                                                                                             ACCEPTED
                                                                                          05-17-00757-cr
                                                                              FIFTH COURT OF APPEALS
                                                                                        DALLAS, TEXAS
                                                                                     3/23/2018 10:17 PM
                                                                                             LISA MATZ




                                                                                                                5th Court of Appeals
                                                                                                 CLERK




                                                                                                                 FILED: 03/27/2018
                                                                                             Lisa Matz, Clerk
                    No. 05-17-00757-CR

             IN THE COURT OF APPEALS             RECEIVED IN
         FOR THE FIFTH DISTRICT OF TEXAS 5th COURT    OF APPEALS
                                                DALLAS, TEXAS
                     AT DALLAS             3/23/2018 10:17:45 PM
       ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗     LISA MATZ
                                                                     Clerk
              MIGUEL GUERRERO REYES,
                              APPELLANT

                                v.

                 THE STATE OF TEXAS,
                         APPELLEE
       ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗

         On Appeal from the 292nd Judicial District Court
           Hon. Brandon Birmingham, Judge Presiding
                     Dallas County, Texas
                In Cause No. F-16-53482-V
       ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗

AMENDED BRIEF IN SUPPORT OF MOTION TO WITHDRAW
       ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗

                         Counsel of Record:

                                              TARA CUNNINGHAM
                                              Attorney for Appellant
                                              State Bar No. 24068757
                                              325 N Saint Paul St, Ste 2750
                                              Dallas, TX 75201
                                              (214) 457-0359
                                              TaraCunningham@gmail.com
                                   LIST OF PARTIES
APPELLANT
Miguel Guerrero Reyes

APPELLEE
The State of Texas

DEFENSE COUNSEL AT TRIAL
James Guinan
5005 Greenville Ave
Suite 200
Dallas, TX 75206

STATE’S ATTORNEY AT TRIAL
Brandie Wade
Dallas County District Attorney’s Office
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399

APPELLANT’S ATTORNEY ON APPEAL
Tara Cunningham
325 N Saint Paul St, Ste 2750
Dallas, TX 75201

STATE’S ATTORNEY ON APPEAL
Faith Johnson (or her designated representative)
Dallas County District Attorney’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399




                                                   i
                                                   Table of Contents

List of Parties………………………………………………………………………..i
Table of Contents ................................................................................................................... ii
Table of Authorities ............................................................................................................. iiii
Statement of the Case ........................................................................................................... iv
Statement of Facts .................................................................................................................. 1
Summary of the Argument…………………………………………………………..3
Argument……………………………………………………………………………3
Conclusion............................................................................................................................... 7
Certificate of Compliance ...................................................................................................... 8
Certificate of Service .............................................................................................................. 8




                                                                    ii
                                         Table of Authorities
Cases
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)……..………6
Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974)…………………………….……..6
Griffin v. State, 614 S.W.2d 155, 158 (Tex. Crim. App. 1981)…………………………4
Hernandez v. State, 726 S.W.2d 53 (Tex.Cr.App.1986)..........................................................5
Jack v. State, 871 S.W.2d 741 (Tx.Cr.App. 1994)……………...………………………6
Jeffery v. State, 903 S.W.2d 776 (Tex.App.-Dallas 1995, no pet.)………………………6
Jackson v. Virginia, 443 U.S. 307 (1979)………………………………………………4
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984)..................5


Statutes

Tex. Penal Code Sec. 21.11…………………………………………………………..3
Tex. Code Crim. Proc. Sec. 12.33……………………………………………………5
Tex. Code Crim. Proc. art. 46B.003(a)(1) and (2)…………………………………….6




                                                     iii
                    Statement Regarding Oral Argument

Counsel waives oral argument herein since the facts and legal arguments are

adequately presented in the brief.



TO THE HONORABLE COURT OF APPEALS:

      COMES NOW Miguel Guerrero Reyes, Appellant in the above styled and

numbered cause, and respectfully submits this brief in support of Motion to

Withdraw.

                              Statement of the Case

      Appellant was indicted for Indecency with a Child, the date of offense being

April 3, 2016. (CR1:10). Appellant entered a plea of not guilty. (RR4: 49). A jury

found Appellant guilty and the trial court sentenced Appellant to 12 years’

confinement. (CR1: 96). The sentence was imposed and the court entered judgment

on June 23, 2017. (CR1:96). Appellant timely filed his notice of appeal. (CR1:102).




                                         iv
                               Statement of Facts


Background of Offense:

      Appellant went to the home of his boss, Oscar Regalado. (RR4: 131). Mr.

Regalado was not home, but his three children were there alone. (RR4:66-67). While

eating breakfast, one of the children, who was eight year-old, saw Appellant walk into

the apartment and go into the bedroom where his sister, Complainant, was at.

(RR5:166-167).   Appellant    was       intoxicated.   (RR5:166-167).   Nine   year-old,

Complainant, said that Appellant came into the bedroom while she was lying in bed

and touched her vagina. (RR4:155-156). When she kicked, Appellant left the

apartment. (RR4:156). Shortly after that, Oscar Regalado came home and

Complainant told him what happened. (RR4:74-76, 157). The police were called.

(RR4:82-83). When Appellant was questioned by police several hours later, he

admitted to touching Complainant’s vagina and wrote a confession after being advised

of his Miranda rights. (RR5:102-105).

Charging Instruments:

      The indictment alleges that appellant “did unlawfully, with the intent to arouse

and gratify the sexual desire of the defendant, engage in sexual contact with

[Complainant’s name removed for privacy], hereinafter called complainant, a child

younger than 17 years and not then the spouse of the defendant, by contact between

                                             1
the hand of the defendant and the genitals of the complainant”. (CR1:10). There was

no objection made to the indictments and no motion to quash filed.

Voluntariness of Confession:

      Before Appellant met with police, he had been drinking heavily and had not

had much sleep. (RR5:165-167). However, nearly eight hours had passed before

Appellant finally talked to the detective. (RR5:15). He told the detective that he was

fine. (RR5:59). He did not have slurred speech or show other signs of impairment.

(RR5:26-28). After being advised of his Miranda rights in Spanish, Appellant

voluntarily waived those rights and wrote a confession. (RR5:29-31).

Punishment

      The jury found Appellant guilty and the court set punishment at twelve (12)

years’ confinement in the penitentiary. (CR1:10).

Effective Assistance of Counsel:

      There is nothing in the record to indicate that appellant was denied the

effective assistance of counsel at his trial. Appellant does not appear to be misled by

trial counsel in the record that he would receive special treatment or leniency. At trial,

defense counsel asked questions attempting to establish that Appellant was too

intoxicated to give a reliable statement to detectives. (RR5:112-183). He also pointed




                                            2
out inconsistencies in the state’s witness’s testimony and called defense witnesses to

testify that the complainant lied. (RR5:125-128).

Competency to Stand Trial:

         From the record, appellant appeared to be competent to stand trial by showing

a rational as well as factual understanding of the proceedings against him and that he

had a present ability to consult with his lawyer with a reasonable degree of rational

understanding. No evidence was presented to prove appellant was incompetent.

                             Summary of the Argument

After thorough examination of the clerk’s record and reporter’s record, there is no

point of error that can be supported by the record.

                                       Argument

Charging Instruments:

         The indictment alleges that appellant “did unlawfully, with the intent to arouse

and gratify the sexual desire of the defendant, engage in sexual contact with

[Complainant’s name removed for privacy], hereinafter called complainant, a child

younger than 17 years and not then the spouse of the defendant, by contact between

the hand of the defendant and the genitals of the complainant”. (CR1:10). The

indictment contains all the elements required for the offense. Tex. Penal Code Sec.

21.11.


                                             3
       There was no objection made to the indictments and no motion to quash filed.

No error is found in the indictments.

Sufficiency of Evidence:

       Texas has adopted the Jackson v. Virginia, 443 U.S. 307 (1979) standard of

review for assessing the legal sufficiency of evidence in a criminal case. Griffin v. State,

614 S.W.2d 155, 158 (Tex. Crim. App. 1981). Under that standard, "the relevant

question is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19 (1979).

       The complainant, testified that Appellant touched her vagina. (RR4:155-156).

As soon as her father Oscar Regalado arrived back home she made an outcry to him

about what happened. (RR4:74-76, 157). He testified that Complainant told him

Appellant touched her vagina. (RR4:74-76). Further, after being advised of his

Miranda rights, Appellant confessed to police that he touched Complainant’s vagina

and that he felt bad about it because he knew it was wrong. (RR5:29-31, 80). It

appears that the Jackson standard has been met.

Voluntariness of Confession:

       Before Appellant met with police, he had been drinking heavily and had not

had much sleep. (RR5:165-167). However, nearly eight hours had passed before

Appellant finally talked to the detective. (RR5:15). He told the detective that he was
                                            4
fine. (RR5:59). He did not have slurred speech or show other signs of impairment.

(RR5:26-28). After being advised of his Miranda rights in Spanish, Appellant

voluntarily waived those rights and wrote a confession. (RR5:29-31). His confession

was voluntary.

Punishment Range

       The punishment range for a first degree offense is 2-20 years in the Texas

Department of Criminal Justice. Tex. Code Crim. Proc. Sec. 12.33. The jury found

Appellant guilty and the court set punishment at twelve (12) years’ confinement in the

penitentiary. (CR1:10). This sentence is within the range of punishment for the

offense. Tex. Code. Crim. Proc. 12.33. Sentencing is within the discretion of the

court. No objection was made to the punishment assessed which cannot be shown to

be cruel or unusual, and no error is found.

Effective Assistance of Counsel:

       There is nothing in the record to indicate that Appellant was denied the

effective assistance of counsel at his trial. Ineffective assistance of counsel is judged by

the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674(1984), and Hernandez v. State, 726 S.W.2d 53 (Tex.Cr.App.1986). Appellant does

not appear to be misled by trial counsel in the record that he would receive special

treatment or leniency. At trial, defense counsel asked questions attempting to establish

that Appellant was too intoxicated to give a reliable statement to detectives. (RR5:112-
                                              5
183). He also pointed out inconsistencies in the state’s witness’s testimony and called

defense witnesses to testify that the complainant lied. (RR5:125-128). Appellant’s trial

counsel appears to meet the Strickland standard.

Competency to Stand Trial:

      From the record, appellant appeared to be competent to stand trial by showing

a rational as well as factual understanding of the proceedings against him and that he

had a present ability to consult with his lawyer with a reasonable degree of rational

understanding. Tex. Code Crim. Proc. art. 46B.003(a)(1) and (2). No evidence was

presented to prove appellant was incompetent.

Other Relevant Facts:

      There are no jurisdictional defects. There are no non-jurisdictional defects

arising at or after entry of Appellant’s pleas. See Jack v. State, 871 S.W.2d 741

(Tx.Cr.App. 1994).

              STATEMENT OF ATTORNEY TO THE COURT


This brief is filed by counsel appointed by the court to represent appellant on appeal

in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493

(1967), and Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974). Counsel has also filed

with this Court a Motion to Withdraw as Court Appointed Counsel on Appeal in

accordance with the procedures and standards set out in Jeffery v. State, 903 S.W.2d 776

                                           6
(Tex.App.-Dallas 1995, no pet.). After thorough examination of the clerk’s record and

reporter’s record, counsel can find no point of error that can be supported by the

record. Counsel has discussed the evidence and the documents in the record, citing

references to the record.

                              PRAYER
WHEREFORE, premises considered, the undersigned counsel requests the Court of

Appeals review the record on appeal, consider the Motion to Withdraw as Court

Appointed Counsel, review the foregoing Brief in Support of Motion to Withdraw

and grant the Motion to Withdraw.

                                                    Respectfully submitted,

                                                    /s/Tara Cunningham
                                                    TARA CUNNINGHAM
                                                    Attorney for Appellant
                                                    State Bar No. 24068757
                                                    325 N Saint Paul St, Ste 2750
                                                    Dallas, TX 75201
                                                    (214) 457-0359
                                                    TaraCunningham@gmail.com




                                         7
                           Certificate of Compliance

      I certify that this brief contains 1,847 words. This word count includes all

necessary parts outlined in Texas Rule of Appellate Procedure 9.4(i)(1), and it was

conducted with Microsoft Word 2007.

                                                            /s/Tara Cunningham
                                                              Tara Cunningham

                              Certificate of Service
      I hereby certify that a true copy of the foregoing brief was served on the Dallas

County Criminal District Attorney’s Office (Appellate Section), 133 N. Riverfront

Blvd., LB-19, 10th Floor, Dallas, Texas, 75207, by electronic transmission on March

22, 2018.

                                                            /s/Tara Cunningham
                                                              Tara Cunningham




                                           8
