                                                                  ACCEPTED
                                                              12-15-00107-CR
                                                 TWELFTH COURT OF APPEALS
                                                               TYLER, TEXAS
                                                       11/23/2015 12:03:06 PM
                                                                    Pam Estes
                                                                       CLERK




    CAUSE NUMBER 12-15-00107-CR               FILED IN
                                      12th COURT OF APPEALS
                                            TYLER, TEXAS
                                      11/23/2015 12:03:06 PM
  IN THE COURT OF APPEALS FOR      THE       PAM ESTES
                                               Clerk
TWELFTH APPELLATE DISTRICT OF TEXAS

             AT TYLER


    CHRISTOPHER RAY OLIVAREZ

                 VS.

        THE STATE OF TEXAS


        CAUSE NUMBER 31,900

 IN THE 3RD JUDICIAL DISTRICT COURT

     ANDERSON COUNTY, TEXAS


        APPELLANT'S BRIEF

                Colin D. McFall
                Attorney at Law
                513 North Church Street
                Palestine, Texas 75801-2962
                Telephone: 903-723-1923
                Facsimile: 903-723-0269
                Email:       cmcfall@mcfall-law-office.com
                Counsel for Appellant

            Page - 1 - of 17
                  IDENTITY OF PARTIES AND COUNSEL

      Pursuant to Rule 38.1 (a), Texas Rules of Appellate Procedure, Appelhnt

provides a complete list of all parties and the names and addresses of Counsel:

Defendant                       Christopher Ray Olivarez
and Appellant:

Defendant's Trial               Colin D. McFall
and Appellate Counsel:          Attorney at Law
                                513 North Church Street
                                Palestine, Texas 75801-2965
                                Telephone: 903-723-1923
                                Facsimile: 903-723-0269

State's Trial                   Scott Holden
and Appellate Counsel:          Anderson County District Attorney's Office
                                500 North Church Street, Suite 38
                                Palestine, Texas 75801
                                Telephone: 903-723-7400
                                Facsimile: 903-723-7818




                                   Page - 2 - of 17
                     TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL                           2

TABLE OF CONTENTS                                     ...3

INDEX OF AUTHORITIES                                      4

STATEMENT OF THE CASE                                     5

STATEMENT REGARDING ORAL ARGUMENT                         7

ISSUE PRESENTED

    I. THE APPELLATE COURT SHOULD ALLOW COUNSEL, UPON

         MAKING THE DETERMINATION THERE WAS NO ERROR IN

         THE TRIAL COURT, TO WITHDRAW AND APPELLANT

         ALLOWED A REASONABLE TIME TO FILE A PRO SE

         BRIEF                                            8

STATEMENT OF FACTS                                        9

SUMMARY OF THE ARGUMENT                                11

ARGUMENT                                              .13

PRAYER                                                 15

CERTIFICATE OF COMPLIANCE...                ..         16

CERTIFICATE OF SERVICE                                 17

                         Page - 3 - of 17
                        INDEX OF AUTHORITIES

CASES                                                           PAGE

UNITED STATES

    Anders v. California, 386 U.S. 738, 1967                            .14

TEXAS

    Harvey v. State, 611 S.W.2d 108, 111 (Tex.Cr.App.1981)             .14

    Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App.1984)           14

    Miller v. State, 412 S.W.2d 650 (Tex.Crim.App.196)                 13

RULES AND STATUTES                                              PAGE

TEXAS HEALTH AND SAFETY CODE

    Section 481.112(c), Texas Health and Safety Code                    13

TEXAS PENAL CODE

    Section 12.32, Texas Penal Code                                     14

TEXAS RULES OF APPELLATE PROCEDURE

    Rule 9.4(i) (3), Texas Rules of Appellate Procedure,               16

    Rule 38.1(a), Texas Rules of Appellate Procedure                     2

    Rule 38.1(e), Texas Rules of Appellate Procedure                     7



                                Page - 4 - of 17
                                                                                      SIOZ-£Z-II
                          STATEMENT OF THE CASE

      C)n the 18th day of September 2014, an Anderson County Grand Juryreturned

a single count Indictment, charging Appellant withManufacture or Delivery of

Substance In Penalty Group I, ow gram or more but less than four grams, in a drug

free zone. (C.R., Vol. 1, Pg. 5).

      On the 17th day of March 2015, Appellant plead guilty to thesingle count of

Manufacture or Delivery of Substance In Penalty Group I, one gram or more but

less than four grams (R.R., Vol. 3, Pg. 50, L. 23). In addition, Appellant plead

True (R.R., Vol. 3, Pg. 120, L. 23), to a single enhancement paragraph contained

within the State's Notice of Enhancement Paragraphs to be Submitted to Fact

Finder at Punishment. (C.R., Vol. 1, Pg. 37). However, in exchange for the pleas of

guilty and true, the state abancbned the drug free zone enhancement (R.R., Vol. 3,

Pg. 47, L. 2). The parties selected a jury and engaged in a contested sentencing

hearing.

      On the 1 8th day of March 2015, the Jury assessed Appellant's punishment at

twenty-five (25) years confinement within the Institutional Division of the Texas

Department of Criminal Justice.(R. R., Vol. 4, Pg. 81, L. 23).

      On the 18th day of March, Appellant filed the Trial Court's Certificate of

                                    Page - 5 - of 17
                                                                                      SIOZ-£Z-II
Defendant's Right of Appeal. (C.R., Vol. 1, Pg. 49). On the 17th day of April 2015,

Appellant filed allotice of Appeal. (C.R., Vol. 1, Pg. 75), Request for the Clerk's

Record and Designation of Matters for Inclusion (C.R., Vol. 1, Pg. 62), Request for

the Reporter's Record (C.R., Vol. 1, Pg. 66), Defendants Motion for New Trial

(C.R., Vol. 1, Pg. 68), and Appellant filed Defendant's Motion for a Free

Reporter's Record on Appeal (C.R., Vol. 1, Pg.71).




                                   Page - 6 - of 17
                                                                               SIOZ-£Z-II
             STATEMENT REGARDING ORAL ARGUMENT

     Pursuant to Rule 38.1 (e), Texas Rules of AppellateProcedure, Appellant

provides the following Statement Regarding Oral Argument

     Appellant does not requestOral Argument




                                Page - 7 - of 17
                                            SIOZ-£Z-II
             ISSUE PRESENTED

THE APPELLATE COURT SHOULD ALLOW

COUNSEL, UPON MAKING THE DETERMINATION

THERE WAS NO ERROR IN THE TRIAL COURT, TO

WITHDRAW ANT) APPELLANT ALLOWED A

REASONABLE TIME TO FILE A PRO SE BRIEF.




                Page - 8 -of 17
                             STATEMENT OF FACTS

       On or about the Stn day of July 2014 (R.R., Vol. 3, Pg. 127, L. 4), Corporal

Ricki Baker (R.R., Vol. 3, Pg. 125, L. 9) and Officer Justin Blanks (R.R., Vol. 3,

Pg. 129, L. 15) of the Palestine Police Department(R.R., Vol. 3, Pg. 125, L. 9),

received information from a confidential informant that he would be traveling

eastbound on Palestine Avenue towards Executive Inn & Stites in a gray Pontiac

G6 with Appellant as the passenger(R.R., Vol. 3, Pg. 128, L. 6), who would be

transporting methamphetamine(R.R., Vol. 4, Pg. 5, L. 11) and have a shotgun with

him. (R.R., Vol. 3, Pg. 148, L. 5).

      Corporal Ricki Baker and Officer Justin Blanks observed the grey Pontiac

G6 traveling eastbound on East Palestine Avenue and pulled in behind the vehicle

(R.R., Vol. 3, Pg. 130, L. 24) and performed a traffic stop (R.R., Vol. 3, Pg. 132, L.

23) on a Pontiac G6 (R.R., Vol. 3, Pg. 131, L. 17) upon observing no rear license

plate (R.R., Vol. 3, Pg. 130, L. 24). The vehicle was driven by Marcus Howard

(R.R., Vol. 3, Pg. 131, L. 17). Appellant was the passenger in the vehicle.(R.R.,

Vol. 3, Pg. 135, L. 5). On approach, Corporal Ricki Baker observed a full size

shotgun (R.R., Vol. 3, Pg. 135, L. 7) in the vehicle. Officers immediately detained

(R.R., Vol. 3, Pg. 136, L. 15) both occupants of the vehicle. Corporal Ricki Baker

                                      Page - 9 - of 17
requested and received consent to search the vehicle from Marcus Howard. (R.R.,

Vol. 3, Pg. 137, L. 6). A digital scale (R.R., Vol. 3, Pg. 138, L. 20) was found in a

tool bag (R.R., Vol. 3, Pg. 137, L. 11) in the passenger side (R.R., Vol. 3, Pg. 137,

L. 9) floorboard (R.R., Vol. 3, Pg. 137, L. 11), and two bags of marijuana and one

bag of methamphetamine weighing approximately four grams (R.F',., Vol. 4, Pg.

16, L. 13), were found in the glove compartment.(R.R., Vol. 3, Pg. 138, L. 15).

Appellant claimed the tool bag with the scab inside. (R.R., Vol. 3, Pg. 148, L. 9),

but denied knowledge of the narcotics(R.R., Vol. 3, Pg. 150, L. 10).




                                   Page - 10 - of 17
                        SUMMARY OF THE ARGUMENT

              THE APPELLATE COURT SHOULD ALLOW

             COUNSEL, UPON MAKING THE DETERMINATION

             THERE WAS NO ERROR IN THE TRIAL COURT, TO

             WITHDRAW AND APPELLANT ALLOWED A

             REASONABLE TIME TO FILE A PRO SE BRIEF.

       Counsel has undertaken a careful scrutiny of the Reporter's Record and the

Clerk's Record. Counsel is unable toidentify an arguable basis for appeal.

       A plea of guilty to a felony charge before a jury admits the existence of all

facts necessary to establish guilt. Appellant plead guiltyto Manufacture or

Delivery of Substance In Penalty Group I, one gram or more but less than four

grams a second degree felony. Appellant's plea of guilty was before a jury.

Therefore, Appellant admitted to all of the facts necessary for the jury to establish

his guilt.

       An appeal, based upon an argument that the Trial Court abused its discretion

in finding Appellant guilty, is frivolous.

       Appellant also plead true to an enhancement paragraph. If, an Appellant

pleads true to an enhancementparagraph, the State's burden of proof is satisfied.

                                    Page - 11 - of 17
                                                                                       SIOZ-£Z-II
In addition, the jury assessed punishment within the rangeof punishment.

Generally, the Appellate Court will not disturb a penalty assessed within the range

of punishment.

      For the above stated reasons, an appeal, based upon the argument that the

Trial Court abused its discretion in sentencing Appelant, is frivolous.

      Counsel has made a full and careful review of all matters in tie instant cause

and cannot find any reasonable point of error to legitimately raise for purposes of

appeal. As a result, Counsel has filed the instant Anders Brief.




                                   Page - 12 - of 17
                                                                                          SIOZ-£Z-II
                                    ARGUMENT

             THE APPELLATE COURT SHOULD ALLOW

             COUNSEL, UPON MAKING THE DETERMINATION

             THERE WAS NO ERROR IN THE TRIAL COURT, TO

             WITHDRAW AND APPELLANT ALLOWED A

             REASONABLE TIME TO FILE A PRO SE BRIEF.

      Counsel has undertaken a conscientious examinationof the Reporter's

Record and the Clerk's Record. Counsel is unable to indentify an arguable basis for

appeal.

      It is the established rule that a plea of guilty to a felony charge before a jury

admits the existence of all facts necessary to establish guiltMiller v. State, 412

S.W.2d 650 (Tex.Crim.App.196).

      Appellant plead guilty(R.R., Vol. 3, Pg. 50, L. 23), to Manufacture or

Delivery of Substance In Penalty Group I, one gram or more but less than four

grams (R.R., Vol. 3, Pg. 50, L. 23), a second degree felony.Section 481.112(c),

Texas Health and Safety Code. Appellant's plea of guilty to the felony charge was

before a jury. (R.R., Vol. 3, Pg. 120, L. 10). Therefore, Appellant admitted to all of

the facts necessary for the jury to establish his guilt.

                                     Page - 13 - of 17
      For the above stated reasons, an appeal, based upon an argument that the

Trial Court abused its discretion infinding Appellant guilty, is frivolous.

      Appellant also plead true (R.R., Vol. 3, Pg. 120, L. 23), to a single

enhancement paragraph contained withinthe State's Notice of Enhancement

Paragraphs to be Submitted to Fact Finder at Punishment.(C.R., Vol. 1, Pg. 37).

      If, an Appellant pleads true to an enhancement paragraph, the State's burden

of proof is satisfied. The plea of true is sufficient proof. Harvey v. State, 611

S.W.2d 108, 111 (Tex.Cr.App.1981) Furthermore, the jury assessed punishment

within the range authorized by the legislature for aFirst Degree Felony. Section

12.32, Texas Penal Code. Generally, the Appellate Court will not disturba penalty

assessed within the range ofpunishment. Jackson v. State, 680 S.W.2d 809, 814

(Tex.Crim.App.1984).

      For the above stated reasons, an appeal, based upon the argument that the

Trial Court abused its discretion h sentencing Appellant, is frivolous.

      Counsel has made a full and careful review of all matters in tla instant cause

and cannot find any reasonable point of error to legitimately raise for purposes of

appeal. As a result, Counsel has filed the instant Anders Brief.Anders v.

California, 386 U.S. 738, 1967

                                    Page - 14 - of 17
                                                                                    SIOZ-£Z-II
                                     PRAYER

      WHEREFORE, PREMISES CONSIDERED, Counsel prays the Court accept

the instant Anders Brief, grant Counsel's Motion to Withdraw, and allow Appellant

a reasonable amount of time to file a Pro Se Brief.




                                   Page - 15 - of 17
                                                                                     SIOZ-£Z-II
                         CERTIFICATE OF COMPLIANCE

      I, Colin D. McFall, Attorney of Record for the above styled Appellant,

pursuant to Rule 9.4(i)(3), Texas Rules of Appellate Procedure, hereby certify the

number of words within Appellant's Brief at one thousand eight hundred ninety

five (1,895).




                                  Page - 16 - of 17
                          CERTIFICATE OF SERVICE

      I, Colin D. McFall, Appellate Attorney of Record for the above styled

Appellant, hereby certify service of a true and correct copy of the above and

foregoing document with an explanation that he is entitled,to review the record,

and, if he so feels fit, to file a Pro Se Brief on his own behalf at Hutchins Unit,

1500 East Langdon Road, Dallas, Texas 75241,by first class mail, on the 23rd day

of November 2014.

      Counsel also certifies service of a true and correct copy of the above and

foregoing document upon Scott Holden, First Assistant, Anderson County Criminal

District Attorney, by email delivery, to sholden@co.anderson.tx.u4 on the 23rd day

of November 2015.

RESPECTFULLY SUBMITTED,


                                                Anderson County Courthouse
                                                500 North Church Street, Suite 38
 OLIN D. MCFALL                                 Palestine, Texas 75801
Assistant Criminal District Attorney            Telephone: 903-723-7400
Texas Bar Number:        24027498               Facsimile: 903-723-7818




                                    Page - 17 - of 17
