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NO. 01-15-00557-CR
IN THE COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS
LAWSON KELECHI ECHETA Appellant
v.
THE STATE OF TEXAS
Appellee
On Appeal from Cause Numbers 2017953, 2017952 From the 178th District Court of Harris County, Texas
BRIEF FOR APPELLANT
ORAL ARGUMENT NOT REQUESTED ALEXANDER BUNIN Chief Public Defender
Harris County, Texas
ANGELA CAMERON Assistant Public Defender Harris County, Texas
TBN. 00788672 1201 Franklin, 13th floor Houston, Texas 77002 Phone: (713) 368-0016 Fax: (713) 368-9278
ii
IDENTITY OF PARTIES AND COUNSEL
APPELLANT: Lawson Kelechi Echeta
8802 Inglebrook Lane Houston, Texas 77083
TRIAL PROSECUTORS: Ms. Jante Langan
Mr. Joseph Sanchez
Assistant District Attorney
Harris County District Attorney's
Office
1201 Franklin
Houston, Texas 77002
DEFENSE COUNSEL AT TRIAL: Mr. Lucio Montes
Attorney at Law
7324 Southwest Freeway, Suite 905
Houston, Texas 77074
PRESIDING JUDGE: Hon. Analia Wilkerson
#9 District Court
Harris County, Texas
1201 Franklin Avenue, 19th floor
Houston, Texas 77002
APPELLATE COUNSEL: Angela Cameron
Assistant Public Defender
Harris County, Texas
1201 Franklin Avenue, 13th floor
Houston, Texas 77002
iii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ......................................................................ii
TABLE OF CONTENTS.........................................................................................................iii
INDEX OF AUTHORITIES .................................................................................................. v
STATEMENT REGARDING ORAL ARGUMENT....................................................... 1
STATEMENT OF THE CASE .............................................................................................. 1
ISSUE PRESENTED ................................................................................................................ 2
STATEMENT OF FACTS....................................................................................................... 2
SUMMARY OF THE ARGUMENT .................................................................................... 3
ARGUMENT .............................................................................................................................. 4
Court-Appointed counsel believes that the appeal in this case is frivolous since there are no arguable grounds for appeal.
Anders Briefs Generally .................................................................................................. 4
Jurisdictional Questions................................................................................................. 7
Charging Instruments ......................................................................................... 7 Subject-Matter Jurisdiction ................................................................................ 9 No Evidence to Support Conviction............................................................. 10 Right to Counsel ................................................................................................ 11
Pre-trial Motions............................................................................................................ 11 Pro Se Motions .................................................................................................... 11 Motions not filed by Trial Counsel and failure to adopt pro se motions . 12 Voir Dire ......................................................................................................................... 14 Trial Testimony.............................................................................................................. 15
Sufficiency of the Evidence ................................................................. 16 Witness testifying injuries were normal............................................. 18 Defense Objections Overruled ........................................................... 20 Closing arguments in Guilt/Innocent Phase ................................... 21
iv
Jury Charge ..................................................................................................................... 21
Punishment ..................................................................................................................... 23 Proportionality of Sentence ............................................................................. 23 Credit for Time Served ..................................................................................... 24
Conclusion ...................................................................................................................... 25
PRAYER ..................................................................................................................................... 25
CERTIFICATE OF SERVICE ............................................................................................. 26
CERTIFICATE OF COMPLIANCE .................................................................................. 27
v
INDEX OF AUTHORITIES
Cases Allev v State, 108 S.W.3d 281, 282 (Tex. Crim. App. 2003) .............................................. 15 Anders v. California, 386 U.S. 738 (1967) .................................................................... 3, 4, 5, 6 Brady v. Maryland 373 U.S. 83 (1963) ..................................................................................... 13 Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005) ...................................... 6 Brisker v. State, No. 01-08-00841-CR, 2009 WL 943894, at 5 (Tex. App. – Houston [1st Dist.] Apr. 9, 2009 no pet.) (mem. op., not designated for publication) ....................... 23 Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) ........................................... 16 Buchanan v. State, 68 S.W.3d 136, 141 (Tex. App. – Texarkana 2001, no pet.) ........23, 24 Cada v. State, 334 S.W.3d 766, 772-73 (Tex. Crim. App. 2011) ....................................... 16 Cannon v. State, 252 S.W.3d 342, 349 (Tex. Crim. App. 2008) ......................................... 13 Cook v. State, 902 S.W.2d 471, 477 (Tex. Crim. App. 1995) ............................................... 8 Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011) ............................................. 22 Crume v. State, 342 S.W.3d 241, 244 (Tex. App. – Beaumont 2011, no pet.) ................ 10 Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974) ....................................................... 5 Davis v. State, 313 S.W.3d 317, 350 (Tex. Crim. App. 2010) ............................................. 19 Dinnery v. State, 592 S.W.2d 343 (Tex. Crim. App 1979) ................................................... 11 Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) ............................................ 25 Fairfield v. State, 610 S.W.2d 771, 779 (Tex. Crim. App. 1981) ........................................... 7 Fulenwider v State, 176 S.W.3d 290, 300 (Tex. App.-Houston [1st Dist.] 2004, pet. ref’d) ....................................................................................................................................................... 15
vi
Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) ............................................. 13 Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009) ............................................. 6 Gideon v. Wainwright 372 U.S. (1963) ....................................................................................... 7 Gollihar v. State, 46 S.W.3d 243, 253-254 (Tex. Crim. App. 2001) ................................... 16 Guevara v. State, 985 S.W.2d 590, 592 (Tex. App. – Houston [14th Dist.] 1999, pet. ref'd) ............................................................................................................................................ 12 Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999) ............................................... 21 Hawkins v. State, No. 06-08-00087-CR, 2009 WL 30255 (Tex. App. - Texarkana Jan. 7, 2009, pet. ref’d) (mem. op., not designated for publication) ........................................... 20 High v. State, 573 S.W.2d 807, 811 (Tex. Crim. App. 1978) ................................................ 5 In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008) ............................................. 4 Jackson v State, 548 S.W.2d 685, 697 (Tex. Crim. App. 1977) ........................................... 15 Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000) ............................................ 21 Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) .......................................... 24 Jackson v. Virginia 443 U.S. 307 (1979) .................................................................................. 15 Johnson v State (Tex. App.—Hous. [1st Dist.] Oct. 4, 2012, no. pet. h.) .......................... 15 Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973) ............................................ 24 Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014) .................................................3, 4, 5 King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) ............................................... 21 Kirkpatrick v. State, 279 S.W.3d 324, 328-29 (Tex. Crim. App. 2009) ............................. 10 Leadon v. State, 332 S.W.3d.600, 620 (Tex. App. - Houston [1 Dist.], 2010, no pet.) .. 12
vii
Luna v. State, No. 07-03-00184-CR, 2004 WL 343992 (Tex. App. – Amarillo Feb. 24, 2004, pet. ref’d) (mem. op., not designated for publication) ........................................... 17 Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). ........................................... 16 Mantooth v. State, 269 S.W.3d 68, 74 (Tex. App. – Texarkana 2008, no pet.) ................ 16 Mathis v State, 67 S.W.3d 918, 922 (Tex. Crim. App. 2002) .............................................. 14 McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 438 n.10 (1988). ............................... 4 McGee v. State, 774 S.W.2d 229, 240 (Tex. Crim. App. 1989) ........................................... 21
McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1993) ........................................................ 23
Meza v. State, 206 S.W.3d 684 (Tex. Crim. App. 2006) ...................................................... 4 Mitchell v. State, 193 S.W.3d 153, 156 (Tex. App. – Houston [1st Dist.] 2006, no pet.) . 6 Morris v. State, 361 S.W.3d 649, 671 (Tex. Crim. App. 2011) ........................................... 19 Nix v. State, 65 S.W.3d 664, 668 (Tex. Crim. App. 2001) ...................................... 7, 10, 11 Ortiz v. State, 93 S.W.3d 79, 88 (Tex. Crim. App. 2002) .................................................... 14 Padilla v. State, 254 S.W.3d 585, 590 (Tex. App. – Eastland 2008, pet. ref'd) ............... 17 Pizzo v. State, 235 S.W.3d 711, 714-15 (Tex. Crim. App. 2007) ....................................... 22 Pyykola v State, 814 S.W.2d 462, 464 (Tex. App. 14th 1991) .............................................. 22 Robinson v. State, 240 S.W.3d 919, 922 (Tex. Crim. App. 2007) ....................................... 12 Rogers v State, 853 S.W.2d 29, 35 (Tex. Crim. App. 1993) ................................................. 14 Solem v. Helm, 463 U.S. 277, 289 (1983) ................................................................................ 23 Sowels v. State, 45 S.W.3d 690, 691 (Tex. App.-Waco 2001, no pet.) ................................. 4 Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991) ................................................ 5, 6
viii
State v. Hall, 829 S.W.2d 184, 188 (Tex. Crim. App. 1992) .............................................. 10 Strickland v. Washington, 466 U.S. 668 (1984) ....................................................................... 13 Studer v. State, 799 S.W.2d 263, 273 (Tex. Crim. App. 1990) .............................................. 8 Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999) .......................................... 13 Wade v. State, 951 S.W.2d 886, 889 (Tex. App. – Waco, 1997, pet. ref’d.) ..................... 17 Wolfe v. State, 560 S.W.2d 686, 688 (Tex. Crim. App. 1978) ............................................. 10 Statutes Tex. Crim. Proc. Code art 1.14 (b) ........................................................................................... 8 Tex. Code Crim. Proc. art. 12.02(a) ......................................................................................... 9 Tex. Crim. Proc. Code art 21.02 ............................................................................................... 8 Tex. Code Crim. Proc. art. 21.03 .............................................................................................. 8 Tex. Code Crim. Proc. art. 21.04 .............................................................................................. 8 Tex. Crim. Proc. Code art. 21.20 .............................................................................................. 8 Tex. Code Crim. Proc. art. 21.21 .............................................................................................. 8 Tex. Code Crim. Proc. art. 42.03§2(a) ................................................................................... 24 Tex. Pen. Code §38.03(a) ................................................................................................ 1, 8, 24 Tex. Pen. Code §30.05. ............................................................................................................... 1 Rules Tex. R. App. Proc. 9.4(i)(3) ..................................................................................................... 27 Tex. R. App. Proc. 9.4(e)(i)...................................................................................................... 27 Tex. R. App. Proc. 9.4(j) .......................................................................................................... 27
ix
Tex. R. App. Proc. 33.1(a) ....................................................................................................... 12 Tex. R. App. Proc. 44.2(b) ....................................................................................................... 20 Tex. R. Evid. 404 ....................................................................................................................... 12 Tex. R. Evid. 702 ................................................................................................................ 18, 19 Constitutional Provisions Tex. Const. art. I, § 13 .............................................................................................................. 23
U.S. Const. amend VIII ........................................................................................................... 24
1
STATEMENT REGARDING ORAL ARGUMENT
The undersigned attorney waives oral argument, although she understands that
if new counsel is appointed oral argument may be requested.
STATEMENT OF THE CASE
Mr. Echeta was charged with two cases of criminal trespass and resisting arrest
(C.R. I at 5 & 7)1. See Tex. Pen. Code §30.05 and §38.03(a).
Echeta pled “not guilty” (2. R. R. 38 & 39). After a trial, a jury found Echeta
not guilty of criminal trespass2, and guilty of resisting arrest (3. R. R. 65). Echeta
waived his right to jury punishment phase and the court sentenced him to 70 days
imprisonment at the County Jail (4. R. R. 4). Clarke filed a timely pro se notice of
appeal. (C.R. I at 34). No motion for new trial was filed.
1 The record on appeal is cited as follows in this brief: CR at p …… Clerk's record at page p.
with the Clerk's Record numbered as follows:
Volume I Trial cause number 2017953. 2 Due to the jury finding the defendant “not guilty” of the criminal trespass charge, we will not be addressing this issue
in the brief. For example, a pre-trial motion that the trespass was unconstitutional as applied is moot because he was not
found guilty.
2
ISSUE PRESENTED
Court-Appointed counsel believes the appeal in this case is frivolous as there are no arguable grounds to present on appeal.
STATEMENT OF FACTS
On the evening of March 31st, 2015, Officer Matthew Sterling, a police officer
at the University of Houston, was dispatched to a person called sleeping inside of a
library on the University of Houston campus (3. R. R. 9). The dispatcher and
custodial staff who called it in are unidentified (3. R. R. 20 & 23).
Officer Sterling immediately recognized Lawson Kelechi Echeta, the Appellant,
due to arresting him previously under similar circumstances (3. R. R. 13 & 14). Soon
after, Officer Ivan Mascorro, a police officer at the University of Houston, arrived to
assist (3. R. R. 16). Echeta was found sitting on a bench outside the library by himself
in Cullen Family Plaza (3. R. R. 13, 20 & 27). Officer Sterling asked why Echeta was
there, to which he said he was waiting for a friend. Officer Sterling claims he asked
Echeta to leave the premises, and he did not (3. R. R. 16).
At trial, Officer Sterling testified that on January 8, 2014, Echeta received a
notice regarding a one-year warning to stay away from the premises (3. R. R. 13-15, 18
& 22-24). He also testified that he did not issue a permanent ban to Echeta from the
premises (3. R. R. 18-19).
At approximately 10.45pm, Officer Sterling and Officer Mascorro searched and seized
Echeta, and transported him to the University of Houston holding cells (3. R. R. 8, 17
3
& 27). Officer Sterling then departed and left Officer Mascorro to take over care,
custody and arrest of Echeta (3. R. R. 21, 27-31). Officer Mascorro escorted Echeta
out of the vehicle (3. R. R. 30). Officer Mascorro said he informed Echeta of his
name (3 .R. R. 34). However, Echeta claimed he asked what his name was twice, to
which he received no answer. He then asked again as he was escorted to the holding
cell entrance, to which Officer Mascorro became angry and pushed him (3. R. R. 44-
45). Echeta pushed his foot against the wall in self-defense and Officer Mascorro felt
he needed to assess him to the floor (3. R. R. 45). Conversely, Officer Mascorro
claims that Echeta was attempting to escape, and he feared for his own safety (3. R. R.
30-31 & 33-36). He also said Echeta spat in his hand (3. R. R. 31). To which Echeta
denied (3. R. R. 50).
Although Officer Mascorro denied any injuries to Echeta, his mugshot showed
that he suffered a bruised cheek to the left-side of his face, and a bleeding lip (3. R. R.
32 & 34-35).
SUMMARY OF THE ARGUMENT
There are no arguable grounds to be raised in this appeal. The undersigned
thereby requests that this Court follow the procedures prescribed in Anders v.
California, 386 U.S. 738 (1967) and Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App.
2014).
4
ARGUMENT
COURT APPOINTED COUNSEL BELIEVES THAT THE APPEAL IN THIS
CASE IS FRIVOLOUS, SINCE THERE ARE NO ARGUABLE GROUNDS
FOR APPEAL. Anders Briefs Generally
An attorney has an ethical obligation to refuse to prosecute a frivolous appeal.
In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008). When an appointed
attorney’s “good-faith review of the law and record suggests to him no plausible
grounds for appeal, appointed counsel's ‘duty to withdraw is based upon his
professional and ethical responsibilities as an officer of the court not to burden the
judicial system with false claims, frivolous pleadings, or burdensome time demands.’”
Kelly v. State, 436 S.W.3d 313, 318 (Tex. Crim. App. 2014). Counsel’s obligation to the
appellate court is to assure it, through an Anders brief, that such a complete review of
the record has been undertaken and that the request to withdraw is well-founded.
Anders v. California, 386 U.S. 738 (1967).Id.
A wholly frivolous appeal is one that “lacks any basis in law or in fact.” See
McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 438 n.10 (1988). A reviewing court
must resolve doubtful issues in the appellant’s favor. Id. In the brief which
accompanies his motion to withdraw, counsel must make references to the appellate
record as well as to any applicable statutes, rules, and cases that lead counsel to the
conclusion that the appeal is frivolous. Sowels v. State, 45 S.W.3d 690, 691 (Tex. App.-
Waco 2001, no pet.) overruled on other grounds by Meza v. State, 206 S.W.3d 684 (Tex.
5
Crim. App. 2006). The brief must contain references to anything in the record that
might arguably support the appeal, even though counsel believes that the appeal is
frivolous. Anders v. California, supra; Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App.
1991).
Counsel is not required to make arguments that would not be made on behalf
of a client who has retained counsel for the appeal; counsel is not required to make
arguments for which there is no merit. Currie v. State, 516 S.W.2d 684 (Tex. Crim.
App. 1974). If counsel concludes that there are no arguable grounds for appeal, then
counsel should so state and should make references to the record, statutes, and cases
which support that conclusion. High v. State, 573 S.W.2d 807, 811 (Tex. Crim. App.
1978). When discussing the record, counsel must discuss the evidence introduced at
trial and must provide the appellate court “with ready references to the record.”
Stafford at 510 n.3.
Counsel must furnish a copy of the motion to withdraw and a copy of the brief
to Appellant. Counsel must advise Appellant of his right to file a pro se response to
the Anders brief and his right to review the record prior to filing any such response.
Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014). Counsel must also advise
Appellant of his right to file a pro se petition for discretionary review. Id.
Additionally, counsel must “take concrete measures to initiate and facilitate the
process of actuating his client's right to review the appellate record, if that is what his
client wishes.” Id. To accomplish this, counsel is to provide Appellant a form motion
6
to send to the court of appeals requesting the Court of Appeals to provide Appellant
with the record. Id. at 320.
After appellant has himself raised the points that he wishes to raise, or the time
has passed for him to do so, the appellate court must conduct an independent
examination of the proceedings and determine whether the appeal is wholly frivolous.
Mitchell v. State, 193 S.W.3d 153, 156 (Tex. App. – Houston [1st Dist.] 2006, no pet.). If
the court finds that the appeal is wholly frivolous and that there are no arguable
grounds for appeal, it will grant the motion to withdraw and affirm the judgment of
the trial court. Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009). Although
a reviewing court may issue an opinion explaining why the appeal lacks arguable merit,
it is not required to do so. Id. at 767. If the court determines that there are arguable
grounds, it will abate the appeal and remand the cause to the trial court with
instructions that the trial court appoint new and different counsel to represent
appellant on appeal to present those arguable grounds, as well as any others that new
counsel might wish to present. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim.
App. 2005). The appellate court does not make a decision on the merits of any issue,
except to determine whether an appeal is wholly frivolous and that there either are or
are not arguable grounds for appeal. Anders v. California, supra; Stafford v. State, supra.
An appellant may challenge a holding that there are no arguable grounds for appeal by
filing a petition for discretionary review in the Court of Criminal Appeals. See Bledsoe,
supra, at 827-828, fn 6.
7
Jurisdictional Questions
Jurisdiction is vested in the courts by statute or by constitutional provision, and
it includes proper personal jurisdiction over the accused. Fairfield v. State, 610 S.W.2d
771, 779 (Tex. Crim. App. 1981).
The Court of Criminal Appeals has identified an almost-exhaustive list of four
rare circumstances in which it would find a judgment void. Nix v. State, 65 S.W.3d
664, 668 (Tex. Crim. App. 2001). “The void judgment exception recognizes that there
are some rare situations in which a trial court’s judgment is accorded no respect due
to a complete lack of power to render the judgment in question. A void judgment is a
“nullity” and can be attacked at any time.” Id. at 667-78.
The Court set out these circumstances as follows:
A judgment of conviction for a crime is void when (1) the document purporting to be a charging instrument (i.e. indictment, information, or complaint) does not satisfy the constitutional requisites of a charging instrument, thus the trial court has no jurisdiction over the defendant, (2) the trial court lacks subject matter jurisdiction over the offense charged, such as when a misdemeanor involving official misconduct is tried in a county court at law, (3) the record reflects that there is no evidence to support the conviction, or (4) an indigent defendant is required to face criminal trial proceedings without appointed counsel, when such has not been waived, in violation of Gideon v. Wainwright.
Nix, 65 S.W.3d at 668-69.
Charging Instruments
The Texas Constitution requires all misdemeanor cases to be supported by an
affidavit made by some credible person charging the defendant with an offense in
8
order to secure jurisdiction over the case. Absent an information, a district court does
not have jurisdiction over that case. Tex. Crim. Proc. Code art. 21.21. An information
has been defined as a “written statement filed and presented in behalf of the State by
the district or county attorney, charging the defendant with an offense which may by
law be so prosecuted.” Tex. Crim. Proc. Code art. 21.20.
In the present case, the information was presented on April 4, 2015 (C.R. I at
6).
A valid information must include the following: “(1) a person, and (2) the
commission of an offense.” Cook v. State, 902 S.W.2d 471, 477 (Tex. Crim. App.
1995). The information must also include the elements of the alleged offense. Tex.
Crim. Proc. Code art. 21.03. In addition, the alleged offense must be pled
appropriately to allow the accused to plead the judgment as a bar to any later attempt
to prosecute the same offense. Tex. Code Crim. Proc. Art. 21.04. If the date in the
information is anterior to the filing, then the offense should be within the statutory
limitation period. Tex. Code Crim. Proc. Art. 21.02. Furthermore failure to object to
the substance in the information waives error. Tex. Code Crim. Proc. Art. 1.14(b);
Studer v. State, 799 S.W.2d 263, 273 (Tex. Crim. App. 1990).
The information tracks the language of Tex. Pen. Code §38.03(a). §38.03(a)
provides:
A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer's presence and
9
at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another.
The information alleges the following elements: a. A person – LAWSON KELECHI ECHETA, hereafter styled the
Defendant b. heretofore on or about March 31, 2015 c. did then and there unlawfully intentionally d. prevent or obstruct OFFICER MASCORRO e. a person he knows is a peace officer or a person acting in a peace officer’s
presence f. at his direction from effecting an arrest, search, or transportation of
LAWSON ECHETO use force against OFFICER MASCORRO by PLACING HIS FOOT IN THE DOORWAY and PUSHING THE COMPLAINANT BACK WITH HIS LEGS
(C.R. I at 6). The information is sufficient.
The charging instruments allege all of the elements necessary to sustain a
conviction for each of the charged offenses. Additionally, the allegations are
sufficient to bar a later prosecution for the same conduct.
The statute of limitations for resisting arrest is two years. Tex. Code Crim.
Proc. art. 12.02(a). All charging instruments were filed in 2015 and alleged the
offenses occurred in 2015, thus they are not barred by the statute of limitations.
The information tracks the applicable penal code sections, are pled sufficiently
to plea a bar of Double Jeopardy and fall within the applicable statute of limitations
period. Therefore, the information in Echeto’s cases is not void and establishes the
court’s jurisdiction.
Subject-Matter Jurisdiction
10
The presentment of an information does not establish jurisdiction when the
court is not competent to hear the case. If the presentment of an information or
indictment alone vested jurisdiction in any court, then a “capital murder case could be
properly tried in a county court.” State v. Hall, 829 S.W.2d 184, 188 (Tex. Crim. App.
1992). If there are defects in the information or there is confusion regarding the
charges in the information, then the defects or confusion must be objected to and
repaired before trial. Kirkpatrick v. State, 279 S.W.3d 324, 328-29 (Tex. Crim. App.
2009). The district court had proper subject-matter jurisdiction over Echeta’s cases
because the clerk’s records contain an information which allege misdemeanor charges
(C.R. I at 6).
No Evidence to Support Conviction
A criminal judgment will be void if the record reflects that there is no evidence
to support the conviction. Nix v. State, 65 S.W.3d 664, 668 (Tex. Crim. App. 2001).
However, for a judgment to be void due to no evidence, the record must show a due
process violation arising from a complete absence of evidence to support the
conviction. Crume v. State, 342 S.W.3d 241, 244 (Tex. App. – Beaumont 2011, no pet.)
citing Wolfe v. State, 560 S.W.2d 686, 688 (Tex. Crim. App. 1978). In this case, Officer
Mascorro testified that Echeta put his foot on the door and pushes back, making
physical contact against his body in an attempt to get away. He also testified that he
was concerned for his safety throughout the arrest. (3. R. R. 30 & 31). Officer
11
Mascorro’s testimony is sufficient to overcome a “no evidence” attack. Dinnery v.
State, 592 S.W.2d 343 (Tex. Crim. App 1979).
Right to Counsel
A criminal judgment will be void if an “indigent defendant is required to face
criminal trial proceedings without appointed counsel, when such has not been
waived.” Nix, 65 S.W.3d at 668. The complaint in cause number 2017953 against
Echeta was filed on April 1, 2015 (C.R. I at 5). The record provides evidence that Mr.
Echeta requested a lawyer on April 6, 2015 and the court found him indigent the
same day. (C.R. I at 16). Mr. Lucio Montes was appointed to represent Echeta that
same day. On April 23, 2015, the court denied Mr. Montes’s motion to withdraw.
(C.R. at 7 & 8). Lucio appeared in court on Echeta’s behalf and continued to
represent him through the conclusion of trial. Mr. Echeta’s trial and sentence do not
meet any of the four conditions to find a judgment void that is authorized by the
Court of Criminal Appeals.
Pre-Trial Motions
Pro Se Motions and Filings
The only motions filed in this case were pro se motions. Specifically, Echeta
filed the following motions in cause number 2017953:
1) Motion to Dismiss Court Appointed Attorney and Appoint New Counsel to Act on Behalf of Defendant
2) Motion to Amend Information
(C.R. I at 11 & 17)
12
Motions must be “presented” to the trial court to preserve a complaint for
appellate review, and presentment means more than mere filing. Guevara v. State, 985
S.W.2d 590, 592 (Tex. App. – Houston [14th Dist.] 1999, pet. ref'd). The movant
must make the trial judge aware of the motion by calling the judge's attention to it in
open court and requesting a ruling thereon. Additionally, no objection was made at
trial that additional motions or evidence was needed or that the State failed to give
Echeta notice of evidence. Without a specific and timely objection, no error is
preserved for appellate review. Leadon v. State, 332 S.W.3d.600, 620 (Tex. App. -
Houston [1 Dist.], 2010, no pet.); Tex. R. App. P. 33.1(a). Id. The Court of Criminal
Appeals has stated “a defendant has no right to hybrid representation…[and] as a
consequence, a trial court is free to disregard any pro se motions presented by a
defendant who is represented by counsel. Robinson v. State, 240 S.W.3d 919, 922 (Tex.
Crim. App. 2007).
Thus, no point of error would be properly predicated on Echeta’s pro se
motions and filings.
Motions not filed by Trial Counsel and Failure to Adopt Pro Se Motions
The record does not indicate trial counsel filed a motion for discovery, a
motion for disclosure of the State’s experts or a request for notice of the State’s intent
to use prior bad acts for either impeachment, punishment or under Tex. R. Evid. 404.
Additionally, a claim of ineffective assistance of counsel for failure to have the
pretrial motions ruled upon would be without merit. Claims of ineffective assistance
13
of counsel are reviewed under the two-prong analysis set forth by the Supreme Court
in Strickland v. Washington, 466 U.S. 668 (1984); Cannon v. State, 252 S.W.3d 342, 349
(Tex. Crim. App. 2008). To show ineffective assistance a defendant must show 1) his
trial counsel’s performance was deficient, and 2) the deficient performance prejudiced
the defense to such a degree that the defendant was deprived of a fair trial, i.e., that
there is a reasonable probability that the results of the trial would have been different
but for counsel’s unprofessional errors. Id.
Mr. Echeta cannot meet the Strickland burden as the record is silent regarding
trial counsel’s decision not to have the motions ruled upon. A motion for new trial
was not filed alleging this as a ground. (C.R. at 150). Without evidence of counsel's
reasons for the challenged conduct, an appellate court “commonly will assume a
strategic motivation if any can possibly be imagined,” and will not conclude the
challenged conduct constituted deficient performance unless the conduct was so
outrageous that no competent attorney would have engaged in it. Garcia v. State, 57
S.W.3d 436, 440 (Tex. Crim. App. 2001); Thompson v. State, 9 S.W.3d 808, 814 (Tex.
Crim. App. 1999). Additionally, Echeta cannot meet the harm prong of Strickland
because the record is silent on what evidence had been made available to counsel
prior to trial. Without knowing what information counsel had prior to trial, Echeta
cannot prove the failure to file the motions prejudiced him. Furthermore, the State
did provide Notice of its Intent to Use Evidence of Prior Charges and/or Extraneous
Offenses as well as a Brady v. Maryland Disclosure. (C.R. at 116, 46 & 58). However,
14
the information also came in through Echeta’s testimony without objection, and the
general rule is that error regarding improperly admitted evidence is waived if that
same evidence is brought in later by the defendant or by the State without objection
(3. R. R. 47). Rogers v State, 853 S.W.2d 29, 35 (Tex. Crim. App. 1993).
Thus counsel received all the relief he was entitled to had he filed a request for
notice.
Voir Dire
Both sides were allowed to conduct voir dire without interference from the trial
court. The parties then made their preemptory strikes and the jury was seated (2 R.R.
at 35). After the jury was selected, the trial attorney did not object to the panel (2 R.R.
at 36). As trial counsel did not object to the dismissal of the venirepersons, if any
error existed it is not preserved. See Ortiz v. State, 93 S.W.3d 79, 88 (Tex. Crim. App.
2002). To preserve error on erroneously denied challenges for cause, an appellant
must demonstrate that he asserted a clear and specific challenge for cause, that he
used a peremptory challenge on the complained-of venireperson, that all of his
peremptory challenges were exhausted, that his request for additional strikes were
denied, and that an objectionable juror sat on the jury. Mathis v State, 67 S.W.3d 918,
922 (Tex. Crim. App. 2002). Additionally, to preserve the challenge for appellate
review, an appellant must: (1) assert a clear and specific challenge for cause, (2) use a
peremptory strike on the prospective juror, (3) exhaust his peremptory strikes, (4)
request additional peremptory strikes, (5) identify an objectionable juror, and (6) claim
15
that he would have struck the objectionable juror with a peremptory strike if he had a
strike to use. Johnson v State (Tex. App.—Hous. [1st Dist.] Oct. 4, 2012, no. pet. h.);
Allev v State, 108 S.W.3d 281, 282 (Tex. Crim. App. 2003); Fulenwider v State, 176
S.W.3d 290, 300 (Tex. App.-Houston [1st Dist.] 2004, pet. ref’d). Furthermore, as per
Diaz v State (Tex. App.-Houston [1st Dist.] 2007), when a venire person is subject to
challenge under article 35.16, the failure to assert a challenge for cause during voir dire
waives any ground of error on appeal. Jackson v State, 548 S.W.2d 685, 697 (Tex. Crim.
App. 1977). Even making a challenge for cause is not enough by itself to preserve
error for appellate review.
No claim of ineffective assistance will lie for the failure to object to the
dismissal of the venirepersons because the record is silent and there is no way of
identifying which jurors were biased, whether or not it was more than one juror, or
whether they were in the potential strike range. The record reflects the individuals
dismissed were properly struck from the panel as the excused jurors indicated either
that they could not follow the law or were biased against one of the parties (C. R. I at
24).
Trial Testimony
Sufficiency of the Evidence The Court of Criminal Appeals has held that only the Jackson v. Virginia legal
sufficiency standard should be used to evaluate the sufficiency of the evidence in a
16
criminal case. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). A legal
sufficiency review requires the appellate court to determine whether, “[c]onsidering all
the evidence in the light most favorable to the verdict, was a jury rationally justified in
finding guilt beyond a reasonable doubt.” Id. at 899, citing Jackson v. Virginia, 443 U.S.
307 (1979). The reviewing court is required to defer to the jury's role as the sole judge
of witness credibility, and the weight that their testimony is to be afforded. Id. Legal
sufficiency is judged not by the quantity of evidence, but by the quality of the
evidence and the level of certainty it engenders in the fact-finder's mind. Brooks v.
State, 323 S.W.3d 893, 917 (Tex. Crim. App. 2010) (Cochran, J., concurring).
Due process requires that the State prove, beyond a reasonable doubt every
element of the crime charged. Cada v. State, 334 S.W.3d 766, 772-73 (Tex. Crim. App.
2011). The sufficiency of the evidence is measured by the elements of the offense as
defined in a hypothetically correct jury charge, which is one that accurately sets out
the law, is authorized by the indictment, does not unnecessarily increase the State's
burden of proof or unnecessarily restrict the State's theories of liability, and adequately
describes the particular offense for which the defendant was tried. Id., citing Malik v.
State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The “hypothetically correct” jury
charge need not “track exactly all of the allegations in the indictment” but if “the
essential elements of the offense are modified by the indictment, the modification
must be included.” Mantooth v. State, 269 S.W.3d 68, 74 (Tex. App. – Texarkana 2008,
no pet.), citing Gollihar v. State, 46 S.W.3d 243, 253-254 (Tex. Crim. App. 2001).
17
Mr. Echeta was charged with the offense of resisting arrest. A person commits
the offense of resisting arrest if (1) a person (2) intentionally prevents or obstructs a
person (3) he knows is a peace officer or a person acting in a peace officer's presence
and (4) at his direction from effecting an arrest, search, or transportation of the actor
or another (5) by using force against the peace officer or another.
Officer Mascorro testified that as he was walking Echeta to the county jail, he
pulled his arm from him and as they got closer to the door, Echeta put his foot on the
door and pushed back against Mascorro’s body making physica l contact in an attempt
to get away from him (3. R. R. 30 & 31). Officer Mascorro also testified that he felt
concerned for his own safety throughout the arrest (3. R. R. 30). Also, he testified that
Echeta spat into his hand (3. R. R. 31). However, Echeta testified that he did not spit
on Officer Mascorro, and he only pushed against the door to protect himself from
falling forward (3. R. R. 45 & 50).
The jury is the sole judge of the weight of the evidence and may choose to
believe all, some or none of it. Reconciliation of conflicts in the evidence is within the
exclusive province of the jury. Wade v. State, 951 S.W.2d 886, 889 (Tex. App. – Waco,
1997, pet. ref’d.). If believed, the victim's testimony alone is sufficient to support a
guilty verdict. Padilla v. State, 254 S.W.3d 585, 590 (Tex. App. – Eastland 2008, pet.
ref'd). To the extent that the testimony of various witnesses creates contradictions, it
falls upon the jury to judge the weight and credibility of the evidence and decide
whom to believe. Luna v. State, No. 07-03-00184-CR, 2004 WL 343992 (Tex. App. –
18
Amarillo Feb. 24, 2004, pet. ref’d) (mem. op., not designated for publication). In this
situation it cannot be said that, considering all the evidence in the light most favorable
to the verdict, a jury was not rationally justified in finding guilt beyond a reasonable
doubt. Thus the evidence is sufficient to support a conviction.
Witness testifying injuries were normal
A potential point of error is the trial court’s overruling of trial counsel’s
objection to the testimony of Officer Mascorro. On redirect the following exchange
occurred:
Q. So is that normal procedure to take a person to the ground when they are resisting? A. Yes. Q. And would some sort of facial injuries be normal from a person that is taken down to the ground? A. Yes. Mr. Montes: Objection; calls for speculation. The Court: I will allow if he know it in his experience.
(3.R.R at 36)
The trial court did not abuse its discretion in allowing Mascorro to testify over
counsel’s objections. Mascorro could testify to the facts in question as an expert
despite his lack of medical degree. Tex. R. Evid. 702 provides: If scientific, technical,
or other specialized knowledge 1) will assist the trier of fact to understand the
evidence or to determine a fact in issue, 2) a witness qualified as an expert by
19
knowledge, skill, experience, training, or education may testify thereto in the form of
an opinion or otherwise.
Rule 702 “covers more than just scientific evidence, and expertise can be
acquired in numerous ways, including by training or experience. An expert must
possess some additional knowledge or expertise beyond that possessed by the average
person, but the gap need not necessarily be monumental.” Davis v. State, 313 S.W.3d
317, 350 (Tex. Crim. App. 2010). Furthermore “a trial court need not exclude expert
testimony simply because the subject matter is within the comprehension of the
average jury.” Id. “If the expert evidence is close to the jury's common understanding,
the witness's qualifications are less important than when the evidence is well outside
the jury's own experience.” Id.
Additionally, as recognized by Justice Cochran in her concurring opinion in
Morris v. State, 361 S.W.3d 649, 671 (Tex. Crim. App. 2011) (Cochran, J., concurring),
Texas law has long allowed “experiential ‘horse sense’ expertise.” For example, in one
1929 case, the court of civil appeals held that an experienced cowman was qualified to
give his opinion on how many men were needed to handle a herd of cattle. Id. Just as
Texas has long recognized that farmers may be expert witnesses in matters peculiarly
within their knowledge, so may police officers. Id.
The officer’s opinion is also admissible as the opinion of a lay witness under
Rule 701. Lay witnesses may testify to their opinions or inferences which are (a)
rationally based on the perception of the witness and (b) helpful to a clear
20
understanding of the witness' testimony or the determination of a fact in issue.
Hawkins v. State, No. 06-08-00087-CR, 2009 WL 30255 (Tex. App. - Texarkana Jan. 7,
2009, pet. ref’d) (mem. op., not designated for publication). A distinct line cannot be
drawn between lay opinion and expert testimony because all perceptions are evaluated
based on experiences. Id. However, as a general rule, observations which do not
require significant expertise to interpret and which are not based on a scientific theory
can be admitted as lay opinions if the requirements of Rule 701 are met. Id.
Here Mascorro testified had been a patrol officer at the University of Houston
for two years. (3 R.R. at 25). His testimony was couched in terms of his personal
experience of taking a person to the ground when they are resisting arrest . This
experience is sufficient to qualify Mascorro to testify facial injuries may occur in
normal procedure as “horse sense expertise” or as a lay witness’ opinion.
Defense objections overruled Throughout the trial, trial counsel made objections that could be categorized as
“form of the question” objections. These objections include a speculation objection
(3 R.R. at 36), a narrative objection (3 R.R. at 9, 13, 16 & 31), asked and answered (3
R.R. at 22) and no time to answer (3 R.R. at 51). None of these objections rise to the
level of affecting Echeta’s substantial rights. However, should this Court disagree, the
error does not rise to the level of reversible error. Improper admission of evidence is
reviewed under Tex. R. App. P. 44.2(b). Rule 44.2(b) provides that an appellate court
must disregard a non-constitutional error that does not affect a criminal defendant’s
21
substantial rights. The error affects a substantial right of the defendant when the error
has a substantial and injurious effect or influence in determining the jury’s verdict.
King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).
Closing Arguments in Guilt/Innocence
Proper jury argument generally must fall within one of four general areas: (1)
summation of the evidence; (2) reasonable deductions from the evidence; (3)
responses to the defendant’s argument; or (4) pleas for law enforcement. Jackson v.
State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000); Guidry v. State, 9 S.W.3d 133, 154
(Tex. Crim. App. 1999).
A review of closing arguments by the parties does not indicate that any
improper argument occurred. Should this Court disagree and find improper argument,
any complaint regarding improper argument is not preserved as trial counsel made no
objections during the State’s argument. See McGee v. State, 774 S.W.2d 229, 240 (Tex.
Crim. App. 1989).
Jury Charge
The charge submitted to the jury only required the jury to determine whether
Echeta was guilty of resisting arrest by Officer Mascorro (3. R. R. 53 & 54). During
the charge conference trial counsel made no objections to the charge. There was no
evidence introduced at trial that raised any lesser included offenses.
22
The charge also properly limited the definition of intentionally to the result of
conduct language (3. R. R. 53 & 54). Resisting arrest requires that the actor
“intentionally” committed the conduct, thus indicat ing that this offense is not a
“specific result” type of crime. We find that the charge as given, correctly tailored the
required culpable mental state to the facts of the case. See, Pyykola v State, 814 S.W.2d
462, 464 (Tex. App. 14th 1991).
Texas law requires that a jury reach a unanimous verdict about the specific
crime that the defendant committed. Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim.
App. 2011). This means the jury must “agree upon a single and discrete incident that
would constitute the commission of the offense alleged.” Id. Therefore, it is necessary
to identify the essential elements or gravamen of an offense and the alternate modes
of commission, if any. Pizzo v. State, 235 S.W.3d 711, 714-15 (Tex. Crim. App. 2007).
“[J]ury unanimity is required on the essential elements of the offense” but is
“generally not required on the alternate modes or means of commission.” Pizzo v.
State, 235 S.W.3d 711, 714 (Tex. Crim. App. 2007) (internal citations omitted).
A review of the charge does not present error on which a point on appeal
would be successful.
Punishment
Proportionality of Sentence
23
Prison sentences are subject to a proportionality analysis under the Eight
Amendment of the United States Constitution. Solem v. Helm, 463 U.S. 277, 289
(1983). Additionally the Texas Constitution prohibits “cruel or unusual punishment.”
Tex. Const. art. 1, §13. However, in order to preserve for appellate review a
complaint that a sentence is grossly disproportionate, constituting cruel and unusual
punishment, a defendant must present to the trial court a timely request, objection, or
motion stating the specific grounds for the ruling desired. Brisker v. State, No. 01-08-
00841-CR, 2009 WL 943894, at 5 (Tex. App. – Houston [1st Dist.] Apr. 9, 2009 no
pet.) (mem. op., not designated for publication). There is no evidence Echeta objected
to the sentence assessed, thus any claim under the Eight Amendment and Texas
Constitution is waived.
A claim for ineffective assistance of counsel for failure to object to the
sentence would also fail. In Solem, the Court set forth a three part analysis for courts
to follow in determining the proportionality of a particular sentence: 1) the gravity of
the offense and the harshness of the penalty; 2) the sentences imposed on other
offenders in the same jurisdiction and 3) the sentences imposed for commission of
the same offense in other jurisdictions. Solem v. Helm, 463 U.S. 277, 289 (1983).
However, the second and third factors are not applicable unless the reviewing
court first finds the sentence to be grossly disproportionate to the offense. Buchanan
v. State, 68 S.W.3d 136, 141 (Tex. App. – Texarkana 2001, no pet.); McGruder v. Puckett,
954 F.2d 313, 316 (5th Cir. 1993). Additionally, “Texas courts have traditionally held
24
that as long as the punishment is within the range prescribed by the Legislature in a
valid statute, the punishment is not excessive, cruel, or unusual.” Buchanan v. State, 68
S.W.3d 136, 141 (Tex. App. – Texarkana 2001, no pet.); Jordan v. State, 495 S.W.2d
949, 952 (Tex. Crim. App. 1973); Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim.
App. 1984).
Echeta was convicted of county jail resisting in cause number 2017952 (4. R. R.
4). The punishment range for this offense is up to one year in jail and/or a $4,000
fine. Tex. Pen. Code §38.03. Echeta was sentenced to 70 days in the county jail, but
credit was given for time already served. Given the fact the sentence is on the low end
of the punishment range, it cannot be said that the sentence imposed is grossly
disproportionate to the offense. As Echeta’s sentence is not disproportionate, any
claim of ineffectiveness of counsel for failure to object on this ground would be
inappropriate.
Credit for Time Served
Tex. Code Crim. Proc. art. 42.03§2(a) provides that “in all criminal cases the
judge of the court in which the defendant was convicted shall give the defendan t
credit on his sentence for the time that defendant has spent in jail in said cause, other
than confinement served as a condition of community supervision, from the time of
his arrest and confinement until his sentence by the trial court.” Here it appears
Echeta was initially arrested on March 31, 2015 for resisting arrest in cause number
2017953, as is evidenced by when the probable cause warnings were issued (CR I at
25
5). All of the judgments reflect Echeta was given credit from April 1 until June 9, the
day of Echeta’s trial (4. R. R. 4). Thus, there is no point of error concerning Echeta’s
credit would be merited.
CONCLUSION
Appellate counsel certifies that she has diligently reviewed the entire appellate
record in this cause as well as relevant case law. In her opinion, the appeal of this
conviction and sentence lacks merit and is wholly frivolous because the record reflects
no reversible error.
A copy of the appellate record is being sent with a copy of this brief Mr.
Echeta. Mr. Echeta’s last known address is 8802 Inglebrook Lane, Houston, Texas
77083. Should this Court grant the undersigned’s Motion to Withdraw, the
undersigned will diligently try to inform Mr. Echeta of the result of his appeal and will
also inform him that he may, on his own, pursue discretionary review in the Court of
Criminal Appeals. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).
PRAYER
For the reasons stated above, the undersigned prays that she be allowed to
withdraw from representing Mr. Echeta on this case, and that Mr. Echeta be given the
opportunity to review the appellate record and file his own brief should he desire.
Respectfully submitted,
ALEXANDER BUNIN Chief Public Defender Harris County Texas
26
/s/ Angela Cameron ANGELA CAMERON Assistant Public Defender 1201 Franklin, 13th floor Houston Texas 77002 (713) 368-0016 TBA No. 00788672 email: [email protected]
CERTIFICATE OF SERVICE I certify that the foregoing brief was electronically served on the Harris County District Attorney on the day the brief was filed. /s/ Angela Cameron ANGELA CAMERON Assistant Public Defender
27
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(i)(3), undersigned counsel certifies that this brief complies
with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).
1. Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this brief
contains 8,817 words printed in a proportionally spaced typeface.
2. This brief is printed in a proportionally spaced, serif typeface using Garamond
14 point font in text and Garamond 12 point font in footnotes produced by
Microsoft Word software.
3. Upon request, undersigned counsel will provide an electronic version of this
brief and/or a copy of the word printout to the Court .
4. Undersigned counsel understands that a material misrepresentation in
completing this certificate, or circumvention of the type-volume limits in Tex. R. App.
Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against
the person who signed it.
/s/ Angela Cameron ANGELA L. CAMERON
