                                                                           ACCEPTED
                                                                      03-14-00525-CR
                                                                             4442271
                                                            THIRD COURT OF APPEALS
                                                                       AUSTIN, TEXAS
                                                                 3/10/2015 2:51:28 PM
                                                                    JEFFREY D. KYLE
                                                                               CLERK

          Case No. 03-14-00525-CR
                                                      FILED IN
                                               3rd COURT OF APPEALS
                                                   AUSTIN, TEXAS
                                               3/11/2015 2:51:28 PM
      IN THE COURT OF APPEALS                    JEFFREY D. KYLE
                                                       Clerk
       THIRD JUDICIAL DISTRICT
           AUSTIN, TEXAS


ELIAS SHAWN BIHL, Appellant

                        vs.
THE STATE OF TEXAS, Appellee

         BRIEF FOR APPELLANT
IN ACCORDANCE WITH ANDERS v. CALIFORNIA


     On Appeal from Cause Number C-13-0631-SA
 in the 340TH District Court, Tom Green County, Texas

                 Prepared by:
                 Justin S. Mock
                 Ellis & Mock, PLLC
                 125 South Irving Street
                 San Angelo, Texas 7 6903
                 Telephone: (325) 486-9800
                 Facsimile: (325) 482-0565
                 Texas State Bar Number 24064155
                 Justin@ellisandmock.com
                 Court Appointed Attorney
                 for Appellant Elias Shawn Bihl
                            Identity Of Parties And Counsel

     In accordance with Rule 38.l(a), Texas Rules of Appellate Procedure,
Counsel for Appellant certifies the following is a complete list of parties and counsel
known to be legally interested in the resolution of the instant appeal.

Mr. Jason Ferguson
Office of Tom Green County District Attorney
124 West Beauregard A venue
San Angelo, Texas 7 6903
Appellee


Mr. Elias Shawn Bihl
Inmate Number 01938565
TDCJ
McConnell Unit
3001 South Emily
Beeville, Texas 78102
Appellant


                                                /s/ Justin S. Mock
                                               Justin S. Mock, Attorney for Appellant




                                           1
                                     TABLE OF CONTENTS

 Identity Of Parties And Counsel ..................................................................................... i

 Table Of Contents .......................................................................................................... ii

 Index OfAuthorities ....................................................................................................... v

 Statement Of The Case ................................................................................................. vii

 Issues Presented .......................................................................................................... viii

Issue Number One: Sufficiency of the indictment.

Issue Number Two: 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.

Issue Number Three: 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.

Issue Number Four: Any adverse rulings on post-trial motions, including motions for
a new trial.

Issue Number Five: Jury selection.

Issue Number Six: Jury Instruction.

Issue Number Seven: 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.

Issue Number Eight: Any failure on the part of appellant's trial counsel to object to
fundamental error.




                                                              ii
Issue Number Nine: Any adverse rulings during the punishment phase on objections
or motions.

Issue Number Ten: Whether the sentence imposed was within the applicable range of
punishment?

Issue Number Eleven: Whether the written judgment accurately reflects the sentence
that was imposed and whether any credit was properly applied?

Issue Number Twelve: Examination of the record to determine if the appellant was
denied effective assistance of counsel.

StatementOfTheFacts .................................................................................................... 1

Summary Of The Argument Oflssue Number One ...................................................... 3

Argument Of Issue Number One ..................................................................................... 3

Summary Of The Argument Oflssue Number Two ........................................................ 5

ArgumentOflssueNumberTwo ..................................................................................... 5

Summary Of The Argument Oflssue Number Three ...................................................... 5

Argument Of Issue Number Three .................................................................................. 5

Summary Of The Argument Of Issue Number Four..................................................... 8

Argument Ofissue Number Four................................................................................. 8

SummaryOfTheArgumentOflssueNumberFive ........................................................ 9

Argument Of Issue Number Five ..................................................................................... 9

Summary Of The Argument Oflssue Number Six ......................................................... 9

Argument Of Issue Number Six ...................................................................................... 9



                                                           iii
Summary Of The Argument Oflssue Number Seven ................................................... 10

Argument Oflssue Number Seven ................................................................................ 11

Summary Of The Argument Oflssue Number Eight. ................................................. 26

Argument Oflssue Number Eight. ................................................................................. 26

Summary Of The Argument Oflssue Number Nine ..................................................... 27

Argument Of Issue Number Nine .................................................................................. 27

SummaryOfTheArgument Oflssue Number Ten ........................................................ 30

Argument Of Issue Number Ten .................................................................................... 31

Summary Of The Argument Oflssue Number Eleven ................................................... 32

Argument Oflssue Number Eleven ............................................................................ 3 3

SummaryOfTheArgumentOflssueNumberTwelve .................................................. 33

ArgumentOflssueNumberTwelve .............................................................................. 33

Anders Brief.................................................................................................................. 37

Prayer .................................................................................................................................. 38

Certificate of Service ..................................................................................................... 40

Certificate of Compliance .................................................................................................. 41

Copy ofAnders Correspondence Addressed To Elias Shawn Bihl ............................... 42




                                                                    lV
                                      INDEX OF AUTHORITIES

CASE LAW                                                                                                PAGE

Andersv. California, 87 S. Ct.1396(1967) ...................................................................... 1

Billodeau v. State, 277 S.W. 3d 34 (Tex. Crim. 2009) ........................................ 8

Bonev. State, 77 S.W. 3d828 (Tex. Crim.App. 2002) ................................... 35,37

Brooksv. State, 323 S.W. 3d893(Tex. Crim.App.2010) ................................ .11,12

Drueryv. State, 225 S.W. 3d491 (Tex. Crim. App. 2007) ................................. 10

Gearv. State, 340 S.W. 3d 743 (Tex. Crim. App. 2011) .... ~ ............................... .12

Hernandezv. State, 988 S.W. 2d 770 (Tex. Crim. App. 1999) .............................. 33

Hernandezv. State, 726 S.W. 2d 53 (Tex. Crim. App. 1986) ............................... 35

Jackson v. Virginia,443 U.S. 307 (1979) ................................................. .11,12

Malletv. State, 65 S.W. 3d59 (Tex. Crim. App. 2001) .................................. 35,36

Martinezv. State, 327 S.W. 3d 727 (Tex. Crim.App. 2010) .................................. 7

Mitchellv. State, 68 S.W. 3d640 (Tex. Crim. App. 2002) .................................. 35

Nichols v. State, 56 S.W.3d 760, 765 (Tex.App.-Houston [14th Dist.] 2001, pet.
re:f d) ............................................................................................. 29

Sandoval v. State, 03-11-00416-CR, September 13, 2013 .................................. 7, 8

Stricklandv. Washington,466U.S. 668 (1984) ......................................................... 33,34

Thompson v. State, 9 S.W. 3d 808 (Tex. Crim. App.1999) ......................... 34,35,36

Tillman v. State, 354 S.W. 3d425 (Tex. Crim. App. 2011) ........................................... 7

                                                      vu
STATUTES                                                                                                   PAGE

Texas Code of Criminal Procedure Article. 21.02 ...................................................... 3,4

Texas Code of Criminal Procedure Article. 42.08 .................................................. 28,29

Texas Penal Code Section 1.07 ................................................................ 11

Texas Penal CodeSection2.01 ................................................................ 11

Texas Penal Code Section 12.42 ................................................................................ 30,31

Texas Penal Code Section21.01 .............................................................. 4,5

TexasPenalCodeSection22.02 ........................................................................ 4,5,11,31

Texas Rule ofAppellate Procedure 21.8 ........................................................................ 8




                                                        Vll
                            STATEMENT OF THE CASE

Nature of the Case:
In District Court Cause Number C-13-0631-SB, Elias Shawn Bihl was charged by
indictment with having committed the offense of aggravated assault with a deadly
weapon. C.R. 10-11. The indictment included enhancement paragraphs
referencing two previous felony convictions exposing Bihl to the punishment range
for a habitual felony offender. C.R. 10-11.

Course of Proceedings:
Elias Bihl entered a plea of not guilty to the indictment and proceeded to jury trial on
May 19, 2014. IV R.R. 19; IV R.R. 9.

Trial Court's Disposition of the Case:
At the conclusion of a two day jury trial, Elias Shawn Bihl was found guilty of
aggravated assault with a deadly weapon as alleged in the indictment. V R.R. 88;
C.R. 49-52, 62. The jury found both enhancement paragraphs to be true. V R.R.
126; C.R. 49-52, 57. The jury assessed punishment and Bihl was sentenced to thirty
(30) years in TDCJ. V R.R. 126; C.R. 49-52, 57. The trial court ordered that the
sentence in this case be served consecutively to the sentences in Cause numbers
C-13-0381-SB and C-13-0382-SB. V R.R. 130-131; C.R. 49-52.




                                            Vll
                                ISSUES PRESENTED

      A review of the complete Record results in an absence of finding any

meritorious issues to be advanced in good faith on appeal. Any conceivable

issues result from the following considerations:

 1.    Was the indictment sufficient to support Elias Shawn Bihl' s conviction?

2.     Did the trial judge err in any of the court's pretrial rulings, including but not
       limited to rulings on motions to suppress, motions to quash, and motions
       for a speedy trial, which adversely impacted Elias Shawn Bihl?

3.     Did the trial judge err in any of the court's rulings during the course of trial,
       including but not limited to objections to admission or exclusion of
       evidence, objections premised on prosecutorial or judicial misconduct,
       and motions for mistrial, which adversely impacted Elias Shawn Bihl?

4.     Did the trial judge err in any of the court's post trial rulings, including on a
       motion for new trial, which adversely impacted Elias Shawn Bihl?

5.     Does the record indicate reversible error occurred during or in connection
       with jury selection?

6.     Does the record indicate correct instructions were provided to the jury?

7.     Was the evidence presented at trial sufficient to support Elias Shawn Bihl's
       conviction?

8.     Does reversible error exist based on the failure of Counsel for Elias Shawn
       Bihl to object to fundamental error?

9.    Did the trial judge err in any of the court's rulings during the punishment
      phase of trial which adversely impacted Elias Shawn Bihl?

10.   Is Elias Shawn Bihl's sentence within the applicable punishment range
      for a habitual felony offender?


                                           viii
11.   Does the Judgment accurately reflect the sentence imposed by the trial
      court and properly apply jail credit to Elias Shawn Bihl's sentence?

12.   Did Attorney Nathan Butler render ineffective assistance of counsel to Elias
      Shawn Bihl?




                                        lX
To the Honorable Justices of the Third Court of Appeals:

      Appellant, Elias Shawn Bihl, submits this Brief on appeal by and through

his Appellate Counsel, Justin S. Mock. After a conscientious examination of the

case, including a diligent review of the Record and applicable authorities,

Counsel finds an absence of meritorious grounds for appeal and further submits

the basis of any appeal in this case would be frivolous in nature. Therefore,

Appellate Counsel Justin S. Mock submits the following Anders Brief on behalf of

Appellant. Anders v. State of California, 386 U.S. 738 (1967).


                        STATEMENT OF THE FACTS

      Elias Shawn Bihl was charged by indictment with having committed the

offense of aggravated assault with a deadly weapon. C.R. 10-11. The indictment

included enhancement paragraphs referencing two prior felony convictions

exposing Bihl to the punishment range for a habitual felony offender. C.R. 10-11.

The trial court appointed attorney Nathan Butler to represent Bihl on May 13,

2013. C.R. 7. The case proceeded to jury trial on May 19, 2014. IV R.R. 9.

      The State's case against Bihl sought to establish the following facts and

circumstances at trial: Bihl and Rigoberto Rivera were drinking and using cocaine

in their residence; Bihl began acting erratic and paranoid; Bihl assaulted Rivera

                                         1
with a gun and knife causing injuries; Rivera escaped the residence by crawling

through a window; Rivera jumped the fence in back of the house and went to seek

help from neighbors; Rivera was found on the front porch of a nearby neighbor's

house covered in blood with multiple injuries; Bihl was found several blocks from

his residence after having a motor vehicle accident.

      Defense counsel aggressively cross examined the State's witnesses and

argued the State ultimately failed to prove that the alleged victim was stabbed by

Bihl with a knife.

      At the conclusion of the guilt/innocence phase of trial, the jury found Bihl

guilty of aggravated assault of a deadly weapon as alleged in the indictment. V

R.R. 88; C.R. 62. At the conclusion of the punishment phase of trial, the jury

found both of the enhancement paragraphs contained in the indictment to be true

and assessed punishment at thirty (30) years in TDCJ. V R.R. 126; C.R. 57. Prior

to sentencing Bihl, the trial court granted the State's Motion to Cumulate

Sentence, and ordered that the sentence in this cause be served consecutively with

the sentences rendered in Cause Numbers C-13-0382-SB and C-13-0381-SB. V

R.R. 130; C.R. 50.

      Bihl filed a Motion for New Trial and Motion in Arrest of Judgment on June 19,

2014. C.R. 64-66. Bihl filed Notice Of Appeal with the trial court on August 15,
                                         2
2014. C.R. 71. Bihl now appeals his conviction and sentence to this Honorable

Third Court of Appeals.

            SUMMARY OF ARGUMENT OF ISSUE NUMBER ONE

             The indictment was sufficient to support Bihl' s conviction.


                    ARGUMENT OF ISSUE NUMBER ONE

      Article 21.02 of the Texas Code Of Criminal Procedure lists the requisites

of an indictment. Texas Code Of Criminal Procedure, Article 21.02. In order for

an indictment to be deemed sufficient, Article 21.02 requires the following:


       1.     It shall commence, "In the name and by authority of The State of
              Texas·"
                    '
       2.     It must appear that the same was presented in the district court of the

              county where the grand jury is in session;

       3.    It must appear to be the act of a grand jury of the proper county;

       4.    It must contain the name of the accused, or state that his name is

             unknown and give a reasonable accurate description of him;

       5.    It must show that the place where the offense was committed is

             within the jurisdiction of the court in which the indictment is

             presented;


                                          3
       6.    The time mentioned must be some date anterior to the presentment

             of the indictment, and not so remote that the prosecution of the

             offense is barred by limitation;

       7.    The offense must be set forth in plain and intelligible words;

       8.    The indictment must conclude, "Against the peace and dignity of the

             State·" and
                  '
       9.    It shall be signed officially by the foreman of the grand jury." Texas

             Code Of Criminal Procedure, Article 21.02.

      The essential elements relevant to the aggravated assault with a deadly weapon

charge brought against Bihl are contained in Section 22.02(a)(2) of the Texas Penal

Code. Texas Penal Code Section 22.02(a)(2).         Section 22.02(a)(2) states, "A

person commits an offense if the person commits assault as defined in Sec. 22.01

and the person uses or exhibits a deadly weapon during the commission of the

assault. Texas Penal Code Section 22.02.

      Section 22.0l(a) provides,
            "A person commits an offense if the person:
            ( 1) intentionally, knowingly, or recklessly causes bodily
            injury to another, including the person's spouse;
            (2) intentionally or knowingly threatens another with
            imminent bodily injury, including the person's spouse; or
            (3) intentionally or knowingly causes physical contact
            with another when the person knows or should
            reasonably believe that the other will regard the contact
            as offensive or provocative. Texas Penal Code Section
                                           4
              22.01.

       The language of the indictment complies with all of the requirements of Texas

Code Of Criminal Procedure Article 21. 02 and includes all of the essential elements

ofTexasPenal Code Section 22.02(a)(2). There is no indication that the indictment

was insufficient. Reversible error does not exist based on an insufficient

indictment.


           SUMMARY OF ARGUMENT OF ISSUE NUMBER TWO

                No adverse pretrial rulings resulted in reversible error.


                       ARGUMENT OF ISSUE NUMBER TWO

      The Reporter's transcript includes a pretrial hearing which took place May 6,

2014. II R.R. 4-11.      The Record does not reflect there were any pretrial rulings

made which were adverse to Bihl. Therefore, no reversible error exists based on

adverse pretrial rulings.


         SUMMARY OF ARGUMENT OF ISSUE NUMBER THREE

              No adverse rulings during trial resulted in reversible error.


                   ARGUMENT OF ISSUE NUMBER THREE

      During the trial, there were three primary rulings adverse to Bihl. These

                                            5
included the trial judge sustaining relevance objections made by the State during

defense counsel's cross examination of witness Rigoberto Rivera and the trial

judge overruling an objection made by Defense counsel to the admission of

possible extraneous offense evidence against Bihl.

      During the defense's cross examination of Rigoberto Rivera, the alleged

victim, the Assistant District Attorney objected to the relevance of defense

counsel's line of questioning pertaining to the witness' country of residence. IV

R.R. 36. The trial court sustained the objection and permitted defense counsel to

make a bill of review. IV R.R. 39, 40-43. Defense counsel attempted to elicit

testimony from the witness to establish that the witness had made a prior

inconsistent. statement as to his residency status. Actual testimony elicited during

the bill of review indicated that the witness' prior statement was not inconsistent

with the testimony given in this case. IV R.R. 40-43.

      Also during the defense counsel's cross-examination of Rivera, the State

objected to questions pertaining to a document previously marked as Defense

Exhibit One, but not yet admitted into evidence. IV R.R. 47. The objection was

sustained by the trial court. IV. R.R. 47. Defense counsel went on to offer

Defense Exhibit 1 for demonstrative purposes only. The State had no objection

and the exhibit was admitted for demonstrative purposes. IV. R.R. 48. As the
                                          6
exhibit that defense counsel sought to elicit testimony about was ultimately

admitted into evidence, sustaining the objection of the State had no adverse

impact on Bihl.

      During the direct examination of Officer Richard Espinoza by the State,

testimony concerning Bihl' s behavior in the emergency room was elicited. V

R.R. 13.    Defense counsel objected that the state was seeking to introduce

evidence of an extraneous offense(s) of Bihl. V R.R. 14. The State, in response

to the objection, claimed the evidence sought to be elicited was being offered to

show the state of mind of the defendant. The trial court overruled the objection

and allowed the testimony. V R.R. 14.

      An appellate court applies the abuse of discretion standard when reviewing

a trial court's ruling on the admission or exclusion of evidence. Tillman v. State,

354 S.W. 3d 425, 435 (Tex. Crim. App. 2011); Sandoval v. State, 03-11-00416-CR,

September 13, 2013. The trial court will not be found to have abused its discretion

unless its decision "lies outside the zone of reasonable disagreement." Martinez v.

State, 327 S.W. 3d 727, 736 (Tex. Crim. App. 2010); Sandoval v. State, 03-11-

00416-CR, September 13, 2013. The reviewing court considers the trial court's

ruling based on the evidence before the trial court at the time of the ruling and the

trial court's decision should be upheld if it lies within the zone of reasonable
                                          7
disagreement. Billodeau v. State, 277 S.W. 3d 34, 39 (Tex. Crim. 2009); Sandoval

v. State, 03-11-00416-CR, September 13, 2013. There is no indication the trial

judge abused his discretion in overruling the Bihl's objections.

       Based on a thorough review of the Record and applicable legal

authorities, no reversible error exists based on adverse rulings made during trial.


           SUMMARY OF ARGUMENT OF ISSUE NUMBER FOUR

         No adverse rulings on post-trial motions resulted in reversible error.


                      ARGUMENT OF ISSUE NUMBER FOUR

       A Motion For New Trial and Motion in Arrest of Judgment was filed on

behalf of Bihl on June 19, 2014. C.R. 64-66. It does not appear a full hearing on

the Motion For New Trial was requested or took place which is not uncommon.

The Record is void of any indication the trial court ruled on the Motion For New

Trial and Motion in Arrest of Judgment. Such a motion, if not ruled upon within

7 5 days after imposing or suspending sentence, will be deemed denied after the

expiration of the 75 day period. Texas Rules ofAppellate Procedure 21.8. There

is no indication that the trial court abused its discretion in failing to rule on Bihl' s

Motion For New Trial, and no reversible error exists based on adverse rulings on

post-trial motions.
                                            8
             SUMMARY OF ARGUMENT OF ISSUE NUMBER FIVE

                 Reversible error does not exist based on jury selection.


                      ARGUMENT OF ISSUE NUMBER FIVE

         The Reporter's transcript documents the jury selection process. III R.R. 4-95.

The State and the Defense had an opportunity to conduct their own voir dire. III R.R.

27-87. The Clerk's Record contains documentation of strikes exercised by the State

and the Defense during the jury selection process. C.R. 28-36. The Reporter's

Transcript reflects the District Clerk swore in the individuals selected to serve on

the jury as required by law. IV R.R. 88-89. The Reporter's transcript reflects the trial

judge issued preliminary instructions to the empaneled jurors as required by law.

IV R.R. 91-95. There is no indication based on a thorough review of the Record

that any error took place dur!ng the jury selection process resulting in reversible

error.

             SUMMARY OF ARGUMENT OF ISSUE NUMBER SIX

    Reversible error does not exist based on the instructions provided to the jury.


                      ARGUMENT OF ISSUE NUMBER SIX

         The Record documents the instructions     provi~ed   to the jury by the trial


                                            9
judge. C . R . 5 3 - 6 2 . The Reporter's transcript reflects the trial judge read the

jury instructions out loud before the jury began deliberations during the

guilt/innocence phase of trial and before the jury began deliberations during the

punishment phase of trial. V R.R. 44-54, 10 5-112. Both jury instructions are

included in the Clerk's Record. C.R. 5 8- 61, 53-56. The Reporter's transcript

reflects charge conferences were conducted prior to the presentation of either

charge to the jury. V R.R. 42-43, 104. Neither party objected to the proposed

charges. V R.R. 42-43, 104. The relevant jury forms are included in the Clerk's

Record. C.R. 62, 57.

       Appellate courts asked to review jury charge error first determine whether

error exists in the jury charge, and if so, determine if sufficient harm resulted from

the error to warrant reversal. Druery v. State, 225 S.W. 3d 491, 504 (Tex. Crim.

App. 2007).

       A thorough review of the Record indicates no error exists based on the

instructions provided to the jury at either stage of trial resulting in reversible error.



          SUMMARY OF ARGUMENT OF ISSUE NUMBER SEVEN

     The evidence presented at trial was sufficient to support Bihl' s conviction.



                                            10
                   ARGUMENT OF ISSUE NUMBER SEVEN

Burden OfProofAnd Elements Of The Offense:

      At trial the State of Texas was required to prove each essential element of the

offense beyond a reasonable doubt. Texas Penal Code Section 2.01. The essential

elements relevant to the aggravated assault with a deadly weapon charge brought

against Bihl are contained in Section 22.02(a)(2) of the Texas Penal Code and in

the indictment. Texas Penal Code Section 22. 02; C.R. 10-11. The essential

elements the State was required to prove at trial include:

       a)     The offense was committed on or about May 12, 2013, in Tom
              Green County, Texas;
       b)     Bihl was the individual who committed the offense;
       c)     Bihl committed the offense intentionally, knowingly or recklessly;
       d)     Bihl caused bodily injury to Rivera by stabbing with a knife;
       e)     Bihl used or exhibited a deadly weapon (knife); and
       f)     The knife, in the manner of its use or intended use, was capable of
              causing death and serious bodily injury. Texas Penal Code Section
              22.02 (a)(2); Texas Penal Code Section 1.07(17)(b); C.R. 10-11.

Standard OfReview On Appeal For Sufficiency Of The Evidence:

      The Texas Court of Criminal Appeals has held that when an appellate court

is asked to review the sufficiency of the evidence presented at trial, the appellate

court should apply the standard of review for legal sufficiency as set out by the

United States Supreme Court in Jackson v. Virginia. Brooks v. State, 323 S.W. 3d

893, 895, 916 (Tex. Crim. App. 2010), Jackson v. Virginia, 443 U.S. 307, 316
                                          11
(1979). The application of the Jackson standard requires the appellate court to

review all of the evidence in the light most favorable to the verdict and determine,

based on that evidence, and reasonable inferences therefrom, if a rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.

Jackson, 443 U.S. at 319, Brooks, 323 S.W. 3d at 895, 899, 916; Gear v. State, 340

S.W. 3d 743, 747 (Tex. Crim. App. 2011).

      The evidence presented by the during the guilt/innocence phase of trial

included the live testimony of five witnesses, one demonstrative exhibit, sixty-

nine photographs, and two items of physical evidence, a knife and a firearm. IV

R.R. 5-10.

      Rigoberto Rivera, the alleged victim, testified at the trial. IV R.R. 22.

Rivera testified that he and Bihl worked together moving rigs. IV R.R. 23. He

and Bihl were living together in a home on May 11, 2013. IV R.R. 23. He

indicated that on that evening he and Bihl were talking, drinking and doing

cocaine when Bihl went crazy and attacked him. IV R.R. 24. Bihl began walking

through the house looking through windows. He told Rivera that someone was

trying to kill them and for Rivera to hide. IV R.R. 25. They went into Bihl' s

room and Bihl put a gun to Rivera's head. IV R.R. 26. Bihl had previously shown

the gun to Rivera. IV R.R. 27. Rivera was scared and believed Bihl was going to
                                         12
kill him. They went to kitchen where Bihl got a knife and pointed it at Rivera. IV

R.R. 28. Bihl began hitting Rivera with the gun. Rivera almost passed out and he

noticed Bihl was no longer in the room. IV R.R. 30. Rivera pushed a fan out of a

window, and exited the room through that window. IV R.R. 30. Rivera jumped

the back fence and went to look for help. IV R.R. 30. Rivera went to one house

seeking help, but got no response. IV R.R. 31. People at the second house called

for help. IV R.R. 31. Rivera was treated at the hospital for six cuts and received

stitches. IV R.R. 32. He also received staples on his head. IV R.R. 32. Rivera

testified that he did not have a weapon during the incident. IV R.R. 33. He

denied fighting with or threatening Bihl. IV R.R. 33. Rivera identified Bihl in

the courtroom. IV R.R. 34.

      On cross-examination, Rivera testified that he has a U.S. residence card,

but is not a U.S. citizen. IV R.R. 34-35. Rivera did not remember how much

cocaine he did on the night of the incident. IV R.R. 44-45. He estimated he had

close to six beers. IV R.R. 46. While they were in the living room, Bihl got up

and walked over to look out the windows. IV R.R. 50-51. Bihl was moving

around a lot and went to Bihl' s bedroom and retrieved the gun. IV R.R. 51.

When Bihl emerged from his room he had the gun. IV R.R. 52. Bihl told Rivera

someone was outside and for Rivera to hide. Rivera was following Bihl and
                                        13
listening to him. IV R.R. 53. Rivera followed Bihl around the house and then

into Bihl's room. IV R.R. 54-55. Bihl put the gun to Rivera's head. IV R.R. 55.

Bihl was holding the gun with his right hand, and holding Rivera around the

throat with his left hand. IV R.R. 56. Bihl took Rivera to the kitchen, and "out of

nowhere he had the knife." IV R.R. 56. Bihl did not have the knife before they

went into the kitchen. IV R.R. 57. The knife was black, but Rivera did not really

see the knife because of the way Bihl was holding him. IV R.R. 57. Rivera

admitted to previously calling the knife a "kitchen knife," but wasn't really able to

see the knife held to his throat. IV R.R. 57-58. Rivera was not sure if the knife

the State had in its possession was the knife used by Bihl. IV R.R. 59.

      Rivera stated he was not injured in the kitchen, but he didn't notice his

injuries until he was at the hospital. IV R.R. 59-60. Once they reached the

bedroom, Bihl began hitting him in the head with the gun. IV R.R. 60. Defense

counsel had Rivera demonstrate his positioning before and after he was initially

struck by Bihl with the gun. IV R.R. 61-63. Rivera indicated he was covering

himself during the attack. He believes he passed out. Once Rivera opened his

eyes he realized Bihl was not in the room. At that point Rivera tried to escape.

IV R.R. 64. Rivera stated that he never saw Bihl stab him with the knife. He said

everything happened quickly and he thinks he passed out. IV R.R. 67. Defense
                                         14
counsel questioned Rivera as to how he left through the window and how he

jumped the fence. IV R.R. 68-70. Rivera never saw how Bihl left the residence.

IV R.R. 71. Rivera did not return to the residence. IV R.R. 71.

       On redirect examination by the State, Rivera testified that he first noticed

Bihl had a knife when Bihl took him to the kitchen while holding a gun. IV R.R.

72. Rivera did not know where the knife came from IV R.R. 72. Bihl put the

knife to Rivera's throat. IV R.R. 72. Rivera did not get a good look at the knife.

He only knew it was a black knife. IV R.R. 73. Rivera denied having any

injuries, cuts or head wounds before this incident. IV R.R. 74. He did not know

he had cuts until he was at the hospital. IV R.R. 7 5.

      San Angelo Police Officer Anthony Dietz testified at trial. IV R.R. 77.

Officer Dietz was working patrol on May 11, 2013, and was dispatched to the

1700 block of Juanita Street in San Angelo, Tom Green County, Texas. IV R.R.

78. Upon arrival he found the victim lying on the ground, covered in blood. IV

R.R. 79. The victim identified himself to Officer Dietz as Rigoberto Rivera. IV

R.R. 81. Rivera was crying and told him that someone was trying to kill him. IV

R.R. 81. Officer Dietz indicated that Rivera had a cut on his forearm that was

caused by a sharp cutting instrument. IV R.R. 83. Rivera expressed to Dietz that

he was in pain. IV R.R. 89. Officer Dietz called a medic and took pictures of
                                          15
Rivera and the scene where Rivera was found.         IV R.R. 83. Using Rivera's

description, Dietz was able to follow the blood trail to the alley. IV R.R. 84.

      Dietz later went to the hospital, where he informed Bihl that he was under

arrest for aggravated assault with a deadly weapon. IV R.R. 86, 88. He did not

notice any significant injuries to Bihl at that time. IV R.R. 90. Officer Dietz

identified Bihl in the courtroom. IV R.R. 88.

      San Angelo Police Officer Lee Kvittem testified at the trial. IV R.R. 91.

Officer Kvittem was working on May 11, 2013, when he received a call to assist

other officers. IV R.R. 92. He initially responded to the scene where the victim

was located, but was instructed to find the crime scene. IV R.R. 92. Based on a

description of the house and vehicle expected to be found, Officer Kvittem

located the crime scene at 1601 Juanita Street, San Angelo, Tom Green County,

Texas. IV R.R. 92-93. He entered the residence through a broken front window.

IV R.R. 93. His purpose was to determine if there were additional victims or

suspects inside. IV R.R. 93. He was accompanied by Officer Bradshaw. IV R.R.

94. During his search he entered a bedroom. There was a large pool of blood on

the floor, along with a knife, gun and ammunition. IV R.R. 96. Officer Kvittem

also saw an open window with blood on the window sill. IV R.R. 97. From what

he could see, the knife in the room had blood on it. He believed it to be a pocket
                                         16
knife. IV R.R. 98. There was a dresser knocked over. IV R.R. 98. He and

Officer Bradshaw did not locate any individuals in the residence, and exited the

residence. IV R.R. 95. They secured the scene by ensuring no person could enter

the residence. IV R.R. 95.

      On cross-examination, Officer Kvittem indicated that the front door of the

residence was blocked from the inside by overturned chairs. IV R.R. 102. There

was also a table overturned that blocked the entryway to the kitchen. IV R.R.

102. Kvittem looked in the back of the house and looked in the bathroom. He did

not look at the back fence, nor could he recall the condition of the bathroom. IV

R.R. 103.

      Detective Matthew Vaughn testified at the trial. IV R.R. 105. Detective

Vaughn was on call on May 11, 2013, and received a call at approximately 11 :40

p.m. IV R.R. 106. Vaughn was briefed on the telephone by Officer Charles

Barker regarding a possible aggravated assault with a deadly weapon. IV R.R.

107. Vaughn reported to the scene of a motor vehicle accident in the 1100 block

of Jefferson Street. IV R.R. 107. It was believed the accident was related to the

possible aggravated assault. IV R.R. 107. Upon arrival, Vaughn observed a

vehicle with minimal damage with a substantial amount of blood in the vehicle.

IV R.R. 107. The suspect was not on the scene at that time. IV R.R. 107.
                                        17
       Detective Vaughn then went to the 1700 block of Juanita Avenue which

was four to five blocks from the scene of the motor vehicle accident. These

locations were within San Angelo, Tom Green County, Texas. IV R.R. 108.

After a cursory examination of the scene, Vaughn went to 1601 Juanita Avenue,

where the assault was believed to have been committed. IV R.R. 109. Once there

he observed a chair on the front porch and glass, which indicated to him that the

chair had come through the window. IV R.R. 109. From that window Vaughn

could see overturned furniture inside the house, as well as what he believed to be

blood. IV R.R. 109. Detective Vaughn did not enter the residence at that time.

IV R.R. 109. He instructed his officers to remain that the scene and not to allow

anyone entry to the residence. IV R.R. 109-110.

      Detective Vaughn went to Shannon Medical Center and spoke with

Rigoberto Rivera. IV R.R. 110. Rivera told him that he and a co-worker lived

together in the residence on Juanita. They drank beer and used cocaine, and Bihl

became paranoid. IV R.R. 110. Bihl told Rivera that people were out to get him

and without warning began to strike Rivera on the head with a gun. IV R.R. 111.

Rivera stated that Bihl then began stabbing him with a knife. Rivera reported he

was able to crawl out of the window. IV R.R. 111. At that point, Vaughn had

identified the suspect as Elias Bihl. IV R.R. 111.
                                         18
       Rivera was able to describe the gun as a nine millimeter semi-automatic

gun with a gray or beige slide. IV R.R. 111, 112. Rivera was unsure of the

description of the knife when speaking to Vaughn, but initially reported it may

have been a kitchen knife. IV R.R. 112.

       After speaking with Rivera, Vaughn attempted to speak with Bihl. IV R.R.

113. Vaughn believed Bihl was intoxicated and confused. Bihl was unable to

identify himself or his location. Vaughn did not speak with him further. IV R.R.

113. Vaughn was able to identify Bihl in the courtroom during the trial. IV R.R.

114.

       Detective Vaughn obtained consent to search the residence from Rivera.

IV R.R. 114. Vaughn returned to the residence at 1601 Juanita and confirmed

that the house had not been entered in his absence.       IV R.R. 114. Vaughn,

Officer Bradshaw, Officer Kvittem and crime scene technician Clements entered

the residence. IV R.R. 114-115. They entered through the front window as it

appeared the front door was blocked or barricaded.       IV R.R. 115.   Officers

Bradshaw and Kvittem had previously been stationed at the front and rear of the

residence to maintain the security of the scene. IV R.R. 115.

       Once in the residence, Vaughn saw furniture in disarray, beer bottles, a

small baggie with white powder and other items. He observed a large amount of
                                          19
what he suspected to be blood in a bedroom. IV R.R. 117. Vaughn identified a

black Smith and Wesson folding knife with blood on it. IV R.R. 118. Vaughn

identified photographs depicting the scene as it was upon his inspection, including

a beige and black nine millimeter Jimenez Arms semi-automatic handgun. IV

R.R. 113, 116-119, 121. At the scene, Vaughn seized Rivera's wallet, which he

returned to Rivera, as well as the knife and gun.      IV R.R. 122, 123. When

interviewing Rivera, Vaughn noticed puncture wounds to Rivera's arms which

Vaughn described as defensive wounds, as well as cuts and abrasions to Rivera's

head. IV R.R. 122. Vaughn testified that these wounds could have been made by,

"a sharp pointed object, an edged weapon, a knife." IV R.R. 123. He believed

the knife found at the scene was consistent with the injuries sustained by Rivera.

IV R.R. 123.    The knife and hand gun were admitted into evidence without

objection. IV R.R. 125, 127.       Vaughn further testified that based on his

experience, training and viewing the injuries to Rivera he believed the knife

seized at the scene was capable of causing death or serious bodily injury. IV R.R.

128.

       Vaughn took blood samples from the scene, but did not believe it was

necessary to conduct DNA analysis on the samples. IV R.R. 128-129. Vaughn

found some blood in the kitchen of the residence, but believed it to be cast-off
                                        20
blood. IV R.R. 129-130. Vaughn located other knives in the residence, but they

had no indication that they were used in the assault. IV R.R. 130. Another

folding knife was located in the bedroom. It was closed and did not appear to

have fresh blood on it. IV R.R. 130.

      On cross-examination, Detective Vaughn testified that he observed Bihl at

the hospital and observed the interior of the vehicle and Bihl' s clothing at the

accident scene. IV R.R. 131. Through photographs admitted by the defense,

Vaughn identified a laceration on Bihl' s shoulder, a scratch or cut on his neck,

and an abrasion on his forehead. IV R.R. 133-134. He also identified small drops

of blood on the kitchen floor and on the refrigerator, as well as a smear of blood

on the fence. IV R.R. 134, 136.

      San Angelo Police Officer Charles Barker, III, testified at trial. IV R.R.

13 9. Officer Barker affirmed that on the night of May 11, 2013, he was working the

swing shift and received a call concerning an unknown problem at an address on

Juanita Street. IV R.R. 140. While           en   route     to   the    Juanita

address,      Officer Barker came upon a motor vehicle accident on North

Jefferson Street. IV R.R. 141. He observed a Cadillac motor vehicle that had run

into yard and over a mailbox, flowerbed and bricks. IV R.R. 141. When Officer

Barker stopped he observed a man outside the vehicle, later identified as Elias
                                        21
Bihl, screaming about a gun. IV R.R.141. Barker approached Bihl and noticed

blood smeared on Bihl's face, shirt and arms. IV R.R. 142. Barker did not see

any obvious injuries. IV R.R. 142. He noticed that Bihl was not making sense,

first indicating that nearby people had a gun and then indicating he had the gun in

his vehicle or residence. Bihl exhibited signs of being under the influence of a

narcotic. IV R.R. 142.

      While on the scene Barker saw blood in the front and back of the car. IV

R.R. 145. Bihl identified himself to Barker at the scene, and Barker identified

Bihl in the courtroom at the trial. IV R.R. 146. Officer Barker detained Bihl at

the scene. He was combative with officers, and had to have his feet tied together

due to his attempts to move and fight the officers. IV R.R. 147. The vehicle Bihl

had been driving was released to Bihl's sister. Officer Barker did not find a gun

on Bihl's' person or in the vehicle. IV R.R. 148.

      On cross-examination, Officer Barker testified that the people Bihl claimed

had a gun were the property owners of the location where the accident occurred.

He did investigate whether they had weapons. IV R.R. 149. He confirmed that

he believed he arrived upon the scene immediately after the accident occurred,

that Bihl was outside of the vehicle upon his arrival, and that Bihl never re-

entered the vehicle. IV R.R. 150.
                                         22
      San Angelo Police Officer Richard Espinoza testified at the trial. V R.R. 8.

Officer Espinoza was working patrol on May 11, 2013, and went to assist fellow

officers at the scene of a car accident on Jefferson and North Street in Tom Green

County.   V R.R. 9-10.      Officer Espinoza was able to identify Bihl in the

courtroom as being the individual he saw in handcuffs at the scene of the

accident. V R.R. 10. At the scene, Bihl was yelling, asking for help and for an

ambulance which were already there. He was wearing a wife beater shirt, jeans

and one boot. V R.R. 11. Officer Espinoza did not notice any injuries to Bihl that

were consistent with the amount of blood on him. V R.R. 12. He rode with Bihl

to the hospital, as Bihl was being combative and resistant.      V R.R. 12. The

officers secured him to the gurney so the medics could treat him. V R.R. 13.

Once at the hospital, Bihl continued to be combative including striking, or almost

striking, a hospital staff member in the face with his knee. V R.R. 14. Officer

Espinoza decided to secure Bihl's legs together and then secure the tie to the

gurney.   Other officers placed a towel over Bihl' s face, leaving his nose

uncovered, to prevent him from continuing to spit on staff and officers. V R.R.

15. Based on his past experience with Mr. Bihl, Espinoza was able to identify

him. He never noticed any injuries consistent with the amount of blood on Bihl.

He had a cut on his arm requiring stitches. V R.R. 16. It took less than five

                                        23
minutes to stitch the cut, and Espinoza considered it to be small. V R.R. 19.

       San Angelo Police Officer Richard Cercone, III, testified at the trial. V

R.R. 20. On the night at issue, Officer Cercone responded to a call from Officer

Dietz at the Juanita address. V R.R. 20-21. Upon arrival Cercone saw Dietz

talking with the victim who was lying in a large puddle of his own blood. The

victim, later identified as Rivera, had several injuries to his head and arms. V

R.R. 22. The injuries visible to Cercone included lacerations on his arms and

some head injuries. V R.R. 23. Cercone testified that through his experience and

training he had seen similar injuries before, and these particular injuries looked to

be caused by a "sharp, cutting object." V R.R. 24. Rivera reported to Cercone

that he and his roommate were drinking and doing cocaine, when Bihl became

paranoid that somebody was coming after him. V R.R. 25-26. Bihl then grabbed

a two-tone colored pistol that he had previously shown to Rivera and pointed at

Rivera.    V R.R. 26.   Bihl then "pistol whipped" Rivera and took him to the

bedroom. V R.R. 26. Bihl continued to beat on him in the bathroom until Bihl

left the room and Rivera was able to exit the room through the window. V R.R.

27. At some point Rivera was cut, but Rivera did not remember exactly what

happened. V R.R. 26. Rivera had described the knife as a black kitchen knife. V

R.R. 31.

                                         24
      Medics arrived on the scene quickly, and Cercone travelled with Rivera to

the hospital. V R.R. 28. While at the hospital Cercone spoke with Rivera for a

period of time discussing the events at the house until Cercone was called away to

assist with Mr. Bihl. V R.R. 29. Rivera learned Bihl was in the hospital and

became scared. V. R.R. 29. Cercone described Rivera as having two to three

gruesome lacerations to the head, one or two stab marks to the arm, a severe

finger laceration and a piece of his ear was missing. V. R.R. 30. The ear injury

was discovered by medical staff. It appeared that a portion of the upper cartilage

had been tom or cut out. V R.R. 30.

      The indictment included two enhancement paragraphs referencing prior final

felony convictions to which Bihl entered pleas of true during the punishment phase

of trial. V R.R. 91-92; C.R. 10-11. Evidence Bihl received both prior felony

convictions in accordance with the enhancement paragraphs was admitted into

evidence wiftru d.iroi.on during the punishment phase of trial in the form self-

authenticating pen packets. VI R.R. State's Exh. 58, 59, 60; V R.R. 94.

      State's Exhibit 58 included documentation in support of Bihl being finally

convicted of obstruction or retaliation, a third degree felony, on March 11, 2010.

VI R.R. State's Exh. 58. State's Exhibit 58 supported paragraph 2 of the

indictment. State's Exhibit 60 consisted of documentation in support of Bihl

                                         25
being finally convicted of possession of marijuana less than 50 lbs. over 5 lbs., a

second degree felony, on November 8, 1996.             State's Exhibit 60 supported

paragraph 3 of the indictment.

       State's Exhibit 59 was admitted without objection. Although not included

in the indictment, State's Exhibit 59 included documentation in support of Bihl

being finally convicted of possession of marijuana, a second degree felony, on

January 15, 1999. VI R.R. State's Exh. 59.

       Based on a review of all of the evidence in the light most favorable to the

verdict and reasonable inferences therefrom, a rational trier of fact could have

found all of the essential elements of the aggravated assault with a deadly weapon

charge brought against Bihl beyond a reasonable doubt. The evidence was

sufficient to support the jury's verdict and Bihl' s conviction.


          SUMMARY OF ARGUMENT OF ISSUE NUMBER EIGHT

             Defense Counsel did not fail to object to fundamental error.


                   ARGUMENT OF ISSUE NUMBER EIGHT

      A thorough review of the complete Record reflects there was no

fundamental error made or existing in the underlying case. Therefore, there was no

failure on the part of trial counsel for Bihl to object to fundamental error.
                                           26
          SUMMARY OF ARGUMENT OF ISSUE NUMBER NINE

Adverse rulings during the punishment phase on objections or motions did not result
                                in reversible error.


                   ARGUMENT OF ISSUE NUMBER NINE

      During the punishment phase of trial, in the closing argument of defense

counsel, the State made a vague objection to defense counsel's example of a

factual scenario that could lead to an obstruction/retaliation charge. V R.R. 116.

The trial court sustained the objection. V R.R. 116. Defense counsel thereafter

continued his argument to the jury concerning the nature of such charges. V R.R.

116-117. Since counsel was able to continue presenting his desired argument, the

trial court's ruling did not have an adverse impact on the defendant.

      On March 5, 2014 the State filed State's Motion to Cumulate Sentence.

C.R. 19-20. The motion sought for the sentence in the current case, in the event

Bihl was found guilty, to be served consecutively to the sentences previously

imposed in Cause Numbers C-13-0381-SB and C-13-0382-SB. C.R. 19-20.

      During jury deliberations of the guilt/innocence phase, the State sought a

ruling on the Motion to Cumulate. V R.R. 122. Counsel for the State and Bihl

each made arguments to the trial court, after which the motion was taken under

advisement. V R.R. 122-125.
                                         27
      Following the punishment portion, but before Bihl was sentenced by the trial

court the State again sought a ruling on the Motion to Cumulate. V R.R. 130. The

trial court took judicial notice of its files in Cause Numbers C-13-0381-SB and C-

13-0382-SB, each of which were filed in the 340TH Judicial District Court. V R.R.

122. The State provided certified copies of the bail bond and judgment in each

case. After hearing argument from the State and defense counsel and taking the

motion under advisement, the trial court granted the motion and indicated that the

sentence would run consecutively to the sentences in the cases cited in the State's

motion. V R.R. 123-125, 130.

      Texas Code of Criminal Procedure Article 42.08 provides:

                     (a) When the same defendant has been convicted
            in two or more cases, judgment and sentence shall be
            pronounced in each case in the same manner as if there
            had been but one conviction. Except as provided by
            Sections (b) and (c) of this article, in the discretion of the
            court, the judgment in the second and subsequent
            convictions may either be that the sentence imposed or
            suspended shall begin when the judgment and the
            sentence imposed or suspended in the preceding
            conviction has ceased to operate, or that the sentence
            imposed or suspended shall run concurrently with the
            other case or cases, and sentence and execution shall be
            accordingly; provided, however, that the cumulative
            total of suspended sentences in felony cases shall not
            exceed 10 years, and the cumulative total of suspended
            sentences in misdemeanor cases shall not exceed the
            maximum period of confinement in jail applicable to the
            misdemeanor offenses, though in no event more than
                                         28
             three years, including extensions of periods of
             community supervision under Section 22, Article 42.12,
             of this code, if none of the offenses are offenses under
             Chapter 49, Penal Code, or four years, including
             extensions, if any of the offenses are offenses under
             Chapter 49, Penal Code.
                      (b) If a defendant is sentenced for an offense
             committed while the defendant was an inmate in the
             Texas Department of Criminal Justice and serving a
             sentence for an offense other than a state jail felony and
             the defendant has not completed the sentence he was
             serving at the time of the offense, the judge shall order
             the sentence for the subsequent offense to commence
             immediately on completion of the sentence for the
             original offense.
                    (c) If a defendant has been convicted in two or
             more cases and the court suspends the imposition of the
             sentence in one of the cases, the court may not order a
             sentence of confinement to commence on the completion
             of a suspended sentence for an offense.
              Texas Code of Criminal Procedure Article 42.08.

      Reviews of a trial court's cumulation of sentences are conducted under an

abuse of discretion standard. As set forth in Nichols v. State, an abuse of discretion

is typically only found should the trial court impose consecutive sentences where

concurrent sentences are required by law, should the trial court impose concurrent

sentences where consecutive sentences are required by law, or should the trial

court not follow statutory sentencing guidelines. Nichols v. State, 56 S.W.3d 760,

765 (Tex.App.-Houston [14th Dist.} 2001, pet. ref'd).

      Neither subsection (b) or (c) of Article 42.08 preclude the cumulation of

                                          29
sentences in this matter. Bihl was not sentenced for an offense committed while an

inmate in the Texas Department of Criminal Justice, nor was the imposition of

sentence suspended in one of his cases.

       In addition, the cumulation of Bihl' s sentences did not exceed statutory

sentencing guidelines. The jury found Bihl guilty of aggravated assault with a

deadly weapon, a second degree felony. V R.R. 88; C.R. 49-52, 62. The jury also

found the enhancements paragraphs, to which Bihl pled true, to be true. V R.R.

126; C.R. 49-52, 57. Under Texas law, if a person has been convicted of a felony

offense other than a state jail felony, and the person has two prior final non-state

jail felony convictions, one of which occurred after the other became final, then the

current conviction shall be punished by a term of not less than 25 years or more

than 99 years or life. Texas Penal Code§ 12.42(d). In this case, the sentence of 30

years was within the statutory range based on the jury's findings.

      Based on a thorough review of the Record and applicable legal

authorities, no reversible error exists based on adverse rulings made during the

punishment phase of trial.


           SUMMARY OF ARGUMENT OF ISSUE NUMBER TEN

The jury's assessed punishment falls within the applicable range of punishment and
                        does not constitute reversible error.

                                          30
                     ARGUMENT OF ISSUE NUMBER TEN

       Texas Penal Code Section 22.02(a)(2) is the statute applicable to the offense

of aggravated assault with a deadly weapon. Texas Penal Code Section 22.02(a)(2).

Based on the facts and circumstances underlying Bihl' s aggravated assault charge,

Texas Penal Code Section 22.02(b) results in the application of the punishment

range for a second degree felony. Texas Penal Code Section 22. 02.

      Texas Penal Code Section 12.42 is the statute that sets forth the punishment

range for habitual felony offenders. Texas Penal Code Section 12.42. Section 12.42

(d) provides that "Except as provided by Subsection (c)(2) or (c)(4), if it is

shown on the trial of a felony offense other than a state jail felony punishable

under Section 12.35 (a) that the defendant has previously been finally convicted of

two felony offenses, and the second previous felony conviction is for an offense that

occurred subsequent to the first previous conviction having become final, on

conviction the defendant 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 25 years." Texas Penal Code Section 12.42.

      The indictment includes two enhancement paragraphs. C.R. 12. Paragraph

two of the indictment references a third degree felony conviction for obstruction

or retaliation Bihl is alleged to have received on March 11, 2010. C.R. 10.

                                         31
Paragraph three of the indictment references a second degree felony conviction

for possession of marijuana 5 lbs. > 50 lbs. Bihl is alleged to have received on

November8, 1996. C.R.11.

       Bihl entered pleas of true to both enhancement paragraphs. V R.R. 92. At

the conclusion of the presentation of punishment evidence, the jury found Bihl had

previously finally been convicted of two felony offenses as charged in paragraph 2

and paragraph 3 of the indictment. V R.R. 126; C.R. 57. The jury assessed Bihl's

punishment at thirty (30) years confinement in TDCJ. V R.R. 126; C.R. 57. The

trial judge grantedtheState'sMotionto Cumulate Sentence, and sentenced Bihl to thirty (30)

years in TDCJ in accordance with the punishment assessed by the jury. V R.R. 13 0-

131; C.R. 49-52.       Said punishment was ordered to run consecutively with

sentences pronounced in Cause Number C-13-0381-SB and C-13-0382-SB. V

R.R. 130; C.R. 49-52.

       The thirty (30) year sentence assessed by the jury and ordered by the trial

judge falls within the punishment range for a habitual felony offender set forth by

the Texas Penal Code. The punishment assessed falls within the applicable

statutorypunishment range and does not constitute reversible error.


         SUMMARY OF ARGUMENT OF ISSUE NUMBER ELEVEN

                                            32
            The written Judgment is correct and proper jail credit was given.


                   ARGUMENT OF ISSUE NUMBER ELEVEN

       The written Judgment appears in the Clerk's Record. C.R. 49-52. The content

of the written Judgment accurately reflects the punishment assessed by the jury and

the sentence pronounced in open court by the trial judge. C.R. 49-52; V R.R. 130-

131. The Reporter's transcript reflects the trial judge awarded Bihl jail credit

for the time he had been incarcerated in connection with the underlying case. V

R.R. 131. The content of the written Judgment accurately reflects the jail credit

awarded to Bihl. C.R. 49-52. There is no indication proper credit was not awarded

to Bihl.

           SUMMARY OF ARGUMENT OF ISSUE NUMBER TWELVE

              Bihl' s trial counsel rendered effective assistance of counsel.


                   ARGUMENT OF ISSUE NUMBER TWELVE

      This Court evaluates ineffective assistance of counsel claims based on the

standard of review established by the United States Supreme Court in Strickland v.

Washington and adopted by the Texas Court of Criminal Appeals. Strickland v.

Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W. 2d 770 (Tex.

Crim. App. 1999).
                                            33
       In Strickland, the United States Supreme Court established a two part test

applied in reviewing ineffective assistance of counsel claims on appeal. Strickland

v. Washington, 466 U.S. at 687. The two part test known as the Strickland Standard

provides as follows: "First, the defendant must show that counsel's performance

was deficient. This requires a showing that counsel made errors so serious that

counsel was not functioning as the 'counsel' guaranteed the defendant by the

Sixth Amendment.        Second, the defendant must show that the deficient

performance prejudiced the defense. This requires showing that counsel's errors

were so serious as to deprive the defendant of a fair trial, a trial whose result is

reliable. Unless a defendant makes both showings, it cannot be said that the

conviction or death sentence resulted from a breakdown in the adversary process

that renders the result unreliable." Id.

       This Court applies the Strickland Standard as interpreted by the Texas

Court of Criminal Appeals. This Court requires a defendant to first show the

performance of the defendant's trial counsel was deficient. After successfully

illustrating trial counsel's deficient performance, the defendant must show this

deficient performance actually prejudiced the defendant. Thompson v. State, 9

S.W. 3d 808, 812 (Tex. Crim. App. 1999); Strickland v. Washington, 466 U.S. at

694. The defendant is required to prove by a preponderance of the evidence that

                                           34
his trial counsel rendered ineffective assistance. Bone v. State, 77 S.W. 3d 828,

833 (Tex. Crim. App. 2002).

      The Texas Court of Criminal Appeals has elaborated on how an appellant

demonstrates the performance of his trial counsel was deficient and how an

appellant demonstrates he was prejudiced by this trial counsel's deficient

performance. The Texas Court of Criminal Appeals has held an appellant

demonstrates the performance of his trial counsel was deficient by showing the

performance ofhis trial counsel fell below an objective standard of reasonableness.

Thompson v. State, 9 S.W. 3d at 812. The Texas Court of Criminal Appeals has

held an appellant demonstrates he was prejudiced by his trial counsel's deficient

performance by showing there is a reasonable probability that, but for trial counsel's

unprofessional errors, the result of the proceeding would have been different.

Mitchell v. State, 68 S.W. 3d 640, 642 (Tex. Crim. App. 2002); Thompson v.

State, 9 S.W. 3d at 812. The Texas Court of Criminal Appeals has interpreted

"a reasonable probability" as a probability sufficient to undermine confidence in

the outcome. Thompson v. State, 9 S.W. 3d at 812 citing Hernandez v. State, 726

S.W. 2d 53, 55 (Tex. Crim. App. 1986).

      The reviewing court begins its ineffective assistance of counsel

evaluation by presuming trial counsel rendered effective assistance. Mallet v.
                                          35
State, 65 S.W. 3d 59, 63 (Tex. Crim. App. 2001). To overcome the presumption

trial counsel rendered effective assistance, "any allegation of ineffectiveness must

be firmly founded in the record, and the record must affirmatively demonstrate the

alleged ineffectiveness." Mallet v. State, 65 S.W. 3d at 63 citing Thompson v.

State, 9 S.W. 3d at 814. The record on appeal is typically undeveloped and fails

to illustrate the motive behind trial counsel's actions. Mallet v. State, 65 S.W. 3d at

63 citing Thompson v. State, 9 S.W. 3d at 813-14.

      The trial court appointed Attorney Nathan Butler to represent Bihl on May 13,

2013. C.R. 7. The Clerk's Record reflects Attorney Butler filed a pretrial

Motion in Limine on Bihl's behalf. C.R. 21-23. The Reporter's transcript

indicates Attorney Butler actively participated in the voir dire process on Bihl' s

behalf. III R.R. 56-87. The Clerk's Record includes documentation of jury strikes

exercised Attorney Butler before a jury was empaneled. C.R. 34-36, 28-30.

      The Reporter's transcript reflects Attorney Butler waived opening statement,

cross examined the State's witnesses, and made a closing statement on Bihl's

behalf during the guilt-innocence phase of trial. IV R.R. 21, 34-37, 44-72, 89-90,

97-104, 131-137, 149-150; V R.R. 17-20, 31-32, 34, 35-38, 57-74. The

Reporter's transcript reflects Attorney Butler made an opening statement,

presented the testimony of character witnesses, and made a closing statement on
                                          36
Bihl's behalf during the punishment phase of trial. V R.R. 93-94, 95-100, 101-103,

113-119.

       The Record evidence indicates Attorney Nathan Butler effectively

represented Bihl throughout the pendency of the case. The Record evidence

does not indicate Attorney Butler's performance was deficient in any way. Even

if Attorney Butler's performance was somehow deficient, the Record evidence

does not indicate Attorney Butler's deficient performance prejudiced Bihl.




                                 ANDERS BRIEF

      The United States Supreme Court does not obligate counsel representing a

client on appeal to argue in support of grounds for reversal of the lower court's

judgment when after a "conscientious examination" of the case, appellate counsel

determines appeal to be "wholly frivolous." Anders v. State of California, 386 U.S.

738, 744 (1967). In such situations, the United States Supreme Court has

outlined appropriate procedural steps to be taken by appellate counsel: 1)

counsel is required to submit a brief examining the record for any point arguably in
                                         37
support of proper grounds for reversal on appeal; 2) counsel must furnish this

brief to an indigent client enabling the client the right to file a pro-se brief based

on points of appeal this individual maintains present proper grounds for appeal;

and 3) counsel may request the appellate court grant counsel's request to

withdraw from the obligation of providing further legal representation to the

client on appeal. Anders v. State of California, 386 U.S. 738, 744.

      Counsel for Elias Shawn Bihl submits the above "Anders Brief' on behalf of

Appellant. After a "conscientious examination" of the case, including a diligent

review of the Record and applicable authorities, Counsel finds an absence of

meritorious grounds for appeal and further submits the basis of any appeal in this

case would be frivolous in nature. Therefore Justin S. Mock, Counsel for

Appellant, respectfully requests this Court acknowledge and approve her

request to withdraw from her court appointed duty of providing further legal

representation to Appellant Elias Shawn Bihl on original appeal.


                                     PRAYER

      Justin S. Mock, Counsel for Appellant Elias Shawn Bihl, prays this Court

acknowledge and approve his request to withdraw from his court appointed

duty of providing further legal representation to Appellant Elias Shawn Bihl on

                                          38
original appeal.

      Appellant Elias Shawn Bihl prays for additional time to review the

Anders Brief submitted on behalf of Appellant and the opportunity to file a pro se

Appellant's Brief on Original Appeal on his own behalf.


                                             Respectfully submitted,

                                             Justin S. Mock
                                             Ellis & Mock,PLLC
                                              125 South Irving Street
                                             San Angelo, Texas 76903
                                             Telephone: (325) 486-9800
                                             Facsimile: (325) 482-0565
                                             justin@ellisandmock.com




                                             By: ls/Justin S. Mock
                                             Justin S. Mock
                                             State Bar No.24064155
                                             Attorney for Appellant
                                             Elias Shawn Bihl




                                        39
                             Certificate of Service

      I certify a true and correct copy of the above and foregoing Appellant's
Original Brief was served in accordance with Rule 9.5 of the Texas Rules of
Appellate Procedure on March 10, 2015, on the following parties:


Mr. Jason Ferguson                                By Personal Delivery
Office of Tom Green County District Attorney
124 West Beauregard Avenue
San Angelo, Texas 76903
Appellee


Mr. Elias Shawn Bihl                              By Certified Mail,
Inmate Number 01938565                            Return Receipt Requested
TDCJ
McConnell Unit
3001 South Emily
Beeville, Texas 78102
Appellant




                                           Isl Justin S. Mock
                                           Justin S. Mock, Attorney for Elias
                                           Shawn Bihl




                                      40
                       Certificate of Compliance

I certify the above and foregoing Appellant's Brief contains 8,680 words.


                                        Isl Justin S. Mock
                                        Justin S. Mock, Attorney for Elias
                                        Shawn Bihl




                                   41
                                   ELLIS & MOCKPLLC
                                   Attorneys and Counselors at Law

                                          125 South Irving Street
                                         San Angelo, Texas 76903
                                           Tel (325) 486-9800
                                           Fax (325) 482-0565

                                            March 10, 2015

Mr. Elias Shawn Bihl                                         CMRRNo. 70113500000332790281
TDCJ No. 01938565
William G. McConnell Unit
Texas Department of Criminal Justice
3001 South Emily Drive
Beeville, Texas 78102                               RE:      Elias Shawn Bihl vs. The State of Texas,·
                                                             Cause No. 03-14-00525-CR; Court of Appeals;
                                                             Third Judicial District
                                                             (Trial Cause No. B-13-0631-SB)

Dear Mr. Bihl:


Enclosed please find a copy of the motion to withdraw as counsel and brief pursuant to Amlers v.
California that I have prepared and filed in your case. After a diligent search of both the clerk's
record and reporter's record in your case and a review of the applicable law, it is my opinion that
no reversible error occurred at your sentencing.

Whenever appellate counsel files a motion such as this, the law provides the appellant the right to
review the record and file a response identifying to the appellate court any grounds he thinks are
non-frivolous issues to be raised on his behalf that the appellate court should consider in deciding
whether the case presents any meritorious grounds for appeal. Because I have filed this motion
and brief, you now have the right to review the record and file a response or brief if you so choose.
To assist you in obtaining the record if you wish to review it, I have enclosed a Motion for Pro Se
Access to the Appellate Record for you to file. In order to obtain the appellate record, you must
sign and date the motion and mail it to the Third Court of Appeals within ten days of the date of
this letter at the following address:

                                     Jeffrey D. Kyle,
                                     Clerk Turd Court of
                                     Appeals Post Office
                                     Box 12547 Austin,
                                     Texas 78711

The Court of Appeals will then direct the clerk of the trial court to provide you with a copy of the
appellate record. Your response will be due to be filed in the Third Court of Appeals within 30
days of the date the clerk provides the record to you.
Whether or not you file a response, the law requires the Court of Appeals to review the record to
detemrine if the Court agrees with my assessment that no meritorious grounds for appeal exist,
i.e., that no reversible error exists. If the Court does not agree, but instead believes there are non-

                                                  42
frivolous issues to be raised on your behalf, the Court must abate the appeal to have another
attorney appointed to review the record on your behalf
Should the Court of Appeals ultimately detennine that there are no meritorious grounds to be raised
and that your appeal is frivolous, the Court will affirm your conviction and sentence. You may
then file a pro se petition for discretionary review with the Texas Court of Criminal Appeals. Such
petition must be filed within 30 days of the date the Court of Appeals renders its judgment.

Feel free to write me if you have any questions about the procedure utilized in your appeal. I will
do my best to answer any questions you may have.

                                                  Sincerely,



                                                  Justin S. Mock



encl: copy of Brief For Appellant/copy of Motion to Withdraw/Motion for Pro Se Access to
Appellate Record




                                                43
                                                                                                  ACCEPTED
                                                                                             03-14-00525-CR
                                                                                                    4442271
                                                                                   THIRD COURT OF APPEALS
                                                                                              AUSTIN, TEXAS
                                                                                        3/10/2015 2:51:28 PM
                                                                                           JEFFREY D. KYLE
                                                                                                      CLERK
                                 NO. 03-14-00525-CR


ELIAS SHAWN BIHL                             §     IN THE COURT OF APPEALS
                                            §
vs.                                         §      THIRD JUDICIAL DISTRICT
                                            §
STATE OF TEXAS                              §      SITTING AT AUSTIN, TEXAS



                           CERTIFICATE OF COUNSEL

        In compliance with the requirements of Anders v. California, 386 U.S. 378

(1967), I, Justin S. Mock, court-appointed counsel for appellant, ELIAS SHAWN

BIHL, in the above"° referenced appeal, do hereby verify, in writing, to the Court that I

have:


1.      notified appellant that I filed a motion to withdraw as counsel with an
        accompanying Anders brief, and provided a copy of each to appellant;
2.      informed appellant of his right to file a pro se response identifying what he
        believes to be meritorious grounds to be raised in his appeal, should he so
        desire;

3.      advised appellant of his right to review the appellate record, should he
        wish to do so, preparatory to filing that response;

4.      explained the process for obtaining the appellate record, provided a Motion
        for Pro Se Access to the Appellate Record lacking only appellant's
        signature and the date, and provided the mailing address for this Court; and

5.      informed appellant of his right to seek discretionary review pro se should this
        Court declare his appeal frivolous.
Respectfully submitted,

Ellis & Mock, PLLC
125 South Irving Street
San Angelo, Texas 76903
Tel: (325) 486-9800
Fax: (325) 482-0565



By: Isl Justin S. Mock
   Justin S. Mock
   State Bar No. 24064155
   Attorney for ELIAS SHAWN BIHL




                                   2
