                                                                                    ACCEPTED
                                                                               13-14-00297-CR
                                                                 THIRTEENTH COURT OF APPEALS
                                                                       CORPUS CHRISTI, TEXAS
                                                                           4/2/2015 9:49:42 AM
                                                                              DORIAN RAMIREZ
                                                                                        CLERK

                  CAUSE NO. 13-14-00297-CR

                                             FILED IN
                                     13th COURT OF APPEALS
              IN THE COURT OF APPEALS
                                  CORPUS CHRISTI/EDINBURG, TEXAS
                                      4/2/2015 9:49:42 AM
        THIRTEENTH JUDICIAL DISTRICT OFDORIAN
                                          TEXAS E. RAMIREZ
                                              Clerk

           CORPUS CHRISTI - EDINBURG, TEXAS


                 ALEJANDRO BARRIENTES,
                        Appellant

                                v.

                       STATE OF TEXAS,
                           Appellee.


         On appeal from the 107th Judicial District Court
                   of Cameron County, Texas
         Trial Court Cause Number 2013-DCR-00657-A


                 STATE’S APPELLATE BRIEF


                                     Luis V. Saenz
                                     Cameron County District Attorney
ORAL ARGUMENT REQUESTED
                                     René B. González
                                     Assistant District Attorney
                                     964 East Harrison Street, 4th Floor
                                     Brownsville, Texas 78520
                                     Phone: (956) 544-0849
                                     Fax:(956) 544-0869

                                     Attorneys for the State of Texas
                                           TABLE OF CONTENTS

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Salutation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Argument and Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

         State’s Response to Appellant’s Issues One through Four.. . . . . . . . . . . . . . 2

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9




                                                              -i-
                                INDEX OF AUTHORITIES

Cases

Adam v. State,
     490 S.W.2d 189 (Tex. Crim. App. 1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Armitage v. State,
      637 S.W.2d 936 (Tex. Crim. App. 1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Dinnery v. State,
     592 S.W.2d 343 (Tex. Crim. App. 1980) (op. on reh’g). . . . . . . . . . . . . . 4, 5

Edwards v. State,
     835 S.W.2d 660 (Tex. App.--Dallas 1992, no pet.). . . . . . . . . . . . . . . . . . . . 4

Evers v. State,
      576 S.W.2d 46 (Tex. Crim. App. [Panel Op.] 1978). . . . . . . . . . . . . . . . . . . 6

Fox v. State,
      657 S.W.2d 449 (Tex. App.--Houston [14th Dist.] 1983, no pet.).. . . . . . . . 4

Jones v. State,
      373 S.W.3d 790 (Tex. App.--Houston [14th Dist.] 2012, no pet.).. . . . . . . . 3

Menefee v. State,
     287 S.W.3d 9 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3

Menefee v. State,
     No. 12–07–00001–CR, 2010 WL 3247816 (Tex. App.--Tyler 2010,
     pet. ref’d) (not designated for publication). . . . . . . . . . . . . . . . . . . . . . . . . . 3

Staggs v. State,
      314 S.W.3d 155 (Tex. App.--Houston [1st Dist.] 2010, no pet.). . . . . . . . . . 3

Stewart v. State,
     12 S.W.3d 146 (Tex. App.--Houston [1st Dist.] 2000, no pet.). . . . . . . . . . . 5

                                                 -ii-
Statutes

Tex. Code Crim. Proc. art. 1.15.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3




                                                     -iii-
                         CAUSE NO. 13-14-00297-CR
                   ____________________________________

                         IN THE COURT OF APPEALS

                THIRTEENTH JUDICIAL DISTRICT OF TEXAS

                   CORPUS CHRISTI - EDINBURG, TEXAS
                   ____________________________________

                    ALEJANDRO BARRIENTES, Appellant

                                          v.

                        STATE OF TEXAS, Appellee
                   ____________________________________

                       STATE’S APPELLATE BRIEF
                   ____________________________________

TO THE HONORABLE COURT OF APPEALS:

       COMES NOW, Appellee, the STATE OF TEXAS, by and through the

Cameron County District Attorney, the Honorable Luis V. Saenz, and, pursuant to

Rule 38.2 of the Texas Rules of Appellate Procedure, files this, its Appellate Brief in

the above-styled and -numbered cause of action, and in support thereof, would show

this Honorable Court as follows:




State’s Brief                                                                    Page 1
                          SUMMARY OF ARGUMENT

       Appellant raises four issues on appeal. Appellant generally challenges the

sufficiency of the evidence to support his plea of guilty and establish his guilt as to

the various elements of the offenses charged. The State responds by asserting that the

evidence herein is sufficient to establish the guilt of Appellant.



                         ARGUMENT & AUTHORITIES

State’s Response to Appellant’s First, Second, Third and Fourth Issues

       In four issues, Appellant generally challenges the sufficiency of the evidence

to support his plea of guilty and establish his guilt as to the various elements of the

offenses charged. The State responds by asserting that the evidence herein is

sufficient to establish the guilt of Appellant.

       Although the United States Constitution does not require substantiation of a

guilty plea in state court, Texas Code of Criminal Procedure article 1.15 does provide

this additional procedural safeguard. Tex. Code Crim. Proc. art. 1.15; Menefee v.

State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009). Under this article, a court may not

enter a conviction in a felony case based on a guilty plea unless evidence is presented

establishing guilt in addition to and independent of the plea. Tex. Code Crim. Proc.

art. 1.15; Menefee, 287 S.W.3d at 13–14. The evidence does not have to establish the

State’s Brief                                                                    Page 2
defendant’s guilt beyond a reasonable doubt but must embrace every element of the

offense charged. Staggs v. State, 314 S.W.3d 155, 159 (Tex. App.--Houston [1st

Dist.] 2010, no pet.).

       Evidence substantiating a guilty plea can take several possible forms. Menefee,

287 S.W.3d at 13. Article 1.15 itself states that a defendant may consent to the

presentation of evidence either by oral testimony or in written form, or to an oral or

written stipulation of what the evidence would be, without necessarily admitting to

its veracity or accuracy. Id. Additionally, courts have recognized that a defendant

may enter a sworn written confession, or may testify under oath in open court,

admitting his or her culpability or at least acknowledging generally that the

allegations against him or her are in fact true and correct. Id. A deficiency in one

form of proof may be compensated for by other competent evidence in the record.

Id. at 14. Evidence adduced at a sentencing hearing may also suffice to substantiate

a guilty plea. See id. at 18–19 (remanding in part for determination of whether

evidence at sentencing hearing was sufficient); Menefee v. State, No.

12–07–00001–CR, 2010 WL 3247816, at *1, *6–7 (Tex. App.--Tyler 2010, pet.

ref’d) (not designated for publication) (finding evidence at sentencing hearing was

sufficient); Jones v. State, 373 S.W.3d 790, 792-93 (Tex. App.--Houston [14th Dist.]

2012, no pet.).

State’s Brief                                                                   Page 3
       Further, a judicial confession, standing alone, is sufficient to sustain a

conviction on a guilty plea. Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App.

1980) (op. on reh’g); Edwards v. State, 835 S.W.2d 660, 664 (Tex. App.--Dallas

1992, no pet.). A written affirmation of a charging instrument as true constitutes a

judicial confession. See Adam v. State, 490 S.W.2d 189, 190 (Tex. Crim. App. 1973);

Fox v. State, 657 S.W.2d 449, 449 (Tex. App.--Houston [14th Dist.] 1983, no pet.).

       In the present case, Appellant was charged and pleaded guilty to the felony

offenses of evading arrest and endangering a child. The evidence supporting the plea

of guilty included Appellant’s judicial confession of guilt (C.R. p. 40), the statements

of three officers who witnessed the offenses (C.R. pp. 46-50), and the testimony of

one of the officers who testified at the punishment hearing (R.R. Vol. 8, pp. 7-16).

Any of these items of evidence, alone, would be sufficient to show the guilt of

Appellant; however, when taken together, these three items of evidence

overwhelmingly demonstrate Appellant’s guilt.

       Specifically, in his judicial confession, Appellant states:

              In addition, the Defendant, in person, under oath, together with
       his attorney and the attorney representing the State of Texas, further
       agree, consent and stipulate in writing in open court to the following:
              The State may introduce affidavits, written statements of
       witnesses and any other documentary evidence in support of any
       judgment that may be entered in this cause, which are marked Exhibits
       No. 1, through No. 2, inclusive, and made a part hereof; that such

State’s Brief                                                                     Page 4
       stipulated evidence is true and correct; that the Defendant, is the
       identical person referred to in the exhibits and stipulated evidence and
       if the witnesses were present, sworn and testifying under oath that they
       would testify as set out in their written statements and would identify the
       Defendant as the person of whom they speak in said exhibits and
       stipulations; that the Defendant is the identical person named in the
       charging instrument in the above styled and numbered cause; that each
       and every allegation in said charging instrument with the offense of:
       Count I: Evading Arrest / with a motor vehicle (3rd degree);
       Count II: Endanger Child (State Jail Felony); ...
       is true and correct and each act therein alleged occurred in Cameron
       County, Texas.

(C.R. p. 40). This judicial confession was sworn to by Appellant, and offered into

evidence. (R.R. Vol. 7, pp. 7-8). As noted above, Appellant swore under oath that

“each and every allegation” in the indictment alleging the offenses of evading arrest

and endangering a child is true and correct. Because Appellant’s judicially admits to

each and every allegation in the indictment, the evidence is therefore sufficient to

support all the allegations in the indictment, including the following allegations: that

he did not voluntarily deliver the child to an emergency care provider (issue one); that

officers were attempting lawfully to arrest Appellant (issue three); that officers were

attempting lawfully to detain Appellant (issue four); and, that the evidence was

generally sufficient to support a plea of guilty (issue two). See Dinnery, 592 S.W.2d

at 353; see also Stewart v. State, 12 S.W.3d 146, 148 (Tex. App.--Houston [1st Dist.]

2000, no pet.) (“A judicial confession alone is sufficient evidence to sustain a



State’s Brief                                                                        Page 5
conviction upon a guilty plea under article 1.15.”).

       Moreover, the plea and conviction was supported by three officers’ statements

(C.R. pp. 46-50), which Appellant stipulated1 were true and correct (C.R. p. 40). The

statements set forth that officers with the Brownsville Police Department observed

Appellant commit a traffic violation (exhibition of acceleration) which was a

sufficient basis to detain and/or arrest Appellant. See Armitage v. State, 637 S.W.2d

936, 939 (Tex. Crim. App. 1982) (A police officer has the authority to stop and

temporarily detain a driver who has violated a traffic law); see also Evers v. State,

576 S.W.2d 46, 47–49 & n. 4 (Tex. Crim. App. [Panel Op.] 1978) (holding that

accelerating quickly from stopped position where vehicle squealed tires and threw

mud and gravel was violation of exhibition of acceleration statute). The officers

further stated that after activating the police unit’s overhead lights and siren,

Appellant evaded detention or arrest and led the officers on a lengthy chase. (C.R.

pp. 46, 48). The officers further stated that Appellant evaded police at a high rate of

speed, disregarded traffic lights, and nearly lost control of his vehicle, all while

transporting a minor as a passenger in the vehicle. (C.R. pp. 46, 48, 50). The minor

       1
         Article 1.15 of the Code of Criminal Procedure states, in part: “... in no event shall a person
charged be convicted upon his plea without sufficient evidence to support same. The evidence may
be stipulated if the defendant in such case consents in writing, in open court, to waive the
appearance, confrontation, and cross-examination of witnesses, and further consents ... to the
introduction of testimony by affidavits, written statements of witnesses, and any other documentary
evidence in support of the judgment of the court.”

State’s Brief                                                                                   Page 6
passenger stated that, while Appellant was driving erratically, he did fear for his

safety. (C.R. p. 49). The chase ended with police detaining Appellant and making

contact with the minor passenger in a parking lot (C.R. pp. 46, 48-49, 50). The fact

that the officers viewed the minor with Appellant throughout the commission of the

offense demonstrates that Appellant did not voluntarily deliver the minor to an

emergency care provider.

       Finally, the record also contains that testimony of Officer April Garza, who

assisted in the pursuit and arrest of Appellant. Her testimony at the sentencing

hearing supplemented her written report. Officer Garza’s testimony made clear that

Appellant evaded arrest or detention in a motor vehicle, and that Appellant drove

dangerously while a minor passenger was present in his vehicle. (R.R. Vol. 8, pp. 7-

16).

       Accordingly, the evidence presented by the State at the time of Appellant’s

pleas of guilty was sufficient to support the plea and the finding of guilt. Therefore,

Appellant’s four issues should be overruled.




State’s Brief                                                                    Page 7
                                     PRAYER

       WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that

this Court will overrule Appellant’s issues on appeal, and affirm both the judgment

of conviction and the sentence herein.



                                         Respectfully Submitted,

                                         LUIS V. SAENZ
                                         Cameron County District Attorney
                                         964 East Harrison Street, 4th Floor
                                         Brownsville, Texas 78520
                                         Phone: (956) 544-0849
                                         Fax: (956) 544-0869



                               By:       /s/ René B. González
                                         René B. González
                                         Assistant District Attorney
                                         State Bar No. 08131380
                                         rgonzalez1@co.cameron.tx.us

                                         Attorneys for the State of Texas




State’s Brief                                                                  Page 8
                       CERTIFICATE OF COMPLIANCE

       I certify that this document contains 1,700 words (excluding the cover, table

of contents and table of authorities). The body text is in 14 point font, and the

footnote text is in 12 point font.



                                       /s/ René B. González
                                       René B. González




                          CERTIFICATE OF SERVICE

       I certify that a copy of the foregoing State’s Appellate Brief was e-mailed to

Mr. Larry Warner, Attorney at Law, 3109 Banyan Drive, Harlingen, Texas 78550, at

Office@larrywarner.com on the 2nd day of April, 2015.



                                       /s/ René B. González
                                       René B. González




State’s Brief                                                                  Page 9
