                                                                                ACCEPTED
                                                                            06-15-00106-CR
                                                                 SIXTH COURT OF APPEALS
                                                                       TEXARKANA, TEXAS
                                                                     10/19/2015 12:00:00 AM
                                                                           DEBBIE AUTREY
                                                                                     CLERK

                    IN THE COURT OF APPEALS
                                                           FILED IN
                     SIXTH DISTRICT OF TEXAS        6th COURT OF APPEALS
                                                      TEXARKANA, TEXAS
                                                    10/19/2015 9:05:00 AM
                       TEXARKANA, TEXAS                  DEBBIE AUTREY
                                                             Clerk
MOISES RENTERIA
        Appellant

Vs                                    06-15-00106-CR

THE STATE OF TEXAS
         Appellee



                          ON APPEAL FROM

               THE 188TH JUDICIAL DISTRICT COURT

                      OF GREGG COUNTY, TEXAS

                      TRIAL COURT NO. 38,802-A


                    BRIEF ON BEHALF OF APPELLANT


                                   TIM CONE
                                   State Bar #04660350
                                   P.O. Box 413
                                   Gilmer, Texas 75644
                                   (903) 725-6270
                                   e-mail: timcone6@aol.com

                                   ATTORNEY FOR THE APPELLANT
                                                        2




            IDENTITY OF PARTIES AND COUNSEL



MOISES RENTERIA, #1734349
POLUNSKY UNIT
3872 FM 350
LIVINGSTON, TEXAS 77351
APPELLANT

THOMAS TIBILETTI
P.O. BOX 3663
LONGVIEW, TEXAS 75606
APPELLANT’S COUNSEL AT TRIAL


JENNY HUCKLE, (FORMER) GREGG COUNTY ASST. CRIM. DIST.
ATTORNEY
101 E. METHVIN
LONGVIEW, TEXAS 75601
APPELLEE’S COUNSEL AT TRIAL

TIM CONE
P.O. BOX 413
GILMER, TX 75644
APPELLANT’S COUNSEL ON APPEAL


ZAN BROWN
GREGG COUNTY ASSIST. CRIM. DIST. ATTORNEY
101 E. METHVIN
LONGVIEW, TEXAS 75601
APPELLEE’S COUNSEL ON APPEAL
                                                                                     3




                              TABLE OF CONTENTS

                                              Page No.
List of Parties and Counsel…………………………………………….       2

Table of Contents………………………………………………………                                        3

Index of Authorities……………………………………………………                                      4

Statement of the Case………………………………………………….                                     6

Point of Error Number One……………………………………………                                    7,10
      The trial court erred in finding the Appellant made a voluntary,
knowing, and intelligent waiver of his right to a jury trial.

Point of Error Number Two……………………………………………                                    7,11
      The trial court erred in failing to properly hold a hearing regarding
Appellant’s competency to stand trial.

Statement of Facts…………………………………………………….                                       8

Summary of Argument……………………………………………….                                        9

Conclusion and Prayer………………………………………………..                                     12

Certificate of Compliance…………………………………………….                                   13

Certificate of Service…………………………………………………                                     13
                                                                  4




                         INDEX OF AUTHORITIES


                                                           PAGE
U. S.CONSTITUTION:

6th Amendment, U.S. Constitution………..................      10
14   TH
          Amendment, U.S. Constitution…………………………           10

TEXAS CONSTITUTION:

Article 10……………………………………………………..                           10
Article 15…………………………………………………….                            10

STATE CASES:

Carpenter v. State, 507 SW2d 794 (Tex.Crim.App. 1974)…..   12
Fuller v. State, 253 SW3d 220 (Tex.Crim.App. 2008)………      12
Ex Parte Hagans, 558 SW2d 457 (Tex.Crim.App. 1977)……       12
Meek v. State, 851 SW2d 868 (Tex.Crim.App. 1993)………        10
Rojas v. State, 228 SW3d 770 (Tex.App.Amarillo 2007)…..    12
Shaffer v. State, 769 SW2d 943 (Tex.Crim.App. 1989)……      10
Townsends v. State, 427 SW2d 55(Tex.Crim.App. 1968)…       12

STATUTES:

Texas Code of Criminal Procedure, Art. 1.03………………..        10
Texas Code of Criminal Procedure, Art. 1.04……………….         10
Texas Code of Criminal Procedure, Chapter 46…………….         11
                                   5




      NO. 06-15-00106-CR

             IN THE

       COURT OF APPEALS

            FOR THE

SIXTH JUDICIAL DISTRICT OF TEXAS


   MOISES RENTERIA,
                  APPELLANT
             VS.

      THE STATE OF TEXAS
                   APPELLEE
                                                                                           6


TO THE HONORABLE JUSTICES OF SAID COURT:


      COMES NOW, the Appellant by and through his Attorney, namely Tim Cone,

hereinafter referred to as Appellant, and submits this brief in support of reversing the

judgment and sentence pursuant to the provisions of the Texas Rules of Appellate

Procedure in Cause No. 06-15-00106-CR in the 188th Judicial District Court of Gregg

County, Texas, (Trial Court Cause No. 38,802-A).




                           STATEMENT OF THE CASE

      The Appellant was indicted by the Gregg County Grand Jury in a two count

indictment for the offenses of Aggravated Sexual Assault and Indecency with a

Child. CR6. On February 17, 2011, the trial court held a hearing on the Appellant’s

Motion to Withdraw (filed by Appellant’s trial counsel). CR42, 2RR. The trial court,

sua sponte, ordered a competency evaluation. 2RR11, CR47. On August 1, 2011, the

Appellant executed a waiver of jury trial and, after a bench trial, was found guilty on

both counts of the indictment. 3RR119, CR55. The trial court assessed punishment at

confinement for life on Count 1 Aggravated Sexual Assault) and twenty years

confinement on Count 2 (Indecency with a Child). 3RR127, CR55. The Appellant

indicated he wished to appeal the judgment of the trial court (sort of) and Appellant’s

counsel was appointed for the purpose of appeal. 3RR129. Unfortunately, Appellant’s
                                                                                       7


attorney was not timely informed of the appointment and an out of time appeal was

sought and granted. CR85-129. The Appellant now appeals the judgment and

sentence of the trial court.




      For clarity, THE STATE OF TEXAS will be referred to as “the State”, and

Moises Renteria will be referred to as “Defendant” or “Appellant.”




                               ISSUES PRESENTED


                         POINT OF ERROR NUMBER ONE

       The trial court erred in finding the Appellant made a voluntary, knowing, and
intelligent waiver of his right to a jury trial.


                         POINT OF ERROR NUMBER TWO

     The trial court erred in failing to properly hold a hearing regarding Appellant’s
competency to stand trial.
                                                                                          8




                           STATEMENT OF THE FACTS


             Since sufficiency of the evidence is not a point of error, a fairly short

rendition of the facts will suffice. It should probably be noted that the complaining

witness was thirteen years old when she gave birth to a child and the DNA analysis

indicated that the Appellant was the father of the child by a probability of 99.99%.

3RR43, State’s exhibit number 8. Therefore, sufficiency of the evidence seems an

unlikely successful point of error. However, there are other issues in the proceeding

that do indicate errors made by the trial court.

      On February 17, 2011, a hearing was scheduled to consider a Motion to

withdraw filed by Appellant’s trial counsel. 2RR. It should probably be pointed out,

although not clear from the record, that the Appellant does not speak or read the

English language but is fluent in his native Spanish language. Again, although it is

not immediately clear from the record, Appellant’s trial counsel is quite fluent in the
                                                                                          9


Appellant’s native tongue. The hearing on February 17, 2011, really did not address

the Motion to Withdraw but, instead, related to issues of plea offers and incoherent

rambling by the Appellant that are easier to read from the record than set out in this

brief. 2RR5-6,9-10. The trial court appropriately observed that a competency issue

existed and, sua sponte, ordered the Appellant be examined for competency to stand

trial. 2RR10-11. The order requiring the examination improperly states that the

examination was ordered based on the Appellant’s motion. CR47. Dr. Thomas G.

Allen, Ph.D. filed a report indicating he was of the opinion that the Appellant was

competent. CR51. No other judicial proceeding was ever held regarding the issue of

competency.

      On August 1, 2011, the trial court held a bench trial. 3RR. The waiver of the

Appellant’s right to a jury trial is set out in the record and is best described as

convoluted and unclear-and best left to a reading of the record rather than an attempt

to repeat in this brief. 3RR8-18. After the waiver was signed by the Appellant

(CR63), the case was tried as a bench trial. The trial court found the Appellant guilty

of both counts of the indictment and assessed the punishment previously described

and ordered the sentences to run concurrently. 3RR127, CR58.
                                                                                             10




                          SUMMARY OF THE ARGUMENT

       The state of mind of the Appellant is related to both points of error. His mental

processes were clearly impaired. Those processes were so clear to the court that the

trial court, sua sponte, ordered a competency evaluation. While the mental health

expert filed a report setting out that the Appellant, in his opinion, was competent, no

hearing was held after the report by the trial court finding the Appellant competent or

even addressing the issue of competency. This is error.

       Further-and again related to the Appellant’s mental competency-the process by

which the Appellant executed the jury waiver clearly showed that the Appellant’s

mind was not functioning in a proper manner to voluntarily, knowingly, or

intelligently waive his right to a jury trial. Both of these errors affect fundamental

rights of the Appellant and require reversal.

                         POINT OF ERROR NUMBER ONE

       The trial court erred in finding the Appellant made a voluntary, knowing, and

intelligent waiver of his right to a jury trial.

                                       ARGUMENT

       The Texas Code of Criminal Procedure, Art 1.03 and 1.04, as well as the Texas

Constitution (Article 10 and 15) and the U.S. Constitution (6th and 14th Amendments)

all clearly set out the fundamental right of an accused to a jury trial. This right is, of
                                                                                         11


course, waivable. However, the waiver of the right must be made voluntarily,

knowingly and intelligently. Shaffer v. State, 769 S.W.2d 943 (Tex.Crim.App. 1989);

Meek v. State, 851 S.W.2d 868 (Tex.Crim.App. 1993)-this case later reversed on

other grounds. The argument in the case at bar that the Appellant did not make a

voluntary, knowing, intelligent waiver of his right to jury trial is simply abundantly

clear from the record. 3RR8-18. The record shows that the Appellant did not

understand the concept of a jury trial, the significance of a jury waiver, or the

consequences of the waiver. The record shows a mind that simply was not

functioning on a rational basis. Appellant’s counsel is somewhat at a loss for further

words to express the point but the record seems clear on this issue. Since the right to

jury trial is a fundamental right, this error requires reversal.



                     POINT OF ERROR NUMBER TWO



      The trial court erred in failing to properly hold a hearing regarding Appellant’s

competency to stand trial.



                                   ARGUMENT

      The Texas Code of Criminal Procedure, Chapter 46, sets out the procedure to

be followed regarding issues of competency to stand trial. On February 17, 2011, the
                                                                                        12


trial court was to hold a hearing regarding trial counsel’s motion to withdraw. The

Appellant’s basically nonsensical ramblings brought to the trial court’s attention that

the issue of competency existed. These ramblings are set out in the record. 2RR5-6,9-

10. The issue was so obvious, the trial court, sua sponte, ordered the Appellant’s

examination on the issue of competence. While it was appropriate and admirable that

the trial court ordered the examination By Dr. Tom Allen, the trial court must hold a

separate hearing on the issue of competency. Carpenter v. State, 507 S.W.2d 794

(Tex.Crim.App. 1974);Ex Parte Hagans, 558 S.W.2d 457 (Tex.Crim.App. 1977);

Townsend v. State, 427 S.W.2d 55 (Tex.Crim.App. 1968); Fuller v. State, 253

S.W.3d 220 (Tex.Crim.App 2008); and Rojas v. State, 228 S.W.3d 770 (Tex.App

Amarillo 2007). Dr. Allen’s report is not a judicial finding of competency. After Dr.

Allen filed his report, the issue was simply never again addressed. In fact, the

proceedings held on August 1, 2011, clearly indicate a bona fide issue of competency

of the Appellant regarding the jury waiver. The Appellant simply did not make any

sense regarding the jury waiver issue-which indicated he was not competent. Without

a separate hearing on the issue of competency, the Appellant was denied a

fundamental right and the trial court’s judgment should be reversed.

                        CONCLUSION AND PRAYER


      For the reasons herein alleged, the sentence of the trial court should be reversed

and remanded for a new trial.
                                                                                        13


                                               Respectfully submitted,


                                               /s/Tim Cone
                                               ____________________
                                               TIM CONE
                                               Attorney At Law
                                               P.O. Box 413
                                               Gilmer, Texas 75644
                                               e-mail: timcone6@aol.com
                                               ATTORNEY FOR APPELLANT

                        CERTIFICATE OF COMPLIANCE

       I certify that the foregoing document complies with Texas Rules of Appellate
Procedure, Rule 9 regarding length of documents, in that exclusive of caption,
identity of parties and counsel, statement regarding oral argument, table of contents,
index of authorities, statement of the case, statement of issues presented, statement of
jurisdiction, statement of procedural history, signature, proof of service, certification,
certificate of compliance, and appendix, it consists of 971 words.



                                               /s/Tim Cone
                                               ______________________

                                               TIM CONE
                                               ATTORNEY FOR APPELLANT




                           CERTIFICATE OF SERVICE
                                                                                       14


       This is to certify that a true and correct copy of the foregoing Appellant’s Brief
has been provided to the Honorable Zan Brown, Gregg County Assistant Criminal
District Attorney on October 18, 2015.

                                              /s/Tim Cone
                                              _____________________________
                                              TIM CONE
                                              Attorney At Law
