                                                                                     ACCEPTED
                                                                                01-14-00726-CR
                                                                      FIRST COURT OF APPEALS
                                                                              HOUSTON, TEXAS
                                                                           1/29/2015 1:24:11 PM
                                                                           CHRISTOPHER PRINE
                                                                                         CLERK

                          NO. 01-14-00726-CR
               ________________________________________
                                                                FILED IN
                                                         1st COURT OF APPEALS
                                   In the                    HOUSTON, TEXAS
                            Court of Appeals             1/29/2015 1:24:11 PM
                                 For the                 CHRISTOPHER A. PRINE
                          First District of Texas                Clerk
                                At Houston
               ________________________________________

                 On appeal from the 338th District Court of
                          Harris County, Texas
                               No. 1406622
               ________________________________________

                          JOSE AGUILERA,
                              Appellant
                                 v.
                        THE STATE OF TEXAS,
                              Appellee


                   ANDERS BRIEF FOR APPELLANT


Emily Detoto                             Megan E. Smith
State Bar No.: 00797876                  State Bar No: 24076196
917 Franklin, 4th Floor                  917 Franklin, Suite 310
Houston, Texas 77002                     Houston, Texas 77002
Telephone: (713) 227-2244                Telephone: (713) 899-5438
Facsimile: (713) 222-5840                megan@megansmithlaw.com
emilydetoto@mac.com

Counsel for Appellant                    Counsel for Appellant



                 ORAL ARGUMENT NOT REQUESTED
                       Identity of Parties and Counsel

Appellate Counsel for Appellant, Mr. Jose Aguilera
Emily Detoto                               Megan E. Smith
State Bar No.: 00797876                    State Bar No.: 24076196
               th
917 Franklin, 4 Floor                      917 Franklin, Suite 310
Houston, Texas 77002                       Houston, Texas 77002
Telephone: (713) 227-2244                  Telephone: (713) 899-5438
emilydetoto@mac.com                        megan@megansmithlaw.com

Appellate Counsel for Appellee, The State of Texas
Ms. Devon Anderson                         Mr. Alan Curry
District Attorney                          Assistant—Appeal

Harris County District Attorney’s Office
1201 Franklin, Suite 600
Houston, Texas 77002
Telephone: (713) 755-5800

Trial Counsel for Appellant, Mr. Jose Aguilera
Mr. Elihu Dodier
State Bar No.: 05938200
4718 Edison Street
Houston, Texas 77009
Telephone: (713) 655-9300

Trial Counsel for Appellee, The State of Texas
Ms. Devon Anderson                         Ms. Shannon Drehner, Assistant
District Attorney                          State Bar No.: 24074155

Ms. Cara Burton, Assistant                 Mr. Aaron Burdette, Assistant
State Bar No.: 24068399                    State Bar No.: 24055228

Harris County District Attorney’s Office
1201 Franklin, Suite 600
Houston, Texas 77002
Telephone: (713) 755-5800




                                      ii
                       Table of Contents

                                                       Page(s)

Identity of Parties and Counsel…………………………………………………ii

Index of Authorities……………………………………………………………vii

Statement of the Case……………………………………………………………1

Anders Issues Presented………………………………………...……………….1

Statement of Facts……………………………………………………………….1

Summary of the Argument……………………..………………………………..4

Arguable Grounds for Review…………………………………………………..5

Issue Number One……………………………………………………………....5

DEFENSE   COUNSEL    DID   NOT  PROVIDE   INEFFECTIVE
ASSISTANCE OF COUNSEL BY FAILING TO PROVE UP MR.
AGUILERA’S ELIGIBILITY FOR COMMUNITY SUPERVISION.

Issue Number Two………………………………………………………………5

DEFENSE   COUNSEL    DID  NOT    PROVIDE INEFFECTIVE
ASSISTANCE OF COUNSEL BY FAILING TO OBJECT TO THE
ADMISSION OF MR. AGUILERA’S STATEMENT.


Standard of Review Pertinent to Issues I and II…………………………………5


Issue I Argument………………………………………………………………...6

  A. A Defendant Must Plead and Prove Community
     Supervision Eligibility……………………………………………………6




                              iii
  B. Mr. Aguilera Cannot Show on Direct Appeal a Reasonable Probability
     That the Result of the Proceedings Would Have Been Different………...9

  C. Conclusion……………………………………………………………….11

Issue II Argument…………………………………………………………........11

  A. Defense Counsel’s Legitimate Trial Strategy Will not be
     Questioned on Appeal…………………………………………………...11

  B. Conclusion…………………………………………………….................11


Issue Number Three……………………………………………………………12


THE ADMISSION OF THE TRANSLATION UNDER
RULE 1009 WAS NOT ERROR.

  A. The 45-day Requirement was Waived by Mr. Aguilera………………...12

  B. The Trial Court Provided a Proper Limiting Instruction………………..13

  C. Conclusion……………………………………………………………….13

Issue Number Four……………………………………………………………..14

OTHER MATTERS DO NOT PROVIDE NON-FRIVOLOUS ISSUES
FOR APPEAL.

  A. Sufficiency of the Indictment……………………………………………14

  B. Any Adverse Pretrial Rulings Affecting the Course of the Trial, Including
     but not Limited to Rulings on Motions to Suppress, Motions to Quash,
     and Motions for a Speedy Trial………………………………………….14

  C. Any Adverse Rulings During Trial on Objections or Motions, Including
     but not Limited to Objections to Admission or Exclusion of Evidence,
     Objections Premised on Prosecutorial or Judicial Misconduct, and
     Motions for Mistrial……………………………………………………..15


                                     iv
     a. Hearsay…………………………………………………………...15

     b. Clarifying the video………………………………………………16

     c. Facebook photographs……………………………………………17

     d. Relevance…………………………………………………………20

D. Any Adverse Rulings on Post-Trial Motions, Including
   Motions for a New Trial…………………………………………………21

E. Jury Selection……………………………………………………............21

F. Jury Instructions………………………………………………………...22


     a. Law of parties instruction given…………………………………23

     b. The trial court’s instruction on the law of parties
        was not erroneous………………………………………………..24

G. Sufficiency of the Evidence, Including a Recitation of the
   Elements of the Offense and Facts and Evidence Adduced
   at Trial Relevant to the Offense Upon Which
   Conviction is Based…………………………………………………….26

     a.   The evidence adduced at trial………………………………..…26

           i. Theft……………………………………………………….27

           ii. Intent………………………………………………………27

          iii. Deadly weapon…………………………………………….27

     b. The evidence was sufficient……………………………………...28




                             v
  H. Any Failure on the Part of the Appellant’s Trial Counsel to
     Object to Fundamental Error……………………………………………28

  I. Any Adverse Rulings During the Punishment Phase on
     Objections or Motions…………………………………………………...28

  J. Whether the Sentence Imposed was Within the Applicable
     Range of Punishment……………………………………………………30

  K. Whether the Written Judgment Accurately Reflects the
     Sentence That was Imposed and Whether any Credit was
     Properly Applied………………………………………………………...31

  L. Examination of the Record to Determine if the Appellant
     was Denied Effective Assistance of Counsel…………………………....31
Prayer………………………..……………..………………………………..….31

Certificate of Service…………………………………………………..……….32

Certificate of Compliance………………………………………………………32

Certificate of Notice to Appellant……………………………………………….33

Notice to Client………………………………………………………………….33




                               vi
                     Index of Authorities

                                                     Page(s)

Statutes
Tex. Code Crim. Proc. art. 35.16(b)……………………………………………21
Tex. Code Crim. Proc. art. 35.16(d)……………………………………………21
Tex. Code Crim. Proc. art. 42.12 § 4(e)………….……………………………...7
Tex. Penal Code § 7.01(a)……………………………………………………...25
Tex. Penal Code § 7.02(a)(2)…………………………………………………..25
Tex. Penal Code § 12.32(a)…………………………………………………….30
Tex. Penal Code § 12.32(b)…………………………………………………….30
Tex. Penal Code § 29.02………………………………………………........14, 26

Tex. Penal Code § 29.03……………………………………………………15, 26

Tex. Penal Code § 29.03(b)…………………………………………………….30

Tex. Penal Code § 31.03……………………………………………………15, 26

Tex. R. App. Proc. § 9.4………………………………………………………..32

Tex. R. App. Proc. § 34.5(g)……………………………………………………33

Tex. R. App. Proc. § 34.6(h)……………………………………………………33

Tex. R. Evid. 401……………………………………………………………….21

Tex. R. Evid. 403……………………………………………………………….20

Tex. R. Evid. 404(b)………………………………………………………..19, 20

Tex. R. Evid. 1009(a)……………………….………………………….………12

Tex. R. Evid. 1009(f)…………………………………………………….……..12


                             vii
Federal Cases
Anders v. California, 386 U.S. 738 (1967)……………………..……...………...4

Strickland v. Washington, 466 U.S. 668 (1984)…………………………..5, 8, 11

Texas Court of Criminal Appeals
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985)………………...…24

Barrios v. State, 283 S.W.3d 348 (Tex. Crim. App. 2009)……………….……24

Black v. State, 723 S.W.2d 674 (Tex. Crim. App. 1986)………………………25
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)……………………..28
Dickey v. State, 22 S.W.3d 490 (Tex. Crim. App. 1999)………………………25

High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978)………………………...4

Leday v. State, 983 S.W.2d 713 (Tex. Crim. App. 1998)…………………..16, 29

Mansfield v. State, 306 S.W.3d 773 (Tex. Crim. App. 2010)…………………...6

State v. Ngo, 175 S.W.3d 738 (Tex. Crim. App. 2005)(en banc)………………24

Speth v. State, 6 S.W.3d 530 (Tex. Crim. App. 1999)…………………………..6

Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991)…………………4, 31

Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999)……………….6, 9, 11

Valle v. State, 109 S.W.3d 500 (Tex. Crim. App. 2003)……………………….17

Texas Intermediate Appellate Courts
Almendarez v. State, 13-01-00044-CR, 2003 WL 1387208 (Tex. App.—Corpus
Christi Mar. 20, 2003, no pet.)……………………………………………..……9
Amezquita v. State, 14-01-00268-CR, 2002 WL 480343 (Tex. App.—Houston
[14th Dist.] Mar. 28, 2002, no pet.)……………………………………….…8, 10
Caballero v. State, 13-96-578-CR, 1997 WL 33643195 (Tex. App.—Corpus
Christi Dec. 11, 1997, no pet.)…………………………………………………...7


                                 viii
Castrejon v. State, 428 S.W.3d 179 (Tex. App.—Houston [1st Dist.] 2014, no
pet.)……………………………………………………………………………..12
Crew v. State, 07-00-0493-CR, 2002 WL 1290891 (Tex. App.—Amarillo June
11, 2002, no pet.)……………………………………………………………….20
Ervin v. State, 331 S.W.3d 49 (Tex. App.—Houston [1st Dist.] 2010, pet.
ref'd)……………………………………………………………………………28
Garcia v. State, 308 S.W.3d 62 (Tex. App.—San Antonio 2009, no pet.)……...7
Green v. State, 658 S.W.2d 303 (Tex.App.-Houston [1st Dist.] 1983, pet.
ref'd).......................................................................................................................8
Johnson v. State, 425 S.W.3d 344 (Tex. App.—Houston [1st Dist.] 2011, pet.
ref'd)………………………………………………………………….…15, 29, 30
Peralta v. State, 338 S.W.3d 598 (Tex. App.—El Paso 2010, no pet.)……...…13
Snow v. State, 697 S.W.2d 663 (Tex.App.-Houston [1st Dist.] 1985, pet.
dism'd)………………………………………………………………………….10
Williams v. State, 417 S.W.3d 162 (Tex. App.—Houston [1st Dist.] 2013), reh'g
overruled (Jan. 21, 2014), pet. ref’d (May 7, 2014)………………………..….5,6
Williams v. State, 942 S.W.2d 787 (Tex. App.—Fort Worth 1997, pet.
ref'd)…………………………………………………………………………….25




                                                             ix
                                   Statement of the Case

         Appellant, Jose Aguilera, was charged by indictment with the felony

offense of aggravated robbery. (CR at 11)1. Mr. Aguilera was found guilty by a

jury. (CR at 89; RR Vol. 29 at 97). Punishment was assessed by the jury at 8.5

years in prison. (CR at 883; RR Vol. 4 at 74). Mr. Aguilera timely filed a

Notice of Appeal. (CR at 108-09). Mr. Aguilera’s brief was due January 16,

2015. Appellant’s brief is currently late.

                                  Anders Issues Presented

      1. Defense counsel did not provide ineffective assistance of counsel by
         failing to prove up Mr. Aguilera’s eligibility for community supervision.

      2. Defense counsel did not provide ineffective assistance of counsel by
         failing to object to the admission of Mr. Aguilera’s statement.

      3. The admission of the translation under Rule 1009 was not error.

      4. Other matters do not provide non-frivolous issues for appeal.

                                     Statement of Facts

         The complainant, Jose Reyes, went to a convenience store in Harris

County on October 12, 2013 where two men approached and asked to borrow a

car jack. (RR Vol. 3 at 32-36). After waiting about 15 minutes, Mr. Reyes

drove down the street to a parking lot where the men had indicated they would

be repairing a tire to ask for his tools. (RR Vol. 3 at 37-38). Mr. Reyes testified


1
    CR refers to Clerk’s Record; RR refers to Reporter’s Record.


                                                1
that both men pulled out weapons and that Rambo pointed a revolver at his side

and Pirata pointed a semiautomatic gun at his head. (RR Vol. 3 at 39-40, 42-

43). Rambo and Pirata were the nicknames the men used during the encounter.

(RR Vol. 3 at 42). Mr. Reyes testified that Rambo and Pirata took his wallet

from his right pocket that contained 700 to 800 dollars in cash from his

paycheck. (RR Vol. 3 at 33, 43-44). He also testified that both men were

screaming at him, Pirata struck him in the face, and Rambo was saying “kill

him, kill him.” (RR Vol. 3 at 42-45, 72). Mr. Reyes thought the men were

going to kill him. (RR Vol. 3 at 47). Rambo got in his car to leave and Pirata’s

weapon jammed, so Mr. Reyes took the opportunity to push Pirata and run

away. (RR Vol. 3 at 45-46, 72-73). Mr. Reyes testified that shots were fired at

him as he ran, but Rambo was already in the car. (RR Vol. at 45-47, 73).

Officer Kyle Myers identified two fired shell casings and one full bullet at the

scene consistent with Mr. Reyes’ account of the incident. (RR Vol. 3 at 20-21).


      Mr. Reyes immediately called the police to the scene. (RR Vol. 3 at 47-

48). Then, Mr. Reyes went to visit his friend “Vanessa” who lived nearby and

was familiar with the description and nicknames of the two men. (RR Vol. 3 at

48, 50-51). “Vanessa” pulled up pictures on Facebook that Mr. Reyes identified

as Rambo and Pirata. (RR Vol. 3 at 53). The pictures were forwarded to the

police, and Mr. Reyes later identified Mr. Aguilera in a photo spread with


                                       2
Officer Horacio Pineda. (RR Vol. 3 at 77, 87-89). Mr. Reyes identified Mr.

Aguilera in the courtroom as the Defendant who went by the nickname Rambo.

(RR Vol. 3 at 57). Officer Pineda testified that “Vanessa” wanted to remain

anonymous, but that her phone number was included in the report. (RR Vol. 4

at 24-25, 30). Officer Pineda arrested Mr. Aguilera at his construction job site

after obtaining a warrant. (RR Vol. 4 at 27-28). Mr. Aguilera then gave a

custodial statement after proper Miranda warnings. (RR Vol. 2 at 170-173; Vol.

3 at 93; Vol. 4 at 9-13; Vol. 5 at 25-84). The statement was video recorded and

translated into English. Id. Mr. Aguilera identified his revolver during the

statement and admitted to having it with him during the incident. (RR Vol. 5 at

46, 72-74). Mr. Aguilera identified the person needing help with his tire as

“Oscar” or “Paisano,” who he previously knew. (RR Vol. 5 at 31-34, 50). He

claimed that Pirata, who he referred to as Emilio, had a personal dispute with

“Oscar” regarding money. (RR Vol. 5 at 42-43). Mr. Aguilera admitted to

being an “accomplice to a robbery.” (RR Vol. 5 at 78).


      The jury found Mr. Aguilera guilty the same day that they started

deliberations. (RR Vol. 4 at 74). The Prosecution called two witnesses during

punishment to elicit testimony that Mr. Aguilera had two misdemeanor charges

pending for failure to stop and give information and filing a false police report.

(RR Vol. 4 at 94-95). Marsha Johnson witnessed the car accident that led to Mr.


                                        3
Aguilera fleeing the scene. (RR Vol. 4 at 77-85). There was no punishment

evidence presented from the Defense. (RR Vol. 4 at 96). Defense counsel

asked for a probated sentence and the Prosecution asked for no less than 30

years. (RR Vol. 4 at 101-03, 106). The jury sentenced Mr. Aguilera to 8.5 years

in prison. (RR Vol. 4 at 107). Deliberations regarding guilt and punishment all

occurred quickly within one day.


                          Summary of the Argument

      The United States Supreme Court has instructed court-appointed counsel:

“Of course, if counsel finds his case to be wholly frivolous, after a conscientious

examination of it, he should so advise the court and request permission to

withdraw.”    Anders v. California, 386 U.S. 738, 744 (1967).         “[A]ppellate

counsel must provide the reviewing court with a ‘professional evaluation of the

record demonstrating why there are no arguable grounds to be advanced.’”

Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991)(citing High

v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978)).            This requires a

discussion of the evidence at trial, including references to the record and

applicable case law. Id. Appellate counsel is required to discuss anything that

“might arguably support the appeal.” Id. A copy of the Anders brief must be

provided to the Appellant and he should be given time to respond if he so

chooses.     Anders, 386 U.S. at 744.       This Court will then examine the


                                        4
proceedings and make a determination as to whether an appeal is frivolous. Id.

         Court-appointed counsel has reviewed the Reporter’s Record and the

Clerk’s Record in Mr. Aguilera’s case, and has determined that there are no non-

frivolous issues to raise as set forth in this brief. Accordingly, court-appointed

counsel respectfully requests permission to withdraw as attorney of record and

to permit the Appellant, Mr. Jose Aguilera, to file any additional brief he deems

necessary.

                              Arguable Grounds for Review

ISSUE I: DEFENSE COUNSEL DID NOT PROVIDE INEFFECTIVE
ASSISTANCE OF COUNSEL BY FAILING TO PROVE UP MR.
AGUILERA’S ELIGIBILITY FOR COMMUNITY SUPERVISION.

ISSUE 2: DEFENSE COUNSEL DID NOT PROVIDE INEFFECTIVE
ASSISTANCE OF COUNSEL BY FAILING TO OBJECT TO THE
ADMISSION OF MR. AGUILERA’S STATEMENT.

                   Standard of Review Pertinent to Issues I and II.


      This Court reviews claims of ineffective assistance of counsel under a two-

prong Strickland 2 analysis.         Williams v. State, 417 S.W.3d 162, 181 (Tex.

App.—Houston [1st Dist.] 2013), reh'g overruled (Jan. 21, 2014), pet. ref’d

(May 7, 2014). An appellant must prove both prongs by a preponderance of the

evidence:       “(1) counsel's performance fell below an objective standard of

reasonableness, and (2) but for counsel's unprofessional error, there is a

2
    Strickland v. Washington, 466 U.S. 668 (1984).


                                               5
reasonable probability that the result of the proceedings would have been

different.”   Id.    “A reasonable probability is a ‘probability sufficient to

undermine confidence in the outcome.’” Id.(citing Strickland, 466 U.S. at 694).

The Court of Criminal Appeals has instructed:

      When handed the task of determining the validity of a defendant's
      claim of ineffective assistance of counsel, any judicial review must
      be highly deferential to trial counsel and avoid the deleterious
      effects of hindsight. There is a strong presumption that counsel's
      conduct fell within the wide range of reasonable professional
      assistance.


Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)(internal citations

omitted).

                              ISSUE I ARGUMENT

   A. A Defendant Must Plead and Prove Community Supervision

      Eligibility.


      A defendant must plead and prove that he has never been convicted of a

   felony to be eligible for community supervision. Mansfield v. State, 306

   S.W.3d 773, 775 (Tex. Crim. App. 2010); Speth v. State, 6 S.W.3d 530, 533

   (Tex. Crim. App. 1999). The Code of Criminal Procedure instructs:


      A defendant is eligible for community supervision under this
      section only if before the trial begins the defendant files a written
      sworn motion with the judge that the defendant has not previously
      been convicted of a felony in this or any other state, and the jury


                                        6
      enters in the verdict a finding that the information in the defendant's
      motion is true.
      Tex. Code Crim. Proc. art. 42.12 § 4(e).


      The burden of pleading means that Defense counsel cannot rely on the

Prosecution’s failure to prove any prior felony convictions, as this is a

“mischaracterization of the burden of proof on the issue of probation eligibility.”

Caballero v. State, 13-96-578-CR, 1997 WL 33643195, at *2 (Tex. App.—

Corpus Christi Dec. 11, 1997, no pet.).


      In the case at bar, Defense counsel properly filed Mr. Aguilera’s sworn

motion declaring his eligibility for probation. (CR at 64-65). However, this was

never proven up before the jury. Defense counsel did not call any witnesses

during punishment to prove up the eligibility, nor did he cross examine any

prosecution witnesses regarding Mr. Aguilera’s eligibility.        Instead, during

closing arguments in the punishment phase Defense counsel argued:


       If this man had a prior criminal history, if he had a prior conviction
      for a felony or even a misdemeanor, for that matter, you can bet
      your life that the State's attorney would have presented that to you,
      that he has prior felony convictions or that he has prior
      misdemeanor convictions. He does not.
      (RR Vol. 4 at 98).


A misunderstanding of the applicable law by counsel “can never be a legitimate

trial strategy.” Garcia v. State, 308 S.W.3d 62, 75 (Tex. App.—San Antonio


                                          7
2009, no pet.). The trial court instructed the jury on the option of community

supervision and the Prosecution did not object or mention the lack of proof in

the record. (CR at 93-94, 102-03). If the trial court had refused to instruct on

the option of community supervision, this Honorable Court would have upheld

that refusal on appeal. Amezquita v. State, 14-01-00268-CR, 2002 WL 480343,

at *1(Tex. App.—Houston [14th Dist.] Mar. 28, 2002, no pet.)(citing Green v.

State, 658 S.W.2d 303, 309 (Tex.App.-Houston [1st Dist.] 1983, pet. ref'd)).

One of the jury’s options for sentencing included:


      We, the Jury, having found the defendant, Jose Aguilera, guilty of
      aggravated robbery, assess his punishment at confinement in the
      institutional division of the Texas Department of Criminal Justice
      for _______________years and further find that the defendant has
      never before been convicted of a felony in this state or any other
      state and recommend community supervision of the sentence.
      (CR at 102)(emphasis added).
      The trial court also instructed the jury twice, “Statements or arguments of

counsel are not evidence.” (RR Vol. 3 at 8; Vol. 4 at 54). It is possible that the

jury did not believe they could make the finding that Mr. Aguilera had never

before been convicted of a felony based on the lack of evidence. Even if this

Court were to find Mr. Aguilera has met his burden under the first Strickland

prong, the second prong cannot be satisfied on direct appeal.




                                        8
   B. Mr. Aguilera Cannot Show on Direct Appeal a Reasonable

        Probability That the Result of the Proceedings Would Have Been

        Different.


        A substantial risk of failure accompanies an appellant's claim of
        ineffective assistance of counsel on direct appeal. Rarely will a
        reviewing court be provided the opportunity to make its
        determination on direct appeal with a record capable of providing a
        fair evaluation of the merits of the claim involving such a serious
        allegation. In the majority of instances, the record on direct appeal
        is simply undeveloped and cannot adequately reflect the failings of
        trial counsel. To defeat the presumption of reasonable professional
        assistance, any allegation of ineffectiveness must be firmly founded
        in the record, and the record must affirmatively demonstrate the
        alleged ineffectiveness.
Thompson, 9 S.W.3d at 813-14 (internal citations and quotations omitted).


        First, Mr. Aguilera is unable to prove that he was actually eligible for

community supervision based on the record for direct appeal purposes. Second,

there is nothing in the record to show that the jury would have granted

community supervision instead of 8.5 years imprisonment. Almendarez v. State,

13-01-00044-CR, 2003 WL 1387208, at *4 (Tex. App.—Corpus Christi Mar.

20, 2003, no pet.)(“We find nothing in the record showing that the jury would

have granted community supervision.”).        Mr. Aguilera was charged with a

serious offense and the jury heard evidence that he held a gun to the Mr. Reyes’

head.    This offense carried a maximum punishment of life imprisonment.

Moreover, the jury heard evidence of Mr. Aguilera causing a car accident,


                                         9
fleeing the scene, and making a false report to police. Based on this evidence,

this Court could find it reasonable that the jury would give an 8.5-year prison

sentence. The Fourteenth Court of Appeals addressed a similar issue and found

that the Appellant was unable to satisfy the prejudice prong:


      The right to be considered for probation is valuable, even if
      probation is not given, because the jury instruction concerning
      probation forcefully directs the jury's attention to the lowest
      punishment allowed by law. Snow v. State, 697 S.W.2d 663, 668
      (Tex.App.-Houston [1st Dist.] 1985, pet. dism'd). Here, the charge
      did direct the jury's attention towards probation (though
      erroneously so, due to the missing proof). Nevertheless, the jury
      rejected the lower range of punishment and assessed a sentence in
      the middle of the range. Furthermore, given the severity of the
      accident, the impact of the accident on the complainant, and the
      evidence of appellant's repeated behavior of driving while
      intoxicated despite three separate interventions of the criminal
      justice system, appellant has failed to sustain his burden of showing
      prejudice so as to undermine confidence in the jury's sentence.
Amezquita v. State, 14-01-00268-CR, 2002 WL 480343, at *1-2 (Tex. App.—

Houston [14th Dist.] Mar. 28, 2002, no pet.). In light of the aforementioned

reasons, Mr. Aguilera is unable to prove by a preponderance of the evidence that

there is a reasonable probability that the result of the proceedings would have

been different.




                                       10
   C. Conclusion.


   Non-frivolous error cannot be raised based on ineffective assistance of

counsel for failing to prove up Mr. Aguilera’s eligibility for community

supervision.


                             ISSUE II ARGUMENT


   A. Defense Counsel’s Legitimate Trial Strategy Will not be Questioned

      on Appeal.


   Mr. Aguilera’s custodial statement was admitted by agreement. (RR Vol. 2 at

170-173; Vol. 3 at 93; Vol. 4 at 9-13). A thorough review of the record reveals

no apparent basis for a suppression of the statement.          Defense counsel

acknowledged on the record that the agreement to admit the statement was a

strategic decision. (RR Vol. 2 at 171-172). “[J]udicial review must be highly

deferential to trial counsel,” and there is nothing in the record to satisfy a

Strickland analysis. Thompson, 9 S.W.3d at 813 (internal citations omitted).

   B. Conclusion.


   There is no non-frivolous issue for appeal based on the admission of Mr.

Aguilera’s statement.




                                       11
ISSUE III: THE ADMISSION OF THE TRANSLATION UNDER RULE
1009 WAS NOT ERROR.

   A. The 45-day Requirement was Waived by Mr. Aguilera.


   Texas Rule of Evidence 1009(a) requires:


      A translation of foreign language documents shall be admissible
      upon the affidavit of a qualified translator setting forth the
      qualifications of the translator and certifying that the translation is
      fair and accurate. Such affidavit, along with the translation and the
      underlying foreign language documents, shall be served upon all
      parties at least 45 days prior to the date of trial.
   The Prosecution provided notice under this rule on July 22, 2014. (CR at 62-

63). However, trial commenced with jury selection on August 13, 2014. (RR

Vol. 2 at 4). The 45-day requirement had not been met at this time and the

translation was admitted into evidence by agreement between the Prosecution

and Defense. (RR Vol. 2 at 170-173; Vol. 3 at 93; Vol. 4 at 9-13). Mr. Aguilera

chose to proceed to trial on August 13, 2014 and did not want the additional

delay by waiting for the 45 days to pass under Rule 1009(a). (RR Vol. 47-48).

Also, “The court, upon motion of any party and for good cause shown, may

enlarge or shorten the time limits set forth in this Rule.” Tex. R. Evid. 1009(f);

See Castrejon v. State, 428 S.W.3d 179, 184-85 (Tex. App.—Houston [1st Dist.]

2014, no pet.)




                                        12
   B. The Trial Court Provided a Proper Limiting Instruction.


   Upon admission of the translation, the trial court instructed the jury:


      Ladies and gentlemen, as State's Exhibit 14 is published for you,
      you have copies of State's Exhibit No. 13 to follow along with as
      that is presented to you. I want to give you an instruction with
      regard to that: That the official translation is the translation, which
      is the document that is State's Exhibit No. 13. By agreement of the
      parties, you have that to follow along. With regard to 13 and 14,
      the translation, that document 13 is the official translation. You will
      be allowed to watch the video for the purpose so that you can see
      the video, see what's going on in the video, including but not
      limited to tone of voice, other things with regard to that. So, you
      will be able to view that, follow along with it, see that. But with
      regard to the official translation, State's Exhibit 13 is the official
      translation. All right?
      (RR Vol. 4 at 12).
   This limiting instruction was provided by agreement of the parties and was

proper under the law. (RR Vol. 4 at 12); Peralta v. State, 338 S.W.3d 598, 606

(Tex. App.—El Paso 2010, no pet.).


   C. Conclusion.


   There is no non-frivolous error to be raised based on the admission of the

translation under Rule of Evidence 1009.




                                        13
ISSUE IV: OTHER MATTERS DO NOT PROVIDE NON-FRIVOLOUS
ISSUES FOR APPEAL.


   A. Sufficiency of the Indictment.


   The indictment tracks the required elements in the Texas Penal Code for

aggravated robbery. (CR at 11); Tex. Penal Code §§ 29.02-29.03; See Tex. Pen.

Code § 31.03. The indictment was never subjected to a motion to quash. Thus,

the indictment is sufficient.


   B. Any Adverse Pretrial Rulings Affecting the Course of the Trial,

      Including but not Limited to Rulings on Motions to Suppress,

      Motions to Quash, and Motions for a Speedy Trial.


   The following pretrial motion was filed and granted:    Motion to Allow

Defense Counsel Access to the Harris County Jail With Electronic Equipment.

(CR at 17-19). Two Motions in Limine were filed pretrial but not ruled upon.

(CR at 66, 68-73). There was a discussion on the record about a Motion to

Suppress Mr. Aguilera’s statement. (RR Vol. 2 at 170-71). However, there is

not a Motion to Suppress on file. Instead, a Motion in Limine regarding Mr.

Aguilera’s statement was filed. (CR at 72-73). Prior to opening statements,

Defense counsel withdrew any objection to Mr. Aguilera’s statement for what




                                       14
the trial court deemed and Defense counsel agreed were “strategic purposes.”

(RR Vol. 2 at 171-72). There were no pretrial rulings adverse to Mr. Aguilera.


      C. Any Adverse Rulings During Trial on Objections or Motions,

        Including but not Limited to Objections to Admission or Exclusion of

        Evidence, Objections Premised on Prosecutorial or Judicial

        Misconduct, and Motions for Mistrial.


      Defense counsel lodged numerous objections during trial. The trial court

sustained several of them. Of those that were overruled, none of those rulings

constituted non-frivolous appellate issues.


           a. Hearsay


        The Prosecution’s first witness, Officer Kyle Myers, was asked, “To your

knowledge, were they both known to be carrying a semiautomatic or was one

carrying a different firearm?” (RR Vol. 3 at 18). Defense counsel objected to

hearsay and stated, “He did not have personal knowledge of that information.”

Id.    This objection was overruled. Id. Evidence of the types of firearms carried

by Mr. Aguilera and Pirata was admitted without objection several times during

trial. (RR Vol. 3 at 42-43; Vol. 5 at 46, 72-74).     “Overruling an objection to

evidence will not result in reversal when other such evidence was received

without objection, either before or after the complained-of ruling.” Johnson v.


                                        15
State, 425 S.W.3d 344, 346 (Tex. App.—Houston [1st Dist.] 2011, pet.

ref'd)(citing Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998)).


         b. Clarifying the video


      Mr. Aguilera’s video recorded statement to police and the official written

translation were admitted without objection and by agreement. (RR Vol. 2 at

170-173; Vol. 3 at 93; Vol. 4 at 9-13); see Issue II, supra. This video was

played for the jury during Officer Horacio Pineda’s testimony because he was

the officer in the video who took Mr. Aguilera’s statement. (RR Vol. 4 at 13).

The Prosecution stopped the video to ask Officer Pineda a question, which drew

an objection from Defense counsel:


      Q. (BY MS. DREHNER) During your investigation you said that
      you had acquired some pictures from Vanessa from Facebook.
      A. Correct.
      Q. Did you use these photos during your questioning of the
      defendant and is this the picture that you are referring to?
      MR. DODIER: Your Honor, I’m going to object to Counsel trying
      to clarify what’s being said and done in the video. If we’re going to
      go through the video, we need to finish the video and then—
      THE COURT: Overruled.
      MR. DODIER:          --if there’s any other questions, that’s my
      objection.
      (RR Vol. 4 at 13).




                                       16
      Officer Pineda conducted the interview and is permitted to answer

questions where he has first hand knowledge of the events. Moreover, the line

of questioning continued without objection. “[A] party must object each time

the inadmissible evidence is offered or obtain a running objection.” Valle v.

State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003).


            c. Facebook photographs


      As the questioning of Officer Pineda continued, two photographs (State’s

Exhibits 8 and 15) were admitted over defense objection. (RR Vol. 4 at 14-16;

Vol. 5 at 17, 88). State’s Exhibit 8 was a photograph of Mr. Aguilera without a

shirt provocatively holding a revolver and wearing a type of pirate hat. (RR

Vol. 5 at 17). State’s Exhibit 15 was a photograph of Mr. Aguilera with Pirata.

(RR Vol. 5 at 88). Mr. Aguilera was holding a revolver and Pirata was holding

a semiautomatic firearm in the photograph.       Id.   The following exchanges

occurred:


      Q. (BY MS. DREHNER) Showing what's been marked as State's
      Exhibit 8 for identification, what is this picture?
      A. It's a picture of Rambo holding the revolver that I showed to him
      during the interview.
      Q. Okay. And this is the one that he identified as being himself?
      A. Yes.




                                       17
MS. DREHNER: Your Honor, at this time State would offer State's
Exhibit 8 and tender to Defense counsel.
MR. DODIER: Your Honor, I'm going to object. This is not related
to this offense at this time. It's 404(b) evidence and should not be
admitted into evidence at this time.
THE COURT: Approach for a minute.
(At the Bench, on the record.)
THE COURT: This is --
MS. DREHNER: This is the revolver that he identifies as being the
revolver that he brought to evidence.
THE COURT: It will be overruled. It's admitted
(RR Vol. 4 at 14).
      …
Q. (BY MS. DREHNER) So, during your questioning, when you
showed him a photo of the revolver, this is the Facebook photo that
you showed him?
A. Yes.
Q. Did he confirm that this was indeed him in the picture and his
revolver?
A. Yes, he did.
(RR Vol. 4 at 15)
      …
Q. (BY MS. DREHNER) I'm going to stop again. Did you show
him another photo from Facebook while you were interviewing
him?
A. Yes, I did.
Q. Was this the same photo that you had received during the course
of your investigation?
A. Yes, it was.

                                 18
      MS. DREHNER: Your Honor, may I approach?
      THE COURT: Yes.
      Q. (BY MS. DREHNER) Showing you what's been marked as
      State's Exhibit No. 15 for identification. Do you recognize this
      photo?
      A. Yes, I do.
      Q. Is this the photo that the defendant identified as being himself
      and Emilio?
      A. Yes, it is.
      MS. DREHNER: Your Honor, at this time the State would offer
      into evidence State's Exhibit 15.
      MR. DODIER: Your Honor, at this time it's the same objection. He
      is embellishing an exhibit that is being produced in evidence. It
      should be looked at first before there is any more direct
      examination of the witness. It is also 404(b) evidence that should
      not be admitted at this time.
      THE COURT: Let me see it. It's overruled. It's admitted.
      (RR Vol. 4 at 15-16).
Texas Rule of Evidence 404(b) provides:
      Evidence of other crimes, wrongs or acts is not admissible to prove
      the character of a person in order to show action in conformity
      therewith. It may, however, be admissible for other purposes, such
      as proof of motive, opportunity, intent, preparation, plan,
      knowledge, identity, or absence of mistake or accident, provided
      that upon timely request by the accused in a criminal case,
      reasonable notice is given in advance of trial of intent to introduce
      in the State's case-in-chief such evidence other than that arising in
      the same transaction.
      These photographs were not 404(b) evidence of other crimes or bad acts.

Simply holding a firearm in a photograph is not a crime or bad act, unless the



                                       19
person is prohibited by law from possessing a weapon. See Crew v. State, 07-

00-0493-CR, 2002 WL 1290891, at *2-4 (Tex. App.—Amarillo June 11, 2002,

no pet.). There was no evidence offered that Mr. Aguilera was prohibited from

owning a firearm.      Assuming arguendo that the photographs were 404(b)

evidence, they were admissible to prove identity under Rule 404(b) and Mr.

Aguilera identified himself and his weapon. A Rule 403 objection was not

made. The photographs were potentially misleading and confusing to the jury

under Rule 403, however, based on the same identity argument the photographs

were still admissible and no error was preserved.


            d. Relevance


During the re-direct examination of Officer Pineda, the following exchange

occurred:


      Q. (BY MS. DREHNER) In regards to Vanessa, is it common in
      law enforcement investigation to have anonymous witnesses?
      A. Yes.
      MR. DODIER: Your Honor, I'm going to object to that as not being
      relevant.
      THE COURT: Overruled.
      (RR Vol. 4 at 29).
   “‘Relevant evidence’ means evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action



                                       20
more probable or less probable than it would be without the evidence.” Tex. R.

Evid. 401.      Defense counsel thoroughly cross-examined Officer Pineda

regarding the anonymity of “Vanessa,” thus any follow-up question by the

Prosecution was relevant. (RR. Vol. 4 at 24-26).


   D. Any Adverse Rulings on Post-Trial Motions, Including Motions for a

      New Trial.


No post-trial motions were filed.


   E. Jury Selection.


   During jury selection, Defense Counsel and Counsel for the Prosecution

came to an agreement on all challenges for cause. (RR Vol. 2 at 159, 162-64).

Both sides were properly permitted to exercise 10 peremptory challenges. (RR

Vol. 2 at 164; CR at 75-80); Tex. Code Crim. Proc. art. 35.16(b). Both sides

were also properly permitted to exercise one additional peremptory challenge for

the selection of one alternate juror. (RR Vol. 2 at 164; CR at 75-80); Tex. Code

Crim. Proc. art. 35.16(d). The 12 jurors and one alternate juror were identified

and seated in the jury box. (RR Vol. 2 at 166). Before the jury was sworn the

trial court inquired:


   Court: Any objections?
   Ms. Drehner: No objections from the State.


                                      21
   Mr. Dodier: None from the Defense.
   (RR Vol. 2 at 166-67).


   The jury was sworn the next morning prior to the start of the trial. (RR Vol.

3 at 6). There were no errors preserved for appeal, and there are no apparent

fundamental errors.


   F. Jury Instructions.


The jury charge contained the following instructions:


   1. Abstract and application of the charged offense, to wit—aggravated

      robbery (CR at 81-84).

   2. Law of parties (CR at 83-84).

   3. Defendant’s election not to testify (CR at 85).

   4. Indictment (CR at 86).

   5. Presumption of innocence Id.

   6. Burden of proof, including reasonable doubt (CR at 86-87).

   7. Unanimity (CR at 87).

   8. Jury conduct, including deliberations and communications (CR at 87-88).

   9. Verdict form containing not guilty and guilty options (CR at 89).




                                       22
   The trial court inquired of both parties as to any objections or requests during

the charge conference. (RR Vol. 4 at 46). Defense counsel objected to the law

of parties instruction:


      I don’t believe it was presented by the evidence. There is [sic]
      certainly no charges filed against the other individual. He’s not a
      party. He’s not—the allegations that are made are solely as to the
      defendant and none other. So, we would ask the Court not to
      include the parties allegation.
      (RR Vol. 4 at 47).


      The trial court overruled the objection. Id. No further objections were

made by either side. Id. No other jury charge issues were preserved and no

fundamental error is apparent.


          a. Law of parties instruction given


      In the case at bar, the jury charge contained the following instructions as

to the law of parties:


      All persons are parties to an offense who are guilty of acting
      together in the commission of the offense. A person is criminally
      responsible as a party to an offense if the offense is committed by
      his own conduct, by the conduct of another for which he is
      criminally responsible, or by both.
      A person is criminally responsible for an offense committed by the
      conduct of another if, acting with intent to promote or assist the
      commission of the offense, he solicits, encourages, directs, aids, or
      attempts to aid the other person to commit the offense. Mere
      presence alone will not constitute one a party to an offense.



                                        23
                                        ***
      [O]r if you find from the evidence beyond a reasonable doubt that
      on or about the 12th day of October, 2013, in Harris County, Texas,
      “Pirata”, did then and there unlawfully, while in the course of
      committing theft of property owned by Jose Reyes, and with intent
      to obtain or maintain control of the property, intentionally or
      knowingly threaten or place Jose Reyes in fear of imminent bodily
      injury or death, and “Pirata” did then and there use or exhibit a
      deadly weapon, namely, a firearm, and that the defendant, Jose
      Aguilera, with the intent to promote or assist the commission of the
      offense, if any, solicited, encouraged, directed, aided or attempted
      to aid “Pirata” to commit the offense, if he did, then you will find
      the defendant guilty of aggravated robbery, as charged in the
      indictment.
(CR at 83-84).
          b. The trial court’s instruction on the law of parties was not erroneous


      This Court reviews jury charge error under the procedure authorized in

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Barrios v.

State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). First, this Court must

determine if there is charge error. Id. “If there was error and appellant objected

to the error at trial, reversal is required if the error ‘is calculated to injure the

rights of the defendant,’ which we have defined to mean that there is ‘some

harm.’”    Id. “Under the Almanza standard, the record must show that a

defendant has suffered actual, rather than merely theoretical, harm from jury

instruction error.” State v. Ngo, 175 S.W.3d 738, 738, 750(Tex. Crim. App.




                                         24
2005)(en banc)(citing Dickey v. State, 22 S.W.3d 490, 492 (Tex. Crim. App.

1999)).

      The jury charge given tracked the language of the applicable sections of

the Texas Penal Code regarding “Parties to Offenses” and “Criminal

Responsibility for Conduct of Another.” Tex. Pen. Code §§ 7.01(a); 7.02(a)(2).

Also, there is no requirement that the other party be identified by name in the

instruction as long as there is some evidence of the other party’s identity in

evidence. Williams v. State, 942 S.W.2d 787, 788 (Tex. App.—Fort Worth

1997, pet. ref'd). Multiple witnesses, including the complaining witness and

Officer Horacio Pineda, identified Pirata as the other party to the offense. (RR

Vol. 3 at 40-44, 71-74, 84). Moreover, the law of parties theory was raised by

the evidence, see infra Statement of Facts, and Pirata was named in the jury

charge. (CR at 84). Finally, there is not a legal requirement that other parties

must be formally charged with the offense. Thus, there is no charge error.

      Assuming arguendo, that there was jury charge error based on the law of

parties instruction, any error would be harmless because the evidence supported

Mr. Aguilera’s guilt as a primary actor or the principal. Black v. State, 723

S.W.2d 674, 675 (Tex. Crim. App. 1986); See infra Statement of Facts.




                                       25
   G. Sufficiency of the Evidence, Including a Recitation of the Elements of

      the Offense and Facts and Evidence Adduced at Trial Relevant to the

      Offense Upon Which Conviction is Based.


   Aggravated robbery with a deadly weapon requires proof of the following

elements:


   1. In the course of committing theft, a person

   2. With intent to obtain or maintain control of the property

   3. Intentionally or knowingly threatens or places another in fear of imminent

      bodily injury or death and

   4. Uses or exhibits a deadly weapon


Tex. Pen. Code § 29.02-29.03. Theft is the unlawful appropriation of property

with the intent to deprive the owner of the property. Tex. Pen. Code § 31.03(a).


            a. The evidence adduced at trial


      The complaining witness, Mr. Reyes, testified that this incident occurred

on October 12, 2013 in Harris County, Texas. (RR Vol. 3 at 32, 47). He also

identified Mr. Aguilera as the defendant in front of the jury. (RR Vol. 3 at 57).




                                         26
                i. Theft


      Mr. Reyes testified that Mr. Aguilera and Pirata took his wallet from his

right pocket. (RR Vol. 3 at 43-44). Mr. Reyes testified that he had cashed his

paycheck that day and his wallet contained between 700 and 800 dollars. (RR

Vol. 3 at 33). He was unable to identify which of the two men actually took the

wallet, but he was certain one of them did. (RR Vol. 3 at 44-45).


               ii. Intent


      Mr. Reyes testified that Mr. Aguilera pointed a revolver at his side and

Pirata pointed a semiautomatic gun at his head. (RR Vol. 3 at 42-43). He also

testified that both men were screaming at him, Pirata struck him in the face, and

Mr. Aguilera was saying “kill him, kill him.” (RR Vol. 3 at 42-45, 72). Mr.

Aguilera got in his car and Pirata’s weapon jammed, so Mr. Reyes pushed Pirata

and ran away. (RR Vol. 3 at 45-46, 72-73). Then, shots were fired at Mr.

Reyes, but Mr. Aguilera was already in the car. (RR Vol. at 45-47, 73).


               iii. Deadly weapon


      Mr. Aguilera identified his revolver and admitted to having it with him

during the incident. (RR Vol. 5 at 46, 72-74). Moreover, Mr. Aguilera admitted

to being an “accomplice to a robbery.” (RR Vol. 5 at 78). Officer Kyle Myers




                                       27
identified shell casings at the scene consistent with Mr. Reyes’ account of the

incident. (RR Vol. 3 at 20-21).


         b. The evidence was sufficient


   Based on a totality of the circumstances and viewed in the light most

favorable to the verdict, a jury could have rationally found each element of

aggravated assault with a deadly weapon beyond a reasonable doubt. Ervin v.

State, 331 S.W.3d 49, 53-56 (Tex. App.—Houston [1st Dist.] 2010, pet.

ref'd)(citing Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)). Thus,

the evidence is sufficient to support the conviction.


   H. Any Failure on the Part of the Appellant’s Trial Counsel to Object to

      Fundamental Error.


After a thorough review of the record, no fundamental error is apparent.


   I. Any Adverse Rulings During the Punishment Phase on Objections or

      Motions.


   The Prosecution presented two witnesses during punishment, Marsha

Johnson and Officer Alan Nguyen. (RR Vol. 4 at 77-85, 86-96). Their testimony

included evidence of other bad acts of Mr. Aguilera—failure to stop and give

information and filing a false report. Id. Proper notice was given to defense



                                        28
counsel pretrial. (CR at 24-25). No objections were made to this evidence.

Defense counsel did not present any punishment evidence. (RR Vol. 4 at 96).


   There were several hearsay objections lodged by Defense counsel during the

punishment phase. First, Marsha Johnson was asked by the Prosecution, “Later

on did Officer Nguyen ask you to identify somebody or if you recognized

somebody that was the driver of the black Mustang or how did that happen?”

(RR Vol. 4 at 83). Defense counsel objected to any hearsay as to what Officer

Nguyen said, which was overruled by the trial court. (RR Vol. 4 at 84). This

testimony was later admitted without objection from Officer Nguyen. (RR Vol.

4 at 93). “Overruling an objection to evidence will not result in reversal when

other such evidence was received without objection, either before or after the

complained-of ruling.” Johnson v. State, 425 S.W.3d 344, 346 (Tex. App.—

Houston [1st Dist.] 2011, pet. ref'd)(citing Leday v. State, 983 S.W.2d 713, 718

(Tex.Crim.App.1998)).


   Next, Officer Nguyen was asked by the Prosecution, “Did you see the

person—was she able to give you a description of the person that had struck the

complainant?”    (RR Vol. 4 at 88).     Defense counsel objected on hearsay

grounds, and the court overruled the objection.      Id.   Marsha Johnson had

previously provided this description in her testimony before the jury without

objection. (RR Vol. 4 at 80); Johnson, 425 S.W.3d at 346. Defense counsel

                                      29
lodged two additional hearsay objections to Officer Nguyen’s testimony that

were overruled. (RR Vol. 4 at 93-94). They both involved Marsha Johnson’s

identification of Mr. Aguilera. However, this description and identification of

Mr. Aguilera was already in evidence. (RR Vol. 4 at 80, 85); Johnson, 425

S.W.3d at 346. No non-frivolous appellate issues resulted from the hearsay

objections that were overruled.


   J. Whether the Sentence Imposed was Within the Applicable Range of

      Punishment.


   Aggravated robbery is a first degree felony which “shall be punished by

imprisonment in the Texas Department of Criminal Justice for life or for any

term of not more than 99 years or less than 5 years.” Tex. Penal Code §

29.03(b); § 12.32(a). A first degree felony also carries a potential $10,000

maximum fine. Tex. Penal Code § 12.32(b). The sentence imposed was 8.5

years imprisonment in the Texas Department of Criminal Justice without a fine.

(CR at 101; RR Vol. 4 at 109). The sentence imposed was within the applicable

range of punishment.




                                      30
   K. Whether the Written Judgment Accurately Reflects the Sentence

       That was Imposed and Whether any Credit was Properly Applied.


   The written judgment accurately reflects the sentence that was imposed. (CR

at 101, 104-05; RR Vol. 4 at 109). Credit was properly applied from the date of

the arrest until the date of the conviction. (CR at 104; RR Vol. 3 at 90; RR Vol.

5 at 26).


   L. Examination of the Record to Determine if the Appellant was Denied

       Effective Assistance of Counsel.


   Discussed supra, in arguable grounds for review issues I and II.


                                      Prayer

       For the reasons above, Appellant respectfully urges that this appeal

presents no non-frivolous issues or grounds for relief. Appellant’s Counsel

respectfully requests that this Court grant the motion to withdraw. Stafford v.

State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991). Appellant urges this Court

grant such other relief as he may be entitled.

                                       Respectfully submitted,


                                       __/s/ Emily Detoto_______
                                       EMILY DETOTO
                                       State Bar No. 00797876
                                       917 Franklin, 4TH Floor


                                        31
                                      Houston, Texas 77002
                                      (713) 227-2244
                                      (713) 222-5840 (fax)
                                      emilydetoto@mac.com


                                      __/s/ Megan Smith____________
                                      MEGAN E. SMITH
                                      State Bar No. 24076196
                                      917 Franklin, Suite 310
                                      Houston, Texas 77002
                                      (713) 899-5438
                                      megan@megansmithlaw.com


                                      Counsel for Appellant

                             Certificate of Service

      I hereby certify that a true and correct copy of the Anders Brief for
Appellant was electronically delivered to Mr. Alan Curry, Appellate Division
Chief, Harris County District Attorney’s Office, on this 29th day of January
2015.

                                      _____/s/ Emily Detoto____
                                      EMILY DETOTO

                          Certificate of Compliance

      I hereby certify, pursuant to Rule 9.4 of the Texas Rules of Appellate
Procedure, that the instant brief is computer generated using Microsoft Word for
Mac and said computer program has identified that there are 6,462 words within
the portions of this brief required to be counted by Rule 9.4(i)(1)&(2) of the
Texas Rules of Appellate Procedure.           The document was prepared in
proportionately spaced typeface using Times New Roman 14 for text and Times
New Roman 12 for footnotes.


                                      _____/s/ Emily Detoto______
                                           EMILY DETOTO

                                      32
                        Certificate of Notice to Appellant

      The undersigned counsel affirms that the Notice to Client, infra, has been
given to the appellant, Mr. Jose Aguilera, regarding his right to examine the
appellate record and to file a pro se responsive brief.


                                        _____/s/ Emily Detoto______
                                             EMILY DETOTO

                                 Notice to Client

        Pursuant to Anders v. California, 386 U.S. 738, 744 (1967) and Texas
Rules of Appellate Procedure 34.5(g) and 34.6(h), as the appellant, you have the
automatic right to examine the record on appeal and file a pro se responsive brief
arguing that there are meritorious issues to appeal. A defendant who intends to
file a responsive brief must notify the Court in writing within 14 days of receipt of
the Anders brief and have the Court of Appeals set forth a date by which the brief
will be filed.

                                        _____/s/ Emily Detoto______
                                             EMILY DETOTO




                                         33
