This brief summarizes an appeal from a criminal conviction in Harris County, Texas. The appellant was convicted of two charges and sentenced to prison. The court-appointed appellate counsel believes the appeal is frivolous as there are no arguable grounds or errors that would require reversal. The brief identifies potential issues commonly found in criminal appeals such as jurisdiction, sufficiency of evidence, jury instructions and sentencing but concludes that none provide a basis for appeal in this case.
This brief argues that the lower court erred in entering a judgment of possession for the appellee landlord. It asserts that the lower court abused its discretion and lacked subject matter jurisdiction. The appellant tenant paid rent for months of November, December, and January, which were after the expiration date of the 30-day notice to quit served by the landlord. According to case law, a landlord accepts a payment for a period after the notice, it voids the notice. Therefore, a new notice was required before possession proceedings, which did not occur. The brief asks the appeals court to reverse the lower court's decision and remand the case for dismissal.
Fred Northrup filed a lawsuit against Acme Insurance Inc. and Helen Redmond alleging sexual harassment and discrimination. Northrup submitted requests for admissions, interrogatories, and production of documents from the defendants relating to Northrup's employment, complaints against Redmond, investigations into harassment claims, and criteria used in promotions. The requests covered topics such as Northrup's job performance reviews, complaints against Redmond, the hiring and disciplinary history of involved employees, and the company's anti-harassment policies and programs. The defendants were instructed to respond to the requests within 30 days.
This case involves an appeal of a district court ruling that found a provision of the Violence Against Women Act (VAWA) to be unconstitutional. Anne Singh Robinson is appealing the district court's ruling that found an amended provision of VAWA exceeded Congress' powers under the Commerce Clause and Section 5 of the Fourteenth Amendment. The brief outlines the background of the case, the issues on appeal, and arguments for why the district court erred in its constitutional analysis of the amended VAWA provision under both the Commerce Clause and Fourteenth Amendment.
The document is the brief of appellee Susan K. Woodard, the Chapter 7 trustee, filed in response to an appeal by Thomas Allen Chesley. The brief contains four main arguments: 1) Chesley's general release settlement agreement from his personal injury lawsuit is not a disability income benefit under Florida law. 2) The settlement proceeds were not paid under an insurance policy as required by Florida law. 3) Chesley has failed to show that any factual findings of the lower courts were clearly erroneous. 4) Issues raised in Chesley's brief do not require further argument. The trustee argues the lower courts correctly applied Florida exemption law and their decisions should be affirmed.
This memorandum supports the plaintiff's motion to compel further discovery from the defendants. It summarizes that the plaintiff, Izabella Danielli, was seriously injured in a car accident caused by the defendant's tractor-trailer. While the defendants objected to the plaintiff's requests for production, they failed to provide any responses or a privilege log. The memorandum argues that the plaintiff is entitled to any statements made to the defense, as they are neither privileged nor protected work product. It also argues that sanctions should be awarded against the defendants for failing to meet and confer in good faith or provide a privilege log. The plaintiff is requesting an order compelling responses to requests for production and monetary sanctions of $1,500.
Wilma Maples filed a motion for summary judgment against Memorial Hermann Hospital in a civil case. The motion argues that there are no disputed material facts and summary judgment should be granted according to the Texas Rules of Civil Procedure. The motion includes a trial brief in support and notices the defendant and opposing counsel that the motion will be heard on April 25, 2014 at 8am.
Sample California motion to bifurcate marital statusLegalDocsPro
This sample points and authorities in support of a motion to bifurcate marital status in California is filed under the provisions of Family Code section 2337 and is used when a party is requesting an early and separate trial on the issue of dissolution of marital status, the sample also requests an early and separate trial on other issues as well pursuant to California Rule of Court 5.390(b). The sample on which this preview is based is 8 pages and contains brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and a sample declaration. The author is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 245 sample legal documents.
The trial court erred in ruling in favor of Peggy Mitchell in Tiffany Flower's defamation lawsuit. Peggy referred to Tiffany as a "slut" in a fictional story published nationally, which met all the elements of defamation. This statement directly caused Tiffany to lose her reputation in town, suffer emotional distress, and lose her job as summer camp director. The trial court should have found Peggy liable for defamation and punitive damages, and considered Tiffany's lost wages in its decision. The appellate court has authority to overturn the trial court's decision in the interest of justice.
This brief argues that the lower court erred in entering a judgment of possession for the appellee landlord. It asserts that the lower court abused its discretion and lacked subject matter jurisdiction. The appellant tenant paid rent for months of November, December, and January, which were after the expiration date of the 30-day notice to quit served by the landlord. According to case law, a landlord accepts a payment for a period after the notice, it voids the notice. Therefore, a new notice was required before possession proceedings, which did not occur. The brief asks the appeals court to reverse the lower court's decision and remand the case for dismissal.
Fred Northrup filed a lawsuit against Acme Insurance Inc. and Helen Redmond alleging sexual harassment and discrimination. Northrup submitted requests for admissions, interrogatories, and production of documents from the defendants relating to Northrup's employment, complaints against Redmond, investigations into harassment claims, and criteria used in promotions. The requests covered topics such as Northrup's job performance reviews, complaints against Redmond, the hiring and disciplinary history of involved employees, and the company's anti-harassment policies and programs. The defendants were instructed to respond to the requests within 30 days.
This case involves an appeal of a district court ruling that found a provision of the Violence Against Women Act (VAWA) to be unconstitutional. Anne Singh Robinson is appealing the district court's ruling that found an amended provision of VAWA exceeded Congress' powers under the Commerce Clause and Section 5 of the Fourteenth Amendment. The brief outlines the background of the case, the issues on appeal, and arguments for why the district court erred in its constitutional analysis of the amended VAWA provision under both the Commerce Clause and Fourteenth Amendment.
The document is the brief of appellee Susan K. Woodard, the Chapter 7 trustee, filed in response to an appeal by Thomas Allen Chesley. The brief contains four main arguments: 1) Chesley's general release settlement agreement from his personal injury lawsuit is not a disability income benefit under Florida law. 2) The settlement proceeds were not paid under an insurance policy as required by Florida law. 3) Chesley has failed to show that any factual findings of the lower courts were clearly erroneous. 4) Issues raised in Chesley's brief do not require further argument. The trustee argues the lower courts correctly applied Florida exemption law and their decisions should be affirmed.
This memorandum supports the plaintiff's motion to compel further discovery from the defendants. It summarizes that the plaintiff, Izabella Danielli, was seriously injured in a car accident caused by the defendant's tractor-trailer. While the defendants objected to the plaintiff's requests for production, they failed to provide any responses or a privilege log. The memorandum argues that the plaintiff is entitled to any statements made to the defense, as they are neither privileged nor protected work product. It also argues that sanctions should be awarded against the defendants for failing to meet and confer in good faith or provide a privilege log. The plaintiff is requesting an order compelling responses to requests for production and monetary sanctions of $1,500.
Wilma Maples filed a motion for summary judgment against Memorial Hermann Hospital in a civil case. The motion argues that there are no disputed material facts and summary judgment should be granted according to the Texas Rules of Civil Procedure. The motion includes a trial brief in support and notices the defendant and opposing counsel that the motion will be heard on April 25, 2014 at 8am.
Sample California motion to bifurcate marital statusLegalDocsPro
This sample points and authorities in support of a motion to bifurcate marital status in California is filed under the provisions of Family Code section 2337 and is used when a party is requesting an early and separate trial on the issue of dissolution of marital status, the sample also requests an early and separate trial on other issues as well pursuant to California Rule of Court 5.390(b). The sample on which this preview is based is 8 pages and contains brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and a sample declaration. The author is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 245 sample legal documents.
The trial court erred in ruling in favor of Peggy Mitchell in Tiffany Flower's defamation lawsuit. Peggy referred to Tiffany as a "slut" in a fictional story published nationally, which met all the elements of defamation. This statement directly caused Tiffany to lose her reputation in town, suffer emotional distress, and lose her job as summer camp director. The trial court should have found Peggy liable for defamation and punitive damages, and considered Tiffany's lost wages in its decision. The appellate court has authority to overturn the trial court's decision in the interest of justice.
This appeal involves two claims brought by Nancy Williams against Beth Shalom Synagogue and Rabbi Bryant: 1) gender discrimination under Title VII; and 2) intentional infliction of emotional distress. Williams was hired as the Director of Family Grief Services but was subjected to daily belittling and demeaning behavior by Rabbi Bryant over a period of six months. When Williams complained to the Board of Trustees, they dismissed her claims and told her to tolerate Bryant's behavior. The district court granted summary judgment for defendants, finding the ministerial exception barred the Title VII claim and that Williams failed to raise issues of fact regarding intentional infliction of emotional distress. Williams now appeals both rulings.
Sample collection of meet and confer letters for discovery in californiaLegalDocsPro
This letter identifies deficiencies in a party's responses to discovery requests and meets and confers regarding a motion to compel further responses and testimony at a deposition. Specifically, it notes boilerplate objections that do not comply with the code, objections to interrogatories that involve a single subject, and a party's blanket refusal to answer deposition questions or provide documents using a privilege claim. The letter provides citations and encourages resolving the issues without judicial intervention.
Sample ex parte application for TRO and preliminary injunction in United Stat...LegalDocsPro
This sample ex parte application for temporary restraining order in United States District Court also requests the issuance of a preliminary injunction pending the trial pursuant to Federal Rule of Civil Procedure 65(a) and (b) on the grounds that the plaintiff has suffered and will continue to suffer, substantial irreparable harm if injunctive relief is not granted. The sample on which this preview is based is 16 pages and includes brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proposed order. The author is an entrepreneur and retired litigation paralegal that worked in California and Federal litigation from January 1995 through September 2017 and has created over 300 sample legal documents for sale. Note that the author is NOT an attorney and no guarantee or warranty is provided.
Sample notice of voluntary dismissal under Rule 41 in United States District ...LegalDocsPro
This sample notice of voluntary dismissal under Rule 41(a)(1)(A)(i) in United States District Court can be used a by a plaintiff to dismiss their case before a defendant has filed an answer or motion for summary judgment. The sample includes brief instructions and a proof of service. The author is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale. Note that the author is NOT an attorney and no guarantee or warranty is provided.
Sample opposition to motion to dismiss under rule 12(b)(6)LegalDocsPro
This document is an opposition to a motion to dismiss a complaint filed in a bankruptcy case. It argues that the plaintiff's complaint alleges sufficient facts to state a valid cause of action under Section 523(a)(2) of the Bankruptcy Code for non-dischargeability of debt based on false representations made by the defendant. The opposition contends the complaint satisfies the particularity requirements to plead fraud by identifying the alleged false statements, when and where they were made. It asks the court to deny the motion to dismiss as the plaintiff may be able to prove facts entitling them to relief.
Mock answer and counterclaim of Ms. Geiger who allegedly rear-ended the plaintiff on I-540 by following too closely but alleges that the collision was the result of the plaintiff's proximate negligence.
Sample California complaint for breach of contract and common countsLegalDocsPro
This sample California complaint for breach of contract also includes causes of action for common counts including open book account, account stated and goods sold and delivered. The sample on which this preview is based is 6 pages and includes brief instructions. The sample document is sold on scribd.com by LegalDocsPro.
Sample motion to vacate stipulation in California divorceLegalDocsPro
This sample motion to vacate stipulation for California dissolution (divorce) case is filed pursuant to Code of Civil Procedure section 473 and Family Code section 210 and is used when a party wishes to have the court vacate a settlement or stipulation entered into on the grounds of mistake, inadvertence, excusable neglect, fraud, mistake of law or fact, where the facts stipulated have changed or there has been a change in the underlying that could not have been anticipated, or where special circumstances exist rendering it unjust to enforce the stipulation. The sample on which this preview is based is 11 pages and includes brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail.
Sample motion to vacate California divorce judgment for fraudLegalDocsPro
This sample motion to vacate a dissolution (divorce) judgment in California on the grounds of duress is used pursuant to California Family Code section 2122(c). This sample can also be used to vacate a legal separation or nullity judgment in California as well. The sample on which this preview is based is 10 pages and includes brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and a sample declaration.
Answer, Counterclaims & Third Party Claims - Non-Compete & Tortious InterferencePollard PLLC
This is one of our cases in Volusia County, Florida. Our clients - all of the defendants in the case - were sued for breach of a non-compete agreement, breach of fiduciary duty and tortious interference.
We responded with counterclaims for a declaratory judgment holding the non-compete agreement(s) unenforceable, third party claims for breach of fiduciary duty and breach of contract and a demand for indemnification.
This is a good example of our level of work. We have extensive experience litigating non-compete and tortious interference cases on both sides. We prosecute and defend these types of cases.
In every case, we have a process: First, we master the facts. Many lawyer and law firms get involved in a case and immediately focus on law. In our view, that is the wrong approach. All cases are driven by facts. Any legal strategy must be tailored to the specific facts of a specific case.
We do not take anything for granted. We do not default to the same tired boilerplate pleadings. In every new case, we fashion a specific strategy for that case.
If you have a non-compete or tortious interference case, just give us a call at 9543-32-2380. That's what we're here for.
Este documento es una solicitud de aumento de pensión alimenticia presentada ante un juez de paz. La demandante argumenta que necesita al menos S/. 400 mensuales para cubrir los gastos de educación, alimentación y tratamiento médico de su hija. Afirma que el demandado, a pesar de declarar un sueldo mínimo, tiene ingresos adicionales como chef y gastos lujosos según su cuenta de Facebook. Solicita que se gradúe la pensión a no menos de S/. 400 mensuales.
Sample motion for summary judgment by defendant in CaliforniaLegalDocsPro
This sample motion for summary judgment by a defendant in California is filed under Code of Civil Procedure section 437c on the grounds that summary judgment should be granted as no triable issue of material fact exists in that the plaintiff cannot establish a required element of a cause or causes of action, or that a complete defense to a cause or causes of action exists. The sample on which this preview is based is 18 pages and includes brief instructions, a table and contents and table of authorities with an opening summary of argument, memorandum of points and authorities with citations to case law and statutory authority, separate statement of undisputed material facts, sample declaration, proposed order and proof of service.
This document is a Notice of Removal filed by attorneys for New England Compounding Pharmacy, Inc. (NECC) to remove a personal injury lawsuit against NECC from Los Angeles County Superior Court to the United States District Court for the Central District of California. The attorneys argue that the court has jurisdiction due to NECC's bankruptcy proceedings and an order establishing a multidistrict litigation regarding NECC cases. They further argue the case should be transferred to the multidistrict litigation in Massachusetts, where the bankruptcy is taking place.
William and Samantha Higgins are suing multiple defendants for injuries William sustained after slipping and falling on ice and snow outside Jones Pharmacy. According to the complaint, William fell and was injured on December 23, 2013 after exiting the pharmacy due to a buildup of ice and snow on the sidewalk that the defendants failed to clear. As a result of the fall, William suffered serious injuries, while Samantha claims loss of consortium. The plaintiffs are seeking damages, interest, attorney's fees, and costs from the defendants for their alleged negligence in creating a dangerous condition and failing to properly maintain the premises or warn of the hazard.
Sample opposition to order to show cause for civil contempt in CaliforniaLegalDocsPro
This sample opposition to an order to show cause for civil contempt in California is made on the grounds that (1) the opposing party has not willfully violated the terms of any Court orders, (2) the party charging them with contempt has failed to meet their burden of proving their guilt beyond a reasonable doubt in that they have failed to submit competent evidence that would support a finding that they willfully violated the TRO, which is an essential element of a finding of contempt. The sample opposition also requests that the Court hold a full and fair evidentiary hearing in which they are allowed to confront and cross-examine all witnesses against them. The sample on which this preview is based is 10 pages and includes brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service. The author is a legal entrepreneur and retired litigation paralegal that worked in California and Federal litigation from January 1995 through September 2017 and has created over 300 sample legal documents for sale. Note that the author is NOT an attorney and no guarantee or warranty is provided.
Sample California motion to vacate default judgment under ccp section 473LegalDocsPro
This sample motion to vacate a default judgment in California on the grounds of mistake, inadvertence, surprise or excusable neglect is made pursuant to Section 473 of the Code of Civil Procedure. The sample contains a memorandum of points and authorities with citations to case law and statutory authority. This is a preview of the sample motion sold by LegalDocsPro.
O documento apresenta embargos de declaração contra uma sentença proferida em um processo judicial. Os embargos alegam omissões na sentença e pedem esclarecimentos para permitir o recurso da decisão. Alega-se que a sentença não se manifestou sobre pontos importantes levantados inicialmente e que poderiam alterar o entendimento do caso.
Sample California motion to vacate judgment and enter different judgment unde...LegalDocsPro
This sample motion to set aside and vacate judgment and enter another and different judgment for California is made under Code of Civil Procedure section 663 on the grounds that the judgment is based on an incorrect or erroneous legal basis that is not consistent with or not supported by the facts or a judgment or decree is not consistent with or not supported by the special verdict. The sample document on which this preview is based is 15 pages and contains brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and a proof of service by mail.
Sample motion to vacate default under Rule 55(c) in United States District CourtLegalDocsPro
This sample motion to vacate a default under Rule 55(c) in United States District Court is used when a default has been entered but no judgment. The sample motion is used by a defendant to request that the Court vacate an entry of default against them for good cause. The sample on which this preview is based is 10 pages and includes brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service. The author is an entrepreneur and freelance paralegal that worked in California and Federal litigation from January 1995 through September 2017 and has created over 300 sample legal documents for sale. Note that the author is NOT an attorney and no guarantee or warranty is provided.
This document is Darrell Davis's trial brief in support of his motion for summary judgment in the case of Paul Peterson v. Darrell Davis and ABC Insurance Co. Davis argues that he is immune from liability under Wisconsin's recreational immunity statute. The statute provides that a property owner has no duty to keep land safe or warn of dangers for people engaging in recreational activities. Davis contends that Peterson was engaged in a recreational activity - riding a moped on Davis's property - and therefore Davis had no duty towards Peterson when he was injured. Davis cites previous cases to argue that the intrinsic nature of the activity, not Peterson's subjective intent, determines if it was recreational. Davis believes summary judgment is warranted based on the undisputed facts of the case
Juan Madrid v. The State of Texas - The State's Reply Brief - Bryant Francis ...Bryant "Beef" Cabrera
This document is the State's brief appealing Juan Madrid's conviction for continuous sexual abuse of young children. It contains the case background, statement of facts from the outcry hearing testimony of the victims' mother Elizabeth, a summary of the State's arguments, and the State's response to Madrid's issue on appeal regarding the admission of the victims' outcry statements made to their mother.
This appeal involves two claims brought by Nancy Williams against Beth Shalom Synagogue and Rabbi Bryant: 1) gender discrimination under Title VII; and 2) intentional infliction of emotional distress. Williams was hired as the Director of Family Grief Services but was subjected to daily belittling and demeaning behavior by Rabbi Bryant over a period of six months. When Williams complained to the Board of Trustees, they dismissed her claims and told her to tolerate Bryant's behavior. The district court granted summary judgment for defendants, finding the ministerial exception barred the Title VII claim and that Williams failed to raise issues of fact regarding intentional infliction of emotional distress. Williams now appeals both rulings.
Sample collection of meet and confer letters for discovery in californiaLegalDocsPro
This letter identifies deficiencies in a party's responses to discovery requests and meets and confers regarding a motion to compel further responses and testimony at a deposition. Specifically, it notes boilerplate objections that do not comply with the code, objections to interrogatories that involve a single subject, and a party's blanket refusal to answer deposition questions or provide documents using a privilege claim. The letter provides citations and encourages resolving the issues without judicial intervention.
Sample ex parte application for TRO and preliminary injunction in United Stat...LegalDocsPro
This sample ex parte application for temporary restraining order in United States District Court also requests the issuance of a preliminary injunction pending the trial pursuant to Federal Rule of Civil Procedure 65(a) and (b) on the grounds that the plaintiff has suffered and will continue to suffer, substantial irreparable harm if injunctive relief is not granted. The sample on which this preview is based is 16 pages and includes brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proposed order. The author is an entrepreneur and retired litigation paralegal that worked in California and Federal litigation from January 1995 through September 2017 and has created over 300 sample legal documents for sale. Note that the author is NOT an attorney and no guarantee or warranty is provided.
Sample notice of voluntary dismissal under Rule 41 in United States District ...LegalDocsPro
This sample notice of voluntary dismissal under Rule 41(a)(1)(A)(i) in United States District Court can be used a by a plaintiff to dismiss their case before a defendant has filed an answer or motion for summary judgment. The sample includes brief instructions and a proof of service. The author is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale. Note that the author is NOT an attorney and no guarantee or warranty is provided.
Sample opposition to motion to dismiss under rule 12(b)(6)LegalDocsPro
This document is an opposition to a motion to dismiss a complaint filed in a bankruptcy case. It argues that the plaintiff's complaint alleges sufficient facts to state a valid cause of action under Section 523(a)(2) of the Bankruptcy Code for non-dischargeability of debt based on false representations made by the defendant. The opposition contends the complaint satisfies the particularity requirements to plead fraud by identifying the alleged false statements, when and where they were made. It asks the court to deny the motion to dismiss as the plaintiff may be able to prove facts entitling them to relief.
Mock answer and counterclaim of Ms. Geiger who allegedly rear-ended the plaintiff on I-540 by following too closely but alleges that the collision was the result of the plaintiff's proximate negligence.
Sample California complaint for breach of contract and common countsLegalDocsPro
This sample California complaint for breach of contract also includes causes of action for common counts including open book account, account stated and goods sold and delivered. The sample on which this preview is based is 6 pages and includes brief instructions. The sample document is sold on scribd.com by LegalDocsPro.
Sample motion to vacate stipulation in California divorceLegalDocsPro
This sample motion to vacate stipulation for California dissolution (divorce) case is filed pursuant to Code of Civil Procedure section 473 and Family Code section 210 and is used when a party wishes to have the court vacate a settlement or stipulation entered into on the grounds of mistake, inadvertence, excusable neglect, fraud, mistake of law or fact, where the facts stipulated have changed or there has been a change in the underlying that could not have been anticipated, or where special circumstances exist rendering it unjust to enforce the stipulation. The sample on which this preview is based is 11 pages and includes brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail.
Sample motion to vacate California divorce judgment for fraudLegalDocsPro
This sample motion to vacate a dissolution (divorce) judgment in California on the grounds of duress is used pursuant to California Family Code section 2122(c). This sample can also be used to vacate a legal separation or nullity judgment in California as well. The sample on which this preview is based is 10 pages and includes brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and a sample declaration.
Answer, Counterclaims & Third Party Claims - Non-Compete & Tortious InterferencePollard PLLC
This is one of our cases in Volusia County, Florida. Our clients - all of the defendants in the case - were sued for breach of a non-compete agreement, breach of fiduciary duty and tortious interference.
We responded with counterclaims for a declaratory judgment holding the non-compete agreement(s) unenforceable, third party claims for breach of fiduciary duty and breach of contract and a demand for indemnification.
This is a good example of our level of work. We have extensive experience litigating non-compete and tortious interference cases on both sides. We prosecute and defend these types of cases.
In every case, we have a process: First, we master the facts. Many lawyer and law firms get involved in a case and immediately focus on law. In our view, that is the wrong approach. All cases are driven by facts. Any legal strategy must be tailored to the specific facts of a specific case.
We do not take anything for granted. We do not default to the same tired boilerplate pleadings. In every new case, we fashion a specific strategy for that case.
If you have a non-compete or tortious interference case, just give us a call at 9543-32-2380. That's what we're here for.
Este documento es una solicitud de aumento de pensión alimenticia presentada ante un juez de paz. La demandante argumenta que necesita al menos S/. 400 mensuales para cubrir los gastos de educación, alimentación y tratamiento médico de su hija. Afirma que el demandado, a pesar de declarar un sueldo mínimo, tiene ingresos adicionales como chef y gastos lujosos según su cuenta de Facebook. Solicita que se gradúe la pensión a no menos de S/. 400 mensuales.
Sample motion for summary judgment by defendant in CaliforniaLegalDocsPro
This sample motion for summary judgment by a defendant in California is filed under Code of Civil Procedure section 437c on the grounds that summary judgment should be granted as no triable issue of material fact exists in that the plaintiff cannot establish a required element of a cause or causes of action, or that a complete defense to a cause or causes of action exists. The sample on which this preview is based is 18 pages and includes brief instructions, a table and contents and table of authorities with an opening summary of argument, memorandum of points and authorities with citations to case law and statutory authority, separate statement of undisputed material facts, sample declaration, proposed order and proof of service.
This document is a Notice of Removal filed by attorneys for New England Compounding Pharmacy, Inc. (NECC) to remove a personal injury lawsuit against NECC from Los Angeles County Superior Court to the United States District Court for the Central District of California. The attorneys argue that the court has jurisdiction due to NECC's bankruptcy proceedings and an order establishing a multidistrict litigation regarding NECC cases. They further argue the case should be transferred to the multidistrict litigation in Massachusetts, where the bankruptcy is taking place.
William and Samantha Higgins are suing multiple defendants for injuries William sustained after slipping and falling on ice and snow outside Jones Pharmacy. According to the complaint, William fell and was injured on December 23, 2013 after exiting the pharmacy due to a buildup of ice and snow on the sidewalk that the defendants failed to clear. As a result of the fall, William suffered serious injuries, while Samantha claims loss of consortium. The plaintiffs are seeking damages, interest, attorney's fees, and costs from the defendants for their alleged negligence in creating a dangerous condition and failing to properly maintain the premises or warn of the hazard.
Sample opposition to order to show cause for civil contempt in CaliforniaLegalDocsPro
This sample opposition to an order to show cause for civil contempt in California is made on the grounds that (1) the opposing party has not willfully violated the terms of any Court orders, (2) the party charging them with contempt has failed to meet their burden of proving their guilt beyond a reasonable doubt in that they have failed to submit competent evidence that would support a finding that they willfully violated the TRO, which is an essential element of a finding of contempt. The sample opposition also requests that the Court hold a full and fair evidentiary hearing in which they are allowed to confront and cross-examine all witnesses against them. The sample on which this preview is based is 10 pages and includes brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service. The author is a legal entrepreneur and retired litigation paralegal that worked in California and Federal litigation from January 1995 through September 2017 and has created over 300 sample legal documents for sale. Note that the author is NOT an attorney and no guarantee or warranty is provided.
Sample California motion to vacate default judgment under ccp section 473LegalDocsPro
This sample motion to vacate a default judgment in California on the grounds of mistake, inadvertence, surprise or excusable neglect is made pursuant to Section 473 of the Code of Civil Procedure. The sample contains a memorandum of points and authorities with citations to case law and statutory authority. This is a preview of the sample motion sold by LegalDocsPro.
O documento apresenta embargos de declaração contra uma sentença proferida em um processo judicial. Os embargos alegam omissões na sentença e pedem esclarecimentos para permitir o recurso da decisão. Alega-se que a sentença não se manifestou sobre pontos importantes levantados inicialmente e que poderiam alterar o entendimento do caso.
Sample California motion to vacate judgment and enter different judgment unde...LegalDocsPro
This sample motion to set aside and vacate judgment and enter another and different judgment for California is made under Code of Civil Procedure section 663 on the grounds that the judgment is based on an incorrect or erroneous legal basis that is not consistent with or not supported by the facts or a judgment or decree is not consistent with or not supported by the special verdict. The sample document on which this preview is based is 15 pages and contains brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and a proof of service by mail.
Sample motion to vacate default under Rule 55(c) in United States District CourtLegalDocsPro
This sample motion to vacate a default under Rule 55(c) in United States District Court is used when a default has been entered but no judgment. The sample motion is used by a defendant to request that the Court vacate an entry of default against them for good cause. The sample on which this preview is based is 10 pages and includes brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service. The author is an entrepreneur and freelance paralegal that worked in California and Federal litigation from January 1995 through September 2017 and has created over 300 sample legal documents for sale. Note that the author is NOT an attorney and no guarantee or warranty is provided.
This document is Darrell Davis's trial brief in support of his motion for summary judgment in the case of Paul Peterson v. Darrell Davis and ABC Insurance Co. Davis argues that he is immune from liability under Wisconsin's recreational immunity statute. The statute provides that a property owner has no duty to keep land safe or warn of dangers for people engaging in recreational activities. Davis contends that Peterson was engaged in a recreational activity - riding a moped on Davis's property - and therefore Davis had no duty towards Peterson when he was injured. Davis cites previous cases to argue that the intrinsic nature of the activity, not Peterson's subjective intent, determines if it was recreational. Davis believes summary judgment is warranted based on the undisputed facts of the case
Juan Madrid v. The State of Texas - The State's Reply Brief - Bryant Francis ...Bryant "Beef" Cabrera
This document is the State's brief appealing Juan Madrid's conviction for continuous sexual abuse of young children. It contains the case background, statement of facts from the outcry hearing testimony of the victims' mother Elizabeth, a summary of the State's arguments, and the State's response to Madrid's issue on appeal regarding the admission of the victims' outcry statements made to their mother.
MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE ACTION AND TO ISSUE NOTICEAccion America
BRENDA AGUAYO, MARIA MALDONADO, MARIA CLIMACO, OLIVIA ORTIZ, ANA PALOMARES, SUSANA MARTINEZ AND NICANOR QUIROZ, on behalf of themselves and all others similarly situated,
Plaintiffs, BASSAM ODEH, INC. AND BASSAM MOHAMMED ODEH
MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE ACTION AND TO ISSUE NOTICE
Thomas Woznicki vs. Jeff Moberg (New Richmond, Wisconsin School District)SteveJohnson125
Thomas Woznicki is involved in litigation seeking to prevent the New Richmond, Wisconsin school district from releasing his personnel file. This document was filed with the Wisconsin Court of Appeals on December 30, 2015.
This appeal challenges a preliminary injunction granted by a district court in Hawaii related to an alleged breach of a settlement agreement by the plaintiff Cara Barber. Barber had filed a class action lawsuit against Forest City over contamination at a military housing community. The lawsuit was settled individually and dismissed in February 2016, with the district court retaining jurisdiction until August 25, 2016 to enforce the settlement. In August 2016, Forest City filed a motion for a preliminary injunction, alleging Barber breached confidentiality terms. The district court granted the injunction but Barber argues on appeal that the court lacked jurisdiction to do so after August 25th and that the injunction denied her due process rights.
The Texas Public Policy Foundation and Right on Crime joined this amicus brief in case before the U.S. Supreme Court that concerns civil asset forfeiture which we argue violates the 8th Amendment's prohibition against excessive fines.
Court of Appeals STATE OF NEW YORK .docxaryan532920
Court of Appeals
STATE OF NEW YORK
THE PEOPLE OF THE STATE OF NEW YORK,
Respondent,
- against -
CHRISTOPHER PORCO,
Defendant-Appellant.
BRIEF FOR THE DISTRICT
ATTORNEYS ASSOCIATION OF THE STATE OF
NEW YORK AS AMICUS CUR IAE
JANET DIFIORE
District Attorney, Westchester County
President, District Attorneys Association
of the State of New York
c/o New York County District Attorney’s
Office
One Hogan Place
New York, New York 10013
Telephone: (212) 335-9000
MORRIE I. KLEINBART
SUSAN AXELROD
ASSISTANT DISTRICT ATTORNEYS
Of Counsel
JULY 2011
i
Page
TABLE OF CONTENTS
TABLE OF AUTHORITIES .............................................................................................. ii
PRELIMINARY STATEMENT ......................................................................................... 1
STATEMENT OF AMICUS CURIAE.............................................................................. 3
THE RELEVANT FACTUAL BACKGROUND ........................................................... 4
POINT ..................................................................................................................................... 6
PURSUANT TO THE
CONFRONTATION CLAUSE, A
DECLARANT/WITNESS'S OUT-OF-
COURT STATEMENT IS ADMISSIBLE
FOR ITS TRUTH SO LONG AS THE
WITNESS TAKES THE STAND AND IS
SUBJECT TO CROSS-EXAMINATION,
WHETHER OR NOT THE
DECLARANT/WITNESS CAN
REMEMBER THE EVENTS DESCRIBED
IN THAT STATEMENT. ..................................................... 6
CONCLUSION ................................................................................................................... 28
ii
TABLE OF AUTHORITIES
FEDERAL CASES
Bullcoming v New Mexico, 2011 U.S. LEXIS 4790 ........................................................ 15
California v Green, 399 U.S. 149 (1970) ..................................................................... 8-9, 12
Carter v Werholtz, 2011 U.S. Dist. LEXIS 591 (D. Kansas 2011) ................................ 19
Crawford v Washington, 541 U.S. 36 (2004) .................................... 5-8, 14-15, 18, 20, 24
Del Toro v Martel, 2010 U.S. Dist. LEXIS 120554 (C.D. Cal. 2010) ........................... 19
Delao v Kirkland, 2009 U.S. Dist. LEXIS 23054 (C.D. Cal. 2009) ............................... 19
Delaware v Fensterer, 474 U.S. 15 (1985) ......................................................... 9-12, 22, 24
Flores v Lund, 52 Fed.Appx. 868 (8th Cir. 2002) ............................................................ 19
Gorman v Merrill, 2006 U.S.Dist. LEXIS 88774 (D.Maine 2007) ................................. 19
Gutierrez v Yates, 2009 U.S.Dist. LEXIS 64789 (N.D. Cal. 2009) ............................... 19
Hammon v Indiana, 547 U.S. 813 (2006) ............................................................................ 7
Holliday v Symmes, 20 ...
Norse Energy Article 78 Lawsuit Against Gov. Cuomo, DEC Com. Martens, and DOH...Marcellus Drilling News
Paperwork filed with a lower court (called Supreme Court in NY) by Norse Energy lawyer Tom West against Gov. Andrew Cuomo, DEC Commissioner Joe Martens and State Health Commissioner Nirav Shah, accusing them of willful political delay in releasing fracking regulations (now 5 1/2 years delayed). An Article 78 lawsuit requests the court to force the release--that is, force these three recalitrant people to do their jobs. It is a complete humiliation of the shameful Andrew Cuomo--a stain on his record as governor--to have to be forced to do his job, kicking and screaming, by the courts.
Sylvain vs. AG USA - 3rd Circuit - Attorney Andres Benach's Amici Legal Brief...Umesh Heendeniya
Sylvain vs. AG USA - 3rd Circuit - Attorney Andres Benach's Amici Legal Brief on behalf of AILA on 'Mandatory Detention' due to Criminal Conviction of Aliens.
This document provides summaries of recent court decisions related to the False Claims Act (FCA). The first case summary discusses the Supreme Court's ruling in Cook County v. U.S. ex rel. Chandler that local governments are subject to liability under the FCA as "persons." The Court found that municipalities have been considered "persons" under the FCA since it was enacted in 1863. The document then provides brief summaries of several other court decisions related to various aspects of FCA liability, enforcement, and procedure. It is a quarterly publication of the Taxpayers Against Fraud Education Fund that analyzes major FCA developments.
Sparks Police Officer George Forbush's Opposition to the Motion to DismissThis Is Reno
This document is an opposition to a motion to dismiss filed by the defendants in a lawsuit brought by Officer George Forbush against the City of Sparks, Nevada and three city officials. Forbush alleges that the defendants infringed on and retaliated against him for exercising his First Amendment rights through statements he made on personal social media accounts as a private citizen on matters of public concern. The opposition argues that Forbush has stated a valid claim under 42 U.S.C. 1983, as he alleges his employer took adverse action against him based on constitutionally protected off-duty speech, and that the defendants' motion to dismiss and arguments regarding arbitration and exhaustion of remedies lack merit.
This document is an initial brief of appellant filed in the Supreme Court of Florida by Pablo Ibar's attorney. It summarizes the case, facts, and makes eight arguments. The arguments assert various errors made by the trial court regarding the admission and exclusion of evidence, jury instructions, and the constitutionality of Florida's death penalty statute as applied in this case. Overall, the brief aims to show that Pablo Ibar did not receive a fair trial and his conviction and death sentence should be overturned.
Obama Administration Brief On Ending Same-Sex Marriage Bans NationwideDylan Hock
This brief argues that state bans on same-sex marriage violate the Equal Protection Clause of the Fourteenth Amendment. It asserts that classifications based on sexual orientation should receive heightened scrutiny. It contends the bans fail heightened scrutiny because they do not further important government interests and are not substantially related to those interests. The brief also argues the reasoning of United States v. Windsor supports invalidating the bans.
The "final word" from pro-drillers in the Town of Dryden case. This document contains the final arguments and counter-arguments that towns in New York should not be allowed to completely ban fracking throughout the entire township. This brief was filed by Tom West.
http://www.consenttosearch.com/ is a blog focused on Fourth Amendment issues, just as this brief is focused on strip searches and the Fourth Amendment.
09/07/11: Amicus Brief in PPL Montana LLC vs. Montanaartba
This brief was submitted by several industry groups in support of petitioners in a Supreme Court case regarding the test for determining whether a river is navigable for title purposes under the Clean Water Act. The brief argues that navigability determinations under the CWA must be made on a case-by-case, segment-by-segment basis and cannot be based solely on evidence of present-day recreational use, as the agencies have proposed. It also contends that the agencies' post-Rapanos guidance on navigable waters has not been faithful to the Rapanos decision.
The document is a brief for the respondent in a Supreme Court case regarding insider trading charges against Dana Dinofrio. It presents two issues: 1) whether the lower court properly defined "personal benefit" and required knowledge of that benefit for tippee liability, and 2) whether prior exculpatory grand jury testimony from an unavailable witness was properly admitted. For the first issue, the brief argues no personal benefit was received and Dana lacked knowledge of any benefit. For the second issue, the brief argues the prior testimony meets exceptions for admissibility under the Federal Rules of Evidence.
The SEC is seeking an order from the court to compel Ignite International Brands, Ltd. to comply with an administrative subpoena issued by the SEC on May 20, 2022 as part of its investigation into potential accounting fraud by the company. Ignite has failed to comply with the subpoena despite receiving three extensions and is now asserting its compliance should be stayed due to a separate criminal investigation, but the SEC argues multiple concurrent investigations do not excuse noncompliance. The SEC is asking the court to enforce the subpoena pursuant to its authority under federal securities laws.
Scott McMillan lost a major lawsuit against Darren Chaker, where San Diego attorney Scott McMillan demanded posts about Scott McMillan are deindexed by Google. The Ninth Circuit found Darren Chaker did not violate any law and affirmed the dismissal order of the lower court. This brief was filed by the law firm who represented Darren Chaker on appeal.
Civil RICO lawsuit filed against Darren Chaker by failed attorney Scott McMillan San Diego who filed the lawsuit to remove a report about his reported involvement in child molestation, see report in San Diego Superior Court Case No. 37-2017-0036344 and many other public records. The federal judge dismissed the lawsuit and San Diego attorney Scott McMillan filed an appeal. Darren Chaker hired a former federal judge who headed the RICO unit in Los Angeles for the US Attorney and dismantled every effort by the plaintiff to have his meritless lawsuit reinstated. This is a summary, please see the brief and above court file for an accurate depiction and allegations made in the court record for a full account of the disturbing details and material posted at https://dirtyscam.com/reviews/scott-mcmillan-attorney-san-diego-child-molestation/
1. 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
2. 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
APPELLATECOUNSEL: Angela Cameron
Assistant Public Defender
Harris County,Texas
1201 Franklin Avenue,13th
floor
Houston,Texas 77002
3. 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 counselbelieves that the appealin 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
5. 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
6. 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
7. 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
8. 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
9. 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
10. 1
STATEMENT REGARDING ORAL ARGUMENT
The undersigned attorney waives oralargument,although she understandsthat
if new counsel is appointedoralargument 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.
11. 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 KelechiEcheta,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-yearwarning 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
12. 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).
13. 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 appealis 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.
14. 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
15. 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 ofthe proceedings and determine whether the appeal is wholly frivolous.
Mitchellv. 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 appeallacks 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 appealto present those arguable grounds, as well as any others that new
counsel might wish to present. See Bledsoev.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 whetheran 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.
16. 7
Jurisdictional Questions
Jurisdiction is vested in the courts by statute or by constitutionalprovision, and
it includes properpersonal 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 recognizesthat 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
17. 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 statementfiled 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
18. 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
19. 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 “capitalmurder 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
physicalcontact 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
20. 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)
21. 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
defendantwho 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 orunder 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
22. 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 defendantmust 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/orExtraneous
Offenses as well as a Brady v. Maryland Disclosure. (C.R. at 116, 46 & 58). However,
23. 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 counselreceived all the relief he was entitled to had he filed a request for
notice.
Voir Dire
Both sides were allowed to conduct voirdire without interference from the trial
court. The parties then made theirpreemptory 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 additionalperemptory strikes, (5) identify an objectionable juror, and (6) claim
24. 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 underarticle 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
25. 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 deferto the jury's role as the sole judge
of witness credibility, and the weight that theirtestimony 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).
26. 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
doorand pushed back against Mascorro’s body makingphysicalcontact in an attempt
to get away from him (3. R. R. 30 & 31). Officer Mascorro also testified that he felt
concerned forhis 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 ofvarious 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. –
27. 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 normalprocedure 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 medicaldegree. 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
28. 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 additionalknowledge 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.” Forexample,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
29. 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 designatedforpublication). 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 substantialrights. 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
30. 21
substantialrights. The error affects a substantialright 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).
ClosingArguments 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
improperargument occurred.Should this Court disagree and find improperargument,
any complaint regarding improperargument 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.
31. 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 indicating that this offense is not a
“specific result” type of crime. We find that the charge as given, correctly tailored the
required culpable mentalstate 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 ofthe offense alleged.” Id. Therefore,it is necessary
to identify the essentialelements 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
32. 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 Constitutionprohibits “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 defendantmust 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 designatedforpublication).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
33. 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 defendant
credit on his sentence forthe time that defendanthas spent in jail in said cause, other
than confinementserved 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
34. 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
35. 26
/s/ Angela Cameron
ANGELA CAMERON
Assistant Public Defender
1201 Franklin, 13th
floor
Houston Texas 77002
(713) 368-0016
TBA No. 00788672
email: angela.cameron@pdo.hctx.net
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
36. 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 ofthe type-volume limits in Tex. R. App.
Proc. 9.4(j),may result in the Court's striking this brief and imposing sanctionsagainst
the person who signed it.
/s/ Angela Cameron
ANGELA L. CAMERON