Opinion
No. 05-11-01061-CR No. 05-11-01062-CR
01-12-2016
ARMANDO FERMIN SOTO A/K/A ARAMANDO FERMIN SOTO Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court Dallas County, Texas
Trial Court Cause Nos. F10-19502-H , F10-19503-H
MEMORANDUM OPINION
Before Chief Justice Wright and Justices Lang-Miers and Myers
Opinion by Justice Lang-Miers
A jury convicted Armando Fermin Soto a/k/a Aramando Fermin Soto, of two intoxication manslaughter offenses and assessed punishment at twenty years' imprisonment and a $10,000 fine in each case. See TEX. PENAL CODE ANN. § 49.08(a) (West 2011). The trial court granted the State's motion to cumulate the sentences and ordered that the sentences run consecutively. On appeal, appellant's counsel filed a brief in which she concluded the appeals were wholly frivolous and without merit. Anders v. California, 386 U.S. 738 (1967). In an opinion issued November 28, 2012, this Court agreed there were no arguable issues and affirmed the trial court's judgments. On June 10, 2015, the Texas Court of Criminal Appeals granted appellant the opportunity to file an out-of-time pro se response to the Anders brief. We provided appellant with a copy of the record and appellant has filed his response.
In his pro se response, appellant spells his name "Aramando."
At that time we issued our original opinion, we granted counsel's motion to withdraw. In granting appellant the opportunity to file an out-of-time response, the court of criminal appeals did not reinstate counsel.
In his response, appellant raises five issues. In his second issue, appellant argues his constitutional right to confront the witnesses against him was violated because the trial court allowed an officer to give testimony about a video accident reconstruction that was created by someone else who did not testify at the trial. The record reflects the officer testified that he "had nothing to do with the on-scene reconstruction." He "downloaded the box," reviewed the photographs taken at the scene, and had "conversations with [his] peers" regarding the accident scene reconstruction. A testimonial hearsay statement of a witness absent from trial is admissible over a Sixth Amendment Confrontation Clause objection only where the declarant is unavailable and where the defendant has had a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 57-60, 124 S.Ct. 1354, 1368-69 (2004). Testimonial statements from a report that was not created by the declarant at trial may not be offered into evidence through the testimony of a different, "surrogate" witness. See Bullcoming v. New Mexico, 131 S.Ct. 2705, 2709, 180 L.Ed.2d 610 (2011); see also Burch v. State, 401 S.W.3d 634, 637 (Tex. Crim. App. 2013). We conclude this is an arguable issue.
We abate the appeal and remand the case to the trial court for appointment of new counsel to represent appellant, investigate the record, and file a brief on the merits for appellant. In the brief, counsel should discuss appellant's allegation that his constitutional right to confront the witnesses against him was violated and any other arguable issues. We further order the trial court to file a supplemental record containing the order appointing new counsel. We remove this cause from the submission docket.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE Do Not Publish
TEX. R. APP. P. 47 111061NF.U05