06-14-00013-CR Billy Joe Hernandez v. The State of TexasAppeal from 297th District Court of Tarrant County – Pub.

At a July 12, 2013, hearing, Hernandez entered into a plea agreement wherein he would receive a sentence of five years’ incarceration with the stipulation that no punishment hearing would be held until August 19, 2013. The parties understood that if Hernandez did not appear on the August 19 date, the plea would stand as an open plea, but the State would not be bound to the plea agreement. Hernandez failed to appear at the time set for sentencing as he had promised and, in fact, was re-arrested. The punishment hearing eventually took place November 21, 2013. After Hernandez heard Marquez’ testimony during the punishment hearing, Hernandez attempted to withdraw his guilty plea, arguing that Marquez’ testimony as to the degree he was injured during the fight was newly discovered evidence. In other words, Hernandez argued that Marquez’ testimony established a lack of serious bodily injury resulting from the 1Originally appealed to the Second Court of Appeals in Fort Worth, this case was transferred to this Court by theTexas Supreme Court pursuant to its docket equalization efforts. See T.G’CA.§ 73.001 (West 2013).
We are unaware of any conflict between precedent of the Second Court of Appeals and that of this Court on anyrelevant issue. See T.R.A.P. 41.3.2We have not been supplied with a reporter’s record of the July 12 hearing. The content of that hearing is drawnfrom comments of the parties and the trial court at the sentencing hearing. Hernandez makes no complaint about theabsence of a record of this hearing. altercation. The trial court denied the request to withdraw the guilty plea and sentenced Hernandez to fifteen years’ confinement. Continue reading
Posted in 6th Court of Appeals - CR, Published | Tagged , , , | Leave a comment

06-13-00141-CR Jason Hosey v. The State of TexasAppeal from 5th District Court of Bowie County

TEX.PENAL CODE ANN. § 21.11(a)(1) (West 2011). Hosey appeals his conviction, alleging four points of error. He claims (1) that the evidence was insufficient to support his conviction, (2) that the court erred in admitting certain evidence of Hosey’s physical abuse of the complainant, (3) that the court committed error when it refused to allow evidence that the complainant had previously recanted the allegations she pressed against Hosey, and (4) that error was committed in allowing the introduction of evidence concerning extraneous offenses. We overrule Hosey’s points of error and affirm the trial court’s judgments and sentences. Continue reading
Posted in 6th Court of Appeals - CR | Tagged , , | Leave a comment

04-13-00895-CR Gary Peterson v. The State of TexasAppeal from County Court of Wilson County

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00895-CRGary PETERSON,Appellantv.The State of
The STATE of Texas,AppelleeFrom the County Court, Wilson County, TexasTrial Court No. 11-10-0393-CRCHonorable Marvin Quinney, Judge Presiding

Karen Angelini, JusticeSandee Bryan Marion, JusticeMarialyn Barnard, Justice

PER CURIAMSitting:Delivered and Filed: July 23, 2014AFFIRMED
Gary Peterson was convicted of the offense of misdemeanor driving while intoxicated and Continue reading
Posted in 4th Court of Appeals - CR | Tagged , , | Leave a comment

04-13-00476-CR Joshoa Immanuel Perez v. The State of TexasAppeal from 19th District Court of McLennan County

On June 21, 2013, a jury found Appellant Joshoa Immanuel Perez guilty on four counts of
aggravated sexual assault of a child and two counts of indecency with a child. The jury sentenced
Perez to ninety-nine years’ confinement in the Institutional Division of the Texas Department of
Criminal Justice on each charge of aggravated sexual assault and fifteen years’ confinement on
each charge of indecency with a child. The jury did not assess a fine. On appeal, Perez contends Continue reading
Posted in 4th Court of Appeals - CR | Tagged , , | Leave a comment

04-13-00314-CR Latray M. Whitley v. The State of TexasAppeal from 186th Judicial District Court of Bexar County

Latray M. Whitley was convicted of murder and sentenced to life imprisonment. Whitley
brings four issues on appeal: (1) the trial court erred in not permitting him to question a witness
about bias; (2) the trial court erred in not permitting him to question a witness about the witness’s
conviction of a crime pursuant to Texas Rule of Evidence 609(b); (3) the trial court erred in
overruling his objection to hearsay; and (4) the evidence is legally insufficient to support his Continue reading
Posted in 4th Court of Appeals - CR | Tagged , , | Leave a comment

03-13-00543-CR Billy Ray Byers v. The State of TexasAppeal from 427th District Court of Travis County

A jury convicted appellant Billy Ray Byers of murder, see Tex. Penal Code

§ 19.02(b)(1), and assessed his punishment at confinement for life in the Texas Department of
Criminal Justice, see id. § 12.32.

Appellant’s court-appointed attorney has filed a motion to withdraw supported by a

brief concluding that the appeal is frivolous and without merit. The brief meets the requirements of
Anders v. California by presenting a professional evaluation of the record demonstrating why Continue reading
Posted in 3rd Court of Appeals - CR | Tagged , , | Leave a comment

14-13-00857-CR Willie Ray Robinson v. The State of TexasAppeal from 174th District Court of Harris County

Appellant appeals his conviction for aggravated robbery. Appellant’sappointed counsel filed a brief in which she concludes the appeal is whollyfrivolous and without merit. The brief meets the requirements of Anders v.California, 386 U.S. 738, 87 S.Ct. 1396 (1967), by presenting a professionalevaluation of the record and demonstrating why there are no arguable grounds to
be advanced. See High v. State, 573 S.W.2d 807, 81113 (Tex. Crim. App. 1978).
Copies of counsel’s brief and the record were delivered to appellant.Appellant was advised of the right to examine the appellate record and file a pro seresponse. See Stafford v. State, 813 S.W.2d 503, 512 (Tex. Crim. App. 1991). Asof this date, more than 60 days have passed and no pro se response has been filed. Continue reading
Posted in 14th Court of Appeals - CR | Tagged , , | Leave a comment

14-12-01086-CR Gary Bernard Allen v. The State of TexasAppeal from 434th Judicial District Court of Fort Bend County

A jury heard evidence that appellant Gary Bernard Allen and thecomplainant Shafin Lark got into a drunken fight in May 2010, and appellantstabbed Lark to death. The jury found appellant guilty of murder, rejecting hisclaim of self defense, and assessed punishment at twenty years’ confinement.
Appellant challenges his conviction in five issues, contending that the evidence is
legally insufficient to support the jury’s guilty verdict and that the trial court erredby admitting and excluding certain evidence. We affirm. Continue reading
Posted in 14th Court of Appeals - CR | Tagged , , | Leave a comment

06-14-00032-CR Jonathan Ali Chtay v. The State of TexasAppeal from 196th District Court of Hunt County

Chtay admitted that he could make one $75,000.00 surety bond. However, according to Chtay, the trial court should have further lowered the bond amount in this case because it also set a $75,000.00 bond pending appeal in a companion case on the same date. Chtay further contends that he cannot afford to make bond payments totaling $150,000.00. Due to the nature 1The trial court initially set Chtay’s bond pending appeal in this case at $350,000.00. While this appeal waspending, the trial court entered an order under authority of Article 44.04(c) reducing Chtay’s bond to $75,000.00cash or surety.2Chtay pled guilty in 2005 to two separate charges misapplication of trust fund money and theft of property valuedat $20,000 or more but less than $100,000.00. On December 4, his deferred adjudication community supervisionwas revoked, and he was adjudicated guilty, under separate cause numbers, of both charges. He has appealed fromthe trial court’s decision to revoke his community supervision and proceed to adjudication in the misapplication oftrust fund money case under our cause number 06-14-00018-CR and in the theft of property case under our causenumber 06-14-00019-CR. Both of these matters are currently pending before this Court. In addition, Chtay hasappealed from the trial court’s decisions regarding his bond pending appeal in each of these matters. This opinionresolves Chtay’s bond appeal related to the theft of property case, and his bond appeal related to the misapplicationof trust fund money case is disposed of by our contemporaneously issued opinion in our cause number 06-14-00031-CR.
3In cases in which the assessed punishment for a felony conviction is less than ten years, the trial court has discretionto impose reasonable conditions on bail. T.CC.P.A. art. 44.04(c) (West 2006). However, thetrial court does not have the authority to set excessive bail. Ex parte Harris, 733 S.W.2d 712, 715 (Tex. App.–Austin 1987, no pet.) (per curiam). of Chtay’s argument, we addressed the merits of Chtay’s complaints in the companion case referenced in our opinion of this date in case number 06-14-00031-CR. For the reasons stated in that opinion, we likewise find no abuse of discretion in the trial court’s decision to set the bond amount in this case at $75,000.00 cash or surety, even though it had set another $75,000.00 bond in the companion case. Next, Chtay appeals the trial court’s refusal to amend the conditions of the appellate bond requiring him to (1) remain in Hunt County and not leave Hunt County without written permission from the court, (2) wear a SCRAM device on his leg at all times after release from jail, and (3) refrain from directly communicating with Sherrie Gibbs, the mother of his child. A trial court may impose reasonable conditions on bail pending appeal. TEX.CODE CRIM.PROC. ANN. art. 44.04(c). Chtay was an oilfield operations manager. In an affidavit filed with the trial court, Chtay averred (1) that his permanent place of residence was in Montgomery County, Texas, (2) that his employer, HDD Rotary Sales, LLC, was located both in Montgomery County and in Conroe, Texas, and (3) that his employment as an oilfield operations manager required him to travel outside of Texas and as far away as North Dakota. Chtay argued and had the burden to show that the conditions were unreasonable (1) due to the travel required by his employment and (2) because the restriction from Gibbs would prevent him from having a relationship with his child. 4We note that the State’s motion to proceed to adjudication alleged that Chtay caused bodily injury to Gibbs, themother of his seventeen-month-old daughter, when he hit her with the back of his right hand across the left side ofher face.5[T]he statutes treat conditions on pre-trial bond differently from conditions on bail pending appeal. A condition ofpre-trial bond must meet three standards: Not only must it be ‘reasonable,’ but it also must be to ‘secure a
3 Continue reading
Posted in 6th Court of Appeals - CR | Tagged , , | Leave a comment

06-14-00031-CR Jonathan Ali Chtay v. The State of TexasAppeal from 196th District Court of Hunt County

, 550 S.W.2d 689, 690 (Tex.Crim. App. 1977); Humphries v. State, 261 S.W.3d 144, 146 (Tex. App.–San Antonio 2008, pet. ref’d); Goodson v.State, 221 S.W.3d 303, 305 (Tex. App.–Fort Worth 2007, no pet.); McConnell v. State, 34 S.W.3d 27, 30 (Tex.App.–Tyler 2000, no pet). 44.04(b) (West 2006). However, those who are placed on ten years’ community supervision may seek release on bail pending appeal. Lebo v. State, 90 S.W.3d 324, 330 (Tex. Crim. App. 2002); see Werner v. State, Nos. 01-11-00464-CR & 01-11-00465-CR, 2013 WL 1352140, at **12 (Tex. App.–Houston [1st Dist.] Apr. 4, 2013, no pet.). We review a trial court’s decision setting bond pending appeal for an abuse of discretion. Ex parte Dueitt, 529 S.W.2d 531, 532 (Tex. Crim. App. 1975); Davis v. State, 71 S.W.3d 844, 84546 (Tex. App.–Texarkana 2002, no pet.). It is Chtay’s burden to show that the amount of bond is excessive. See Ex parte Benefield, 403 S.W.3d 240, 242 (Tex. Crim. App. 2013) (Cochran, J., concurring); Ex parte Rubac, 611 S.W.2d 848, 849 (Tex. Crim. App. [Panel Op.] 1981). Chtay admits that he can make one $75,000.00 surety bond. However, according to Chtay, the trial court should have further lowered the bond amount in this case because it also set a $75,000.00 bond pending appeal in a companion case on the same date, and Chtay contends that he cannot afford to make bond payments totaling $150,000.00. In the companion case, the trial court found that Chtay was guilty of theft of property valued at $20,000.00 or more but less than $100,000.00. The trial court sentenced Chtay to seven years’ imprisonment, Chtay appealed his conviction, and the trial court also set Chtay’s surety bond pending appeal in that 3However, the trial court has authority either to permit or to deny an appellate bond. T.CC.P.A.art. 44.04(c) (West 2006). The court may deny bond pending appeal if there exists good cause to believe that the
defendant w[ill] not appear when his conviction bec[omes] final or is likely to commit another offense while onbail. Id. After a hearing, the trial court made both findings contained in Article 44.04(c) and initially deniedChtay’s appellate bond. See id. Chtay appealed the initial denial of a bond pending appeal. While the bond appealwas pending, the trial court entered an order under authority of Article 44.04(d) setting Chtay’s bond at $75,000.00cash or surety. See T.CC.P.A. art. 44.04(d) (West 2006). case at $75,000.00. Due to the nature of Chtay’s argument, we will discuss the trial court’s decision in setting two $75,000.00 appellate bonds. Continue reading
Posted in 6th Court of Appeals - CR | Tagged , , | Leave a comment

03-14-00107-CR Javier M. Lozano, Sr. v. The State of TexasAppeal from 368th District Court of Williamson County – Dissent.

It is well established that reviewing courts can assess only evidence that was

actually before the trial court at the time of its ruling and that is included in the appellate record.
Amador v. State, 221 S.W.3d 666, 673 (Tex . Crim. App. 2007). As the majority explains, and I
agree, it is incumbent upon the appellant to ensure that evidence is included in the appellate record.
However, the majority goes on to conclude that because the appellant in this case failed to request Continue reading
Posted in 3rd Court of Appeals - CR | Tagged , , , | Leave a comment

03-13-00721-CR Moises Guzman v. The State of TexasAppeal from 427th District Court of Travis County

A jury convicted appellant Moises Guzman of two counts of indecency with a child

by sexual contact, see Tex. Penal Code § 22.11(a)(1), and the trial court assessed his punishment at
confinement for ten years in the Texas Department of Criminal Justice on each count and ordered
the sentences to be served concurrently, see id. § 12.33.

Appellant’s court-appointed attorney has filed a motion to withdraw supported by a

brief concluding that the appeal is frivolous and without merit. The brief meets the requirements of Continue reading
Posted in 3rd Court of Appeals - CR | Tagged , , | Leave a comment

01-13-00992-CR Joseph Mike Devia v. The State of TexasAppeal from 262nd District Court of Harris County – Pub.

OURT OF PPEALS FOR THEIRST ISTRICT OF EXAS AT OUSTONEMORANDUM RDER

 
—————————————————————————————-
 

CAFDTHMOJoseph Mike Devia v. The State of Texas Trial court case number: 1329162 Trial court: See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). This Court must independently review the entire record in this appeal to determine whether no reversible error exists in the record, there are no arguable grounds for review, and the appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court–and not counsel–determines, after full examination of proceedings, whether appeal is wholly frivolous);Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing court must determine whether arguable grounds for review exist). See Reporter’s Record, vol. 1 at 11-12. Accordingly, we order that the district court clerk file a supplemental clerk’s record containing the mitigation packet by no later thanJuly 28, 2014. Acting individually Acting for the Court Date: July 22, 2014 Continue reading

Posted in 1st Court of Appeals - CR, Published | Tagged , , , | Leave a comment

01-13-00712-CR John Elsworth Combest v. The State of TexasAppeal from 184th District Court of Harris County – Pub.

OURT OF PPEALS FOR THEIRST ISTRICT OF EXAS AT OUSTONRDER

 
—————————————————————————————-
 

CAFDTHOJohn Elsworth Combest v. The State of Texas Trial court case number: 1221980 Trial court: Acting for the Court Date: July 22, 2014 Continue reading

Posted in 1st Court of Appeals - CR, Published | Tagged , , , | Leave a comment

01-13-00981-CR Michael Shane Sanders v. The State of TexasAppeal from 149th District Court of Brazoria County

Appellant, Michael Shane Sanders, was charged by indictment with possession of methamphetamine, enhanced by a prior felony conviction .[1] Appellant pleaded no contest to the drug possession charge and true to the 1See TEX.HEALTH &SAFETY CODE ANN. §§ 481.102(6), .115(a), (d) (Vernon2010). enhancement. The jury found true that appellant used or exhibited a deadly weapon during the commission of the offense of drug possession. In one issue on appeal, Appellant argues that the evidence was insufficient to support this finding. Continue reading
Posted in 1st Court of Appeals - CR | Tagged , , | Leave a comment

01-13-00537-CR Jose Francisco Samayoa v. The State of TexasAppeal from 262nd District Court of Harris County

Appellant Jose Francisco Samayoa was convicted by a jury of two counts of aggravated sexual assault of a disabled individual. See T.PCA. § 22.021(a)(2)(C) (West 2011). The jury assessed punishment at 50 years in prison. In this appeal, Samayoa argues that the evidence was legally insufficient to support his conviction because there was no evidence that he knew the complainant was incapable, by reason of mental disease or defect, of appreciating the nature of the act or resisting it. See id. §§ 22.021(c), 22.011(b)(4). We affirm the judgment of the trial court. Continue reading
Posted in 1st Court of Appeals - CR | Tagged , , | Leave a comment

01-13-00493-CR Ryan Matthew Stairhime v. The State of TexasAppeal from 177th District Court of Harris County – Pub. – Concurrence.

I join in the Court’s rejection of Appellant’s first three issues. I also join in its rejection of Appellant’s fourth issue based on our prior , controlling precedent: Harrison v. State, 333 S.W.3d 810, 812 (Tex. App.–Houston [1st Dist.] 2010, pet. ref’d).
While I agree with the holding in Harrison that an affirmative statement of ‘no objection’ waives any error relating to that matter , I would not read the phrase that matter so broadly. I do not agree that the matter under consideration when the trial court has just seated the jury is the entire voir dire process. Instead, the issue at that time is whether the court has made a mistake in identifying the jurors who will sit based on the parties’ respective jury strikes. Continue reading
Posted in 1st Court of Appeals - CR, Published | Tagged , , , , | Leave a comment

01-13-00493-CR Ryan Matthew Stairhime v. The State of TexasAppeal from 177th District Court of Harris County – Pub.

Appellant, Ryan Matthew Stairhime, was charged by indictment with murder.[1] Appellant pleaded not guilty. The jury found him guilty and assessed punishment at forty-three years’ confinement. In four issues on appeal, Appellant 1See TEX.PENAL CODE ANN. § 19.02(b) (Vernon 2011). challenges the trial court’s (1) permitting the State to impeach the testimony of a witness to the incident, (2) excluding his impeaching evidence of the same witness, (3) failure to include in the application portion of the jury charge a definition present in the abstract portion of the jury charge, and (4) restriction of his voir dire examination. Continue reading
Posted in 1st Court of Appeals - CR, Published | Tagged , , , | Leave a comment

01-13-00245-CR Juan Francisco Hernandez v. The State of TexasAppeal from COUNTY COURT AT LAW NO 1 of Brazoria County

Juan Hernandez was convicted of possession of less than two ounces of marijuana, a Class B misdemeanor.[1] After the jury found Hernandez guilty, the trial court assessed punishment at 180 days’ confinement–which the court 1 TEX.HEALTH &SAFETY CODE ANN. § 481.121 (West 2010). probated for a 12-month period–and a fine of $800. Hernandez filed a motion for new trial, asserting that his trial counsel provided ineffective assistance of counsel. The trial court denied the motion. Continue reading
Posted in 1st Court of Appeals - CR | Tagged , , | Leave a comment

01-13-00094-CR John R. Dolard v. The State of TexasAppeal from 268th District Court of Fort Bend County

Appellant John R. Dolard pleaded guilty to two counts of aggravated sexual assault of a child and two counts of indecency with a child. See T.PC A.§§ 21.11, 22.021(a)(2) (West 2011). After a hearing at which both parties presented evidence, the trial court assessed punishment at twenty years in prison, to run concurrently on all counts. Dolard filed a motion for new trial , seeking a second punishment hearing. In that motion, he argued for the first time that the trial court had impermissibly used the fact that he did not testify as an aggravating factor in assessing punishment, and also that unreliable scientific testimony had been improperly admitted. The motion was denied, and Dolard timely filed notice of appeal. Finding no reversible error, we affirm. Continue reading
Posted in 1st Court of Appeals - CR | Tagged , , | Leave a comment