                                                                              ACCEPTED
                                                                         04-14-00370-CR
                                                              FOURTH COURT OF APPEALS
                                                                   SAN ANTONIO, TEXAS
                                                                    2/20/2015 2:48:45 PM
                                                                           KEITH HOTTLE
                                                                                  CLERK

        NO. 04-14-00372-CR and 04-14-00370-CR

        IN THE COURT OF APPEALS FOR THE           FILED IN
                                           4th COURT OF APPEALS
            FOURTH DISTRICT OF TEXAS        SAN ANTONIO, TEXAS
                SAN ANTONIO, TEXAS         2/20/2015 2:48:45 PM
            ______________________________   KEITH E. HOTTLE
                                                      Clerk
              ANDRES RAMON JUAREZ,
                     Appellant

                            v.

               THE STATE OF TEXAS,
                      Appellee
           ______________________________

ON APPEAL FROM THE 175th JUDICIAL DISTRICT COURT
            OF BEXAR COUNTY, TEXAS
    CAUSE NUMBERS 2013CR0936B and 2013CR0937B
           ______________________________

               BRIEF FOR THE STATE
           ______________________________

             NICHOLAS “NICO” LAHOOD
               Criminal District Attorney
                 Bexar County, Texas

                   LAUREN A. SCOTT
          Assistant Criminal District Attorney
                   Bexar County, Texas
                   Paul Elizondo Tower
                   101 W. Nueva Street
                San Antonio, Texas 78205
      Phone: (210) 335-2885 Email: lscott@bexar.org
                 State Bar No. 24066843

             Attorneys for the State of Texas
            IDENTITY OF PARTIES AND COUNSEL


TRIAL COURT                 Honorable Mary Roman

APPELLANT                   Andres Ramon Juarez

APPELLANT’S                 Marvin Zimmerman
TRIAL ATTORNEY              State Bar No: 22271000
                            P.O. Box 760468
                            San Antonio, TX 78246
                            (210) 494-1919

APPOINTED ATTORNEY          Richard Dulany
ON APPEAL                   Public Defender’s Office
                            (Has filed motion to withdraw)

TRIAL STATE’S               Jason Garrahan
ATTORNEY                    State Bar No. 24045920
                            Emily (McCready) Angulo
                            State Bar No. 24010707

APPELLATE STATE’S          Lauren A. Scott
ATTORNEY                   State Bar No. 24066843
                           Assistant Criminal District Attorney
                           Paul Elizondo Tower
                           101 W. Nueva Street
                           San Antonio, Texas 78205
                           (210) 335-2885
                           Email: lscott@bexar.org




                           ii
                                    TABLE OF CONTENTS
                                                                                                    Page

IDENTITY OF PARTIES AND COUNSEL ................................................. ii

TABLE OF CONTENTS............................................................................... iii

INDEX OF AUTHORITIES ......................................................................... iv

BRIEF FOR THE STATE .............................................................................. 1

STATEMENT OF THE CASE ...................................................................... 1

STATEMENT OF FACTS ............................................................................. 2

SUMMARY OF THE ARGUMENT ............................................................. 4

There is no evidence in the record to support appellant’s allegations that he
received ineffective assistance of counsel.

ARGUMENT .................................................................................................. 4

SUMMARY OF STATE’S CROSS POINT ON APEAL ............................. 7

The trial court should not have granted Juarez’s request to appeal because
his waiver was made voluntarily, knowingly, and intelligently.

STATE’S CROSS POINT ON APPEAL ....................................................... 7

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

CERTIFICATE OF COMPLIANCE AND SERVICE ................................ 11




                                                       iii
                              INDEX OF AUTHORITIES
                                                                                     Page(s)
Cases

Ex parte Broadway, 301 S.W.3d 694 (Tex. Crim. App. 2009) ...................... 8

Ex parte Delaney, 207 S.W.3d 794 (Tex. Crim. App. 2006) ......................... 8

Jackson v. State, 973 S.W.2d 954 (Tex. Crim. App. 1998) ........................... 5

Marsh v. State, 444 S.W.3d 654 (Tex. Crim. App. 2014) .............................. 7

Mendez v. State, 138 S.W.3d 334 (Tex. Crim. App. 2004) ............................ 6

Monreal v. State, 99 S.W. 3d 615 (Tex. Crim. App. 2003)............................ 8

Moreno v. State, 721 S.W.2d 295 (Tex. Crim. App. 1986) ............................ 7

Strickland v. Washington, 466 U.S. 668 (1984) ............................................. 4

Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) ........................ 4, 5

Statutes

Tex. Code Crim. Proc. Ann. Art. 1.13 (West 2005) ....................................... 8

Tex. Penal Code Ann. § 12.42(c)(1) ............................................................... 8

Tex. Penal Code Ann. § 29.03 (West 2011) ................................................... 2




                                                iv
                    NO. 04-14-00372-CR and 04-14-00370-CR

ANDRES RAMON JUAREZ                     §       IN THE FOURTH DISTRICT
                                        §
                                        §
      VS.                               §       COURT OF APPEALS
                                        §
                                        §
STATE OF TEXAS                          §       SAN ANTONIO, TEXAS


                             BRIEF FOR THE STATE

To the Honorable Fourth Court:

      Now comes, Nicholas “Nico” LaHood, Criminal District Attorney of Bexar

County, Texas, and files this brief for the State.

                       STATEMENT OF THE CASE
      On January 31, 2013, two indictments were filed, charging appellant with

three different aggravated robberies, all of which occurred on the same day against

three different people. (0936B C.R. at 4 and 0937B C.R. at 4-5); See Tex. Penal

Code Ann. § 29.03 (West 2011). On February 10, 2014, Juarez signed a jury

waiver and pled no contest to charges against him. (0936B C.R. at 22 and 0937B

C.R. at 23). He also signed judicial confessions to three charges of aggravated

robbery. (0936B C.R. at 24 and 0937B C.R. at 25). As a part of the jury waiver

and plea process, Juarez agreed and pled true to his previous felony and to the

deadly weapon allegations. (0936B C.R. at 22 and 0937B C.R. at 23) and (3 R.R.

at 5). At the end of the plea, the trial court found Juarez guilty and reset the case



                                            1
for a sentencing hearing to be determined by the trial court. (2 R.R. at 7-8). On

April 28, 2014, the trial court sentenced Juarez to 45 years in the Texas

Department of Correction—Institutional Division.       (0936B C.R. at 76-77 and

0937B C.R. at 72-73).

       On the same day as the plea, the trial court found Juarez did not have a right

to appeal because the case was a result of a plea bargain and he waived his right to

appeal. (0936B C.R. at 67 and 0937B C.R. at 63). But on May 14, 2014, Juarez

filed a Notice of Appeal, and requested permission to appeal, which the trial court

granted. (0936B C.R. at 78, 86 and 89; 0937B C.R. at 76, 84 and 87). Appellate

counsel was appointed and filed a motion to withdraw and brief in support showing

that Juarez had no meritorious issues for review. Shortly after, Juarez filed a Pro

Se Brief alleging he received ineffective assistance of counsel. This State’s brief

responds to those allegations.

                         STATEMENT OF FACTS
      The State challenges the factual assertions contained in appellant’s brief.

See TEX. R. APP. P. 38.2(a)(1)(B). The appellant plead guilty to two charges of

aggravated robbery on February 10, 2014. (2 R.R. at 6). The State offered exhibits

in support of each of the charges against Juarez, the defense attorney did not

object, and the trial court admitted the exhibit into evidence. (2 R.R. at 7). The

State’s evidence contained the police reports and the victims’ statements which

summarized Juarez’s actions on November 26, 2012. (0936B C.R. at 27-59 and

                                         2
0937B C.R. at 27-56).1 The following fact summary comes from those documents

admitted into evidence at the plea.

           On November 26, 2012, Juarez held three individuals at gun point and

demanded money. The first two victims were William and Rebecca Murillo. The

couple was at home when Juarez pulled a gun out on William and demanded

money. Juarez then held a gun on Rebecca as William went in their house and got

some money. William gave Juarez $40, and he left with his accomplices. Luckily

no one was hurt, but Rebecca and William both believed they were going to die

that afternoon at the hands of Juarez. (0937B C.R. at 51-53).

           A couple of hours later, Juarez and his associates went to their third victim’s

home, and approached Stephen Dobles and his neighbor, Karmin San Martin, who

were both putting out their trash cans. They told Stephen a story about needing

money for gas, but when Stephen told them he did not have any money, they

quickly pulled a gun out and ordered him to his knees. As the men were focused

on Stephen, Karmin ran and locked herself in her house. Then Juarez and the

others became distracted with looking for Karmin, which gave Stephan a chance to

get away. As he stepped into his home, he heard his storm door shatter and he

realized he had been shot. (0936B C.R. at 52-54).




1
    The State’s exhibits from the pleas are found in the Court’s files, attached to the jury waiver and plea paperwork.


                                                             3
                      SUMMARY OF THE ARGUMENT
      There is no evidence in the record to support appellant’s allegations that he

received ineffective assistance of counsel.

                                 ARGUMENT
      In the pro se motion, appellant claims he received ineffective assistance of

counsel for the following reasons: 1) Counsel failed to properly advise Juarez on

the jury waiver and the guilty plea 2) Counsel failed to have Juarez examined for

competency to stand trial and 3) Counsel failed to file a motion to quash the

State’s indictments.

      The law regarding the review of a trial counsel’s effectiveness is well

settled. To establish ineffective assistance of counsel, the appellant must show: 1)

that defense counsel’s assistance fell below an objective professional standard of

reasonableness and 2) that counsel’s actions prejudiced the defense. Strickland v.

Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812

(Tex. Crim. App. 1999). In order to show prejudice, an appellant must prove by a

preponderance of the evidence that “but for counsel’s unprofessional error, the

result of the proceeding would have been different.” Jackson v. State, 973 S.W.2d

954, 956 (Tex. Crim. App. 1998).

      When reviewing an ineffective assistance claim, a court “looks to the totality

of the representation and the particular circumstances of each case.” Thompson, 9

S.W.3d at 813. There is a strong presumption that defense counsel’s conduct fell



                                          4
within the wide range of reasonable professional assistance. Id. To defeat this

presumption, “any allegation of ineffectiveness must be firmly founded in the

record, and the record must affirmatively demonstrate the alleged ineffectiveness.”

Id. at 814 (quoting, McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App.

1996)).

      There is no evidence in the record to support Juarez’s allegations of

ineffective assistance of counsel. This case was the result of Juarez pleading no

contest to the charges against him and there is nothing on the record to support a

finding that his counsel failed to properly advise him on the consequences of

pleading guilty. The record, however, does show the trial court asking Juarez

whether he was forced or mistreated into pleading, and he responded, “no.” (2 R.R.

at 5). In addition, there was a two and a half month break between Juarez’s plea

and the trial court’s sentencing, during which Juarez could have withdrawn his plea

and the trial court would have had broad discretion in allowing the withdraw prior

to sentencing. See Mendez v. State, 138 S.W.3d 334, 345 (Tex. Crim. App. 2004)

(stating, “when trial by jury has been waived, the defendant may change the plea

from guilty to not guilty until the court pronounces judgment or takes the case

under advisement.”). But Juarez never claimed any lack of understanding his

guilty plea—until now.




                                         5
      There is also no evidence that trial counsel failed to have Juarez examined

for competency to stand trial. Juarez’s counsel did have him examined by Dr.

Brian Skop and asked the trial court to take Dr. Skop’s assessment into

consideration for punishment purposes. (3 R.R. at 26 and 0936B C.R. at 70).

Moreover, Dr. Skop stated in his report that Juarez was competent to stand trial

and understood the charges against him. (0936B C.R. at 71). Juarez does suffer

from mental health issues, but his counsel did not fail to have him evaluated and

certainly was not ineffective for making a frivolous motion to the court to find

Juarez incompetent to stand trial.

      On the last ineffective issue, trial counsel did not file a motion to quash the

indictments in this case.    There is nothing on the record regarding counsel’s

reasons for not filing a motion; therefore, the presumption should be counsel had a

strategy and a reason for not filing the motions. In addition, looking at the face of

the indictments, they both provided Juarez with adequate notice of the charges

against him and they both track the statutory language of aggravated robbery. See

Moreno v. State, 721 S.W.2d 295, 300 (Tex. Crim. App. 1986) (stating the general

notion that an indictment which tracks the statutory language of the offense will be

found sufficient).

      Clearly the record does not support appellant’s allegations of ineffective

assistance of counsel. Instead, the record shows a valid plea and jury waiver



                                         6
signed by Juarez. Also, looking at the totality of the representation, trial counsel

provided the trial court with mitigation evidence at the punishment trial. In the

end, the trial court sentenced Juarez to 45 years imprisonment which is not only

well within the punishment range of aggravated robbery, but an extremely

reasonable sentence considering Juarez committed two robberies of three people at

gunpoint within hours of each of other. (3 R.R. at 29).   Appellant’s argument is

wholly without merit and his conviction and the judgment of the trial court should

be affirmed.

            SUMMARY OF STATE’S CROSS POINT ON APEAL
      The trial court should not have granted Juarez’s request to appeal because

his waiver was made voluntarily, knowingly, and intelligently.

                   STATE’S CROSS POINT ON APPEAL
      The trial court erred in changing the trial court certification and granting

Juarez’s request to appeal his plea of guilty. See Marsh v. State, 444 S.W.3d 654,

659 (Tex. Crim. App. 2014) (holding the State can complain for the first time on

appeal about an improperly amended appeal certification).

      When a defendant makes a voluntary, knowing, and intelligent waiver of his

right to appeal, he may not appeal without permission from the trial court. See

Monreal v. State, 99 S.W. 3d 615, 617 (Tex. Crim. App. 2003). The Texas Court

of Criminal Appeals has held that a pre-trial or pre-sentencing waiver of the right

to appeal is not voluntary, knowing, and intelligent when the consequences of the



                                         7
waiver are not known with certainty. See Ex parte Delaney, 207 S.W.3d 794, 795-

96 (Tex. Crim. App. 2006). But the Court narrowed the Delaney holding when

they decided that a defendant can voluntarily waive his right to appeal, even if the

sentence is unknown, when consideration is given by the State for the defendant’s

waiver. See Ex parte Broadway, 301 S.W.3d 694, 699 (Tex. Crim. App. 2009).

      In this case Juarez’s waiver was the result of a plea bargain. During the

plea, the prosecutor referred to a limited plea bargain they made with Juarez. (2

R.R. at 5). While not explicitly stated, the State consented to the jury waiver in

exchange for Juarez’s waiver of appeal. See Tex. Code Crim. Proc. Ann. Art. 1.13

(West 2005). The State also had him agree to the felony enhancement and the

deadly weapon allegation, which changed the minimum punishment from five

years to 15 years, which supports a finding that Juarez’s plea and waiver were

bargained for and done knowingly. See Tex. Penal Code Ann. § 12.42(c)(1).

Before Juarez could go to the court for punishment, he had to agree to increase the

minimum punishment by 10 years. Clearly, Juarez and the State believed he

received some benefit by pleading open to the court, and the State gave

consideration in consenting to the jury waiver, and in return Juarez waived his

right to appeal and agreed to plea true to the punishment enhancements.

      Juarez took a gamble by pleading open to the court. He avoided the jury’s

punishment determination and took a chance that the judge’s punishment



                                         8
determination would be lower.     He should not get another chance simply because

his gamble did not pay off and he did not get the sentence he wanted. See Ex Parte

Broadway, 301 S.W.3d at 698 (stating, “the fundamental nature of an open plea is

uncertainty.”). The trial court should have enforced the initial trial court

certification and denied Juarez’s request to appeal; therefore the State requests this

Court find Juarez properly waived his right to appeal deny review on any of his

issues on appeal.




                                          9
                        PRAYER
WHEREFORE, PREMISES CONSIDERED, the State of Texas submits that the

judgment of the trial court should, in all things, be AFFIRMED.



                                             Respectfully submitted,

                                             Nicholas “Nico” LaHood
                                             Criminal District Attorney
                                             Bexar County, Texas


                                             /s/ Lauren A. Scott

                                             ______________________________
                                             Lauren A. Scott
                                             Assistant Criminal District Attorney
                                             Bexar County, Texas
                                             Paul Elizondo Tower
                                             101 W. Nueva Street
                                             San Antonio, Texas 78205
                                             Phone: (210) 335-2885
                                             Email: lscott@bexar.org
                                             State Bar No. 24066843

                                             Attorneys for the State




                                        10
             CERTIFICATE OF COMPLIANCE AND SERVICE

      I, Lauren A. Scott, herby certify that the total number of words in appellee’s

brief is approximately 2200. I also certify that a true and correct copy of the above

and forgoing brief was mailed to appellant at the Bexar County Jail on February

20, 2015.




                                              /s/ Lauren A. Scott
                                              ____________________________
                                              Lauren A. Scott
                                              Assistant Criminal District Attorney



Pro Se Appellant
Andres Ramon Juarez
SID #995152
200 N. Comal
San Antonio, TX 78207




                                         11
