                                                                         ACCEPTED
                                                                     03-14-00411-CR
                                                                             6549042
                                                          THIRD COURT OF APPEALS
                                                                     AUSTIN, TEXAS
                                                                8/18/2015 4:05:11 PM
                                                                   JEFFREY D. KYLE
                  NO. 03-14-00411-CR                                          CLERK


             (Trial Court No. A-11-0535-S)
                                               FILED IN
                        IN THE          3rd COURT OF APPEALS
                                            AUSTIN, TEXAS
                  COURT OF APPEALS      8/18/2015 4:05:11 PM
                                          JEFFREY D. KYLE
FOR THE THIRD                                   Clerk
                SUPREME JUDICIAL DISTRICT OF TEXAS


           MANUEL RUIZ CONSTANCIO,
                             Appellant.

                          vs.
                THE STATE OF TEXAS,
                                 Appellee.


           From the 51ST Judicial District Court
              ofTom Green County, Texas
      The Honorable Jay Weatherby, Judge Presiding



                BRIEF OF APPELLANT


        ORAL ARGUMENT NOT REQUESTED

                       SHAWNTELL McKILLOP
                       25 West Beauregard Avenue
                       San Angelo, Texas 76903
                       Telephone: (325) 658-1991
                       Facsimile: (325) 655-1391
                       Texas State Bar No.24007655
                       E-Mail: mckillopattomey@hotmail.com
                       Court Appointed Attorney for Appellant




                            1
                    IDENTITY OF PARTIES AND COUNSEL

      In order that the members of the Court may determine disqualifications

or refusal pursuant to Rule 74(a) of the Texas Rules of Appellate Procedure,

Appellant certifies that the following is a complete list of all parties interested

in the outcome and their attorneys of record:

Mr. George McCrea
Tom Green County District Attorney
124 West Beauregard A venue
San Angelo, Texas 76903
APPELLEE

Kirk Hawkins
P.O. Box 3645
San Angelo, Texas 76902
State Bar No. 09250400
DEFENSE AND TRIAL ATTORNEY

Mr. Manuel Ruiz Constancio
TDCJNumber 01938566
John Middleton Transfer Facility
13055 FM 3522
Abilene, Texas 79601
APPELLANT

Shawntell McKillop
25 West Beauregard Avenue
San Angelo, Texas 76903
State Bar No.24007655
ATTORNEY FOR APPELLANT

The Honorable Jay Weatherby
Tom Green County Courthouse
112 West Beauregard Avenue
San Angelo, Texas 76903
TRIAL JUDGE



                                         2
                              TABLE OF CONTENTS



Index of Authorities                              3

Statement of the Case                             4

Statement of the Facts                            6

Sufficiency of the Evidence                       9

Objections                                        9

Effectiveness of Counsel                          9

Punishment                                        11

Conclusion                                        11

Prayer                                            11




                                      2
                            INDEX OF AUTHORITIES




CASE                                                                Page


Anders v. California 386 US 738, 87 S. Ct. 1396, 18 L.Ed 2"ct 493
(1963)                                                               5

Delacruz v. State 167 SW3d 905 at 906 (Tx.App.-Texarkana 2005)      5

High v. State 573 SW2d 807 (Tx.Crim.App. 1978                        5

Stafford v. State 813 SW2d 503 (Tx.Crim.App. 1991)                   5

Strickland v. Washington 466 US 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984)                                                           12

Winchester v. State 246 SW3d 386 At 388 (Tx.App.-Amarillo 2008)      12




STATUTES


Rule 74(a), Texas Rules of Appellate Procedure                           5

Penal Code, Section 20.03                                                4




                                       3
                         STATEMENT OF THE CASE

      The Appellant, Manuel Ruiz Constancio, was originally indicted July 6,

2011 for the offense of aggravated robbery a prior conviction under Texas

Penal Code §20.03, a first degree felony enhanced (C.R.at 8). On or about June

5, 2012, Appellant plead guilty to the offense of Robbery, a lesser included

second degree felony offense of the original indicted offense. (C.R.at 9) After

hearing testimony, the Court found that the evidence substantiated Appellant's

guilt, further deferred proceedings without entering an adjudication of guilty,

and placed Appellant on adult probation for a period often (10) years. (C.R.at

9)

      On August 19, 2013, the State filed a motion to revoke deferred

adjudication and to proceed to adjudicate guilt alleging Manuel Ruiz Constancio

violated the terms and conditions of probation (C.R.at 33-35). On April 24,

2014, before the Honorable Jay Weatherby, Presiding Judge of the 51 51 District

Court, Appellant entered a plea of not true to each of the allegations in the

motion to adjudicate guilt. After hearing testimony and considering the

evidence, the Court sentenced the Manuel Ruiz Constancio to 10 years in the

State Jail Division ofthe Texas Department of Criminal Justice (IV R.R.at 25).




                                       4
      Appellant filed a motion for new trial on April 29, 2014. On June 6,

2014,the Court appointed Shawntell McKillop to represent Appellant on this

appeal.

      Counsel has reviewed the record, interviewed the Appellant, spoken with

Appellant's trial counsel. Counsel can find no arguable grounds on which to

appeal. Counsel will attempt to comply with the guidelines regarding such

appeals as set forth in High v. State 573 SW2d 807 (Tx.Crim.App. 1978),

Anders v. California 386 US 738, 87 S. Ct. 1396, 18 L.Ed 2nd 493 (1963), and

Staffordv. State 813 SW2d 503 (Tx.Crim.App. 1991).

      The record consists ofthe Clerk's record in one (1) volume of66 pages

which will be referred to as "C.R.", and the reporter's record which consist of

four (4) volumes, which will be referred to as "R.R.". Volume one contains the

master index; Volume two is the transcription of Appellant's jury trial from

January 24, 2014 on Cause No. A-11-0535-S; Volume three is the transcription

of Appellant's jury trial from January 25, 2014 on Cause No. A-11-0535-S;

Volume four is the record from the final hearing on the State's motion to

adjudicate on April 34, 2014; Volume five contains the exhibits from both

hearings.




                                       5
                         STATEMENT OF THE FACTS

      On August 19, 2013, the State filed a motion to revoke deferred

adjudication and to proceed to adjudicate guilt alleging Manuel Ruiz

Constancioviolated the terms and conditions of probation (C.R. at 33-35). The

State's motion contained four allegations: (1) on or about July 14, 2013,

Appellant had committed the offense of indecency with a child younger than

seventeen (17) years of age; (2) Appellant failed to complete 240 hours of

community service; (3) Appellant failed to report in person to the Concho

Valley Community Supervision and Corrections Department; and (4) Appellant

failed to complete a required "theft by check" course (C.R. at 33-35). The State

ultimately abandoned the fourth allegation. (IV R.R. at 28-29) The Court heard

evidence as to the remaining three allegations of the State's motion to revoke

deferred adjudication.

      On January 25, 2014, after the conclusion of a two-day jury trial Manuel

Constancio was found guilty of Indecency with a Child by Sexual Contact

District Court Cause Number A-13-1024-SA (III R.R. 108).

      On April 24, 2014, the final hearing on the State's motion to revoke and

adjudication of guilt was reconvened from the jury trial regarding Cause No. A-




                                       6
13-1024-SA (IV R.R. at 5-7). The Court took judicial notice of the testimony

and evidence the Court heard during that matter and proceeded to hear evidence

regarding the remaining allegations in the State's motion to revoke deferred

adjudication.

      The State called Lara Allen, a probation officer with the Concho Valley

Community Supervisions and Corrections Department(IV R.R. at 8). She

testified generally that Appellant had violated conditions of his probation by

failing to complete the monthly requisite of community serviceand that he

failed to report in person to the Concho Valley Community Supervisions and

Corrections Department. Specifically, Ms. Allen testified that Appellant was

required to complete ten (10) community service hours per month until he

completed the 240 hours (IV R.R. at 11 ). On cross-examination, Ms.· Allen

admitted that Appellant had three (3) years to complete his required community

service hours and had, in less than one year, completed but fifty-five and a half

hours ofthe 240 he was ordered to serve (IV R.R. at 13-14).

      Additionally, Ms. Allen stated that Appellant failed to report in person

for at least one scheduled office visit with his probation officer during the week

of June 5, 2015. When asked for the Departments' recommendation, Ms. Allen

recommended revocation, due to Appellant's non-compliance with his probation




                                        7
conditions and for being convicted of sexual indecency with a child (IV R.R. at

12).

       Appellant, Manuel Ruiz Constancio, testified on his own behalf.

Appellant testified that, as far as his community service hours were concerned,

he worked in the custodial department at the Keys Building and his supervisor's

name was Ray (IV R.R. IV at 15). Appellant testified that he failed to complete

the required minimum of ten hours community service hours for the month of

June 2013 because his supervisor, Ray, had verbally told Appellant he was

caught up on his hours. When Appellant met with his probation officer in July,

he was given the opportunity to get caught up on his hours (IV R.R. at 16).

Appellant further testified that he had made an effort to tum his life around and

start his own business, in addition to working other jobs to support his family

(IV R.R. at 16).

       On cross-examination, Appellant denied committing both the underlying

offense of robbery and the offense of indecency with a child, of which he had

been previously convicted (IV R.R. at 18). Appellant stated thathe did plead

guilty to the underlying offense ofrobbery, but only to get probation and avoid

possible jail time (IV R.R. at 18).

       After considering all the evidence, the Court found that Appellant

violated the terms and conditions of his probation, revoked probation, and


                                        8
entered a finding of guilt (IV R.R. at 25). The Court sentenced Appellant to (10)

ten years in the Institutional Division of The Texas Department of Criminal

Justice (IV R.R. at 25).


                       SUFFICIENCY OF THE EVIDENCE

      On June 5, 2012, Appellant signed a written stipulation of evidence

admitting guilt. Appellant's guilty plea and the Court's findings that he had

violated the terms of his probation were sufficient to adjudicate guilt.

                                  OBJECTIONS

      There were no objections made by either party during the trial.

                           EFFECTIVENESS OF COUNSEL

      This Court evaluates ineffective assistance of counsel claims based on the

standard or 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. 688 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.

Crim. App. 1999).

      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



                                         9
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 carmot be

said that the conviction or death sentence resulted from a breakdown in the

adversary process that renders the result unreliable." !d.

      This Court applies the Strickland Standard as interpreted by the Texas

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

perfonnance of the defendant's trail 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

his trial counsel rendered ineffective assistance of counsel. Bone v. State, 77

S.W.3d 828, 833 (Tex. Crim. App. 2002.

       The trial court appointed attorney Kirk Hawkins to represent Appellant on

August 29, 2013 on the State's motion to revoke deferred adjudication (C.R. 36).

       Appellant's counsel cross-examined the State's witnesses extensively as


                                         10
well as thoroughly questioning Appellant, himself. Mr. Hawkins attempted to

prove to the Court that Appellant had made a sincere effort to tum his life

around and asked the Court for leniency in the sentence of this matter (IV R.R.

24). The Trial Counsel's performance far exceeded the standards for effective

assistance of counsel based on the definition of ineffective assistance as per

Stafford v. State 813 SW2d 503 (Tx.Crim.App. 1991) and Strickland v.

Washington 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

     The record reflects that Attorney Kirk Hawkins effectively represented

Appellant throughout the entire case. The record does not indicate that Attorney

Hawkins was deficient in any way. In this counsel's opinion, in the event that

Mr.Hawkins's performance was somehow deficient, the evidence from the record

does not indicate it prejudiced Appellant in any manner.

                                  PUNISHMENT

      The courts have traditionally held that punishment assessed within the

range set by the legislature in a valid statute is not excessive, cruel, or unusual.

Winchester v. State 246 SW3d 386 at 388 (Tx.App.-Amarillo 2008), petition for

discretionary review refused, Delacruz v. State 167 SW3d 905 at 906 (Tx.App.-

Texarkana 2005). The maximum sentence for this charge would be twenty




                                         11
years, with a minimum of two. The Court assessed punishment within the

statutory range for this offense.

                                    CONCLUSION

      After reviewing the record of the case, Appellant's counsel can find no

reversible error.

                                     PRAYER

       Shawntell McKillop, Counsel for Manuel Ruiz Constancio, prays this Court

acknowledge and approve her request to withdraw from her court appointed

duty of providing farther legal representation to appellant on original appeal.

      Appellant Manuel Ruiz Constancio 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,

                                          /s/Shawntell McKillop
                                        Shawntell McKillop
                                        25 West Beauregard Avenue
                                        San Angelo, Texas 76903
                                        (325) 658-1991
                                        STATE BARNO. 24007655
                                        E-Mail: mckillopattomey@hotmail.com




                                         12
                        CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the above was served on Mr.
George McCrea, 1191h District Attorney, Tom Green County Courthouse, Court
Street Annex, 124 West Beauregard, San Angelo, Texas 76903; and on
Appellant, Mr. Manuel Constancio, 1536 East IH-10, Fort Stockton, Texas
76901, on this 17th day of August, 2015.

       I further certify that I have mailed a notice to the Appellant at the above-
referenced address on August 17, 2015, informing of my intention of filing a
frivolous appeal and advising her of her rights to file her own brief and to
review the record.

                                          Is/ Shawntell McKillop
                                       Shawntell McKillop


                     CERTIFICATE OF COMPLIANCE

      I certify that the above and foregoing Appellant's Brief contains 1,742
words.


                                           Is/ Shawntell McKillop
                                        Shawntell McKillop


          NOTICE TO APPELLANT, MANUEL CONSTANCIO

    YOU HAVE THE RIGHT TO FILE YOUR OWN BRIEF IN THIS
CAUSE. YOU ALSO HAVE THE RIGHT TO REVIEW THE COURT
RECORD AND THE COURT REPORTER'S RECORD. YOU HAVE
THIRTY (30) DAYS FROM THE DATE OF THE FILING OF THIS
BRIEF IN WHICH TO PREPARE AND SUBMIT YOUR OWN BRIEF.

                                           /s/Shawntell McKillop
                                        Shawntell McKillop




                                        13
                       SHAWNTELL MCKILLOP
                         ATTORNEY-AT-LAW
                         25 W. Beauregard Ave.
                      San Angelo, Texas 76903-5832
Phone: (325) 658-1991                              Fax: (325) 655-1391
Email: mckillopattomey@hotmail.com     http://www .mckillopattomey.com


August 17,2015



Mr. Manuel Ruiz Constancio                     CMRR No.7014 2120 0001 8641 1231
TDCJ # 01938566
Fort Stockton Unit
1536 East IH-10
Fort Stockton TX, 79735


Re:    Manuel Ruiz Constancio v. The State Of Texas

Dear Mr. Constancio:


Enclosed please fmd a copy ofthe motion to withdraw as counsel and brief pursuant
to Anders 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 trial.

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:
                                           1
                             Jeffrey D. Kyle, Clerk
                             Third Court of Appeals
                             Post Office Box 12547
                             Austin, Texas 78711

The Court of Appeals will then direct the clerk ofthe 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 ofthe 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 determine 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-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 determine 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,


~cKill~:>
Attorney at Law


Enclosures: Copy of Anders Brief
            Copy of Certificate of Service
            Motion to Withdraw
            Original plus copies of Pro Se Motion for Access to the Appellate
            Record



                                           2
                                     NO. 03-14-00411-CR


MANUEL RUIZ CONSTANCIO                         §                1N THE COURT OF APPEALS
                                               §
v.                                             §                 THIRD JUDICIAL DISTRICT
                                               §
THE STATE OF TEXAS                             §                SITTlNG AT AUSTlN, TEXAS


            MOTION FOR PROSE ACCESS TO THE APPELLATE RECORD


To the Honorable Third Court of Appeals, now comes Manuel Ruiz Constancio and requests this
court provide me with a copy of the clerks record and reporters record so that I may prepare a
brief on my behalf.


My Current Address is: TDCJ # 01938566, Fort Stockton Unit,1536 East IH-10, Fort Stockton
TX, 79735


                                            Respectfully Submitted,




                                             Manuel Ruiz Constancio


                              CERTIFICATE OF SERVICE

       This is to certify that on _ _ _ _ _ _ _ _ , 2015, a true and correct copy of the

above and foregoing document was served on the District Attorney's Office, Tom Green County

124 W. Beauregard San Angelo TX 76903-5835.



                                             Manuel Ruiz Constancio
                                    NO. 03-14-00411-CR


MANUEL RUIZ CONSTANCIO                         §               IN THE COURT OF APPEALS
                                               §
v.                                             §                 THIRD JUDICIAL DISTRICT
                                               §
THE STATE OF TEXAS                             §                SITTING AT AUSTIN, TEXAS


            MOTION FOR PRO SE ACCESS TO THE APPELLATE RECORD


To the Honorable Third Court of Appeals, now comes Manuel Ruiz Constancio and requests this
court provide me with a copy of the clerks record and reporters record so that I may prepare a
brief on my behalf.


My Current Address is: IDCJ # 01938566, Fort Stockton Unit,1536 East IH-10, Fort Stockton
TX, 79735


                                            Respectfully Submitted,




                                            Manuel Ruiz Constancio


                              CERTIFICATE OF SERVICE

       This is to certify that on _ _ _ _ _ _ _ ___, 2015, a true and correct copy of the

 above and foregoing document was served on the District Attorney's Office, Tom Green County

 124 W. Beauregard San Angelo TX 76903-5835.



                                             Manuel Ruiz Constancio
                                    NO. 03-14-00411-CR


MANUEL RUIZ CONSTANCIO                         §                IN THE COURT OF APPEALS
                                               §
v.                                             §                 THIRD JUDICIAL DISTRICT
                                               §
THE STATE OF TEXAS                             §                SITTING AT AUSTIN, TEXAS


            MOTION FOR PROSE ACCESS TO THE APPELLATE RECORD


To the Honorable Third Court of Appeals, now comes Manuel Ruiz Constancio and requests this
court provide me with a copy of the clerks record and reporters record so that I may prepare a
brief on my behalf.


My Current Address is: TDCJ # 01938566, Fort Stockton Unit,1536 East IH-10, Fort Stockton
TX, 79735


                                            Respectfully Submitted,




                                             Manuel Ruiz Constancio


                              CERTIFICATE OF SERVICE

        This is to certify that on _ _ _ _ _ _ _ _, 2015, a true and correct copy of the

 above and foregoing document was served on the District Attorney's Office, Tom Green County

 124 W. Beauregard San Angelo TX 76903-5835.



                                             Manuel Ruiz Constancio
                             CAUSE NO. 03-14-00411-CR

MANUEL RUIZ CONSTANCIO                     §       IN THE COURT OF APPEALS
                                           §
                 vs.                       §       THIRD JUDICIAL DISTRICT
                                           §
      THE 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, Shawntell McKillop court-appointed cmmsel for appellant, MANUEL

 RUIZ CONSTANCIO 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 cmmsel 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,


                                                  /s/Shawntell McKillop
                                               Shawntell McKillop
