Cage Chaparro v. The State of Texas Appeal from 364th District Court of Lubbock County (memorandum opinion )

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In The Court of Appeals Seventh District of Texas at Amarillo ________________________ No. 07-14-00153-CR ________________________ CAGE CHAPARRO, APPELLANT V. THE STATE OF TEXAS, APPELLEE On Appeal from the 364th District Court Lubbock County, Texas Trial Court No. 2013-437,245; Honorable Jim Bob Darnell, Presiding March 21, 2016 MEMORANDUM OPINION Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. Following a plea of not guilty, Appellant, Cage Chaparro, was convicted by a jury of aggravated robbery. Punishment was assessed by the trial court at fifty years confinement. In presenting this appeal, counsel has filed an Anders1 brief in support of a motion to withdraw. We affirm Appellant’s conviction and grant counsel’s motion; 1 Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). however, we remand this cause for entry of a judgment nunc pro tunc for reasons expressed below. In support of his motion to withdraw, counsel certifies he has conducted a diligent review of the record, and in his opinion, the appeal is without merit. Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008). Counsel candidly discusses why, under the controlling authorities, the record supports that conclusion. See High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978). Counsel has demonstrated he has complied with the requirements of Anders and In re Schulman by (1) providing a copy of the brief to Appellant, (2) notifying him of his right to review the record and file a pro se response if he desired to do so,2 and (3) informing him of his right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 408.3 By letter, this court granted Appellant an opportunity to exercise his right to file a response to counsel’s brief. Appellant did file a response which we have reviewed. The State did not favor us with a brief. 2 See Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014) (regarding Appellant’s right of access to the record for purposes of filing a pro se response). 3 Notwithstanding that Appellant was informed of his right to file a pro se petition for discretionary review upon execution of the Trial Court’s Certification of Defendant’s Right of Appeal, counsel must comply with Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within five days after this opinion is handed down, send Appellant a copy of the opinion and judgment together with notification of his right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 408 n.22 & 411 n.35. The duty to send the client a copy of this court’s decision is ministerial in nature, does not involve legal advice, and exists after the court of appeals has granted counsel’s motion to withdraw. Id. at 411 n.33. 2 BACKGROUND Between the night of October 21, 2012, and the morning of October 22, 2012, three similar aggravated robberies took place. On October 21st, a home invasion occurred in which a PlayStation game console was taken. The victim testified the suspects wore masks and were armed with a shotgun and a large knife. A third suspect, driving a white Mitsubishi Galant, was also involved in the robbery. On October 22nd, the Petersons, the victims in this case, testified their home was robbed by three men. The Petersons testified the suspects wore Halloween masks and gloves and one of them wore a distinctive jacket. One of the robbers used a shotgun and another used a knife to threaten the Petersons. In the third aggravated robbery, the victim testified that two armed and masked men exited a small white vehicle (later identified as the Mitsubishi Galant) and forced him out of his car and onto the ground. He testified the suspects were armed with a shotgun and knife. On October 23rd, one of the suspects was involved in a traffic stop. The vehicle matched the description of the small white car present at the three aggravated robberies. A search of the vehicle revealed masks and gloves matching the description given by the Petersons. On October 27, 2012, a fourth robbery occurred. The next day a red Impala was stopped by police for a non-moving violation. The vehicle was searched and stolen items from the most recent robbery were found. Also found were masks and gloves similar to the ones described by the Petersons as well as the distinctive jacket 3 described by them after they had been robbed. An investigation was conducted on similar robberies to establish the identities and modus operandi of the robbers. The investigation led police to Appellant as a suspect. His home was searched and stolen property belonging to the Petersons as well as other victims was found. During Appellant’s trial, an accomplice testified that Appellant was involved in one of the extraneous robberies as well as the Peterson robbery. Other extraneous-offense evidence of similar aggravated robberies committed with a shotgun and a knife was admitted over trial counsel’s vehement objections. The jury was instructed on the use of accomplice testimony. The accomplice witness rule provides that a person may not be convicted based on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense. See TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005); Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011). In reviewing the sufficiency of the corroborating evidence, we eliminate the accomplice testimony from consideration and focus on the remaining evidence to determine whether there is any evidence that tends to connect the defendant with the commission of the crime. Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001). The jury was also instructed on the law of parties. The State was required to show that at the time of the robbery, Appellant and his co-defendants were acting together, each contributing some part towards the execution of their common purpose. Wooden v. State, 101 S.W.3d 542, 546 (Tex. App.—Fort Worth 2003, pet. ref’d). 4 Circumstantial evidence may be used to prove party status. Escobar v. State, 28 S.W.3d 767, 774 (Tex. App.—Corpus Christi 2000, pet. ref’d). The trial court gave the jury a limiting instruction explaining that use of extraneous-offense evidence was limited for the purpose of determining preparation, plan, or identity. Extraneous offense evidence is admissible under Rules 403 and 404(b) of the Texas Rules of Evidence if the evidence satisfies a two-pronged test: (1) whether the extraneous offense evidence is relevant to a fact of consequence in the case aside from its tendency to show action in conformity with character; and (2) whether the probative value of the evidence is not substantially outweighed by unfair prejudice. Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006). The general rule is that the defendant is to be tried only for the offense charged, not for any other crimes or for being a criminal generally. Segundo v. State, 270 S.W.3d 79, 87 (Tex. Crim. App. 2008). One of the main rationales for admitting extraneous offenses is to prove the identity of the offender. The theory of relevancy is usually that of modus operandi in which the pattern and characteristics of the charged crime and the extraneous offenses are so distinctively similar that they constitute a “signature.” Id. at 88. No rigid rules dictate what constitutes sufficient similarities; rather the common characteristics may be proximity in time and place, mode of commission of the crimes, the person’s dress, or any other elements which mark the offenses as having been committed by the same person. Id. By the Anders brief, counsel evaluates the underlying proceedings, including the legal theories discussed above, and concludes this appeal is without merit. In addition to his brief, counsel has filed his motion to withdraw. 5 When faced with an Anders brief, we have two choices. We may determine that the appeal is wholly frivolous and issue an opinion explaining that we have reviewed the record and find no reversible error; Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005) (citing Anders, 386 U.S. at 744), or we may determine that arguable grounds for appeal exist and remand the cause to the trial court so that new counsel may be appointed to brief issues. Id. (citing Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991)). We have independently examined the lengthy record to determine whether there are any non-frivolous issues that were preserved in the trial court which might support the appeal. See Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); In re Schulman, 252 S.W.3d at 409; Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We have found no such issues. See Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). After reviewing the record, counsel’s brief, and Appellant’s pro se response, we agree with counsel that there is no plausible basis for reversal of Appellant’s conviction. See Bledsoe, 178 S.W.3d at 826-27. ERRONEOUS JUDGMENT The trial court’s judgment does, however, contain clerical errors. The judgment form used is entitled “JUDGMENT OF CONVICTION BY COURT—WAVIER OF JURY TRIAL” and provides under the summary portion “Terms of Plea Bargain” “FIFTY (50) YEARS TDCJ-ID.” Appellant entered a plea of not guilty and was convicted by a jury. The proper judgment form should be entitled “JUDGMENT OF CONVICTION BY JURY” and should contain in the summary portion “Verdict of Jury” “FIFTY (50) YEARS TDCJ-ID.” We remand this cause to the trial court for entry of a judgment nunc pro tunc. 6 CONCLUSION Accordingly, the trial court’s judgment is affirmed, counsel's motion to withdraw is granted, and the cause is remanded to the trial court for entry of a judgment nunc pro tunc. The entry of a judgment nunc pro tunc will not affect the procedural timetables established by the Texas Rules of Appellate Procedure; however, the District Clerk is ordered to file a Supplemental Clerk’s Record containing that judgment within thirty days of the date of this court’s judgment. Patrick A. Pirtle Justice Do not publish. 7

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