                                                                                  ACCEPTED
                                                                             03-14-00543-CR
                                                                                    3697154
                                                                   THIRD COURT OF APPEALS
                                                                              AUSTIN, TEXAS
                                                                         1/8/2015 1:02:29 PM
                                                                           JEFFREY D. KYLE
                                                                                      CLERK
                          NO. 03-14-00543-CR

                                 IN THE                      FILED IN
                                                      3rd COURT OF APPEALS
                                                          AUSTIN, TEXAS
                          COURT OF APPEALS            1/8/2015 1:02:29 PM
                                                        JEFFREY D. KYLE
                      THIRD DISTRICT OF TEXAS                 Clerk


                              AUSTIN, TEXAS

KEVIN PICHARDO                     §                       APPELLANT

VS.                                §

THE STATE OF TEXAS                 §                         APPELLEE

               APPEAL FROM THE 167th DISTRICT COURT

                       TRAVIS COUNTY, TEXAS

                      CAUSE NO. D-1-DC-13-203348


                              STATE’S BRIEF


                                       ROSEMARY LEHMBERG
                                       District Attorney
                                       Travis County, Texas

                                       Lisa Stewart
                                       Assistant District Attorney
                                       State Bar No. 06022700
                                       Lisa.Stewart@traviscountytx.gov
                                       AppellateTCDA@traviscountytx.gov
                                       P.O. Box 1748
                                       Austin, Texas 78767
                                       (512) 854-9400
                                       Fax No. (512) 854-4810
Oral Argument Not Requested
                                            TABLE OF CONTENTS



TABLE OF CONTENTS .................................................................................................. 2

INDEX OF AUTHORITIES ............................................................................................ 3

STATEMENT OF THE CASE ........................................................................................ 4

STATEMENT OF FACTS ............................................................................................... 5

NATURE OF APPEAL..................................................................................................... 8

STATE’S RESPONSE TO APPELLANT’S BRIEF ..................................................... 9

          THE STATE AGREES THAT THERE ARE NO MERITORIOUS
          GROUNDS OF ERROR AND THAT THIS APPEAL IS FRIVOLOUS............... 9

PRAYER........................................................................................................................... 10

CERTIFICATE OF COMPLIANCE ............................................................................ 11

CERTIFICATE OF SERVICE ...................................................................................... 11




                                                                 2
                                            INDEX OF AUTHORITIES


Cases

Anders v. California, 386 U.S. 738 (1967) ................................................................................. 8, 9

Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969) ............................................................. 8

High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978)............................................................... 8, 9

Penson v. Ohio, 488 U.S. 75 (1988) ............................................................................................... 9

Stafford v. State, 813 S.W.2d 503 (Tex.Crim.App. 1991).............................................................. 9


Rules

Tex.R.App.Proc. 9.4(e) ................................................................................................................. 10

Tex.R.App.Proc. 9.4(i)(3) ............................................................................................................. 10




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                              NO. 03-13-00543-CR

                                      IN THE

                              COURT OF APPEALS

                          THIRD DISTRICT OF TEXAS

                                AUSTIN, TEXAS

KEVIN PICHARDO                           §                           APPELLANT

VS.                                      §

THE STATE OF TEXAS                       §                             APPELLEE

           APPEAL FROM THE 167TH JUDICIAL DISTRICT COURT

                           TRAVIS COUNTY, TEXAS

                         CAUSE NO. D-1-DC-13-203348



TO THE HONORABLE COURT OF APPEALS:

      Now comes the State of Texas and files its brief in response to the

appellant’s brief.


                         STATEMENT OF THE CASE
      The State charged appellant with assault on a public servant. (CR 11-12).

Appellant waived a jury trial and had a trial before the court. (CR 44). Both sides

presented evidence to the court. (RR II). The trial judge found appellant guilty of



                                         4
resisting arrest and imposed a 10-day sentence.1 (CR 56-57). Appellant timely

filed a pro se notice of appeal. (CR 58-60). The trial court certified appellant’s

right to appeal. (CR 49).


                                STATEMENT OF FACTS
       The State charged appellant with assault on a public servant. The indictment

specifically alleged, in relevant part, that on or about June 16, 2013, appellant

intentionally, knowingly, or recklessly caused bodily injury to Ronald Enriquez by

“grabbing and squeezing [him] on or about the head, and by pushing [him] on or

about the torso,” and that appellant knew Enriquez was a public servant, a peace

officer, lawfully discharging an official duty, to-wit: attempting to arrest appellant.

(CR 11). Appellant pled not guilty to the charged offense. (RR II: 6).

       Austin Police Officer Ronald Enriquez was assigned to patrol the Sixth

Street entertainment district on June 16, 2013. (RR II: 8). During his evening

shift, Enriquez responded to a disturbance call outside of a nightclub called the 512

Bar. (RR II: 8-9). When Enriquez arrived on the scene, a group of police officers

were attempting to separate two large groups of people involved in an altercation

outside the bar. (RR II: 9). The police officers, including Enriquez, determined

1
  The Clerk’s Record contains two copies of the judgment. The first copy, in the Clerk’s Record
at pp. 51-52, incorrectly reflects that appellant pled guilty to the offense of resisting arrest.
Although this judgment is in the record, it does not bear a file stamp. The second judgment, in
the Clerk’s Record at pp. 56-57, correctly reflects that appellant pled not guilty. This judgment
was filed August 11, 2014.

                                                5
the scene was under control and no further officer intervention was required. (RR

II: 10-11). But, appellant2 attempted to reengage into the disturbance instead of

walking away. (RR II: 11). Enriquez announced he was “police” and commanded

appellant to “stay back” and “go home.” (RR II: 11). Enriquez instructed

appellant numerous times to go with his friends and go home for the night. (RR II:

11).

          Appellant, however, appeared highly agitated and angry towards someone

involved in the disturbance. (RR II: 11). Appellant was yelling, screaming, visibly

angry and pulling away from his friends. (RR II: 12). Appellant appeared

intoxicated, was uncooperative, and smelled of alcohol. (RR II: 12). Enriquez told

appellant to turn around and leave, but he wouldn’t. (RR II: 12).

          Enriquez pleaded with appellant’s friends to remove him from the scene.

(RR II: 12). But, appellant struggled with his friends to break free of them and run

back to the disturbance. (RR II: 12). Appellant cursed at Enriquez. (RR II: 12).

At this point, Enriquez decided to arrest appellant for public intoxication to get him

under control. (RR II: 13). As Enriquez grabbed appellant’s arm to place him

under arrest, appellant pulled his arm away in a manner that Enriquez perceived as

threatening. (RR II: 13). Enriquez immediately lunged forward and pushed

appellant against a wall to gain control of him. (RR II: 13). But, Enriquez failed

2
    Enriquez identified appellant in court. (RR II: 10).

                                                   6
to get control of appellant, so he threw him onto the ground. (RR II: 14).

Although Enriquez was on top of appellant who was on the ground on his back,

appellant put Enriquez in a headlock and used his arms to squeeze Enriquez’s head

on his (appellant’s) chest. (RR II: 14).

      Appellant’s friends tried to pull Enriquez off of appellant, but Enriquez

couldn’t move because appellant was holding onto him. (RR II: 15). Enriquez

began to punch appellant in the face, the only available “target,” to try to break free

from appellant’s grip. (RR II: 15-16). Other police officers arrived on the scene

and helped Enriquez break free of appellant’s hold. (RR II: 16). At this point,

Enriquez and two other police officers struggled with appellant and placed him

under arrest. (RR II: 16-17, 19).

      Austin Police Officer Christopher Kelly also responded to the disturbance at

the 512 Bar. (RR II: 37). The scene was very chaotic, and Kelly observed several

officers on the ground with an individual. (RR II: 39).

      In his defense, appellant called his friend Neal James, who had been with

appellant the night of this offense, to testify. James testified that appellant was

calm that night and that the police officers assaulted appellant. (RR II: 88). James

did not see appellant put Enriquez in a headlock or resist arrest. (RR II: 89).

James tried to remove appellant from the situation with the officers. (RR II: 89).




                                           7
James testified appellant was unable to leave the scene, rather than unwilling. (RR

II: 89).

       After argument from both parties, the judge found appellant guilty of the

lesser included offense of resisting arrest, a Class A misdemeanor. (RR II: 98).

The State had no evidence at punishment and deferred to the court. (RR II: 98).

The defense also did not offer any punishment evidence but asked for time served,

which was two days, as punishment. (RR II: 98). The court sentenced appellant to

ten days in jail, with credit for time served, and no fine. (RR II: 98). The court

allowed the balance of appellant’s jail time to be served on the weekends. (RR II:

98).


                               NATURE OF APPEAL
       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), in that it presents a comprehensive review of possible legal

issues in this trial. In her brief, appellant’s counsel states that she has filed a

motion to withdraw along with the brief and requests this Court to permit her to

withdraw if the Court finds the appeal to be frivolous. Appellate counsel also

states in her brief that she has served appellant with a copy of her appellate brief

and advised him of his rights on appeal.

                                            8
              STATE’S RESPONSE TO APPELLANT’S BRIEF

             THE STATE AGREES THAT THERE ARE NO
             MERITORIOUS GROUNDS OF ERROR AND THAT THIS
             APPEAL IS FRIVOLOUS.

      The State agrees with appellant’s counsel that the record does not disclose

any reversible error upon which this Court may grant relief. Appellant’s attorney

has complied with the requirements outlined by Penson v. Ohio, 488 U.S. 75

(1988), and High, 573 S.W.2d 807, supporting a proper examination of the record.

The brief filed by counsel for appellant provides a discussion of the proceedings

contained in the record and makes references to locate testimony and rulings. 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; Penson,

488 U.S. at 80. The State agrees with counsel’s conclusion that this appeal is

frivolous.

      Appellant, having been informed of his counsel’s view that his appeal is

without merit, has an opportunity to submit arguments pro se to rebut the

foregoing conclusions. In the event 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 appellant, or upon the expiration of such time as the court may allow

appellant to file, the State respectfully requests this Honorable Court to determine

that this appeal is wholly frivolous and to affirm appellant’s conviction.


                                          9
      If, however, this Court determines that a particular issue needs to be briefed

more thoroughly, the State asks the Court to appoint new counsel for appellant 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).


                                      PRAYER
      WHEREFORE PREMISES CONSIDERED, the State prays this court to

find that this appeal is frivolous and to affirm the judgment of the trial court.


                                               Respectfully submitted,

                                               ROSEMARY LEHMBERG
                                               District Attorney
                                               Travis County, Texas

                                               /s/ Lisa Stewart
                                               Lisa Stewart
                                               Assistant District Attorney
                                               State Bar No. 06022700
                                               P.O. Box 1748
                                               Austin, Texas 78767
                                               (512) 854-9400
                                               Fax No. (512) 854-4810
                                               Lisa.Stewart@traviscountytx.gov
                                               AppellateTCDA@traviscountytx.gov




                                          10
                       CERTIFICATE OF COMPLIANCE
      Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the State certifies

that the length of this brief is 1,188 words. The State also certifies, pursuant to

Texas Rule of Appellate Procedure 9.4(e), a conventional typeface 14-point was

used to generate this brief.



                                               /s/ Lisa Stewart
                                               Lisa Stewart
                                               Assistant District Attorney



                          CERTIFICATE OF SERVICE
      I hereby certify that, on the 8th day of January, 2015, a true and correct copy

of this brief was served, by U.S. mail, electronic mail, facsimile, or electronically

through the electronic filing manager, Chantal Eldridge, 6526 Needham Lane,

Austin, Texas 78739, celdridge1@austin.rr.com, or FAX: (512) 402-5559.

                                                      /s/ Lisa Stewart
                                                      Lisa Stewart
                                                      Assistant District Attorney




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