                                                                      ACCEPTED
                                                                 07-15-000142-cr
                                                    SEVENTH COURT OF APPEALS
                                                              AMARILLO, TEXAS
                                                             6/8/2015 5:39:51 PM
                                                                Vivian Long, Clerk


            NO. 07-15-00142-CR
                                                   June 8, 2015


       IN THE COURT OF APPEALS
             FOR THE
SEVENTH SUPREME JUDICIAL DISTRICT
       AT AMARILLO, TEXAS



               KEVIN COBB,
                 Appellant

                    vs.

          THE STATE OF TEXAS,
                Appellee


Appeal from the County Court at Law Number 4
         Cause No. C-1-CR-14-152804
            Burnet County, Texas
 The Honorable Mike Denton, Judge Presiding


           APPELLANT'S BRIEF


                          Gary E. Prust
                          State Bar No. 24056166
                          1607 Nueces Street
                          Austin, Texas 78701
                          (512) 469-0092
                          Fax: (512) 469-9102
                          gary@prustlaw.com

                          ATTORNEY FOR APPELLANT




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                      IDENTITY OF THE PARTIES

APPELLANT:
Kevin Gene Cobb
202 B Old Lexington Rd.
Elgin, TX 78621

TRIAL COUNSEL FOR APPELLANT:
Ms. Donna Keith
SBN 00789335
605 W. Oltorf
Austin, TX 78704

APPELLATE COUNSEL FOR APPELLANT:
Mr. Gary E. Prust
SBN 24056166
1607 Nueces St.
Austin, TX 78701

TRIAL COUNSEL FOR APPELLEE:
Ms. Laura Gorman
SBN 24057970
Ms. Neha Naik
SBN 24077916
Travis County Attorney’s Office
314 W. 11th St.
Austin, TX 78701

APPELLATE COUNSEL FOR APPELLEE:
Mr. David Escamilla
SBN 6662300
Travis County Attorney
314 W. 11th St.
Austin, TX 78701




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                   TABLE OF CONTENTS

Identity of the Parties ………………………………………………………………ii

Table of Contents ………………………………………………………………… iii

Table of Authorities ……………………………………………………………… iv

Statement of the Case ………………………………………………………………1

Statement Regarding Oral Argument …………………………………………….. 1

Issue Presented …………………………………………………………………… 2

Summary of the Facts …………………………………………………………….. 2

Summary of Possible Arguable Issue ……………………………………………. 4

Prayer ……………………………………………………………………………… 5

Certificate of Service ……………………………………………………………… 6

Certificate of Compliance ………………………………………………………… 6




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STATEMENT OF THE CASE

Nature of the case: This is an appeal from a misdemeanor criminal conviction for

violation of a protective order. See Tex. Pen. Code § 25.07 (Vernon 2013).



Course of the proceedings: Appellant was arrested on September 23, 2014 for the

warrant issued on August 18, 2014. C.R. 7-8. The Complaint and Information were

filed September 24, 2014. C.R. 10-11. Jury trial was held from January 26 through

27 of 2015. I R.R. at 1. Appellant was then found guilty and punishment assessed

by the jury at 365 days confinement and a $4000 fine. C.R. at 37.



Trial court’s disposition: The trial court imposed the verdict of the jury.



STATEMENT REGARDING ORAL ARGUMENT

      Appellant does not request oral argument. There are no novel, unique, or

complex issues involved in this appeal.




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STATEMENT OF THE CASE

Nature of the case: This is an appeal from a misdemeanor criminal conviction for

violation of a protective order. See Tex. Pen. Code § 25.07 (Vernon 2013).



Course of the proceedings: Appellant was arrested on September 23, 2014 for the

warrant issued on August 18, 2014. C.R. 7-8. The Complaint and Information were

filed September 24, 2014. C.R. 10-11. Jury trial was held from January 26 through

27 of 2015. I R.R. at 1. Appellant was then found guilty and punishment assessed

by the jury at 365 days confinement and a $4000 fine. C.R. at 37.



Trial court’s disposition: The trial court imposed the verdict of the jury.



STATEMENT REGARDING ORAL ARGUMENT

      Appellant does not request oral argument. There are no novel, unique, or

complex issues involved in this appeal.




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ISSUE PRESENTED

      Because this brief is being filed in accordance of the dictates of Anders vs.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 492; Benson v. Ohio, 488 U.S.

75, 109 S.Ct. 346, 102 L.Ed.2d 300, 1978; and High v. State, 573 S.W.2d 807

(Tex. Crim. App. 1978), no issues are presented for review. A summary of facts

and a discussion of potentially arguable issues will be presented to justify the

conclusion of Appellant’s attorney that there are no arguable appeal issues and

therefore this appeal is frivolous.



SUMMARY OF FACTS

      Ms. Evelen Gamboa worked at a gentleman’s club in Travis County Texas

on August 7, 2014. III R.R. at 12. She started working there about two years prior,

at the suggestion of Appellant. III R.R. at 13. Sometime in 2013, Ms. Gamboa

obtained a protective order from a district court in Williamson County which was

in effect on August 7, 2014. III R.R. at 13-14.

      On that day, a bartender told Ms. Gamboa an individual later shown as

Appellant was asking to speak with her. III R.R. at 15. She then talked with Mr.

Aaron Fawcett, a manager at the club, who approach Appellant while she ran to the

back of the club. III R.R. at 16.

      Mr. Fawcett knew a protective order was in place and had it in Ms.



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Gamboa’s employee file. III R.R. at 20. He testified Appellant was there looking

for her because he wanted something she might have at her home. III R.R. at 21.

Mr. Fawcett further testified, over Appellant’s objection, that Mr. Cobb made a

statement to the effect he knew he was not supposed to be there.1 Mr. Fawcett also

testified Appellant knew about a protective order. III R.R. at 23-24.

         Detective Jenkinson with the Travis County Sheriff’s Office responded to a

call to the gentleman’s club Ms. Gamboa worked at. III R.R. at 29. Appellant was

not there when he arrived but he did speak with Ms. Gamboa and with Mr.

Fawcett. III R.R. at 29. The club showed the detective a copy of the protective

order it had in Ms. Gamboa’s file. III R.R. at 30. However, no copy of the

protective order was entered into the local and national databases commonly used

by law enforcement agencies. III R.R. at 30-31.

         Detective Inocencio Flores works with the Travis County Sheriff’s Office

and investigates cases involving family violence and protective orders. III R.R. at

32-34. The Detective met with Ms. Gamboa, who provided a written statement. III

R.R. at 37. Mr. Fawcett also communicated with the detective by providing

information via email and faxing in a statement relating to the events on August 7,

2014. III R.R. at 38. Notably, the detective reported the protective order was not

signed by Appellant. III R.R. at 39.
1
 The question actually asked was whether “defendant know there was a protective order” and that Appellant knew
he was not supposed to be at the club. III R.R. 23. But these questions were not preserved for appellate review. See
TEX. R. APP. P. 33.1(a).


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recourse in this matter.

                                      Respectfully submitted,

                                      /s/ Gary E. Prust

                                      Gary E. Prust
                                      SBN 24056166
                                      1607 Nueces Street
                                      Austin, Texas 78701
                                      (512) 469-0092
                                      Fax: (512) 469-9102
                                      gary@prustlaw.com
                                      Attorney for Appellant


                            CERTIFICATE OF SERVICE

      In compliance with Rule 9.5(d) of the Texas Rules of Appellate Procedure,
the undersigned attorney certifies that a true and correct copy of the foregoing
Brief was served upon the Travis County Attorney via facsimile transmission to
(512)854-9316, in accordance Rule 9.5(b) of the Texas Rules of Appellate
Procedure on this the 8th day of June, 2015.

                                             /s/ Gary E. Prust

                                             Gary E. Prust

                           CERTIFICATE OF COMPLIANCE

      Pursuant to TEX. R. APP. PROC. 9.4(i)(3), I hereby certify this brief contains
1,101 words. This is a computer-generated document created in Microsoft Word,
using 14-point typeface. In making this this certificate, I rely on the word count
provided by the software use to prepare the document.

                                             /s/ Gary E Prust

                                             Gary E. Prust




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opponent. Id.; Tex. R. Evid. 801(e)(2). Therefore, there was a lack of evidence

Appellant knew about the protective order and to stay away from Ms. Gamboa’s

place of employment. However, Appellant objected to statement against interest.

III R.R. at 21-22; TEX. R. EVID. 803(24). The trial court indulged this objection and

noted the question called for an answer that is not hearsay and would not need the

exception. III. R.R. at 22. Appellant’s objection was overruled. III R.R. at 23.

      The State then proceeded to ask (1) whether Appellant knew there was a

protective order and (2) whether Appellant admitted he knew he was not allowed

to be at the club. III R.R. at 23. The State did not ask what statement was made by

Appellant. Accordingly, the witness did not answer with a statement by Appellant.

The witness properly answered the questions asked by the State. Those questions

elicited knowledge of Appellant, not a statement. In any event, Appellant did not

renew his objection to the questions or the entry into evidence of the answers. III.

R.R. at 23-24. This error is not preserved for review. TEX. R. APP. P. 33.1 (a).



PRAYER

      For all of the foregoing reasons, Appellant’s attorney, Gary E. Prust,

respectfully prays this Honorable Court grant his Motion to Withdraw submitted

with this brief. Appellant’s attorney sent a letter to Appellant’s last known address

advising him of the consequences of filing an Anders brief and informing of his



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recourse in this matter.

                                      Respectfully submitted,

                                      /s/ Gary E. Prust

                                      Gary E. Prust
                                      SBN 24056166
                                      1607 Nueces Street
                                      Austin, Texas 78701
                                      (512) 469-0092
                                      Fax: (512) 469-9102
                                      gary@prustlaw.com
                                      Attorney for Appellant


                            CERTIFICATE OF SERVICE

      In compliance with Rule 9.5(d) of the Texas Rules of Appellate Procedure,
the undersigned attorney certifies that a true and correct copy of the foregoing
Brief was served upon the Travis County Attorney via facsimile transmission to
(512)854-9316, in accordance Rule 9.5(b) of the Texas Rules of Appellate
Procedure on this the 8th day of June, 2015.

                                             /s/ Gary E. Prust

                                             Gary E. Prust

                           CERTIFICATE OF COMPLIANCE

      Pursuant to TEX. R. APP. PROC. 9.4(i)(3), I hereby certify this brief contains
1,101 words. This is a computer-generated document created in Microsoft Word,
using 14-point typeface. In making this this certificate, I rely on the word count
provided by the software use to prepare the document.

                                             /s/ Gary E Prust

                                             Gary E. Prust




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