                                                                 ACCEPTED
                                                             04-15-00284-CR
                                                 FOURTH COURT OF APPEALS
                                                      SAN ANTONIO, TEXAS
                                                       8/21/2015 12:02:21 AM
                                                              KEITH HOTTLE
                                                                      CLERK


         NO. 04-15-00284

                                             FILED IN
                                      4th COURT OF APPEALS
IN THE TEXAS COURT OF APPEALS          SAN ANTONIO, TEXAS
    FOR THE FOURTH DISTRICT           08/21/15 12:02:21 AM
                                        KEITH E. HOTTLE
                                              Clerk



   KENNETH ALLEN GOETZ

                 V.

     THE STATE OF TEXAS



  On Appeal from the 226th District
   Court Of Bexar County, Texas
    Cause No. 2014-CR- 7400W




         ANDERS BRIEF



        Anthony Martin
       Smith State Bar No.
            18649425
        P.O. BOX 90391
        San Antonio, TX
             78209
       Tel: 210-281-9000
       Fax: 210-247-6176
     Amsmithlaw@gmail.com

       Counsel for Appellant
                 IDENTITY OF PARTIES AND COUNSEL

KENNETH ALLEN GOETZ, TDCJ-ID Div. # 01992891
Appellant-Defendant
TDCJ Garza Unit East, 4304 Highway 202, Beeville, TX 78102

SID HARLE Judge, 226th District Court of Bexar County, TX
RON RANGEL, Judge, 379th District Court of Bexar County, TX
Cadena-Reeves Justice Center, 300 Dolorosa, San Antonio, Texas 78205
Judge Rangel accepted nolo plea on September 4, 2014
Judge Harle granted deferred adjudication October 15, 2014, and on
Motions to Adjudicate Guilt on December 14, 2014 and March 4, 2015

ANTHONY MARTIN SMITH
Counsel for Appellant
P.O. Box 90391
San Antonio, TX 78209

NICOLAS LAHOOD
Bexar County District Attorney's Office
Paul Elizondo Tower
101 W. Nueva, San Antonio, Texas 78205
Counsel for Appellee

MR. DAVID MARTIN
Bexar County District Attorney's Office
Paul Elizondo Tower, 101 W. Nueva, San Antonio, Texas 78205
Counsel for the State at No Contest Plea and Sentencing

DAPHNE PREVETI
Attorney (presently serving as judge, 289th District Court, Bexar County, TX)
600 Mission Rd., San Antonio, TX 78210
Counsel for Defendant on No Contest Plea and Sentencing and re-appointed as
counsel on First Hearing on Motion to Adjudicate Guilt

MS. VELIA J. MEZA
Attorney at Law
4819 San Pedro Avenue, San Antonio, Texas 78212
Counsel for Defendant at Second Motion to Adjudicate Guilt and Sentencing



	                                     2	  
MEREDITH B MACINTIRE
CHARLES CLAYTON HADEN
Bexar County District Attorney's Office
Paul Elizondo Tower, San Antonio, Texas 78205
Counsel for the State at Hearing on Motion to Adjudicate Guilt and Sentencing




	                                      3	  
                     TABLE OF CONTENTS



IDENTITIES OF THE PARTIES AND COUNSEL    2-3

TABLE OF CONTENTS                        4

TABLE OF AUTHORITIES                     5-6

STATEMENT OF THE CASE                    7

STATEMENT REGARDING ORAL ARGUMENT        7

ISSUE PRESENTED                          7

STATEMENT OF FACTS                       8

SUMMARY OF REVIEW                        21

REVIEW UNDER ANDERS                      22

CONCLUSION AND PRAYER                    26

CERTIFICATE OF SERVICE                   27




	                           4	  
                       TABLE OF AUTHORITIES

Federal Cases

Anders v. California, 386 U.S. 738 (1967)……………….    6, 21-22, 26

Miranda v. Arizona, 384 U.S. 486 (1966) ……………….     7


Texas Statutes and Rules

Tex. C. Crim. Proc. art. 1.051 ……………………………          8

Tex. C. Crim. Proc. art. 26.04 ……………………………          8, 21

Tex. C. Crim. Proc. art. 42.01 ……………………………          25

Tex. C. Crim. Proc. art. 42.03 ……………………………          25

Tex. C. Crim. Proc. art. 42.12 ……………………………          11

Tex. C. Crim. Proc. art.42.12, §5(b) ………………………      22

Tex. C. Crim. Proc. art. 44.02 ……………………………..        6, 11

Tex. Gov’t Code Sect. 411.081 ……………………………           9

Tex. Penal C. §29.03 ……………………………………….               8

Tex. R. App. Proc. 6.3 ………………………………………              27

Tex. R. App. Proc. 9.5 ……………………………………...            27

Tex. R. App. Proc. 25.2(a)(2) ………………………………          6, 11, 23

Tex. R. App. Proc. 25.2(b)(3)(B) & (C) …………………….    15

Tex. C. Crim. Proc. art. 42.12, § 5(b) ……………………….   6

Tex. C. Crim. Proc. arts. 44.01(j) ……………………………      6




	                                5	  
TEXAS CASES

Davis v. State, 195 S.W.3d 708 (Tex. Crim. App. 2006) ……..     22-23

Hogans v. State, 176 S.W.3d 829 (Tex. Crim. App. 2005) ……      22-24

Olowasuko v. State, 826 S.W.2d 940 (Tex. Crim. App. 1992) ..   23




	                                     6	  
                               STATEMENT OF THE CASE

           This is a brief filed pursuant to Anders v. California, 386 U.S. 738 (1967)

concerning the trial court’s adjudication of appellant’s guilt following his plea of

true to several alleged violations of his community supervision. The court imposed

a sentence of 5 years, Texas Department of Criminal Justice Institutional Division.

After a conscientious examination of the record and consideration of any potential

legitimate arguable basis for permissible appeal under Tex. C. Crim. Proc. 44.02

and Tex. R. App. Proc. 25.2(a)(2), counsel concludes there are no non-frivolous

issues by which Appellant can in good faith seek appellate relief herein.


                    STATEMENT REGARDING ORAL ARGUMENT


             In light of the considerations identified in Tex. R. App. Proc. a r t . 39.1-.2,

       oral argument is unnecessary thus not requested by Appellant’s counsel.

                                    ISSUES PRESENTED

           Whether there are any non-frivolous and potentially meritorious legally

supported arguments to present on appeal concerning the trial court’s adjudication

of guilt and imposition of sentence in the underlying cause.




	                                              7	  
                                                                                                                                                                          STATEMENT OF FACTS

                                   On June 18, 2014, Bexar County Sherriff’s deputies responded to a call

from Tammy Ivy complaining her 17-year-old son, Appellant Goetz, who lived

with his mother, exhibited a knife during the course of demanding and obtaining

money from her, and then fled the residence. 1 CR 16-19, 31-34. On June 19,

2014, a deputy was dispatched to a residence at Goetz’s residence where Appellant

was apprehended and placed in custody for aggravated robbery of Ivy that

occurred on June 18, 2014. 1 CR 18 Goetz was read and acknowledged his

Miranda1 rights on video, and provided the following information,

                                                                       The defendant explained he got a phone call from a gang member and
                                                                       was reminded he owed money for drugs. The defendant was told he
                                                                       needed to pay or they were going to kill everyone there at his
                                                                       residence. The defendant admitted to "pulling a knife" on his mother
                                                                       (the complainant). The defendant had the knife in his hand, as he told
                                                                       the complainant he needed cash and the car keys, or he was going to
                                                                       kill her. The defendant stated the knife he used as a " kitchen knife" or
                                                                       " steak knife." The defendant took $160.00 dollars and the left the
                                                                       residence in the complainant' s car. 1 CR 18

                                   On September 4, 2014, Goetz appeared in court with his appointed attorney

who signed a Discovery Acknowledgment. See Art. 36.19, Tex. C. Crim. Proc. 1

CR 36-38 and Goetz, his counsel, and the prosecutor executed the following

documents, as applicable, in connection with Goetz’s negotiated plea of nolo

contendere to aggravated robbery:


	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
1
           See Miranda v. Arizona, 384 U.S. 486 (1966)

	                                                                                                                                                                                                                                 8	  
       1. WAIVER OF INDICTMENT, READING OF INFORMATION
          AND RIGHTS UNDER ARTICLE 1.051 AND 26.03 C.C.P

       In this document, in which Goetz and counsel acknowledged but waived

Goetz’s right to wait for the Grand Jury to consider his case and decide if there was

sufficient probable cause to return a True Bill of Indictment, Goetz decided to

proceed on an Information setting for the charge without Grand Jury participation.

See 1 CR 5

       2.    COURT'S ADMONISHMENT AND DEFENDANT'S WAIVERS
             AND AFFIDAVIT OF ADMONITIONS (“Court’s Admonishment”)

       By this document the court admonished Goetz in relevant part, (1) the

charge against him: Aggravated Robbery, Tex. Penal C. §29.03, a first degree

felony, (2) the applicable range of applicable punishment: 5-99 years or life

imprisonment and (3) explained to Goetz his statutory and constitutional rights,

and with respect to deferred adjudication community supervision,

              If the Court defers adjudicating your guilt and places you under
              community supervision, on violation of any condition you may be
              arrested and detained as provided by law. You are then entitled to a
              hearing limited to a determination by the Court of whether to proceed
              with an adjudication of guilt on the original charge. If, at such hearing,
              the Court makes the determination to proceed with an adjudication of
              guilt on the original charge, you may appeal such determination. After
              adjudication of guilt, all proceedings including the assessment of
              punishment and your right to appeal continue as if adjudication of
              guilt had not been deferred. The Court is also able to assess the full
              range of punishment. You are hereby informed that, upon successful
              completion of deferred adjudication, you have a right to petition the
              court for an order of nondisclosure under Section 411.081,
              Government Code, unless you are ineligible because of the nature of

	                                         9	  
                                  the offense for which you are being placed on deferred adjudication or
                                  your criminal history. 1 CR 7-11

                 Once Goetz signed this document, he also waived certain legal rights in

exchange for entering into a plea agreement with the State of Texas, including the

right to appeal if the court follows the plea agreement, the details of which are

specified in the attached written document entitled, “PLEA BARGAIN.” Id.

Appellant Goetz signed the “Court’s Admonishment,” including the attached

“PLEA BARGAIN” agreeing to plead of Nolo Contendere to the charge of

Aggravated Robbery in exchange for a recommendation to the court that Goetz

receive a five (5) years deferred adjudication, a fine of $1,000, and require Goetz

comply with listed requisite conditions of community supervision, including a

TAIP2 evaluation, MIC evaluation,3 and a minimum period of in-patient treatment.

See 1 CR 7-11.

                 In the PLEA BARGAIN Appellant also agreed, as follows:

                                  I, the undersigned Defendant, together with my counsel and counsel
                                  for the State, agree that in exchange for the Defendant's agreement to
                                  plead guilty or nolo contendere, to allow the State to prove its case by
                                  means of written stipulations. The State may make recommendations
                                  regarding punishment; however, it is understood by all that even in the
                                  event the parties agree to recommend specific conditions and terms of
                                  community supervision or deferred adjudication or the length of
                                  supervision that such recommendations are not part of the formal plea

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
2
           TAIP = Treatment Alternatives to Incarceration Evaluation
3
           MIC- Bexar County Department of Community Supervision Specialty Caseload for Mentally
Impaired Offenders and MIOF - Mentally Impaired Offender Facility when placement is needed
to address the mental health concerns of mentally impaired offenders on community supervision

	                                                                                                          10	  
               agreement and are not binding on the Court. All parties understand
               and agree that the terms, conditions and length of supervision of
               community supervision or deferred adjudication are to be determined
               and assessed solely within the Court's discretion. It is further
               understood and agreed by the parties that in the event the Court
               assessed terms, conditions and or a length of supervision of
               community supervision or deferred adjudication different from those
               agreed to by the parties, that such difference shall not constitute
               grounds for setting aside the Defendant's plea in this cause. If the
               court grants deferred adjudication, the State does not recommend any
               term of years as part of the plea agreement. All parties agree that if
               deferred adjudication is subsequently revoked, Defendant may be
               sentenced to any term of years within the range of punishment
               provided by law for this offense. 1 CR 11

       The PLEA BARGAIN further advised concerning WAIVER OF APPEAL,

as follows:

              I understand that upon my plea of nolo contendere, where the
              punishment does not exceed that recommended by the prosecutor and
              agreed to by me, my right to appeal will be limited to only: (1) those
              matters that were raised by written motion filed and ruled on before
              trial, or (2) other matters on which the trial court gives me permission
              to appeal. I understand that I have this limited right to appeal. However,
              as part of my plea bargain agreement in this case, I knowingly and
              voluntarily waive my right to appeal under (1) and (2) in exchange for
              the prosecutor's recommendation, provided that the punishment
              assessed by the court does not exceed our agreement. In addition, if and
              when I am sentenced to the Texas Department of Criminal Justice on
              this case, I hereby request transfer to said institution.

              1 CR 7-11.

       3.     WAIVER. CONSENT TO STIPULATION OF TESTIMONY AND
              STIPULATIONS

       By this document, Goetz allowed the trial court to review attached reports

from the prosecution to consider whether the evidence sufficiently substantiated

	                                          11	  
Goetz’s nolo contendere plea and also included a judicial confession by Goetz to

the charged offense of Aggravated Robbery. 1 CR 12-15

                 4.               APPLICATION FOR DEFERRED ADJUDICATION OR
                                  COMMUNITY SUPERVISION (NON JURY)

                 By this document, Goetz applied for deferred adjudication or in the

alternative regular community supervision under Tex. C. Crim. Proc. art. 42.12,

Tex. C. Crim. Proc. 1 CR 39

                 5.               TRIAL COURT'S CERTIFICATION OF DEFENDANT'S
                                  RIGHT OF APPEAL

                 By this document dated October 15, 2015, that Goetz, his counsel, and the

trial judge executed, the Court certified that Goetz’s case is a “plea-bargain case,

and Goetz has NO right of appeal.”4 1 CR 43

                 On September 4, 2014, the above documents were filed with the Bexar

County District Clerk and Goetz appeared before the judge with counsel and pled

nolo contendere to Aggravated Robbery, the charge contained the Information. 1

CR 6

            On October 15, 2014, the case reconvened for sentencing and prior to

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
4
           *"A defendant in a criminal case has the right of appeal under Code of Criminal Procedure
Article 44.02 and these rules. This trial court shall enter a certification of the defendant's right of
appeal each time it enters a judgment of guilt or other appealable order. In a plea bargain case ~
that is, a case in which a defendant's plea was guilty or nolo contendere and the punishment did
not exceed the punishment recommended by the prosecutor and agreed to by the defendant ~ a
defendant may appeal only: (A) those matters that were raised by written motion filed and ruled
on before trial, or (B) after getting the trial court's permission to appeal." TEXAS RULE OF
APPELLATE PROCEDURE 25.2(a)(2). Id.

	                                                                                                          12	  
granting Goetz’s Application for Deferred Adjudication, the Court received a

Supplemental Report indicating because of Goetz’s age, he was not yet eligible for

the MIC or MIOF programs, 5 but recommending Goetz’s continued treatment

through the Center for Health Care Services where he had been diagnosed for

mental illness and received past treatment. 1 CR 40. The court then granted

Goetz’s Application for Deferred Adjudication, and entered an Order of Deferred

Adjudication and ordered Goetz into the Bexar County CSCD Violators Facility –

(Zero Tolerance Program) and for a Medical Screening. 1 CR 41-42, 48. Goetz, a

probation officer, and the judge executed the “Terms and Conditions of

Community Supervision” applicable to Goetz’s case. See 1 CR 44-47

               First Motion to Enter Adjudication of Guilt

               On October 30, 2014, the State filed its first “Motion to Enter Adjudication

of Guilt and Revoke Community Supervision (Adult Probation)” against Goetz

alleging he violated community supervision condition #1 by (a) committing the

offense of Aggravated Assault on October 28, 2014; (b) committing the offense of

Assault on October 28, 2014; (c) committing the offense of Terroristic Threat on

October 28, 2014; and (d) possessed a weapon, to-wit, a knife on October 28, 2014.

1 CR 48-50 The Court issued a warrant for Goetz on October 30, 2014 and

appointed counsel Daphne Previti to represent him on October 31, 2014. 1 CR 50-

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
5
           MIC – Mentally Impaired Caseload; MIOF – Mentally Impaired Offender Facility

	                                                                                                                            13	  
51

        On December 12, 2014, the Court entered its Order Amending Goetz’s

Conditions of Community Supervision, as follows:

              Condition 33 Comply with mental health treatment plan within 30
days.

              Condition 34 General Order You will neither contact nor attempt to
              contact Brandon Ivy nor any of his/her family members in person,
              verbally, telephonically, in writing or in any other manner, and should
              you find yourself inadvertently in contact with said individual, you
              will immediately leave and not threaten, assault, or verbally abuse
              him/her.

              Condition 35 Beginning I 0/15/14, report to, apply for, provide
              documentation of attendance and comply with all rules, regulations,
              instructions and financial agreements, as directed by the Court and/or
              Supervision Officer and/or the head of or authorized personnel of the
              following program: GPS- Recovery Healthcare, 210-229-1495.
              ******30 days

              Condition 36: Must reside with father at 367 E Hutchin's (sic) Place,
              SATX 78221.

              Condition 37: Must enroll in school within 30 days.

              All other terms and conditions of the original Order of community
              supervision dated the 15th day of October, 2014, shall remain in full
              force and effect as heretofore ordered.

        The judge, Goetz, and the supervision officer signed the Order. See 1 CR 52

        On January 5, 2015, the Bexar County Community Supervision Officer

filed a “Violation Report” alleging Goetz violated the following:

              [X] Condition 5 Failed to report on 12/29/14 as instructed.



	                                       14	  
            [X] Condition 35 Failed to Comply with GPS Monitoring.

            [X] Condition 36 Failed to Reside with Father, as ordered by
                Court.

            COMMENTS: Offender Goetz was placed on his GPS monitor on
            12/23/14. Offender Goetz cut off his monitor 12/27/14 and it was
            found by a store clerk and turned into the San Antonio Police
            Department. Offender Goetz's whereabouts are currently unknown
            and all attempts to locate him have failed. Prior to his GPS removal,
            he called to inform this officer that he moved out of his dad's house
            and was living with his mother (his victim). This address change was
            not approved by this officer or the Court. See 1 CR 53

       Also, on January 5, 2014, the State filed its second Motion to Enter

Adjudication of Guilt and Revoke Goetz’s Community Supervision (“Second

Motion”) asserting the following:

            Defendant violated the terms and conditions therein in the following
            particulars, to-wit:

            VIOLATED CONDITION N0.5: In Bexar County, Texas, the
            defendant, Kenneth Allen Goetz, did then and there fail to report in
            person to the Supervision Officer, as instructed, for the day of
            December 29, 2014, in violation of Condition No. 5.

            VIOLATED CONDITION N0.35: On or about the 27th day of
            December, 2014, in Bexar County, Texas, the defendant, Kenneth
            Allen Goetz, did then and there violate the rules and regulations of the
            GPS Program, in that the defendant cut off the device, in violation of
            Condition No, 35.

            VIOLATED CONDITION NO. 36: On or about the 23'' day of
            December, 2014, in Bexar County, Texas, the defendant, Kenneth
            Allen Goetz, failed to reside at the address of 367 E. Hutchin's (sic)
            Place San Antonio, TX 78221 (with his father), as mandated by the
            Court, in violation of Condition No. 36.



	                                      15	  
                                     1 CR 54

                  Hearing on Second Motion to Enter Adjudication of Guilt

                  On April 2, 2015, Goetz appeared at the hearing concerning the Second

Motion to Enter Adjudication of Guilt, and with his counsel, Velia Meza, present,

the court provided Goetz with the “Trial Court’s Certification of Defendant’s Right

to Appeal,” informing Goetz, “I, judge of the trial court, certify this criminal case:

is an adjudication of guilt following a deferred adjudication, and the defendant has

a limited right of appeal.”6 1 CR 55 The judge, Goetz, and his counsel signed this

document. Id.

                  Thereafter during the hearing, the following exchange occurred:

                                     THE COURT:                                              State of Texas versus Kenneth Goetz, 2014-CR-
                                                                                             7400W, aggravated robbery. Originally a 5-year
                                                                                             deferred adjudication. Motion on December 14th,
                                                                                             continued on deferred adjudication. We're here on
                                                                                             a motion to revoke and enter adjudication of guilt.
                                                                                             Violation of condition 5, failing to report.
                                                                                             Allegation 35, rules and regulations of the GPS
                                                                                             was violated. Allegation, the device was cut off.
                                                                                             And violation 36 failed to remain at the residence.
                                                                                             How are we going to proceed?

                                     MS. MEZA:                                               Your Honor, my client would like to plead true to
                                                                                             the allegations with an explanation as to each.

                                     THE COURT:                                              All right. So plead true to all three?

                                     MS. MEZA:                                               Yes, Judge.
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
6
           The document advises defendants their limited appellate rights under Tex. R. App. Proc.
25.2(b)(3)(B) & (C).

	                                                                                                                   16	  
             THE COURT:         State's recommendation?

             MR. MARTIN:        Revocation.

             1 RR 3

       The defense called its first witness: Tammy Ivy, Goetz’s mother and the

complainant in the original charge who advised Goetz is bipolar and ADHD since

4 years of age, medicated since age 8, under mental health care with the Center for

Health Care Services, explaining he had returned to live with her rather than his

father as ordered because his father did not believe in Goetz taking his needed

medications and because his father has a drinking problem, thus predicating Goetz

leaving his home and violating one of the conditions of his probation. 1 RR 4-6, 8

Witness Ivy assured the court she would supervise Goetz and assure his

compliance with conditions of community supervision if the court gave Goetz

another opportunity to continue on deferred adjudication. See 1 RR 6-7.

       The defense called its last witness: Goetz who sought to explain his actions

in violating his conditions of community supervision, as follows:

                   Q.    Now, Kenneth, you don't deny that you failed to
                         Report in December; correct?

                   A.    No, ma'am.

                   Q.    And you don't deny that you took off the GPS
                         monitor?

                   A.    No, ma'am, I don't.

	                                      17	  
                   Q.   Now, looking back was that a good idea or a bad
                        idea?

                   A.   Very bad.

                   Q.   And are you sorry that did you that?

                   A.   Very.

                   Q.   And what about not living with your dad, what was
                        happening, why did you stop living there?

                   A.   Well, my dad, he's cool and everything when he
                        don't drink, but when he starts drinking he starts
                        changing to another person.

                   Q.   And what happens when he drinks and changes to
                        another person, what is his behavior like towards you?

                   A.   Verbally -- verbally abusive.

                        1 RR 10

       THE COURT:       Okay. Somebody refresh my memory -- yeah, let's
                        concentrate on what we got here. There was some reason
                        why you didn't go to the mother to begin with.

       MS. JANE:        He didn't go where?

       THE COURT:       There was some reason why we jumped through a bunch
                        of hoops to get him with his father, had to go through the
                        federal probation or supervised release to get him to his
                        father and I'm assuming that there was a problem that he
                        couldn't go to his mother then. Probably because she was
                        the alleged victim in the ag robbery, there was something
                        about a fight at that home with a family member. So why
                        -- can somebody tell me why he wasn't with the mother
                        since apparently it's so wonderful now? Back then why
                        did we have to jump through all those hoops?

	                                     18	  
       MS. JANE:    Judge, I -- all I can remember, I don't think the mother at
                    that point she was not coming in and I don't think she
                    wanted him to stay there.

       THE COURT:   Yeah, I'm trying to remember why. I'm guessing is
                    because she was a victim of an aggravated robbery. But -
                    - but it would be easier if -- my memory would be a lot
                    clearer if we were dealing with all these issues at the
                    original hearing, but how -- how long did it take us from
                    the time he cut off his monitor to get him into custody.

       MS. MEZA:    Thirty-nine days.

       THE COURT:   And how did that happen, did you finally feel bad about
                    it and turn yourself in?

       DEFENDANT:   No, sir, I was planning on turning myself in the next day
                    but they had picked me up -- they had picked me up the
                    day before.

       THE COURT:   Well, that's kind of coincidental.

       DEFENDANT:   Yes, sir.

       THE COURT:   Why was it going to be on the 40th day you were going
                    to turn yourself in?

       DEFENDANT:   I wasn't counting days, sir. I was scared, honestly, I know
                    I cut it off and I was very --

       THE COURT:   Well, anything else that anybody wants to argue? I'm
                    ready to go.

       MS. MEZA:    Yes, Judge. Your Honor, during the original PSI, I saw
                    some notes there that you had ordered him to be
                    evaluated for MIOF.

       THE COURT:   Yeah.



	                                 19	  
       MS. MEZA:     And that was never done.

       THE COURT:    Well, no, he's not eligible. Age.

       MS. MEZA:     He's not eligible.

       THE COURT:    We had no -- we had no programs for him, I remember
                     that being a significant frustration back then, but because
                     of his age he had no ability to go to any of those
                     programs.

       MS. MEZA:     Right. And I do believe that he can continue with a good
                     regimen of meds through the Center for Health Care
                     Services at least until he turns 18, which is 26 days away
                     now. I don't think he belongs in prison, Judge, I think that
                     unfortunately he has been caught in the middle of two
                     parents who have never gotten along for a very long time
                     and if there was a way to put him in foster care I would
                     recommend that to the Court because I just don't see that
                     either parent is going to help him succeed at probation.
                     But I understand the mother, I believe her that she wants
                     to help him this time succeed, but the key here for him to
                     succeed is for him to have the appropriate meds. And by
                     his own admission, his thought process is clearer when
                     he is on his meds which means will lead to better
                     decision-making. And unfortunately, this has been his
                     life since he was in third grade, 10 years old, and
                     probably lived in the middle of a lot of conflict between
                     the parents. So I think the issue is the meds, I don't think
                     that he was on his meds at the time that he made the
                     decision not to report, to cut off the GPS and not to live
                     with his dad. So I'm asking that you deny the motion and
                     that you continue him on deferred, Your Honor.

       THE COURT:    Okay, State.

       MR. MARTIN:   Judge, we're just asking that you revoke his community
                     supervision for the safety of the community. He was
                     placed on deferred on October 15th of 2014 and less than
                     two weeks later he picked up an assault case that was the

	                                  20	  
                    subject of his first MTR. He was placed on a GPS
                    monitor on December 23rd, 2014, and four days later he
                    cut off his monitor. Any programs that would be
                    available to him are not available for 26 days and he's
                    already shown that it doesn't take him very long to make
                    bad decisions that could potentially hurt people. And
                    we're going to ask the court to revoke his community
                    supervision and impose a sentence in the Texas
                    Department of Criminal Justice.

       THE COURT:   Well, sir, you know, I can't remember us trying as hard to
                    help somebody over the immense objection of the
                    prosecutors in a case like this, ever, because the
                    prosecutor was adamant that you wouldn't live up to
                    anything that I put you on and, guess what, she was right.
                    She was absolutely right. And we jumped through a were
                    going to live up to your promises. I have to have a little
                    degree of trust in somebody before I put them on
                    probation, even when the State recommends deferred
                    adjudication on an aggravated robbery, which I could
                    have just rejected out of hand because that's extremely
                    unusual. But I went along with that and then when you
                    rewarded that with immediately coming back in with
                    another motion and then having another hearing and
                    going through hoops to get you placed, you've let us
                    down every single time. So I have zero trust. And having
                    zero trust I cannot continue you on community you guilty
                    of the original offense. And as I warned you time and
                    time again, this is a first degree felony where you're
                    subject to life imprisonment on a 3G offense. But under
                    the circumstances, I'm going to give you the minimum,
                    five years, therapeutic community, and hopefully when
                    you get out your family issues will be resolved or you
                    will be old enough, frankly, to be on your own. You're
                    old enough now, but it's time for you to get away from
                    them and just do your own thing. Credit for any time
                    you've been incarcerated. Good luck.

                    (Proceedings concluded.) 1 RR 16



	                                21	  
                                                      On April 7, 2015, the trial court signed “Judgment Adjudicating Guilt,”

noting “No Plea Bargain Agreement,” Goetz entered plea of True to violations 5,

35, and 36 as set out in the State’s Motion to Adjudicate, the court found such

violations true, and sentenced Goetz to five years in the Texas Department of

Criminal Justice – Institutional Division with back time credit including June 20,

2014 to October 15, 2014, November 1, 2014 to December 6, 2014, and January 24,

2015 to April 2, 2015. 1 CR 56-57

                                                      On May 4, 2015, Goetz through counsel, Velia Meza, filed his Notice of

Appeal. 1 CR 58. Under Tex. C. Crim. Proc. art. 26.04, on May 5, 2015, counsel

was appointed to pursue Goetz’s appeal. 1 CR 59 On May 7, 2004, the Bexar

County District Clerk filed its Certification of Notice of Appeal to the Fourth Court

of Appeals. 1 CR 617

                                                                                                                                                                                                                                   SUMMARY OF REVIEW

                                                      Counsel herein has carefully reviewed the record in relation to applicable

standards of review, controlling statutes, and case law, and counsel’s review

reflects there are no non-frivolous issues to present in a good faith appeal, thus

counsel presents below his review under Anders v. California, 386 U.S. 738, 744

(1967)(hereinafter referred to as “Anders”).
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
7
  Counsel notes that the Clerk’s Certificate of Notice of Appeal indicates by its check mark in #7 of the document
that “[t]he trial held was plea of guilt/nolo contendere to the court – negotiated plea agreement followed by the
court” although the appeal resulted from the court’s rulings on a motion to revoke community supervision. Although
this creates an apparent conflict concerning Appellant’s appellate rights, counsel herein disregards the Clerk’s
Certificate as a defect in the record, and that the Trial Court’s Certification of Right of Appeal controls concerning
determination of jurisdiction of this court of appeals and Appellant’s right to appeal.


	                                                                                                                                                                                                                                        22	  
                           REVIEW UNDER ANDERS

       Appellant filed a general Notice of Appeal herein. 1 CR 58 With regard to

deferred adjudication form of community supervision, the Texas Legislature has

authorized appeal of only two types of orders:

       (1) an order granting deferred adjudication and

       (2) an order imposing punishment pursuant to an adjudication of guilt. See

Tex. C. Crim. Proc. arts. 44.01(j) and 42.12, § 5(b)

       Thus, only certain aspects of a deferred adjudication proceeding are

appealable. Unlike "regular" probation or community supervision, the Legislature

specifically barred appeal from the determination to adjudicate. Davis v. State, 195

S.W.3d 708, 710 (Tex. Crim. App. 2006). Under Tex. C. Crim. Proc., art. 42.12,

§5(b), if a defendant violates a condition of deferred adjudication community

supervision, he is entitled to a hearing "limited to the determination by the court of

whether it proceeds with an adjudication of guilty on the original charge. Davis,

195 S.W.2d at 810; also see Hogans v. State, 176 S.W.3d 829, 832 (Tex. Crim.

App. 2005). Yet, no appeal may be taken from this determination. See id.

       The record herein reflects that the court below held the hearing on whether

to proceed with an adjudication of guilt on Goetz’s original charge of aggravated

robbery. 1 RR 3-16.




	                                       23	  
       The hearing was unitary in that the court listened to the evidence from which

it decided both (1) whether to adjudicate guilt and revoke Goetz’s deferred

adjudication and (2) the type of sentence, including incarceration and the period of

incarceration. Counsel has not discerned any proscription under law barring the

trial court from conducting the hearing in this manner.

       Concerning the trial court’s determination to proceed to enter an

adjudication of guilt on Goetz’s original charge of Aggravated Robbery, no appeal

may be taken from such determination. See Davis, 195 S.W.3d at 810. Moreover,

since the Goetz’s plea of nolo contendere to the Aggravated Assault charge was

made in exchange for the recommended punishment of deferred adjudication and

the court followed the plea bargain, and did not give its permission to appeal nor

were any motions filed by the defense and ruled on, Appellant has no right of

appeal. See Tex. C. Crim. Proc. art. 44.02; Tex. R. App. Proc. 25.2(a)(2)

       Concerning the matters following the trial court’s adjudication of Goetz’s

guilt, Appellant may still seek to appeal a legally supported error relating to his

punishment following an adjudication of guilt and revocation of deferred

adjudication. See Hogans 176 S.W.3d at 840; also see Olowasuko v. State, 826

S.W.2d 940, 942 (Tex. Crim. App. 1992)(“Article 42.12 § 5(b) expressly allows an

appeal of all proceedings after adjudication of guilt on the original charge.”)	   This




	                                        24	  
generally means that a defendant such as Appellant herein is allowed to appeal

punishment related issues. See Hogans, 176 S.W.3d at 840.

       With specific regard to Appellant’s punishment in the case at bar, the

evidence relevant to adjudication and punishment as seen in and summarized from

the Statement of Facts shows:

       (1)    Goetz pled true to all alleged violations;

       (2)    Goetz testified explaining his reasons for the violations;

       (3)    Goetz’ mother testified on behalf offering mitigating evidence;

       (4)    The court took notice this was a second Motion to Enter Adjudication
              of Guilt (filed January 6, 2015 - less than 3 months from the date the
              court granted Goetz deferred adjudication on October 15, 2014);

       (5) The court had previously continued Appellant on deferred adjudication
            on December 12, 2014, denying the State’s first Motion to Adjudicate
            Goetz’s Guilt filed October 30, 2014 related to earlier violations of his
            community supervision less than two weeks after the court granted
            Goetz deferred adjudication);

       (6)   Counsel for both sides freely argued their respective positions.

       As seen in the Statement of Facts, once such evidence was presented for the

court’s consideration, the judge asked additional questions of Goetz and the

probation officer and expressed frustration and dismay at Appellant once again

having violated his community supervision following the court’s recent leniency in

responding to the State’s first motion to enter adjudication of guilt and revoking

community supervision by continuing Appellant on deferred adjudication in



	                                        25	  
December 2014 following Appellant’s violating community supervision in October

2014. 1 RR 15-16, 1 CR 1

       Regarding Appellant’s punishment, Texas law requires that a defendant's

sentence must be pronounced orally in his presence. Tex. C. Crim. Proc.	   art.

42.03(1); Taylor v. State, 191 S.W.3d 187 (Tex. Crim. App. 2004) Moreover, the

Judgment must comply with Tex. C. Crim. Proc. art. 42.01.

       In Mr. Goetz’s case, the court imposed a sentence of 5 years incarceration in

a therapeutic program within the Texas Department of Criminal Justice,

Institutional Division. 1 RR 16 The possible range of punishment available to the

court in sentencing Appellant was between the minimum of 5 years and the

maximum of 99 years or life in prison. 1 CR 7 The court imposed a minimum

sentence of 5 years incarceration upon Appellant at the lowest end of the

applicable statutory range of punishment. 1 CR 56-57, 1 RR 16 Moreover, in

accord with Tex. C. Crim. Proc. art. 42.03, Appellant’s sentence was pronounced

orally with Appellant present and the Judgment substantively fulfills the

requirements of Tex. C. Crim. Proc. art. 42.01. Accordingly, no good faith error

can be claimed based on the court’s action relating to Appellant’s sentence, thus

there are no non-frivolous issues subject to appeal herein.




	                                       26	  
                         CONCLUSION AND PRAYER

       Following a careful review of the record in relation to the statutory

requirements and interpretive case law, counsel has concluded that there are no

non-frivolous issues to appeal herein.

       Appellant may however submit his own appeal if he desires in accord with

the instruction of Anders v. California and counsel will so advise Mr. Goetz of his

option to do so. Accompanying this brief is counsel’s motion to withdraw.


                                                               Respectfully submitted,


                                         LAW OFFICES OF ANTHONY M. SMITH



                                                   By:___________________________
                                                                   Anthony M. Smith
                                                                     SBN# 18649425
                                                           4801 Broadway, No. 90391
                                                              San Antonio, TX 78209
                                                                  Ofc: 210-281-9000
                                                                  Fax: 210-247-6176
                                                               Attorney for Appellant




	                                        27	  
                            CERTIFICATE OF SERVICE

       As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d),(e), I
       certify that on August 17, 2015, I have served this document by first class mail
       on Appellant TDCJ # 01992891 Garza East Unit, 4304 Hwy. 202, Beeville, TX
       78102 and electronically through E-FileTexas upon Appellee's counsel,
       Rico Valdez, Assistant Criminal District Attorney, 300 Dolorosa, Ste. 5030 San
       Antonio, TX 78205.

                                                       /S/ Anthony Martin Smith
                                                           Anthony Martin Smith




	  
	  




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