Zambrana, Richard Ahmed ( 2015 )

PD-1545-15 PD-1545-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 11/25/2015 11:43:10 AM
Accepted 11/25/2015 11:55:08 AM
IN THE ABEL ACOSTA
CLERK
COURT OF CRIMINAL APPEALS
AT
AUSTIN, TEXAS
RICHARD AHMED ZAMBRANA,
§
Appellant
§ No.---~-----
THE STATE OF TEXAS,
§
Appellee
PETITION FOR DISCRETIONARY REVIEW
FROM THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
NO. 07-12-00124-CR
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Daniel Wannamaker
State Bar No. 20834300
1012 Rio Grande
Austin, Texas 78701
(512) 236-9929
(512) 233-5979 (fax)
November 25, 2015
TABLE OF CONTENTS
Table of Contents .. ...... .... ............. ... ...... ..... ... .. ... .... ... .. .................... i
Identity of Parties and Counsel ................ .... ..... ... ........... ..................... ii
Index of Authorities ........... .......... ....... ........ ........ ...... .. ...... .... ...... ..... .iv
Statement Rgarding Oral Argument . ........... .......... .......................... ... ..... v
Statement of the Case ......... ........ ...... .... ..... ... ..................... . .. ... .......... 2
Statement of Procedural History .. ................ ....... ...... ..... . ........... ... .... ..... 2
Questions for Review .. ............... . .. ........ . .... ... ..... .......... ...................... 3
MUST THE JUDGMENT OF
CONVICTION INAN ASSAULT-FAMILY
VIOLENCE CASE ALLEGE THAT AN
ASSAULT CAUSING BODILY INJURY
OCCURRED?
Argu1nent .... ...... . ........ . ... ...... ....... ...... .............. ........... . .................. 3
Prayer ........ .... ............. ... .. .......... .. ....... .............. ..... ....................... 5
Certificate of Compliance .... ........ ....... ............. ....... .... .. ... ....... .. ......... 5
Certificate of Service ..... ..... ..... ....... ....... ............ .. .. .. ...... .... .......... ..... .6
Appendix .... ................... ....... .. ..... .. ...... ... .. ............. . ......................... 7
Court of Appeals Opinion
Trial Court Order Granting Out-of-time
Petition for Discretionary Review
IDENTITY OF PARTIES AND COUNSEL
APPELLANT: ruCHARDAHMED ZAMBRANA
TRIAL COURT: HONORABLE PAMELA SIRMON
POTTER COUNTY COURT
ATLAW N O. TWO
500 S. Fillmore, Suite 301
Amarillo, TX 79101
STATE'S ATTORNEY: JANELLE McBRIDE
SBN: 00795718
JOSH FRAUSTO
SBN: 24074228
Potter County Attorney
500 S. Fillmore, Room 303
Amarillo, TX 791 01
(806) 3 79-2215
TRIAL COUNSEL: PAUL H ERMANN
SBN: 09541810
Hermann & Weaver
320 S. Polk, Suite 902
Amarillo, TX 79101
(806) 342-4242
APPELLANT' S COUNSEL
ON APPEAL: DARRELL R. CAREY
SBN: 03791700
Hester McGlasson & Cox
1507 Fowih Avenue
Canyon, Texas790 15
(806) 655-1016
ll
APPELLANT'S COUNSEL ON PETITION
FOR DISCRETIONARY REVIEW: DANIEL WANNAMAKER
SBN: 20834300
1012 Rio Grande
Austin, TX 78701
(512) 236-9929
APPELLEE'S COUNSEL: Potter County Attorney
500 Fillmore, Room 303
Amarillo, TX 791 01
(806) 379-2215
Ill
INDEX OF AUTHORITIES
PAGE
Cases
Gollihar v. State, 46 S.W.3d 243
(Tex. Critn. App. 2001) .............. ........................................... .................................... 4
Johnson v. State, 409 S.W.3d 738
(Tex. App. - Houston [ 151 Dist.] 2013, no pet.) ........................................................ . 4
Statutes
TEX. CODE CRIM. PROC., ARTICLE 42.01 § 13 .................................................... 4
TEX. PENAL CODE, § 22 .01(a)(l) ........................................... ........ ......................... 3
RULES
TEX. R. APP. P., Rule 66.3(b) ... ......................... ............. .......... .. ....... .. 5
TEX. R. APP. P., Rule 68 ... .. ....... . ........ ...... ................... .. .................... 1
IV
STATEMENT REGARDING ORAL ARGUMENT
Appellant requests oral argument.
v
IN THE
COURT OF CRIMINAL APPEALS
AT
AUSTIN, TEXAS
RlCHARD AHMED ZAMBRANA,
§
Appellant
§ No. __________________
THE STATE OF TEXAS,
§
Appellee
PETITION FOR DISCRETIONARY REVIEW
FROM THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
NO. 07-12-00124-CR
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
TO THE COURT OF CRIMINAL APPEALS OF TEXAS:
Comes now Appellant Richard Ahmed Zambrana, by and through his
undersigned counsel, and pursuant to Rule 68 of the Texas Rul es of Appellate
Procedure, offers this Petition for Discretionary Review. Appellant respectfully
submits the following:
STATEMENT OF THE CASE
On June 8, 2011 , Appellant was charged by information with the offense of
Assault Causing Bodily Injury Against a Family Member in Cause No. 131,171-2
in the County Court at Law Number Two in Potter County, Texas (CR-2). Paul
Herrmann was retained to represent Appellant at trial (CR-4). On November 15,
2011, a jury was selected (RR 2 - 58). On November 15, 2011, a mistrial was
granted (RR 2- 80). On January 4, 2012, a double jeopardy hearing was held (RR
3- 4) and the Court denied the motion to dismiss (RR 3 - 22). The State waived
count 2 of the information of February 28,2012 (RR 4 - 7). On February 28,2012,
a jury was selected (RR 4 - 73). On February 28, 2012, the jury returned a verdict
of guilty of the offense of Assault Causing Bodily Injury Against a Family
Member as alleged in the information (RR 4 - 259). The Court set the punishment
at 45 days in county jail and a $300.00 fine (CR 66-67). Subsequently, Appel lant
filed timely notice of appeal.
STATEMENT OF PROCEDURAL HISTORY
On February 24, 2014, the Amarillo Court of Appeals affirmed the trial
court's judgment in an unpublished opinion. Zambrana v. State, No. 07-12-00124-
CR (Tex. App. - Amarillo, decided Feb. 24, 2014). Appellate counsel did not file a
2
Petition for Discretionary Review, but Appellant subsequently fi led a Writ
of
Habeas Corpus seeking permission to fi le an out-of-time Petition for Discretionary
Review. The trial court granted relief on October 26,2015 (Appendix).
QUESTION FOR REVIEW
Must the judgment of conviction in an assault-fami ly violence case allege
that an assault causing bodily injury occurred?
ARGUMENT
The information in this case alleged that Appellant had caused bodily injury
to his spouse, a class A misdemeanor under Section 22.01(a)(l) of the Penal Code
CR-2. The trial court's judgment, however, did not reflect that Appellant caused
bodily injury, but only that Appellant had been convicted of"Assault, Domestic
Violence, as charged in the Information." The trial court also entered an
affirmative finding that the alleged victim was a "family member of the defendant
or a member of the defendant's household." Zam.brana v_ State, supra, Slip
Opinion at p. 3.
In his brief to the Amarillo Court of Appeals, Appellant argued that there
had been a fatal variance between the information and the evidence at trial, on the
3
one hand, and the judgment, on the other. Because the judgment did not reflect that
Appellant had caused bodily injury, as required for a conviction under Section
22.01 (a)(l ), Appellant contended that the judgment should be construed as
reflecting a conviction for class C assault, rendering his sentence illegal.
Appellant' s brief at pp. 3-6.
The Amarillo Court of Appeals rejected the argument, holding that no
variance occuned, because the variance doctrine dealt with a variance between
charging instrument and the evidence. Zambrana at p. 5, citing Gollihar v. State,
46 S.W.3d 243 (Tex. Crim. App. 2001). The Court also concluded that the
reference to "Assault, Domestic Violence" was sufficient, so that the judgment did
not have to reflect that bodily injury had occurred.ld. at p. 5, citing Johnson v.
State, 409 S.W.3d 738 (Tex. App.- Houston [1 51 Dist.] 2013, no pet.).
Article 42.01 , § 13 of the Code of Criminal Procedure, however, provides
that the judgment must reflect the "offense or offenses for which the defendant was
convicted." TEX. CODE CRIM. PROC., Art. 42.01 § 13 . The question here is
whether a judgment of conviction for Assault Family Violence is valid where it
only uses the shorthand term "Assault Domestic Violence" without alleging that
the defendant caused bodily injury, an element of the offense. Johnson v. State,
4
supra, is not in point, because the issue there was only whether the term "Agg.
Assault Family Member" in the judgment should have been reformed to say "Agg.
Assault Family Violence." Johnson at 409 S.W.3d 742-743.
The question of how specific a judgment must be under Article 42 .01 of the
Code of Criminal Procedure to sustain a conviction for Assault Family Violence is
an important question of state law that has not been settled, and that this Court
should answer. T.R.APP. P., R. 66.3(b).
PRAYER
Appellant prays that the Court grant this Petition and allow oral argument.
Respectfully submitted,
Is/ Daniel Wannamaker
State Bar: 20834300
1012 Rio Grande
Austin, TX 78701
(512) 236-9929
(512) 233-5979 (fax)
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4 of the Rules of Appellate Procedure, I certify that this
Petition contains 902 words.
/s/ Daniel Wannamaker
5
CERTIFICATE OF SERVICE
I certify that true and correct copies of this Petition were mailed to the State
Prosecuting Attorney, P.O. Box 1748, Austin, Texas 78711 and to Mr. Scott
Brumley, Potter County Attom.ey, 500 South Fillmore, Room 301, Amarillo, Texas
79101 on this the 25 111 day ofNovember, 2015. A copy was also emailed to Mr.
Scott Brumley at countyattorney@co.potter.tx.us.
/s/ Daniel Wannamaker
6
APPENDIX
7
Jn m:be
~ourt of ~peals
~ebentb j!Btstrirt of m:exa:s a:t ~ma:rillo
No. 07-12-00124-CR
RICHARD AHMED ZAMBRAN~ APPELLANT
v.
THE STATE OF TEXAS, APPEl .I .EE
On Appeal from the County Court at Law No. 2
Potter County, Texas
Trial Court No. 131,171-2, Honorable Pamela Cook Sirmon, Presiding
February 24, 2014
MEMORANDUM OPINION
Before QUINN, CJ ., and CAMPBELL and HANCOCK, .IT.
Appellant Richard Ahmed Zambrana appeals from his conviction by jury of an
assault against his wife causing bodily injury 1 and the resulting punishment of 45 days
in county jail and a $300 fine. He presents two issues. Finding appellant has not
shown the trial co urt erred, we will affirm the court's judgment.
1
TEx. PENAL CODE ANN . § 22.01 (West 2012). The conviction resulted from the
second trial on this charge ; the first trial ended in a mistrial.
Background
The State's information alleged appellant intentionally, knowingly or recklessly
caused bodily injury to Tina Alexander-Zambrana ,2 by squeezing her arm with his hand,
grabbing her with his hand, grabbing her hair with his hand or kicking her, and that she
was then a member of his family or household. At the time of the assault in May 2011,
Alexander and appellant were married but separated. They, however, "continued to
work on their marriage." The couple went to a restaurant to celebrate appellant's
birthday. Both had drinks with their meal. At the end of the two-and-a-half-hour meal ,
appellant argued with the restaurant manager. Alexander testified that when they left
the restaurant, she asked appellant for his keys because he had too much to drink.
Appellant became angry, grabbed her arm, pulled her hair and kicked her. She got out
of the car and appellant drove off. Restaurant employees testified both to the
confrontation between appellant and the manager, and to appellant's conduct toward
his wife like that alleged in the information.
Alexander also testified , over objection, that about six weeks after the incident at
the restaurant, appellant called and asked her not to testify or to change her story and if
she did not, he would "make things very obnoxious" for her. Appellant testified at trial ,
denying any assault to Alexander.
2
Hereafter, we refer to the victim of appellant's assault as Tina Alexander, which
is the name by which she identified herself at trial.
2
Analysis
Defect in Court's Judgment
The judgment the trial court signed states the "offense convicted of:" as "assault
(domestic violence) ." It also states the "degree of offense:" as "class 'A' misdemeanor."
The judgment also later recites that appellant "pleaded Not Guilty to the offense as
alleged in the Information herein, to wit: Assault (Domestic Violence), a Class 'A '
Misdemeanor." The judgment recites the verdict of the jury as finding appellant "guilty
of the offense of Assault, Domestic Violence, as charged in the lnformation."3 The
judgment's ordering paragraph states that appellant "is hereby adjudged guilty of the
offense of Assault (Domestic violence) , a Class 'A' Misdemeanor, as found by the Jury."
The judgment's paragraph ordering appellant's sentence repeats the same statement,
decreeing that "[appellant], who has been adjudged guilty of the offense of Assault
(Domestic Violence) , a Class 'A' Misdemeanor .. . ."
The judgment further conta in s an affirmative finding "that the victim of this
offense was a family member of the defendant or a member of the defendant's
household."4
3
The recitation in the judgment is accurate. The verdict form reflects the jury's
finding of appellant "guilty of the offense of Assault, Domestic Violence as charged in
the Information." The court's charge instructed the jury that "Our law provides that a
person commits the offense of Assault, Domestic Violence if he intentionally, knowingly
or recklessly causes bodily injury to a member of the Defendant's family or household."
The charge further defined "family" to include "individuals who are married to each
other. "
4
See TEX. CODE CRIM. PROC. ANN. art. 42.013 (West 2013) (requiring affirmative
finding of family violence).
3
The judgment's characterization of the offense as assault (domestic violence) is
consistent with the offense's characterization from the outset of the case. The
information states at its outset, "Offense: Assault- Class A (Domestic Violence)."
Despite the quoted statements in the judgment, by his first issue appellant
contends the judgment reflects his conviction only of a Class C misdemeanor offense.
By appellant's reasoning , because the judgment omits any reference to bodily injury, it
must refer to an assault constituting a Class C misdemeanor offense. See TEX. PENAL
CODE ANN . § 22.01 (c) (West 2012) (providing, with exceptions, that assaults committed
in the manners defined in § 22.01 (a)(2) and (a)(3}, not requiring bodily injury, are Class
C misdemeanors). Because the information charged appellant with the means of
assault causing bodily injury, that defined in § 22.01 (a)(1 }, a Class A misdemeanor, see
§ 22.01(b), appellant sees what he describes as a "fatal variance" in the record,
requiring his acquittal on the Class A misdemeanor offense.
Appellant cites our opinion in Tanner v. State, 335 S.W.3d 784 (Tex. App.-
Amarillo 2011 , no pet.}, as authority. Tanner involved a challenge to the sufficiency of
the proof that the defendant's prior misdemeanor assault had been committed against a
family member, which proof was necessary to enhance his later assault to a third
degree felony. /d. at 785; see TEX. PENAL CODE ANN. § 22.01 (b}(2)(A) (West 2012).
Finding the evidence insufficient to establish the enhancement, we reversed his felony
conviction and remanded the cause for entry of a misdemeanor conviction judgment
and resentencing. /d. at 786. Tanner does not support appellant's argument. There is
no contention that the State's evidence was insufficient to support conviction on the
4
charged offense of assault causing bodily injury. The victim's testimony was sufficient
to show her bodily injury, and appellant does not contend otherwise.
Nor does this record present a fatal variance. "A variance occurs when there is a
discrepancy between the allegation in the charging instrument and the proof at trial. In
a variance situation, the State has proven the defendant guilty of a crime, but has
proven its commission in a manner that varies from the allegations in the charging
instrument. " Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001 ). No
discrepancy between the information, which charged assault causing bodily injury, and
the proof at trial , which showed bodily injury, appears here. The State 's proof matched
the allegations of its charging instrument.
None of the authority appellant cites supports his argument that because the
judgment omits express reference to bodily injury, it must refer to assault as a Class C
misdemeanor offense. See Johnson v. State, 409 S.W.3d 738, 743 (Tex. App.-
Houston [1 51 Dist.] 2013, no pet.) (mod ifying judgment but noting defendant cited no
authority for complaint regarding manner in which offense was described in judgment).
For all these reasons , we overrule appellant's first issue.
Admission of Evidence of Extraneous Misconduct
During trial, Alexander testified that on two occasions, about six weeks after the
incident at the restaurant, appellant contacted her, asking that she lie for him and say
she "made everything up." He also told her he would "make things very obnoxious for
[her]" if she testified at trial. Appellant objected to the testimony , arguing Rule of
5
Evidence 404(b) required its exclusion. The trial court disagreed. By his second issue,
appellant complains of the court's admission of the testimony. We overrule the issue.
Assuming, without deciding, the trial court erred by overruling the objections
raised, we have no hesitation to conclude the error was harmless.
Erroneous admission of the testimony would be subject to error analysis under
the standard for nonconstitutional errors. TEX. R. APP. P. 44.2(b); Hernandez v. State,
176 S.W.3d 821, 824 (Tex. Crim. App. 2005). We must disregard a nonconstitutional
error that does not affect a criminal defendant's "substantial rights." TEX. R. APP. P.
44.2(b). An error affects a substantial right 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). Reversible error has not occurred if
we, after examining the record as a whole , have "fair assurance that the error did not
influence the jury, or had but a slight effect." Johnson v. State, 967 S.W.2d 410, 417
(Tex. Crim. App. 1998); see also Motif/a v. State, 78 S.W.3d 352, 355 (Tex. Crim . App.
2002).
In his testimony before the jury, appellant acknowledged his argumentative
encounter with the restaurant manager. But he testified he engaged in no assaultive
behavior toward his wife. Confronted on cross examination with her testimony, and that
of the restaurant employee, appellant responded they were lying . Because of the sharp
conflict between their versions of the incident, appellant argues, the improper admission
of evidence of his later misconduct swayed the jury toward acceptance of Alexander's
6
account of the assault. Having reviewed the entire trial record , we cannot agree her
testimony of their telephone conversations had such a substantial and injurious effect.
The testimony regarding the telephone conversations was like that regarding the
assault: Alexander said he made the statements attempting to influence her testimony;
appellant denied making the statements. There was no evidence he made the
statements other than her testimony. We see no indication in the record of a likelihood
the jury accepted her testimony about the assault only because they found her
testimony about the telephone conversations credible. Said another way, if jurors did
not believe Alexander's version of the assault, we see no reason they should have
believed her version of the telephone conversations. See Jones v. State, 984 S.W.2d
254, 257 (Tex. Crim. App. 1998) Uury is the sole judge of the cred ibility of witnesses and
is free to believe or disbelieve all or part of a witness's testimony). Nor were the
telephone conversations further emphasized to the jury; they were not mentioned during
counsel 's arguments.
Viewing the record as a whole , we are fairly assured that any error in admitting
Alexander's testimony relating to the two conversations with appellant did not influence
the jury, or had but a slight effect, in finding appellant guilty. Johnson, 967 S.W.2d at
417.
We affirm the judgment of the trial court.
James T. Campbell
Justice
Do not publish.
7