                                                                               ACCEPTED
                                                                           03-15-00467-CR
                                                                                   8046575
                                                                THIRD COURT OF APPEALS
                                                                           AUSTIN, TEXAS
                                                                     12/2/2015 10:12:58 AM
                                                                         JEFFREY D. KYLE
                                                                                    CLERK
                  NO. 03-15-00467-CR

                         IN THE                           FILED IN
                                                   3rd COURT OF APPEALS
                                                        AUSTIN, TEXAS
                  COURT OF APPEALS                 12/2/2015 10:12:58 AM
                                                       JEFFREY D. KYLE
                                                            Clerk
FOR THE THIRD SUPREME JUDICIAL DISTRICT OF TEXAS


                AMADOR FERNANDEZ,

                                      Appellant.

                           vs.
                THE STATE OF TEXAS,

                                      Appellee.



           From the 119m Judicial District Court
               of Tom Green County, Texas
     Honorable Ben Woodward, District Judge Presiding



                APPELLANT'S BRIEF



                        Filed by:

               Jitmny Stewart, Lead Counsel
                         101 S. Park
                   San Angelo, TX 76901
                    Tel: (325) 658-1532
                    Fax: (325) 655-9746
                  State Bar No. : 19211300
                                         )'ABLE OF CONTENTS

                                                                                                                    Page

Identity of Parties and Counsel ........................................ 3

Index of Authorities ................................................. 4

Statement of the Case ............................................... 5

Possible Error ..................................................... 7

Statement of Facts .................................................. 8

Sununary of Argument ............................................. 11

Argu1nent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Prayer ........................................................... 20

Ce1iificate of Service ............................................... 21




                                                                                                                   Page 2
                             PARTIES AND COUNSEL

Counsel for State ofTexas:      Jason Ferguson
                                Assistant District Attorney
                                State Bar No. 24072092
                                124 W. Beauregard
                                San Angelo, TX 76903

Appellant:                      Amador Fernandez
                                1302 Briant
                                San Angelo, Texas 76903

Appellant's Trial Counsel:      Brad Haralson
                                State Bar No. 08930950
                                331 W. Avenue B
                                San Angelo, TX 76903
                                (325) 655-4187


Appellant's Appellate Counsel: Jimmy Stewmi
                                101 S. Park
                               San Angelo, TX 76901
                               (325) 65 8-1532
                               State Bar No. 19211300




                                                              Page 3
                        INDEX OF AUTHORITIES

                                                                       Page

Brooks v. State 323 SW 3rd 983 (Tx.Crim.Ap 2010) ...................... 18

Del Rio v. State 840 SW 2nd 443 (Tx.Crim.Ap 1992) ...................... 15

Goodspeedv. State 187 SW 3rd 390 (Tx.Crim.Ap 2005) ................... 15

Jackson v. State 76 SW 3rd 798 (Tx.Crim.Ap-CorpusChristi2002) ........... 15

Jackson v. Virginia 443 U.S.307 (1979) ................................ 18

King v. State 953 SW2nd 266 (Tx.Crim.Ap 1997) ......................... 13

Madden v. State 799 SW 2nd 683 (Tx.Crim.Ap 1990) ..................... 17

Scott v. State 227 SW3rd 670 (Tx.Crim.Ap.2007) .......................... 14

Texas Code of Criminal Procedure .................................... 12

Texas Rules of Evidence ............................................ 12




                                                                       Page 4
                          STATEMENT OF THE CASE

      Amador Fernandez was indicted on May 4th, 2015, by a Tom Green County

Grand Jury for the offense of Evading Arrest and Detention With A Vehicle. The

Defendant waived a jury, entered a plea of"Not Guilty" and the case was tried by

the Honorable Ben Woodward, Judge of the 119th District Court. Judge

Woodward found the Defendant guilty and sentenced him to five years in the

Institutional Division ofthe Texas Department of Criminal Justice.

      The arresting officer in the case testified that he observed a red pickup truck

traveling southbound on Nmih Chadbourne Street in San Angelo at a high rate of

speed. The Deputy stated that he turned his vehicle around, turned on his lights

and siren and followed the vehicle. He further testified that the vehicle did not

slow down but continued to speed for some distance. According to the Deputy,

the chase continued tln·ough several turns and through a residential area before the

pickup finally came to a stop.

      The Deputy identified the Defendant as the driver of the vehicle. The driver

denied that he knew that the Sheriffs vehicle was pursuing him and that, when he

realized this, he stopped. The Deputy testified that he continued to question the

Defendant concerning his failure to stop, and, finally, at the jail after being

arrested, on the fomih or fifth time that the Defendant was questioned about this,

                                                                                  Page 5
he finally admitted that he knew a Sheriffs Deputy was pursuing him and he was

trying to get away.

      Defendant's witnesses testified that the Defendant had been diagnosed with

mental retardation and there were MHMR records that indicated the Defendant

had an age equivalent of 8.8 on the Vineland Social Maturity Scale.




                                                                           Page 6
                              POSSIBLE ERROR

1.   There was no error concerning the indictment.

2.   There was no error in the court's overruling the objection that the

     Deputy Sheriff was stating an opinion rather than testifying as to facts.

3.   The trial court's judgement should not be reversed for ineffective

     assistance of counsel.

4.   There was no error in the courts' denial of the Defendant's Motion For

     Instructed Verdict; the evidence is factually sufficient to support the

     courts' judgement.




                                                                           Page 7
                            STATEMENT OF FACTS

      The Defendant, Amador Fernandez, was indicted on May 4, 2015 by a Tom

Green County Grand jury for the offense of Evading Arrest And Detention With a

Vehicle. The Defendant waived a jury, entered a plea of not guilty and the case

was tried by the Honorable Ben Woodward, Judge of the 119th District Comi of

Tom Green County, Texas. Judge Woodward found the Defendant guilty and

sentenced him to 5 years in the institutional division of the Texas Depmiment of

Criminal Justice.

      Tom Green County Sheriffs Deputy Jerimie Fry testified that he was on

patrol in north San Angelo on March 15, 2014. Deputy Fry said that he saw a red

pickup coming toward him on north Chadboun1e Street at a high rate of speed.

The deputy stated that he turned his vehicle around, turned on his red and blue

lights and his siren and pursued the vehicle. (RR13) He testified that the red truck

did not stop but continued for several blocks down Chadbourne and turned

eastbound on 31st Street. (RR15) The deputy's testimony was that the red truck did

not stop and did not slow down while driving through a residential area where the

speed limit was 30 miles per hour. (RR16) He said the pickup turned again onto

Oakes Street, continued down Oakes, but stopped at a stop sign. (RR1 7) The

pickup then turned west on 29th Street where the driver finally stopped his vehicle.

                                                                               Page 8
(RR18) The deputy had the driver exit his pickup and he placed him in handcuffs.

(RR19)

      Deputy Fry testified that he identified the driver as Amador Fernandez and

that it was the same person as the Defendant who was in the courtroom. (RR20)

      Deputy Fry testified that he read Mr. Fernandez his Miranda rights, but that

Mr. Fernandez was willing to have a conversation with the deputy. Deputy Fry

stated that the Defendant said that he did not realize that he was being pursued

until just before he stopped. (RR21) The deputy stated that he transported the

Defendant to the jail and spoke with him again at the jail. According to the

deputy, at that point, the Defendant admitted that he saw the sheriffs car turn

around on Chadbourne and pursue him. (RR23) The Defendant went on to say that

he thought, if he got far enough ahead, that the deputy would discontinue the

pursuit. (RR29)

      On cross-examination by the defense attorney, Deputy Fry stated that he had

questioned the Defendant about his failure to stop three to five times before he

finally admitted that he was trying to get away from the deputy. (RR36)

      The Defense also called Rita Maria Martinez of the San Angelo office of

MHMR. She testified that the Defendant had been diagnosed with mental

retardation. (RR56) She also testified that, in the records ofMHMR Services For

                                                                                 Page 9
The Concho Valley, there was a document that contained a statement that on the

Vineland Social Maturity Scale, Mr. Fernandez' age equivalent was 8.8. (RR60)

      The Defense called Laura Ortiz, a cousin of the defendant. Ms. Ortiz

testified that the Defendant often acted like a child and that he could be

manipulated by pressure. (RR68)

      Finally, the Defense called Tina Fernandez, an employee of Child Protective

Services and a former spouse of the Defendant. She testified that the Defendant

was "susceptible to powers of suggestion". (RR72)




                                                                             Page 10
                          SUMMARY OF ARGUMENT

      There was no error in the indictment. It meets the requirements of the Texas

Code of Criminal Procedure. There was no harmful error when the judge

overruled Defense Attorney's objection that the arresting officer was stating an

opinion rather than testifying as to facts. Defense counsel did not render

ineffective assistance. Waiving a jury and submitting the case to the court is

within the exercise of judgement as to trial tactics. Further, it appears from the

record that the Defendant knowingly consented to the waiver of jury. The failure

of Defense counsel to object to leading question in a few instances was not

hannful error. Defense counsel was prepared and was aggressive in his

representation of the Defendant. There was no error in the court overruling the

Defendant's Motion For Instructed Verdict. There was sufficient evidence to

support the verdict.




                                                                               Page 11
                                    ARGUMENT

1.    There was no error concerning the indictment.

      The indictment meets the requisites of Article 21.02, Texas Code of

Criminal Procedure. There is no exception to the substance of the indictment

pursuant to Article 27.08, Texas Code of Criminal Procedure. There is no

exception to the form of the indictment pursuant to Article 27.09, Texas Code of

Criminal Procedure.

2.    There was no error in the court's overruling the objection that the

      Deputy Sheriff was stating an opinion rather than testifying as to facts.

      In direct examination of the atTesting officer by the prosecutor, the

following exchange took place at page 22, line 2:

      "Q. At some point did you decide to atTest him?

      A. Yes. At that initial contact I knew that he was attempting to evade based

on the speed through the residential area.

      Mr. Haralson: Object, your honor. That's a question of fact to be

determined by the court. This is officer's opinion, not a fact.

      The court: Overruled. Go ahead."

      Rule 701 of the Texas Rules of Evidence does not allow non-expert

witnesses to express opinions or inferences unless they are rationally based on the

                                                                              Page 12
perception of the witness and helpful in understanding the testimony or

determining a fact in issue. Rule 701, Texas Rules of Evidence. The trial judge

may have determined that the deputy's testimony that the Defendant "was

attempting to evade" was "rationally based on the perception of the witness".

Since this was a non-jury trial, the trial judge may have been in error in deciding

that the deputy's input was helpful in understanding his testimony or the

determination of a fact in issue. However, if it was error to overrule defense

counsel's objection, it would not be a harmful error.

      If it was error for the trial court to overrule defense counsel's objection, if

the error was not a constitutional error, it was not an error that effected substantial

rights. The Texas Court of Criminal Appeals has stated that an error such as this

is harmless unless: " ... the error had a substantial and injurious effect or influence

in determining the jury's verdict." King v. State 953 SW2nd 266 (Tex.Crim.Ap.

1997) The argument that the error was han11less in our case is strengthened by the

fact that the court rather than a jury decided the case.

      If the court's error in overruling the defense objection is constitutional error,

it is not the type of error that would "contribute to the conviction or punislunent."

The Scott v. State analysis would be:

      1.     How important was the officer's inference that the Defendant was


                                                                                  Page 13
             "evading";

      2.     Was the officer's inference cumulative of other evidence;

      3.     Was there other evidence to corroborate or contradict his inference;

      4.     The strength of the prosecution's case. Scott v. State 227 SW3rd 670

(Tex.Crim.Ap. 2007). Under that analysis, the admission of the deputy's inference

that the Defendant was "evading" would be harmless error.

3.    The trial court judgement should not be reversed for ineffective

      assistance of counsel.

      Defendant's trial counsel agreed to waive a jury; failed to object to some

leading questions; and failed to object when the Prosecutor asked the arresting

officer if the Defendant "waived" his Miranda Rights. Defense counsel, however,

did object that the arresting officer was stating a conclusion when he stated that

the Defendant "was attempting to evade"; objected to the admission of a

judgement of a criminal conviction against the Defendant; arranged for three

witnesses to testify on Defendant's behalf; moved for an instructed verdict at the

conclusion of the state's evidence; and vigorously argued for acquittal or

probation.

      As for the tactical decision to waive a jury in favor of a bench trial, the

Court of Criminal Appeals has stated that the appellate court would presume that

                                                                                Page 14
such a decision was made in the exercise of reasonable, professional judgement.

Del Rio v. State 840 SW2nd 443 (Tx. Crim.Ap 1992). In another case, the Court of

Criminal Appeals has held that trial strategy, even if unconventional, is not to be

second-guessed by the appellate court. Goodspeed v. State 187 SW3rcl 390

(Tx.Crim.Ap 2005 ).

      Also, in this case, the Defendant signed a jury waiver and reaffirmed that

waiver in open court at the trial. (RR5)

      In Jackson v. State, the Corpus Christi Comi of Appeals held that waiver of

a jury does not amount to ineffective assistance unless there is something in the

record to indicate that the Defendant did not do so voluntarily. Jackson v. State 76

SW3rd 798 (Tex.Ap.-Corpus     Clu~isti   2002). In the Jackson case, the Defendant

had not signed a written jury waiver. Of course, Appellant in our case signed a

wmver.

      The following exchange took place between the prosecutor and the arresting

officer in direct examination at page 15, line 24:

      " Q. Okay. And it sounded like you had almost caught up to the vehicle

before he makes the turn?

      A. Yes, sir. I had gotten within about a half a block-like I say, about a

block, half a block behind the vehicle.

                                                                               Page 15
      Q. Okay. So-and then when he made that turn, he had gotten farther ahead

of you?

      "A. Yes, sir."

      The direct examination of the arresting officer by the prosecutor continues
at page 21, line 8:

      "Q. Okay. Did you talk to him?

      A. I had read him his rights, his Miranda rights, and he agreed to speak

with me, so I did question him about what was going on and why he failed to stop.

      Q. So you read him his rights?

      A. Yes, sir.

      Q. And he waived those rights?

      A. Yes, sir."

      Defense counsel did not object to any of the prosecutors questions as

leading. The prosecutor is basically having the sheriffs deputy affirm facts which

the prosecutor is providing. While this failure to object could be considered as an

example of ineffective assistance of counsel, the entire record indicates that

counsel did mount a vigorous defense. Leading questions did not concern critical

matters.

      In addition, when the prosecutor asked: "And he waived those rights?",



                                                                                 Page 16
defense counsel should have objected to that question as asking for an opinion.

As a fact witness, the sheriffs deputy should only be allowed to testify as to the

exchange between arresting officer and Defendant. That exchange might or might

not amount to a waiver of his Miranda rights. To testify that he "waived those

rights" is a conclusion. Defendant's counsel did not object to this. Again, since

the deputy had already testified that he had given the Defendant his Miranda rights

and the Defendant agreed to speak with the deputy, the testimony concerning

"waiver" would hardly be critical to the case.

      There is no reason to doubt that defense counsel was using his best efforts,

nor is there reason to believe that his assistance was ineffective.

4.    There was no error in the courts' denial of the Defendant's Motion For

      Instructed Verdict; the evidence is factually sufficient to support the

      courts' judgement.

      The Court of Criminal Appeals has stated:

       "A challenge to the trial judge's ruling on a Motion For An Instructed
Verdict is in actuality to the sufficiency of the evidence to support the conviction.
In reviewing the sufficiency of the evidence, we consider all the evidence, both
state and defense, in the light most favorable to the verdict." Madden v. State 799
SW2nct 683 (Tx.Crim.Apl990).

      In another case, the Court of Criminal Appeals stated:

             " ... the Jackson v. Virginia legal-sufficiency standard is the only

                                                                                Page 17
standard that a reviewing court should apply in determining whether the evidence
is sufficient to support each element of a criminal offense that the state is required
to prove beyond a reasonable doubt." Brooks v. State 323 SW3rd 893
(Tx.Crim.Ap2010).

      In Jackson v. Virginia, the United States Supreme Court was reviewing a

state judge's verdict that a Defendant was guilty of pre-meditated murder. The

United States Supreme Court ruled that:

       " ... a federal habeas corpus court faced with a record of historical facts that
supports conflicting inferences must presume- even if it does not affirmatively
appear in the record- that the trier of fact resolved any such conflicts in favor of
the prosecution, and must defer to that resolution. Applying these criteria, we
hold that a rational trier of fact could reasonably have found that the petitioner
cmrunitted murder in the first degree under Virginia law." Jackson v. Virginia
443U.S.307 (1979).

      In our case, the arresting officer testified that the Defendant was speeding

and the officer pursued him in his Sheriffs patrol car with lights flashing and

sirens sounding. The officer testified that the Defendant continued to travel at a

high rate of speed and made several turns before finally stopping. The deputy also

testified that, under questioning after his arrest, the Defendant saw the officer turn

around and attempt to stop him. The deputy said that the Defendant also stated

that if he got far enough ahead of the pursuing officer that the officer would give

up the chase.

      The Defense offered evidence that the Defendant, under initial questioning,



                                                                                  Page 18
stated that he was not aware that he was being pursued by the Sheriff's Deputy-

that it was only after repeated questions about his intent that he made the above

statements about trying to outrun the pursuit.

      The Defense also presented evidence that the Defendant suffered from

mental retardation and was susceptible to manipulation under pressure. However,

in reviewing all of the evidence in the light most favorable to the verdict, this

court is required to defer to the trial judge's determination.




                                                                               Page 19
                                     PRAYER

      Ji1mny Stewart, therefore, respectfully submits that the appeal is frivolous

and requests that this court enter an order permitting him to withdraw from

representation from the Appellant.

Dated this November 25, 2015.




                                                                              Page 20
                           CERTIFICATE OF SERVICE

        I certify that a true and correct copy of the foregoing document has this the

25th day of November, 2015, been served upon Jason Ferguson, Assistant District

Attorney of record.

Jason Ferguson

Assistant District Atty.

124 W. Beauregard

San Angelo, Texas

76903




                              Certificate of Compliance

        I certify that this Appellant's Brief contains 3,011 words, pursuant to the

Texas Rules of Appellate Procedure 9.4I2B.




                                                                                Page 21
                                                                                           ACCEPTED
                                                                                       03-15-00467-CR
                                                                                               8046846
                                                                            THIRD COURT OF APPEALS
                                                                                       AUSTIN, TEXAS
                                                                                 12/2/2015 10:20:20 AM
                                                                                     JEFFREY D. KYLE
                                                                                                CLERK
                              No. 03-15-00467-CR

AMADOR FERNANDEZ                      §     IN THE COURT OF APPEALS
                                      §
v.                                    §     THIRD JUDICIAL DISTRICT
                                      §
THE STATE OF TEXAS                    §     SITTING AT AUSTIN, TEXAS

                        CERTIFICATE OF COUNSEL

      In compliance with the requirements of Andrews v. California, 386 U.S. 387

(1967), I, Jimmy Stewart, comi-appointed counsel for appellant, AMADOR

FERNANDEZ, in the above-referenced appeal, do hereby verify, in writing, to the

Court that I have:

1.    notified appellant that I have 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 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,
