                                                                                    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




                                                               2
                                  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




                                                    3
                                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.

                                             5
                    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.



                                             6
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).




                                             7
                                          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




                                            8
               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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