIAL COURT, TO
WITHDRAW AND APPELLANT ALLOWED A
REASONABLE TIME TO FILE A PRO SE BRIEF.
Counsel has undertaken a careful scrutiny of the Reporter's Record and the
Clerk's Record. Counsel is unable toidentify an arguable basis for appeal.
A plea of guilty to a felony charge before a jury admits the existence of all
facts necessary to establish guilt. Appellant plead guiltyto Manufacture or
Delivery of Substance In Penalty Group I, one gram or more but less than four
grams a second degree felony. Appellant's plea of guilty was before a jury.
Therefore, Appellant admitted to all of the facts necessary for the jury to establish
his guilt.
An appeal, based upon an argument that the Trial Court abused its discretion
in finding Appellant guilty, is frivolous.
Appellant also plead true to an enhancement paragraph. If, an Appellant
pleads true to an enhancementparagraph, the State's burden of proof is satisfied.
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In addition, the jury assessed punishment within the rangeof punishment.
Generally, the Appellate Court will not disturb a penalty assessed within the range
of punishment.
For the above stated reasons, an appeal, based upon the argument that the
Trial Court abused its discretion in sentencing Appelant, is frivolous.
Counsel has made a full and careful review of all matters in tie instant cause
and cannot find any reasonable point of error to legitimately raise for purposes of
appeal. As a result, Counsel has filed the instant Anders Brief.
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ARGUMENT
THE APPELLATE COURT SHOULD ALLOW
COUNSEL, UPON MAKING THE DETERMINATION
THERE WAS NO ERROR IN THE TRIAL COURT, TO
WITHDRAW AND APPELLANT ALLOWED A
REASONABLE TIME TO FILE A PRO SE BRIEF.
Counsel has undertaken a conscientious examinationof the Reporter's
Record and the Clerk's Record. Counsel is unable to indentify an arguable basis for
appeal.
It is the established rule that a plea of guilty to a felony charge before a jury
admits the existence of all facts necessary to establish guiltMiller v. State, 412
S.W.2d 650 (Tex.Crim.App.196).
Appellant plead guilty(R.R., Vol. 3, Pg. 50, L. 23), to Manufacture or
Delivery of Substance In Penalty Group I, one gram or more but less than four
grams (R.R., Vol. 3, Pg. 50, L. 23), a second degree felony.Section 481.112(c),
Texas Health and Safety Code. Appellant's plea of guilty to the felony charge was
before a jury. (R.R., Vol. 3, Pg. 120, L. 10). Therefore, Appellant admitted to all of
the facts necessary for the jury to establish his guilt.
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For the above stated reasons, an appeal, based upon an argument that the
Trial Court abused its discretion infinding Appellant guilty, is frivolous.
Appellant also plead true (R.R., Vol. 3, Pg. 120, L. 23), to a single
enhancement paragraph contained withinthe State's Notice of Enhancement
Paragraphs to be Submitted to Fact Finder at Punishment.(C.R., Vol. 1, Pg. 37).
If, an Appellant pleads true to an enhancement paragraph, the State's burden
of proof is satisfied. The plea of true is sufficient proof. Harvey v. State, 611
S.W.2d 108, 111 (Tex.Cr.App.1981) Furthermore, the jury assessed punishment
within the range authorized by the legislature for aFirst Degree Felony. Section
12.32, Texas Penal Code. Generally, the Appellate Court will not disturba penalty
assessed within the range ofpunishment. Jackson v. State, 680 S.W.2d 809, 814
(Tex.Crim.App.1984).
For the above stated reasons, an appeal, based upon the argument that the
Trial Court abused its discretion h sentencing Appellant, is frivolous.
Counsel has made a full and careful review of all matters in tla instant cause
and cannot find any reasonable point of error to legitimately raise for purposes of
appeal. As a result, Counsel has filed the instant Anders Brief.Anders v.
California, 386 U.S. 738, 1967
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PRAYER
WHEREFORE, PREMISES CONSIDERED, Counsel prays the Court accept
the instant Anders Brief, grant Counsel's Motion to Withdraw, and allow Appellant
a reasonable amount of time to file a Pro Se Brief.
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CERTIFICATE OF COMPLIANCE
I, Colin D. McFall, Attorney of Record for the above styled Appellant,
pursuant to Rule 9.4(i)(3), Texas Rules of Appellate Procedure, hereby certify the
number of words within Appellant's Brief at one thousand eight hundred ninety
five (1,895).
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CERTIFICATE OF SERVICE
I, Colin D. McFall, Appellate Attorney of Record for the above styled
Appellant, hereby certify service of a true and correct copy of the above and
foregoing document with an explanation that he is entitled,to review the record,
and, if he so feels fit, to file a Pro Se Brief on his own behalf at Hutchins Unit,
1500 East Langdon Road, Dallas, Texas 75241,by first class mail, on the 23rd day
of November 2014.
Counsel also certifies service of a true and correct copy of the above and
foregoing document upon Scott Holden, First Assistant, Anderson County Criminal
District Attorney, by email delivery, to sholden@co.anderson.tx.u4 on the 23rd day
of November 2015.
RESPECTFULLY SUBMITTED,
Anderson County Courthouse
500 North Church Street, Suite 38
OLIN D. MCFALL Palestine, Texas 75801
Assistant Criminal District Attorney Telephone: 903-723-7400
Texas Bar Number: 24027498 Facsimile: 903-723-7818
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