Pedro P. Morales v. State ( 2015 )

ACCEPTED
03-15-00227-CR
6697411
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/28/2015 11:18:15 AM
JEFFREY D. KYLE
CLERK
NO. 03-15-00227-CR
(Trial Court No. C-14-1091-SA) FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
IN THE 8/28/2015 11:18:15 AM
COURT OF APPEALS JEFFREY D. KYLE
FOR THE THIRD SUPREME JUDICIAL DISTRICT OF TEXAS Clerk
________________________________________________________________
PEDRO PEREZ MORALES,
Appellant.
VS.
THE STATE OF TEXAS,
Appellee.
__________________________________________________________________
From the 340TH Judicial District Court
of Tom Green County, Texas
Honorable Ben Woodward, Judge Presiding
__________________________________________________________________
BRIEF OF APPELLANT
__________________________________________________________________
ORAL ARGUMENT NOT REQUESTED
KIRK HAWKINS
17 South Chadbourne, Suite 401
P.O. Box 3645
San Angelo, Texas 76902
325-658-5585
State Bar No. 09250400
E-Mail: kirkhawkinslaw@gmail.com
ATTORNEY FOR APPELLANT
1
TABLE OF CONTENTS
Page
TABLE OF CONTENTS…………………………………………………….. 2
LIST OF AUTHORITIES……………………………………………………. 3
NAMES OF ALL PARTIES…………………………………………………. 5
STATEMENT OF THE CASE………………………………………………. 5
STATEMENT OF THE EVIDENCE………………………………………… 7
PUNISHMENT PHASE ……………………………………………………… 11
SUFFICIENCY OF THE EVIDENCE……………………………………….. 12
OBJECTIONS………………………………………………………………… 13
EFFECTIVENESS OF COUNSEL…………………………………………… 13
PUNISHMENT……………………………………………………………….. 14
CONCLUSION……………………………………………………………….. 14
CERTIFICATE OF SERVICE……………………………………………….. 15
2
LIST OF AUTHORITIES
CASES Page
Anders v. California 386 U.S. 738, 87 S. Ct. 1396, 18 L.Ed 2nd 493 6
(1963)
Autran v. State 887 S.W.2d 31 (Tx. Crim.App. 1994) 14
High v. State 573 S.W.2d 807 (Tx.Crim.App. 1978 6
Madison v. State 922 S.W.2d 610 CCA Texarkana 1996 14
Stafford v. State 813 S.W.2d 503 (Tx.Crim.App. 1991) 6,13
Strickland v. Washington 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984) 13
Trujillo v. State 952 S.W.2d 879 CCA Dallas 1997 14
STATUTES
Texas Penal Code, Section 49.07 5
3
NO. 03-15-00227-CR
(Trial Court No. C-14-1091-SA)
IN THE
COURT OF APPEALS
FOR THE THIRD SUPREME JUDICIAL DISTRICT OF TEXAS
________________________________________________________________
PEDRO PEREZ MORALES,
Appellant.
VS.
THE STATE OF TEXAS,
Appellee.
__________________________________________________________________
From the 340th Judicial District Court
of Tom Green County, Texas
Honorable Ben Woodward, Judge Presiding
_________________________________________________________________
BRIEF OF APPELLANT
__________________________________________________________________
TO THE HONORABLE COURT OF APPEALS FOR THE THIRD SUPREME
JUDICIAL DISTRICT OF TEXAS:
COMES NOW, PEDRO PEREZ MORALES, by and through his court-
appointed attorney, the Appellant in the above-entitled and numbered cause, and
files this Brief of Appellant, and in support thereof would show this Honorable
4
Court as follows:
NAMES OF ALL PARTIES
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:
1. Appellant, PEDRO PEREZ MORALES, TDCJ# 01987931, Wheeler State
Jail, 986 County Road AA, Plainview, Texas 79072.
2. Defense and trial attorney, JIMMY STEWART, State Bar No. 19211300,
101 South Park Street, San Angelo, Texas 76901.
3. Attorney of record on appeal for Appellant, KIRK HAWKINS, State Bar
No. 09250400, P.O. Box 3645, San Angelo, Texas 76902.
4. The Honorable Ben Woodward, Trial Judge, Tom Green County
Courthouse, 112 West Beauregard, San Angelo, Texas 76903.
5. Appellee, STATE OF TEXAS, represented by Mr. Jason David Ferguson,
Assistant District Attorney, Tom Green County Courthouse, Court Street
Annex, 124 West Beauregard, San Angelo, Texas 76903.
STATEMENT OF THE CASE
The Appellant, PEDRO PEREZ MORALES, was indicted on November 6,
2014 for the offense of unlawful possession of a firearm by a felon in accordance
with Section 46.04(a) of the Texas Penal Code, a third degree felony (CR p. 8).
The case was tried before a jury on March 23 and 24, 2015 with the Honorable Ben
5
Woodward, Presiding Judge, of the 119th District Court of Tom Green County,
Texas. The jury found Appellant guilty of the offense on March 24, 2015 (CR p.
39) and assessed the Appellant’s punishment at five (5) years in the Institutional
Division of the Texas Department of Criminal Justice and assessed a $2,000.00
fine.
The State had previously filed a motion to cumulate the sentence (CR p. 9).
The Court considered the punishment evidence and granted the State’s motion to
cumulate the sentence with the ten-year sentence the Appellant had received as a
result of a motion to revoke his probation which was heard on March 12, 2015 in
cause number C-10-0321-SB, in the 340th District Court of Tom Green County,
Texas (RR 3, p. 78, l. 2-6). Appellant filed notice of appeal on April 13, 2015.
Counsel has reviewed the record, spoken with both Appellant’s trial counsel
and the Assistant District Attorney. Counsel can find no arguable grounds on
which to base an appeal. Counsel will attempt to comply with the guidelines
regarding such appeals set forth in High v. State 573 S.W.2d 807 (Tx.Crim.App.
1978), Anders v. California 386 U.S. 738, 87 S. Ct. 1396, 18 L.Ed 2nd 493 (1963),
and Stafford v. State 813 S.W.2d 503 (Tx.Crim.App. 1991).
The record consists of the Clerk’s record in one (1) volume designated as
(CR), and the reporter’s record which consists of four (4) volumes, hereafter
referred to as (RR). Volume 1 is the master index; volume 2 is the voir dire and
6
the testimony during the guilt or innocence phase; volume 3 is the jury argument
and testimony in the punishment phase; and volume 4 is the exhibits index.
STATEMENT OF THE EVIDENCE
The State called Alyssa Barton who testified that she was a probation officer
with the Concho Valley Community Supervision and Corrections Department ( RR
2, p. 120). She testified that she had been the Appellant’s probation officer since
September 2014 and that on September 13 and 14, 2014, Appellant was on felony
probation (RR 2, p. 121, l. 14-25). She further stated that the probation was for
intoxicated assault with a vehicle causing serious bodily injury in cause number C-
10-0321-SB (RR 2, p. 122, l. 2-5). When the State asked her about shock
probation, Appellant’s counsel objected on the grounds that it was irrelevant and
prejudicial. The prosecution agreed and the Court sustained the objection (RR 2,
p. 122, l. 17 through p. 123, l. 5).
The State then called Patrick Garrett, an officer with the San Angelo Police
Department (RR 2, p. 124, l. 17). He explained that he was behind the vehicle and
he ran the license plate which showed that the registration had expired in March
2014. He pulled over the vehicle and identified the occupants and learned that the
driver had an invalid driver’s license with prior convictions. He also determined
that the vehicle was uninsured (RR 2, p. 126, l. 5-11). He identified Appellant as
the driver of the vehicle (RR 2, p. 126, p. 17 through p. 127, l. 1). He noticed that
7
the vehicle had a fictitious registration sticker on the front windshield. He went
back to his vehicle to run all three of the subjects and check on the insurance (RR
2, p. 127, l. 14-24). He arrested Appellant for driving while license invalid with no
insurance (RR 2, p. 128, l. 13). He explained that he decided to have the vehicle
towed because the vehicle didn’t have insurance and didn’t have registration;
therefore, he couldn’t release the vehicle to someone to drive on the roadway as it
would cause them to commit violations (RR 2, p. 128, l. 13-25). He stated he did
an inventory search and on the inside of the vehicle they found open containers of
alcohol (RR 2, p. 129, l. 25). The officers also inventoried the trunk where they
found miscellaneous electric items, DVD’s and stuff---books that were still in
packaging with the price tags and everything on them. They also found a black
drawstring bag containing a couple of cell phones, an extra set of keys to the
vehicle, and also a firearm and a scale with a burnt spoon (RR 2, p. 130, l. 4-12).
He described the pistol as a Ruger 23 revolver which is a .22 caliber pistol, and
stated it was loaded (RR 2, p. 130, l. 14-17).
Officer Garrett explained the process about placing items into evidence (RR
2, p. 131-132). State’s Exhibit #1 - the fictitious registration, was admitted into
evidence without objection (RR 2, p. 133). State’s Exhibit #2 – the ammunition
taken, was admitted into evidence without objection (RR 2, p. 135). State’s
Exhibit #3, - the pistol, was admitted into evidence (RR 2, p. 137). The State also
8
offered Exhibits 4-7 which were four (4) in-car video/audio DVD’s which were
admitted into evidence without objection (RR 2, p. 142). State’s Exhibit 4 was
played for the jury as well as Exhibits 5, 6, and 7 (RR 2, p. 143 and 144).
The problem with the audio and video tapes is that it is very difficult to
recount in a brief what was actually said unless the witnesses reiterated on the
stand. On Exhibit 5 – in-car audio/video – as the officers approached the trunk of
the car, the Appellant is heard saying something to the effect that “they’re going to
find that gun”. In closing arguments, the State’s attorney eluded to that remark
(RR 3, p. 32).
On cross-examination Officer Garrett testified that Appellant was not
argumentative, belligerent, or difficult and that Appellant was polite (RR 2, p. 146,
l. 5-11). He also explained that the video was going through the windshield onto
the hood of the car, but that Appellant was sitting in the back seat and the audio
picked up his statements (RR 2, p. 148). He also did not know if the gun was ever
fingerprinted (RR 2, p. 150, l. 3). Officer Garrett also testified that Appellant had
told him he had loaned his car, but didn’t know if it was that night or not (RR 2. P.
151, l. 2).
The State called Matthew Faz, an officer with the San Angelo Police
Department (RR 2, p. 152) who testified about finding various items during the
inventory of the vehicle and a black sack bag inside the trunk. Within that bag
9
were keys, a cell phone, and a black zipper pouch with a burnt spoon, cotton
swabs, and a handgun (RR 2, p. 154, l. 21 through p. 155, l. 2). He also testified
that the gun was loaded (RR 2, p. 155, l. 15). On cross-examination, Faz also
testified that he did not know if the gun was fingerprinted (RR 2, p. 156).
The State also called Samantha Swartz who is employed with the San
Angelo Police Department Crime Scene Division (RR 2, p. 159, l. 15-25). She
identified State’s Exhibit #11 which was the fingerprint card she had prepared with
the Appellant, and it was admitted into evidence (RR 2, p. 162, l. 21). She also
identified State’s Exhibits #8 and 9 which were the Judgment in C10-0321-SB and
the shock probation paperwork in C10-0321-SB. These were admitted into
evidence (RR 2, p. 165). The first Judgment was the revocation of Appellant’s
first probation in the case and then sentenced to ten years. Appellant was brought
back on the order granting the shock probation, and placed on probation.
At the end of the day the Court adjourned and released the jury to return the
next morning. At that time the Court conducted a discussion with Appellant and
his counsel regarding the fact that Appellant had only used five of his ten
challenges. Counsel explained that he had had a discussion with Appellant about
the fact that he had ten challenges and asked him several times before the
discussion was finished if there were any other people that he wanted to strike.
Counsel explained that he did not see any advantage in using any additional
10
strikes. The Court asked Appellant if there is anybody on the jury that he would
have stricken, and the Appellant replied “no sir” (RR 2, p. 169, l. 4 through p. 170,
l. 4).
The morning of March 24, 2015, the defense rested without calling any
witnesses, and both sides made their arguments to the jury. The jury found
Appellant guilty (RR 3, p. 36, l. 21).
PUNISHMENT PHASE
The State entered Exhibits 12-16 during the punishment phase which were
admitted into evidence without objection from counsel (RR 3, p. 42, l. 4). Exhibit
12 was excerpts of Appellant’s testimony at the motion to revoke hearing on
March 12, 2015 in cause number C10-0321-SB. Particularly, the Appellant told
Officer Garrett that he did not have any idea there was a gun in the trunk of the car.
Exhibit 13 was an order revoking Appellant’s probation on March 12, 2015 in
cause number C10-0321-SB. Exhibit 14 was a conviction for unlawful possession
of a prohibited weapon. Exhibit 15 was a misdemeanor assault family violence
conviction. Exhibit 16 was a misdemeanor conviction for violation of a protective
order.
The State’s attorney urged his motion to run this sentence cumulatively with
the sentence in the motion to revoke (RR 3, p. 75, l. 23 through p. 76, l. 6). He
11
urged his motion based on Appellant’s perjury during the motion to revoke trial
when Appellant denied knowing there was a firearm of any kind in the trunk.
The Court then took a brief recess to review the priors and the judgments
which were introduced during the punishment phase (RR 3, p. 76, l. 24). Upon
return, the Court sentenced Appellant to five (5) years confinement in the Texas
Department of Criminal Justice – Institutional Division and a fine of $2,000.00
(RR 3, p. 74, l. 2). The Court further ordered that the sentence in this case would
begin when the judgment and the sentence imposed in cause number C10-0321-SB
ceased to operate (RR 3, p. 77, l. 24 through p. 78, l. 8). The Court likewise made
a ruling denying an appeal bond because of Appellant’s extensive criminal activity
(RR 3, p. 79, l. 10-22).
SUFFICIENCY OF THE EVIDENCE
The State’s evidence was uncontroverted. The Appellant was legitimately
stopped for an expired registration and arrested for driving while license invalid
with prior offenses. Because the Appellant was under arrest and the vehicle had no
insurance and no registration, an inventory search was proper. Appellant claimed
to be the owner of the vehicle, and the firearm was found in the vehicle. The
Appellant’s unsolicited comments made referring to the officers finding the gun
would remove any reasonable doubt as to possession of the firearm. Counsel is of
the opinion that the evidence is sufficient to sustain a conviction.
12
OBJECTIONS
There was only one (1) objection as referred to in the Statement of the
Evidence which was made by Appellant’s counsel. That one objection was
sustained. There were no adverse rulings against the Appellant. There was one
other incident during deliberations during the punishment phase. Apparently one
of the prior misdemeanor convictions had an attorney’s name where the
Appellant’s name should have been. The jury had sent out a message asking the
Court to verify the validity of the document. Appellant’s counsel said he would
object to any explanation, and the Court responded to the jury, simply telling them
they were the judges of the facts of the case and to give the evidence whatever
weight they desired (RR 3, p. 72).
EFFECTIVENESS OF COUNSEL
Appellant’s trial counsel cross-examined both police officers and made
proper arguments to the jury and to the Court during the punishment phase. Trial
counsel’s performance met or exceeded the standard for effective assistance of
counsel based on the definition of ineffective assistance of counsel as per Stafford
v. State 813 S.W.2d 503 (Tx. Crim. App. 1991) and Strickland v. Washington 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
13
The only other possible issue is that perhaps trial counsel could have raised
the search and seizure issue regarding the inventory search. The testimony was not
clear whether the bag was open and the gun might have been in plain view, but
there was no motion to suppress filed nor was the issue raised at trial. The Texas
Court of Criminal Appeals has held in Autran v. State 887 S.W.2d 31 (Tx.
Crim.App. 1994) that an inventory search of a vehicle would not allow the opening
of any closed containers in the vehicle. However, Autran is a plurality opinion and
several of the Courts of Appeals have chosen not to follow its precedence and have
ruled that during an inventory search, it is permissible for law enforcement officers
to open closed or sealed containers. Trujillo v. State 952 S.W.2d 879 CCA Dallas
1997, Madison v. State 922 S.W.2d 610 CCA Texarkana 1996.
PUNISHMENT
The punishment assessed by the jury was within the range of punishment for
a third degree felony. The State had properly filed its motion for a cumulative
sentence. Whether the sentence is ordered to run consecutively with the prior
sentence is purely within the discretion of the Court. Counsel could find no errors
in the punishment phase of the trial.
CONCLUSION
After reviewing the record in this case, this counsel is of the opinion that
there is no reversible error.
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Respectfully submitted,
___/s/ Kirk Hawkins___________________
KIRK HAWKINS
P.O. BOX 3645
SAN ANGELO, TEXAS 76902
325/658-5585
STATE BAR NO. 09250400
E-Mail: kirkhawkinslaw@gmail.com
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the above was served on Mr. Jason
David Ferguson, Assistant District Attorney, Tom Green County Courthouse,
Court Street Annex, 124 West Beauregard, San Angelo, Texas 76903; and on
Appellant, Mr. Pedro Perez Morales, TDCJ#01987931, Wheeler State Jail, 986
County Road AA, Plainview, Texas 79072, on this 28th day of August, 2015.
I further certify that I have mailed a notice to the Appellant at the above-
referenced address on August 28, 2015, informing of my intention of filing a
frivolous appeal and advising him of his rights to file his own brief and to review
the record.
__/s/ Kirk Hawkins ______________
Kirk Hawkins
NOTICE TO APPELLANT, PEDRO PEREZ MORALES
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/ Kirk Hawkins___________________
Kirk Hawkins
15
ACCEPTED
03-15-00227-CR
6697411
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/28/2015 11:18:15 AM
JEFFREY D. KYLE
CLERK
NO. 03-15-00227-CR
(Trial Court No. C-14-1091-SA)
IN THE
COURT OF APPEALS
FOR THE THIRD SUPREME JUDICIAL DISTRICT OF TEXAS
________________________________________________________________
PEDRO PEREZ MORALES,
Appellant.
VS.
THE STATE OF TEXAS,
Appellee.
__________________________________________________________________
From the 340th Judicial District Court
of Tom Green County, Texas
Honorable Ben Woodward, Judge Presiding
________________________________________________________________
CERTIFICATE OF WORD COMPLIANCE
_________________________________________________________________
TO THE HONORABLE COURT OF APPEALS FOR THE THIRD SUPREME
JUDICIAL DISTRICT OF TEXAS:
COMES NOW, KIRK HAWKINS, court-appointed attorney for Appellant
PEDRO PEREZ MORALES, and files this Certificate of Word Compliance, and
would submit the following:
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that
this brief contains 2,489 words (excluding the caption, table of contents, table of
authorities, signature, proof of service, certification, and certificate of compliance).
This is a computer-generated document created in Microsoft Word, using 14-point
typeface for all text, except for footnotes which are in 12-point typeface. In making
this certificate of compliance, I am relying on the word count provided by the
software used to prepare the document.
Respectfully submitted,
___/s/ Kirk Hawkins________________
KIRK HAWKINS
P.O. BOX 3645
SAN ANGELO, TEXAS 76902
325/658-5585
STATE BAR NO. 09250400
E-Mail: kirkhawkinslaw@gmail.com
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the above was served on Mr. Jason
Ferguson, Assistant District Attorney, Tom Green County Courthouse, Court
Street Annex, 124 West Beauregard, San Angelo, Texas 76903; and on Appellant,
Pedro Perez Morales #01987931, Wheeler State Jail, 986 County Road AA,
Plainview, Texas 79072 on this 28th day of August, 2015.
___/s/ Kirk Hawkins________________
Kirk Hawkins
ACCEPTED
03-15-00227-CR
6697411
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/28/2015 11:18:15 AM
JEFFREY D. KYLE
CLERK
No. 03-15-00227-CR
PEDRO PEREZ MORALES, ) IN THE COURT OF APPEALS
Appellant )
)
V. ) THIRD JUDICIAL DISTRICT
)
THE STATE OF TEXAS, )
Appellee ) SITTING AT AUSTIN, TEXAS
CERTIFICATE OF COUNSEL
In compliance with the requirements of Anders v. California, 386 U.S. 378
(1967), I, Kirk Hawkins, court-appointed counsel for Appellant, PEDRO PEREZ
MORALES, in the above-referenced appeal, do hereby certify, in writing, to the
Court that I have:
1. Notified Appellant that I 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 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/ Kirk Hawkins____________
KIRK HAWKINS
P.O. BOX 3645
SAN ANGELO, TEXAS 76902
325-658-5585
STATE BAR NO. 09250400
E-Mail: kirkhawkinslaw@gmail.com
ATTORNEY FOR APPELLANT