                                                         /2ZZ~t5
                       NO.        Pb'llLk- K

ORIGINAL                      IN       THE

                      COORT       OF    CRIMINAL

                             APPEALS

                             OF    TEXAS




                      ANTONIO      PEREZ       LOPEZ                CCURT OF CRE5W1ATOUS
                         Petitioner
                                                                           NOV 03 2015
                                       V.


                  THE    STATE          OF   TEXAS                     Uftei! ACOR^I, G:!*,?i"


    Petition in Cause No.          D-DC-13-904067,              from the

     390th District Court of Travis County* Texas
       and the Court of Appeals for the Third
     District of Texas*           Case No.         03-14-00452-CR.

                                                                                FILED IN
           PETITION   FOR    DISCRETIONARY               REVIEW
                                                                   COURT OF CRIMINAL APPEALS
                                                                                OV 03 2G;5

                                                                          Abel Acosta, Cierk




                                            Antonio Peree Lope? #1942352
                                            C.T.   Terrell      Unit

                                            1300   FM    655

                                            Rosharon*      TX     77583



                                                        Petitioner        Pro   3e
                                        TABLE     OF   CONTENTS

                                                                                                   Pages

Index   of    Authorities                                                                      III


Statement Regarding Oral Argument                                  ,v_                         1

Statement      of    the   Case                                                                1-2


Statement of Procedural History                                                             ,2

Grounds      for    Review                                                                     2



             WHETHER       THE    COURT      OF   APPEALS    ERRED    WHEN     IT   FOUND

             THAT    THERE       WERE   NO    ARGUABLE      GROUNDS      TO   BE    ADVANCED

             UNDER    ANDERS       V.   CALIFORNIA,         WHEN   THE    COURT     APPLIED

             STANDARD       OF    REVIEW      FOR   REVERSIBLE       ERROR     ?



               [Do ineffective assistance of counsel claims*
               regarding 6th Amendment Confrontation Clause
               issue* raised and preserved in a pro se response
               to an Anders             Brief -     which would otherwise be

               waived or forfeited for habeas corpus review*
               constitute "arguable grounds to be advanced
               under Anders v. California*                    384 U.S.        738 (1967);
               Bledsoe v. St.* 178 S.W.3d 824 (Tex.Crim.App.2005)"?]




Argument                                                                                       2-6
                                                                                                           2-4
Prayer for Relief                                                                              6
Appendix




                                                    ii.
                       INDEX   OF   AUTHORITIES

                                                                                            Page



Anders, v. California, 386 U.S.     738 (1967)    ...                                   2

Armstrong v. State, 340 S.W.3d 315 (Tex. 2009) ••                 . ;                 . 4,5
Bledsoe v. State, 178 S.W.3d 824 (Tex.Grim.App.2005)                          .         3

Crawford v. Washington, 541 U.S. 36 (2004)            .           .               .     4

Evitts v. Lucey, 469 U.S. 387 (1985)         .            .           •                 2

Griffin v. State,'614 S.W.2d 155 (Tex.Crim.App.1981)                              .     5

Jackson v. Virginia, 433 U.S. 307 (1979)          .           .           •             3,5,6
Mayer v. State, 309 S.W.3d 552 (Tex.Grim.App.2010)                            .         5
Melendez-Diaz v. Massaehussetts, 129 S.Ct. 2527 (2009) .                                4

Moff v. State, 131 S.W.3d 485 (Tex.Crim.App.2004)                     .           .     3,5,6

Strickland v. Washington, 466 U.S. 668 (1984)                 .           .           .2
Thames v. State, 753 S.W.2d 688 (Tex.Crim.App.1998)                       .             6




                                    III.
                                    IN    THE

                            COURT   OF        CRIMINAL

                                    APPEALS

                                  OF     TEXAS




                            ANTONIO      PEREZ      LOPEZ

                                  Petitioner

                                          v.


                            THE   STATE       OF   TEXAS




           Petition   in Cause No.       D-DC-13-904067,      from   the

            390th District Court of Travis County,             Texas
               and the Court of Appeals for the Third
            District of Texas,       Case No.        03-14-00452-CR.




                  PETITION FOR     DISCRETIONARY REVIEW



TO THE HONORABLE JUDGES OF THE

   COURT OF CRIMINAL APPEALS OF TEXAS:


     Antonio Perez Lopez, petitions the court to review the judgement affirming

his conviction for aggravated sexual assault of a child.

                      Statement Regarding Oral Argument

     Present circumstances considered, Petitioner waives oral argument.


                       '   Statement of the Case


     Petitioner was found guilty,: by jury, and convicted of one count of ag

gravated sexual assault of a child, indecency with a child by contact and

indecency by exposure, and aequited Petitioner of indecency with a child by

contact.(1-eouht) and aggravated sexual assault (2-counts). [5 R.R.: 67-73].

The jury assessed punishment at 20-years in the Texas Department of Criminal

Justice - Institutional Division on the aggravated sexual assault and j20-years

on the indecency with contact counts, and 10-years on the indecency by exposure


                                         1.
count. [CR: 78-81].

     The trial court further ordered indigent Petitioner to pay court costs

without a finding on Petitioner's indigency status or an objection from trial

counsel. [8.R.: 28-48]. Petitioner filed timely notice of appeal. [C.R.: 83].

                          Statement of Procedural History

     The Third Court of Appeals rendered its decision affirming Petitioner's

conviction on     Aug. 12* 2015. A motion for rehearing was filed by Petitioner

and was denied on     5&PT. /Oth             , 2015. Petitioner then timely submitted a

motion for extension of time to file petition for discretionary review. The

Court granted the motion making the petition (PDR) due by Dec. 11, 2015.

                                     Claim For Review

         WHETHER      THE    COURT      OF   APPEALS     ERRED    WHEN     IT    FOUND

         THAT     THERE     WERE   NO    ARGUABLE       GROUNDS      TO   BE    ADVANCED

         UNDER ANDERS         V.   CALIFORNIA,          WHEN   THE    COURT     APPLIED

         STANDARD      OF    REVIEW      FOR    REVERSIBLE       ERROR.?


               [Do ineffective assistance of counsel claims* regarding
               6th Amendment Confrontation Clause Issue*.raised and

               preserved in a pro se response to an Anders Brief -
               which would otherwise be waived or forfeited for habeas

               corpus review* constitute "arguable grounds to be
            advanced under Anders v. California* 384 U.S. 738 (1967);
               Bledsoe v. State* 178 S.W.3d 824 (Tex.CriIn.App.2005),,?]

                                             Argument

     Persons convicted of a ci.-ime are entitled to effective assistance of coun

sel, in their first appeal of right. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct.

830, 834! (835 (1985). Counsel's performance on appeal is judged under the 2 -
prong Strickland test. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,

2064 (1984).

     In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), the Court
determined that appointed counsel could file brief supporting his motion to

withdraw, by showing his professional evaluation of the record demonstrating

where there are no reasonable grounds to be advanced on appeal.

     The court's ruling in an Ander's appeal, which includes a pro se response

by Appellant, is limited to determining whether arguable grounds for appeal

exist. Bledsoe v. State, 178 S.W.3d 824, 826-828 (Tex.Grim.App.2005)-(stating:

if a court of appeals were to review ease and issue an opinion which addressed

and rejected the merits raised in a pro se response to an Ander's brief, then

appellant would be deprived of the meaningfull assistance of counsel).

Opinion of the Court of Appeals

     Petitioner contends that the Court of Appeal's application of reversible

error standard is unreasonable and contrary to the standard set forth in Anders

v. California; Bledsoe v. State, 178 S.W.3d 824 (Tex.Grim.App.2005), in light

of the circumstances in this ease. Here, court appointed attorney's Ander's

Brief failed to raise and exhaust all available State remedies to avoid proce

dural bar from bringing issue on State/Federal habeas corpus review/petition.

     To be specific, counsel's Anders Brief failed to raise ineffective assist

ance of counsel claims, which vere raised in Petitioner's pro se response. The

Opinion of the Court of appeals reflects that Petitioner can pursue ineffective

assistance of counsel claims in a petition for writ of habeas corpus. Peti

tioner asks the Court of Criminal Appeals,   does the court of appeals remedy -

[preservation of I.A.C. claim for habeas corpus review] - constitute an argu

able ground to be advance on appeal under Anders v. California; Bledsoe v. State ?

     In addition, Petitioner asks the court whether Confrontation Clause issue

raised in pro se response, implicate a sufficiency of evidence review under

Jackson v. Virginia, 433 U.S. 307, 318-319, 99 S.Ct. 2781 (1979); Moff v.

State, 131 S.W.3d 485, 488 (Tex.Crim.App.2004) ?




                                     3.
Summary of Ineffective Assistance of Counsel
Grounds Raised in Pro Se Response


  * - Whether trial counsel was ineffective when he failed to assert

      a Sixth Amendment Confrontation Clause objection to the admis
      sion of questionable hospital business records entered by the     .
      prosecution as State's exhibits at trial, where doctors, nurses
      and lab technicians who prepared business records, were not
      called to testify and authenticate their-documents and evidence.

     The United States Supreme Court has .held that out of court testimonial

evidence violates the Confrontation Clause.unless the declarant is unavailable

to testify and the defendant has a prior opportunity to cross-examine him.

Crawford v. Washington, 541„U.S. 36, 63, 124 S.Cti 1374 (2004). It is clear

that such out-of-court testimonial evidence includes reports of the kind at

issue here and offered into evidence via. circumstances like those here, see

Melendez-Diaz v. Massaehussetts, 129 S.Ct. 2527, 2532 (20G9).

     Petitioner complained of his trial counsel;s failure to object to the ad

mission of Hospital's and Lab's business records, which allowed inadmissable

and highly prejudicial evidence to be put before the jury. The business re

cords were inadmissable given the person's through which the prosecution .-.

authenticated, proffered and filed them into the trial record.

     Petitioner would argue that claims of ineffective assistance of counsel. ;

in pro se response brief are adequately supported by references to the record

and authorities, pursuant to Texas Rules of Appellate Procedure. (Pro Se Brief)


  * - whether trial counsel was ineffective for failing
       to object to trial court order for the withdrawal of funds for
       payment of court costs, because there was insufficient evidence

       to support finding that Appellant was not indigent at sentencing.

     The assessment of court costs and attorney fees is a criminal proceeding;

the manner in which those costs are withdrawn is a civii proceeding. Armstrong

v. State, 340 S.W.3d 315, 319, 321 (Tex.2009). To contest the assessment of



                                       4.
court costs and attorney-fees* complaint must be made by direct appeal of

the criminal judgement. Armstrong, 340 S.W.3d at 766-767.   In Mayer v. State,

309 S.W.3d 552, 554 (Tex.Crim.App.20iO)-(no trial objection was required to

preserve a claim of insufficient evidence.)                            -• --

     In this instance, assessment of court costs and order for withdrawal of

£unds was not objected to by trial counsel, where order was announced at sen

tencing phase of trial. Petitioner contends that trial counsel simply failed

to challenge the sufficiency of the evidence. regarding order for withdrawal

of funds for payment of court costs. Without evidence to demonstrate Petitioner's

financial resources to offsett the court costs, the evidence is insufficient

to support a finding of Petitioner's ability to pay.

     Again, Petitioner argues that claim is supported by references to the

record and authorities pursuant to Texas Rules of Appellate Procedure, (see

Pro Se BfJ.ef).


Summary of Sufficiency of Evidence
Ground Raised in Pro Se Response


  * - Whether the evidence is legally sufficient to sustain the
      conviction in this case ?


     If a defendant challenges legal sufficiency of the evidence to support

his conviction on direct appeal, the appellate court allways has a duty to

address that issue, regardless of whether it was raised in the trial court.

Moff v. State, 131 S.W.3d 485, 488 (Tex.Crim.App.2004). The "Moff" court fur

ther acknowledged prior to decisions where the Texas Court of Criminal Appeals

adopted the Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781 (1979),

constitutional standard of review for assessing the legal sufficiency of tne

evidence. Moff, 131 S.W.3u at 488,(supra)-(citing   Griffin v. State, 614 S.W.2d

155, 158 (Tex.Crim.App.1981). Under that standard, the relevant question is




                                       5.
whether after reviewing the evidence in the light most favorable to the pro

secution, any rationale trie.-r of fact could have found the essential elements

of the crime beyond a reasonable doubt, (iackson v. Virginia). In applying the

Jackson sufficiency review, an appellate court "must consider all evidence

which the jury was permitted, whether rightly or wrongly considered. Moff v.

State, 131 S.W.3d at 488. (citing Thames v. State, 753 S.W.2d 688, 695 (Tex.

Crim.App.1998).

     Petitioner contends that the court of appeals erred in failing to find his

pro se   grounds in Anders brief, worthy of a sufficiency of evidence review,

in light of the evidence cited regarding essential elements of the crime.

                                     Prayer

     Petitioner prays the Court finds that the Court of Appeals erred when it

affirmed judgement of conviction.

                                                       Respectfully submitted,



                                           Antonio P. Lopez #1942352
                                           C.T. Terrell Unit
                                           1300 FM 655
                                           Rosharon, TX   77583

                                    Appendix

     Opinion of the First Court of Appeals affirming conviction is attached.

                            Certificate of Service


     This is to certify that a copy of the above-entitled an numbered petition

for review has been served on State's Prosecuting Attorney, P.O. Box 13046

Capitol Station, Austin, Te^as 78711, via first-class U.S. Mail, on this

the H%4k aay of        Qcf oA£d        * 2015.

                                                 OlsnJUiAjf r ^US&S7_>




                                      6.
      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-14-00452-CR




                                Antonio Perez Lopez, Appellant

                                                v.



                                 The State of Texas, Appellee



    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
     NO. D-l-DC-13-904067, HONORABLE JULIE H. KOCUREK, JUDGE PRESD3ING



                            MEMORANDUM OPINION



               Appellant Antonio Perez Lopez was charged with three counts of aggravated sexual

assault of a child, three counts of indecency with a child by contact, and two counts of indecency

with a child by exposure. A jury found Lopez guilty of one count of aggravated sexual assault of a

child, two counts of indecency with a child by contact, and one count of indecency with a child by

exposure. See Tex. Penal Code §§ 22.021, 21.11. The jury acquitted Lopez on all other charges.

The jury assessed Lopez's punishment at 20 years' confinement in the Texas Department of

Criminal Justice-Institutional Division on the counts for aggravated sexual assault of a child and

indecency with a child by contact and at 10 years on the indecency with a child by exposure count.

               Appellant's court-appointed attorney has filed a motion to withdraw supported by a

briefconcluding that the appeal is frivolous and without merit. The brief meets the requirements of

Anders v. California by presenting a professional evaluation of the record demonstrating why there

are no arguable grounds to be advanced. See Anders v. California, 386 U.S. 738, 744 (1967);
Garnerv. State, 300 S.W.3d 763,766 (Tex. Crim. App. 2009); see also Penson v. Ohio, 488 U.S. 75,

86-87(1988).

               Appellant received a copy of counsel's briefand was advised ofhis right to examine

the appellate record and to file a pro se brief. See Anders, 386 U.S. at 744; Garner, 300 S.W.3d at

766. Appellant requested and received the appellate record and filed a pro se brief, raising four

issues on appeal.

               We have conducted an independent review of the record, including appellate

counsel's briefand appellant's pro se brief, and find no reversible error.1 See Anders, 386 U.S. at

744; Garner, 300 S.W.3d at 766; Bledsoev. State, 178 S.W.3d 824,826-27 (Tex. Crim. App. 2005).

We agree with counsel that the record presents no arguably meritorious grounds for reviewandthe

appeal is frivolous.

                Counsel's motion to withdraw is granted. The judgment of conviction is affirmed.




                                              Scott K. Field, Justice

Before Chief Justice Rose, Justices Goodwin and Field

Affirmed


Filed: August 12, 2015

Do Not Publish




        1 Appellant has raised claims of ineffective assistance of counsel in his pro se briefwhich,
if appellant wishes to pursue those claims, should be raised in a petition for writ of habeas corpus
inthe Courtof Criminal Appeals because the recordbefore this Courtdoesnot support thoseclaims.
