ACCEPTED 09-17-00093-CR NINTH COURT OF APPEALS BEAUMONT, TEXAS 12/11/2017 10:35 AM CAROL ANNE HARLEY CLERK NO. 09-17-00093-CR FILED IN 9th COURT OF APPEALS BEAUMONT, TEXAS IN THE COURT OF APPEALS 12/11/2017 10:35:02 AM NINTH DISTRICT OF TEXAS AT BEAUMONT CAROL ANNE HARLEY Clerk ROBERTO ISMAIEL ALVARADO Appellant, vs .

THE STATE OF TEXAS, Appellee

On Appeal from the 253R0 Judicial District Court of of Liberty County; Trial Court Cause No. CR32361

ANDERS BRIEF

ORAL ARGUMENT IS NOT REQUESTED WALTER P. FONTENOT State Bar No. 07218500 Law Office of Walter P. Fontenot Main St. Liberty, Texas 77575 Telephone: (936) 336-8753 Facsimile: (936) 336-6531 Email: [email protected]

ATTORNEY FOR APPELLANT, ROBERTO ISMAIEL ALVARADO IDENTITY OF PARTIES AND COUNSEL

The parties to this appeal are: APPELLANT: 1. Roberto lsmaiel Alvarado TDC #02123118 Berry Telford Unit 3899 SH 98 New Boston , Texas 75575 2. Attorney of Record: Walter P. Fontenot Law Office of Walter P. Fontenot Main St. Liberty, Texas 77575 Telephone: (936) 336-8753 Email: [email protected] 3. Trial Counsel: Frumencio Reyes, Jr. Reyes & Reyes-Castillo, P.C.

3213 Houston Ave. Houston , Texas 77009 Telephone: (713) 864-4700

APPELLEES: 1. The State of Texas Liberty County District Attorney's Office 1923 Sam Houston St. , Ste. 112 Liberty, Texas 77575 2. Attorney of Record : Logan Pickett District Attorney Liberty County District Attorney's Office 1923 Sam Houston St., Ste. 112 Liberty, Texas 77575 Telephone: (936) 336-4609 Facsimile: (936) 336-4644 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL. ...... .... ..... ... ... ........... ....... .. .. ......... ........ i

TABLE OF CONTENTS ... .......... ... ..... ............. .. .......... ................ ..... ..... ............ ii

INDEX OF AUTHORITIES ............. ......... .................. ....... .. ........ ... ...... .... .......... iii

STATEMENT OF THE CASE ........ ...... ................ .... ... ................. ..... .... ..... ... .. ... iv

GROUND OF ERROR .......... ... .... .. ...... ............... .... .. .... ...... . ... .... .... . .......... ....... v (ARGUMENT AND AUTHORITIES ON GROUND OF ERROR)

STATEMENT OF FACTS ... ... .. .. ... ....... .. ... ..... .... .... .. ... .. .... ... .... ... .. ... ... ............. . vi

SUMMARY OF ARGUMENT ........ .... .. ...................... ...... ................... .. .............. vii

GROUND OF ERROR NO ARGUABLE ISSUES EXIST IN THE CASE OF REVERSIBLE ERROR

PRAYER ....... .... .. ... .... .. ... ........... ..... ............. .. ........ .... .. .......... ........... .......... viii CERTIFICATE OF SERVICE .... ... .. .. ..... .... .. ... .... ...... ... .. .... ... ... ... .. ........... ....... .. ix

ii.

INDEX OF AUTHORITIES CASES 1. Anders v. California , 386 U.S. 738 (1967) 2. Gainous v. State of Texas, 436 S.W.2d 137 (Tex. Crim. App. 1969) 3. Meza v. State of Texas, 206 S.W.3d 684 (Tex. Crim. App. 2006)

iii.

TO THE HONORABLE JUDGES OF THE NINTH COURT OF APPEALS: COMES NOW, ROBERTO ISMAIEL ALVARADO, Appellant, by and through his attorney, Walter P. Fontenot, and, presents this appellate brief regarding the jury's verdict and sentence in this case.

STATEMENT OF THE CASE Appellant was indicted for the offense of Capital Murder. Through plea negotiations between Appellant's trial counsel and the State's Attorney, Appellant pleaded guilty to the lesser included offense of Murder. The case then proceeded to the punishment phase before a jury, who assessed Appellant's punishment at sixty-five (65) years incarceration in TDCJ . Appellant filed Notice of Appeal.

Trial Court's Disposition: The trial judge rendered a Judgment sentencing Appellant to sixty-five (65) years confinement in TDCJ .

iv.

GROUND OF ERROR

NO ARGUABLE ISSUES OF REVERSIBLE ERROR EXIST IN THE CASE

ARGUMENT AND AUTHORITIES This brief is an Anders brief in support of appellate counsel's motion to withd raw.

In compliance with the Anders procedure, as set forth in Meza v. State of Texas, 206 S.W .3d 684 (Tex. Crim. App. 2006) , appellate counsel has filed the following : 1. Motion to Withdraw.

2. Notice of Filing of Anders Brief, wh ich includes a copy of the letter to the Appellant informing him that:

(A) Counsel has provided Appellant with a copy of the brief, (B) Counsel has informed Appellant of his rights to: (a) Review the record (b) File a brief or other response on his own behalf (c) Pursue a Petition for Discretionary Review in the Texas Court of Criminal Appeals should the Court of Appeals deny him relief on appeal.

v. STATEMENT OF FACTS As stated previously, Appellant was charged with the offense of Capital Murder.

Through plea negotiations, Appellant pleaded guilty to the lesser included offense of Murder, and it was agreed between counsel that a jury would be empanelled to assess punishment. Therefore, since the guilt/innocence phase of the trial was disposed of by a plea bargain, a review of those proceedings revealed no reversible error.

The punishment phase of the trial consisted of seven volumes, comprising several hundred pages. All seven volumes were perused . Trial counsel made only one objection during the punishment phase of the trial, which concerned the State's witness 's failure to prove chain of custody (S.F. Vol. 5, P. 255) . The objection was overruled; however, trial counsel's cross examination of the State's witness concerning failure to prove chain of custody was cured through trial counsel's cross examination .

In conclusion, since there was no objection in the guilt/innocence phase of the trial and only one objection made as articulated previously (which was cured during cross examination of said witness), no reversible error was found . Finally, no fundamental (constitutional) error was found upon review of the record.

vi.

SUMMARY OF THE ARGUMENT Appellate Counsel, in compliance with Anders v. California, 386 U.S. 738 (1967}, and Gainous v. State , 436 S.W .2d 137 (Tex. Grim. App. 1969), has diligently reviewed the appellate record and is of the opinion that the record reflects no reversible error and that there is no error upon which an appeal can be predicated.

By separate correspondence, Appellate Counsel has provided Appellant with a copy of the Anders Brief filed on his behalf. Appellate Counsel has also advised Appellant that he has the right to file a pro se brief.

PRAYER FOR RELIEF Appellate Counsel respectfully prays that this Court review the brief herein along with the record of the proceedings to determine if the undersigned attorney is correct in his assertion that the appeal is wholly frivolous. Appellate counsel further prays that this Court allow Counsel to withdraw from further prosecution of this appeal.

Respectfully submitted,

/114,~ YiJ WALTER P. FONTENOT State Bar No. 07218500 Main St. Liberty, Texas 77575 Telephone: (936) 336-8753 Facsimile: (936) 336-6531 Email: [email protected]

ATTORNEY FOR APPELLANT, ROBERTO ISMAIEL ALVARADO vii.

CERTIFICATE OF SERVICE This is to certify that a true copy of the foregoing ANDERS BRIEF has been served in the following manner on this the 11 th day of December, 2017, to the following parties:

CMRRR Logan Pickett, District Attorney _ _2;ular mail Liberty County District Attorney's Office 1923 Sam Houston, Ste. 112 7f=~~ail Liberty, TX 77575

~g~~~mail Fax Roberto lsmaiel Alvarado TDC # 02123118 Berry Telford Unit E-mail 3899 SH 98 New Boston , TX 75575

Jt/&:: ! -y;C_ WALTER P. FONTENOT