ROBERT REY GARZA, Appellant. THE STATE OF TEXAS, Appellee APPELLANT'S BRIEF

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1 IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS ROBERT REY GARZA, Appellant vs. THE STATE OF TEXAS, Appellee On appeal from the Criminal District Court No. 6 of Dallas County, Texas In Cause Nos. F X and F X APPELLANT'S BRIEF Counsel of Record Lynn Richardson Chief Public Defender Dallas County, Texas Assistant Public Defender State Bar No N. Riverfront Boulevard, LB-2 (214) (phone) (214) (fax) Attorneys for Appellant.,.,..~ ">-~,---,r ;.. ~-;i,,'

2 NOS CR, CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS ROBERT REY GARZA, Appellant vs. THE STATE OF TEXAS, Appellee On appeal from the Criminal District Court No. 6 of Dallas County, Texas In Cause Nos. F X and F X APPELLANT'S BRIEF Counsel of Record Lynn Richardson Chief Public Defender Dallas County, Texas Assistant Public Defender State Bar No N. Riverfront Boulevard, LB-2 (214) (phone) (214) (jax) Attorneys for Appellant

3 LIST OF PARTIES APPELLANT Robert Rey Garza APPELLEE The State of Texas DEFENSE COUNSEL AT TRIAL Robbie McClung Richard Franklin McClung & Franklin 8215 Westchester, Suite 305 Dallas, Texas STATE'S ATTORNEY AT TRIAL Rachel Clark Assistant District Attorney Dallas County District Attorney's Office 133 N. Riverfront Blvd., LB-19 APPELLANT'S ATTORNEY ON APPEAL Dallas County Public Defender's Office 133 N. Riverfront Blvd., LB-2 STATE'S ATTORNEY ON APPEAL Craig Watkins (or his designated representative) Dallas County District Attorney's Office 133 N. Riverfront Blvd., LB-19 11

4 TABLE OF CONTENTS LIST OF PARTIES... ii INDEX OF AUTHORITIES... iv STATEMENT OF THE CASE... 1 ISSUE PRESENTED... 1 The judgments should be modified to correctly reflect Appellant's pleas of no contest and terms of plea bargain agreement STATEMENT OF FACTS... 1 SUMMARY OF ARGUMENT... 2 ARGUMENT... 3 PRAYER... 3 CERTIFICATE OF SERVICE

5 INDEX OF AUTHORITIES Cases Asberry v. State, 813 S.W.2d 526 (Tex. App. -Dallas 1991, pet. refd)... 3 Bigley v. State, 865 S.W.2d 26 (Tex. Crim. App. 1993)... 3 Statutes TEX. PENAL CODE Rules TEX. R. APP. P (b)... ~... 3 lv

6 TO THE HONORABLE COURT OF APPEALS: COMES NOW Appellant, Robert Rey Garza, and submits this brief on appeal from two convictions for aggravated sexual assault of a child under 14. Convictions were had in the Criminal District Court No. 6 of Dallas County, Texas, the Honorable Gary Stephens, judge presiding. STATEMENT OF THE CASE Appellant was charged in two cases with aggravated sexual assault of a child under 14 in violation of TEx. PENAL CODE (CRl: 5; CR2: 5). Appellant pleaded "no contest" in each case; the trial court convicted Appellant of the offenses and subsequently sentenced him to twenty-five years' imprisonment in each case, to run concurrently, and a fine of $5,000. (CRl: 32; CR2: 28). Judgments were entered January 24, (/d.) Appellant thereafter gave notices of appeal. (CRI :38; CR2: 32). ISSUE PRESENTED Point of Error The judgments should be modified to correctly reflect Appellant's pleas of no contest and terms of plea bargain agreement. STATEMENT OF FACTS On December 7, 2012, the appellant pleaded not guilty to the charges of aggravated assault of a child. (SRR: 4). The trial court conducted voir dire in order for the parties to select a jury. (SRR: passim). Nearing the conclusion of voir dire, the trial court granted a defense motion to quash the panel. (SRR: ). The following day,

7 the appellant waived his right to a jury trial and proceeded to a trial before the court. (RR4: 4). Further, the appellant changed his plea to "no contest." (RR4: 5). At the conclusion of the proceeding on guilt/innocence, the trial court held the evidence proved the appellant's guilt, but deferred a finding of guilt and pronouncement of sentence until a presentence report could be completed. (RR6: 12). On January 24, 2011, the trial court conducted a sentencing hearing. The appellant entered a plea of true to the enhancement paragraph. (RR7: 6). At the conclusion of the hearing, the trial court held, in pertinent part, as follows: (RR7: 24-25). I'm not going to give you probation. Your record does not merit it nor does the facts of this particular case. I do find you guilty as charged in each case. I find you guilty of aggravated sexual assault on a child under 14 in both causes. I also find that the second paragraph, the enhancement paragraph, is true. That means your minimum is 15 years in the Texas Department of Criminal Justice. But based on what I've seen and heard, I don't think 15 is appropriate. I'm setting punishment at 25 years in the Texas Department of Criminal Justice. SUMMARY OF ARGUMENT The judgments should be reformed to accurately reflect the appellant's plea and that no plea bargain agreement was entered. 2

8 ARGUMENT The judgments erroneously reflect that Appellant pleaded not guilty to the offenses. (CRI: 43; CR2: 28). The judgment in cause F X also erroneously reflects that the appellant entered into a plea bargain agreement, showing "Terms of Plea Bargain" and listing "25 YRS TDC & $5,000 FINE". (CRI: 32). However, the appellant pleaded "no contest" to each offense, and the trial court did not assess punishment pursuant to any plea bargain agreement. (RR4: 5; RR7: 24-25). This Court should exercise its authority to correct the judgments. This Court has the authority to amend the judgments to "speak the truth" when it has the necessary data and information to do so. TEX. R. APP. P (b); Bigley v. State, 865 S.W.2d 26, (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, (Tex. App.- Dallas 1991, pet. ref d). For the reasons shown, this Court should sustain Appellant's Point of Error and correct the judgments to show the proper plea entered by the appellant, and that no plea bargain agreement was operative in case F X. PRAYER WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court will reform the judgment to correct the inaccuracies therein. Respectfully submitted, Lynn Richardson Chief Public Defender Dallas County, Texas I ( (~ ' (.,~ \.:. r~3r Assistant Public Defender State Bar No N. Riverfront Blvd., LB-2 3

9 (214) (phone) (214) (jax) CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing brief was served on the Dallas County Criminal District Attorney's Office (Appellate Section), 133 N. Riverfront Blvd., LB-19, loth Floor, Dallas, Texas, 75207, by hand delivery on May 25, 20~2. i li 0.'(_ (\. ~ '\ \J_ ('~~ \. _):.!\C;~L\.Q 4

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