Isreal Reyes, Sr. v. State ( 2015 )

ACCEPTED
03-14-00328-CR
4102522
THIRD COURT OF APPEALS
AUSTIN, TEXAS
2/11/2015 9:48:04 AM
JEFFREY D. KYLE
CLERK
No. 03-14-00328-CR
__________________________________________________________
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE THIRD AUSTIN, TEXAS
DISTRICT OF TEXAS 2/11/2015 9:48:04 AM
__________________________________________________________
JEFFREY D. KYLE
Clerk
ISREAL REYES SR., Appellant
v.
THE STATE OF TEXAS, Appellee
__________________________________________________________
On Appeal from the 207th Judicial District Court of Comal County, Texas
Cause No. CR2012-427
Honorable Jack Robison, District Judge Presiding
__________________________________________________________
BRIEF FOR THE STATE
__________________________________________________________
Jennifer Tharp
Criminal District Attorney
By
Christine Rankin
SBN: 24044716
Assistant District Attorney
150 N. Seguin Avenue, Suite #307
(830) 221-1300
Fax (830) 608-2008
New Braunfels, Texas 78130
E-mail: rankic@co.comal.tx.us
Attorney for the State
Oral Argument Is Requested
i
IDENTITY OF PARTIES AND COUNSEL
Appellant – Isreal Reyes Sr.
Appellee – The State of Texas
Attorneys for the Appellant
Joseph Garcia
200 N. Seguin
San Antonio, TX 78130
For the Appellant at Trial
Richard Wetzel
1411 West Avenue, Suite 100
Austin, TX 78701
For the Appellant on Appeal
Attorneys for the Appellee
Christine Rankin
Assistant Criminal District Attorney
Comal County Criminal District Attorney’s Office
150 N. Seguin Avenue, Suite 307
New Braunfels, Texas 78130
Attorney for the State at Trial and on Appeal
ii
Table of Contents
Identity of Parties and Counsel ................................................................................. ii
Table of Contents ..................................................................................................... iii
Index of Authorities ...................................................................................................v
Statement of the Case.................................................................................................1
Statement of Facts ......................................................................................................2
THERE IS SUFFICIENT EVIDENCE TO SHOW THAT APPELLANT
THREATENED THE COMPLAINANT WITH IMMINENT BODILY INJURY..7
Summary of the Argument ....................................................................7
Standard of Review................................................................................7
Authorities ...........................................................................................10
Argument .............................................................................................11
THERE WAS SUFFICIENT EVIDENCE OF CR2012-428 AND APPELLANT’S
LINK TO THAT CASE AS THE PERSON CONVICTED.. .................................15
Summary of the Argument ..................................................................15
Authorities ...........................................................................................16
Argument .............................................................................................17
Evidence of Appellant’s Prior Conviction in CR2012-428.................17
Judicial Notice of CR2012-428 ...........................................................25
iii
THE JUDGMENT IS VALID UNDER WILLIAMS V. STATE ..............................30
Summary of the Argument ..................................................................30
Authorities ..........................................................................................30
Argument .............................................................................................32
THE COURT SHOULD REFORM THE JUDGMENTS TO REFLECT THE
APPELLANT’S “NOT GUILTY” PLEAS .............................................................35
Summary of the Argument ..................................................................35
Argument .............................................................................................35
Prayer .......................................................................................................................36
Certificate of Service ...............................................................................................37
Certificate of Compliance ........................................................................................37
iv
Index of Authorities
Statutes & Rules
23 Tex. Jur. 2d, Evidence, Sec. 298, p.51 ................................................................ 25
24 Tex. Jur. 3d, Crim. Law, § 2980, p. 155 ............................................................. 25
35 Tex. Jur. 3d, Evidence, § 63, p. 109 ................................................................... 25
Tex. Code Crim. Proc. Ann. 42.08 ...................................................................... 1, 26
Tex. Code Crim. Proc. Ann. 36.13 ............................................................................ 8
Tex. Penal Code Ann. §22.02 ................................................................................... 1
Tex. Penal Code Ann. §46.03 .................................................................................... 1
Tex. R. Evid. 201 ..................................................................................................... 25
Cases
Baker v. State, 187 S.W. 949 (1916) ....................................................................... 25
Banks v. State, 708 S.W.2d 460 (Tex. Crim. App. 1986) ..................................31, 32
Bridges v. State, 468 S.W.2d 451 (Tex. Crim. App. 1971) ..................................... 33
Calloway v. State, 240 S.W. 553 (1922) .................................................................. 25
Cortez v. State, 08-02-00363-CR, 2004 WL 178587
(Tex. App.—El Paso Jan. 29, 2004, pet. ref’d).......................................................... 9
Druery v. State, 225 S.W.3d 491 (Tex. Crim. App. 2007) ..........................19, 22, 27
Dunn v. State, 242 S.W. 1049 (1922) ...................................................................... 25
v
Ervin v. State, 331 S.W.3d 49 (Tex. App.—Houston
[1st Dist.] 2010, pet. ref’d) ........................................................................................ 8
Goodman v. State, 66 S.W.3d 283 (Tex. Crim. App. 2001) ...................................... 9
Hardison v. State, 450 S.W.2d 638 (Tex.Cr.App.1970) .......................................... 25
Jackson v. Virginia, 443 U.S. 307 (1979) .................................................................. 8
Jacobs v. State, 294 S.W.3d 192 (Tex. App.-Texarkana
2009, pet. ref'd) ........................................................................................................ 26
Kiffe v. State, 361 S.W.3d 104 (Tex. App.—Houston
[1st Dist.] 2011, pet. ref’d)...............................................................................8, 9, 15
Kubosh v. State, 241 S.W.3d 60 (Tex. Crim. App. 2007) .................................25, 26
Lane v. State, 174 S.W.3d 376 (Tex. App.—Houston
[14th Dist.] 2005, pet. ref’d) ...................................................................................... 9
Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009) ......................................... 9
Olivas v. State, 203 S.W.3d 341 (Tex. Crim. App. 2006) .....................10, 11, 13, 14
Margraves v. State, 34 S.W.3d 912 (Tex. Crim. App. 2000) .................................... 9
McGowan v. State, 664 S.W.2d 335 (Tex. Crim. App.
1984) ..................................................................................................................10, 17
Miller v. State, 33 S.W.3d 257 (Tex. Crim. App. 2000) .......................16, 17, 24, 25
Mungaray v. State, 188 S.W.3d 178 (Tex. Crim. App.
2006) ............................................................................................................16, 17, 24
Splawn v. State,160 S.W.3d 103 (Tex. App. – Texarkana
2005, pet. ref’d) ........................................................................................................ 35
vi
State v. Gray, 158 S.W.3d 465 (Tex. Crim. App. 2005) ......................................... 16
State v. Ross, 32 S.W.3d 853 (Tex. Crim. App. 2000) ............................................ 16
Turner v. State, 733 S.W.2d 218 (Tex. Crim. App.
1987) ........................................................................................................................ 24
Vennus v. State, 282 S.W.3d 70 (Tex. Crim. App.
2009) ........................................................................................................................ 28
Watenpaugh v. State Teacher’s Retirement System,
51 Cal. 2d 675 (1959) ............................................................................................... 27
Ward v. State, 523 S.W.2d 681 (Tex. Crim. App.
1975) ................................................................................... 16, 24, 30, 31, 32, 33, 34
Watkins v. State, 245 S.W.3d 444 (Tex. Crim. App.
2008) ........................................................................................................................ 33
Will. v. State, 675 S.W.2d 754 (Tex. Crim. App.
1984) .......................................................................................................30, 31, 32,33
Wilson v. State, 677 S.W.2d 518 (Tex.Cr.App.1984) .............................................. 25
vii
STATEMENT OF THE CASE
On September 12, 2012, in Cause Number CR2012-427 in the 207th Judicial
District Court of Comal County, Texas, the Grand Jury returned a two count
indictment against Appellant, Isreal Reyes Sr. Count I of the indictment charged
Appellant with aggravated assault with a deadly weapon, a second degree felony
with a range of punishment from two to twenty years in prison. Count II of the
indictment charged appellant with unlawful possession of a firearm, a third degree
felony, with a range of punishment of two to ten years in prison. CR at 6; Tex. Pen.
Code §22.02 and §46.03.
On April 2, 2014, a jury found Appellant guilty of both offenses of
aggravated assault with a deadly weapon and unlawful possession of a firearm as
alleged in the indictment. CR at 44-73; RR Vol. IV at 4.
Prior to trial, Appellant had elected for the court to assess his punishment in
the event he was convicted. RR. Vol. II at 7. On May 19, 2014, the court heard
punishment evidence. RR. Vol. IV at 1. After hearing evidence and arguments of
counsel on punishment, the court assessed Appellant's punishment for Count I at a
term of ten years in the Institutional Division of the Texas Department of Criminal
Justice to run consecutive with the sentence imposed in CR2012-428. The court
assessed punishment for Count II at a term of five years in the Intuitional Division
of the Texas Department of Criminal Justice to run concurrent with the sentences
1
imposed in CR2012-428. CR at 44-73, RR Vol. V at 75. On May 19, 2014, those
sentences were imposed in open court. RR. Vol. V at 75.
Appellant had previously been tried in CR2012-428 approximately seven
months prior to trial in the instant case. Appellant’s trial in CR2012-428 was held
in the same court, before the same judge, and with the same attorneys for the State
and the defense. In that case, the jury found Appellant guilty of a first degree
felony, aggravated assault with serious bodily injury against a family member, and
two third degree felonies, endangering a child and unlawful possession of a
firearm. RR. Vol. III at 170, State’s Exhibits 28-30. The jury sentenced Appellant
to twenty years and ten years confinement in the Texas Department of Criminal
Justice, respectively.
Appellant timely filed a notice of appeal. CR at 42. Appellant now seeks an
acquittal for his judgment in count I, aggravated assault with a deadly weapon.
Appellant's Brief at 11. Appellant also seeks reformation of the judgment
cumulating his sentences. Appellant’s Brief at 16.
STATEMENT OF FACTS
On January 15, 2012, Billie Jean McCann and Appellant resided together in
Comal County, Texas. Their residence was an RV travel trailer with a kitchen and
a bedroom. State’s Exhibit 1A at 2:00. The two were in a dating relationship and
McCann was pregnant with Appellant’s child. RR. Vol. II at 203-4.
2
When McCann came home from a birthday party on January 15, 2012, she
and Appellant began arguing. They were the only two residents in the home that
afternoon. RR. Vol. III at 74,86-87. Each accused the other of infidelities. RR. Vol.
III at 86, 96. Appellant was particularly upset over his airbrush gun and blamed
McCann for ruining it. State’s Exhibit 1A at 2:10. Appellant felt that McCann had
purposely distracted him from cleaning the airbrush gun earlier in the week. Id.
During this argument, Appellant sat at the kitchen table with a loaded .38
caliber revolver in his lap. Id. at 4:00. McCann was laying in bed roughly five feet
from Appellant. State’s Exhibit 21 at 41:00; RR. Vol. III at 76; RR. Vol. V at 60.
Appellant’s anger was escalating as the loaded gun sat in his lap. State’s Exhibit
1A at 4:00. At some point during their argument, Appellant picked up the .38 with
one hand. RR. Vol. V at 60. He then pulled the trigger, firing the gun and hitting
the bedpost of the bed where McCann lay. Id.; State’s Exhibit 1A at 5:00; State’s
Exhibit 21 at 41:00. Appellant acknowledged that the gun firing was not
accidental. RR. Vol. V at 60. McCann, who was not yet asleep when Appellant
shot at her, heard the shot ring out. RR. Vol. III at 74-5, 86-7. After the bullet
struck the bedpost, Appellant blamed his actions on McCann by saying she
provoked him. State’s Exhibit 1A at 5:00.
McCann was in fear and scared immediately after Appellant shot at her. RR.
Vol. III at 65-6; State’s Exhibit 22 at 41:00. She believed he had shot at her to
3
scare her. RR. Vol. III at 64. She told Appellant that shooting at the bed she was
sleeping in was the same as shooting at her. State’s Exhibit 22 at 41:00. She then
ran to her mother’s house. RR. Vol. III at 104.
In the days following the shooting, McCann’s mother, Deidra McCann,
confronted Appellant for shooting at her daughter and for having firearms in the
residence. Id. Deidra McCann assisted her daughter with completely moving out of
Appellant’s RV. Id. She was aware of Appellant’s history of verbal arguments and
wanted McCann to move away from Appellant and focus on her pregnancy. Id at
110, 127.
McCann eventually reconciled with Appellant and the two continued their
dating relationship. The relationship was on-again-off-again and the two argued
more over accusations of cheating. State’s Exhibit 21 at 24:00. One night in June
of 2012, Appellant’s anger escalated to rage. McCann had moved out again and
was now nine months pregnant. He made threats to kill her and burn down the
residence where she was staying. Id. at 27:00. He threatened to kill her if she did
not leave her cell phone for him in the mailbox. Id. at 29:00.
However, McCann did not leave her cell phone in the mailbox as ordered.
Appellant drove to her residence and another argument ensued. Appellant
continued to make threats to kill both McCann and her dog. Id. at 30:00. On this
occasion, Appellant was carrying a loaded silver Colt .38 revolver with a modified
4
handle. Id. at 38:00. During his argument with McCann, Appellant fired the pistol
in her direction. Id. at 30:00. The bullet struck McCann’s face and she screamed
for her sister to call for help. Id. She was rushed to the hospital for treatment of her
injuries and to deliver her child. RR. Vol. II at 203-04.
Detective Rex Campbell of the Comal County Sherriff’s Office met McCann
at the hospital to investigate both shootings. Id. CPS also opened an investigation
led by Melinda Hernandez. State’s Exhibit 21 at 24:00. Campbell and Hernandez
interviewed McCann at the hospital and recorded their conversations. State’s
Exhibit 21, 22. RR. Vol. III at 53, 65.
After interviewing McCann, Campbell obtained an arrest warrant for
Appellant. RR. Vol. II at 204. That warrant was executed June 18, 2012 at
Appellant’s residence on 1078 Scenic Run. Id. at 204-05. The SWAT team assisted
in the execution of the arrest warrant because law enforcement believed that
Appellant intended to commit suicide by cop based on postings Appellant had
made on Facebook. RR. Vol. V at 14, 34; State’s Exhibits 65-67. During the
execution of the warrant, a Colt .38 revolver, along with ammunition, was
recovered from the residence. RR. Vol. II at 204-05; RR. Vol. V at 40.
Campbell and Hernandez interviewed Appellant after he was apprehended.
State’s Exhibit 1A, 2A. He confessed to shooting at McCann in January of 2012
and June of 2012. RR. Vol. V at 53. They discussed his methamphetamine habit,
5
his arrest and conviction from Hildago County, and his gang affiliation. Id. at 27-
30, 49-52; State’s Exhibits 62, 63.
In October of 2013, Appellant was tried and convicted for shooting McCann
in the face under cause number CR2012-428. State’s Exhibits 27-30. Appellant
was a felon at the time of both offenses because of his prior burglary conviction
out of Hildago County, Texas. RR. Vol. III at 133; State’s Exhibit 26. Appellant
pled guilty to the charge of unlawful possession of a firearm. State’s Exhibit 27.
The jury assessed Appellant’s punishment at twenty years confinement in the
Texas Department of Criminal Justice for the offense of aggravated assault with a
deadly weapon against a family member. State’s Exhibit 29. He was sentenced to
ten years confinement for endangering a child and unlawful possession of a
firearm, as alleged in Counts II and III of the indictment in that case. State’s
Exhibits 28, 30.
The trial in the instant case, CR2012-427, began on March 31, 2014. RR.
Vol. I at 1. The jury returned a verdict of guilty on Counts I and II of the
indictment. CR 36, 38; RR. Vol. IV at 4. During the trial on punishment to the
court, Appellant testified about both shootings, his gang affiliation, his
methamphetamine abuse, and his Facebook posts. RR. Vol. V at 44-54. He also
testified about the firearms confiscated from his residence. Id. at 56.
6
After Appellant testified, both sides rested and closed. Id. at 67. On Count I,
the trial court sentenced Appellant to ten years confinement in prison to run
consecutive with his sentence in CR2012-428. Id. at 75. He was sentenced to five
years incarceration on Count II to run concurrent with all other sentences. Id.
THERE IS SUFFICIENT EVIDENCE TO SHOW THAT APPELLANT
THREATENED THE COMPLAINANT WITH IMMINENT BODILY
INJURY
Summary of the Argument
In his first point of error, Appellant argues that the evidence is insufficient to
prove that Appellant threatened the complainant with imminent bodily injury.
Appellant's Brief at 7. Appellant incorrectly asserts that the State failed to present
evidence of Appellant’s threat towards McCann. Id. His argument then rests solely
on the claim that McCann did not see Appellant with the pistol and did not see him
point the pistol in her direction. Id. However, there was ample evidence presented
to the factfinder to show a perceived threat consistent with Olivas v. State.
Standard of Review
It is well established in the State of Texas that the jury is the exclusive judge
of the facts in a particular case, that the jury receives the law from the court, and
that the jury is governed by the law received from the court. Tex. Code Crim. Proc.
Ann. art. 36.13 (Vernon's 1981).
7
After the decision of the Court of Criminal Appeals in Brooks v. State, Texas
appellate courts review legal and factual sufficiency challenges in criminal cases
using the same legal sufficiency standard of review. Kiffe v. State, 361 S.W.3d 104,
107 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (citing Ervin v. State, 331
S.W.3d 49, 54 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d)). Evidence is only
insufficient if, when considering all the evidence in the light most favorable to the
verdict, “no rational factfinder could have found each essential element of the
charged offense beyond a reasonable doubt.” Id. (citing Jackson v. Virginia, 443
U.S. 307, 319 (1979)). While viewing the evidence in the light most favorable to
the verdict, evidence can be insufficient in two circumstances: when the record
contains “no evidence, or merely a ‘modicum’ of evidence, probative of an
element of the offense” or when “the evidence conclusively establishes a
reasonable doubt.” Id. The evidence may also be insufficient when the acts alleged
do not constitute the offense charged. Id. at 108.
Legal sufficiency review “gives full play to the responsibility of the trier of
fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Jackson v. Virginia, 443
U.S. at 319. Reviewing courts determine whether the necessary inferences are
reasonable based on the “combined and cumulative force of the evidence when
viewed in the light most favorable to the verdict.” Kiffe, 361 S.W.3d at 108. Courts
8
will treat direct and circumstantial evidence equally. Id. “[D]irect evidence of a
fact, standing alone and if believed by the jury, is always… sufficient to prove that
fact.” Cortez v. State, 08-02-00363-CR, 2004 WL 178587, at *3 (Tex. App.—El
Paso Jan. 29, 2004, pet. ref’d) (citing Goodman v. State, 66 S.W.3d 283, 286 (Tex.
Crim. App. 2001)); see also Lane v. State, 174 S.W.3d 376, 386 (Tex. App.—
Houston [14th Dist.] 2005, pet. ref’d) (testimony of a child victim, standing alone,
is sufficient to support aggravated sexual assault conviction). “Circumstantial
evidence is as probative as direct evidence in establishing the guilt of an actor, and
circumstantial evidence alone can be sufficient to establish guilt.” Kiffe, 361
S.W.3d at 105. Appellate courts will presume that the factfinder “resolved any
conflicting inferences in favor of the verdict” and defer to that resolution. Id. The
reviewing courts will also defer to “the factfinder’s evaluation of the credibility
and the weight of the evidence.” Id. The factfinder is entitled to accept some
testimony and reject other testimony, in whole or in part. Margraves v. State, 34
S.W.3d 912, 919 (Tex. Crim. App. 2000), abrogated on other grounds by Laster v.
State, 275 S.W.3d 512 (Tex. Crim. App. 2009).
9
Authorities
In the context of assault by threat, the law requires some evidence of a
threat, while not necessarily requiring a victim to instantaneously perceive the
threat as the actor is performing it. Olivas v. State, 203 S.W. 3d. 341, 348 (Tex.
Crim. App. 2006).
In Olivas, the Court looked at how the word “threatened” was defined in
Webster’s Dictionary, since the penal code fails to define it. Id. at 345. From
analyzing the various definitions of the word threat, the Court then concluded that
a threat occurs when an “actor utters the threatening words or otherwise initiates
the threatening conduct” and not necessarily when an alleged victim perceives the
threat. Id. The Court next addressed the act of “threatening” in the criminal
context to determine whether the lower appellate court ruled correctly when it
found the evidence insufficient because the victim did not perceive a threat when
the appellant fired the shots at her vehicle. Id. at 347. The Court distinguished
Olivas from McGowan v. State, where no evidence was presented of any threat
before the aggravated assault. Id. (citing McGowan v. State, 664 S.W.2d 335 (Tex.
Crim. App. 1984)).
After defining what it meant to “threaten” and distinguishing the case from
McGowan, the Court analyzed whether there was any legally sufficient evidence
presented to show the victim perceived a threat. Id. at 349. The Court focused on
10
the evidence presented at trial showing the victim felt threatened by the appellant
on numerous occasions leading up to the charged offense. Id. The Court then
outlined the events which had an impact on the victim’s state of mind to conclude
the victim had in fact perceived a threat when the appellant shot her truck. Id. at
350. The Court also focused on events which occurred on the evening of the
shooting in concluding that there was in fact “ample evidence” that the victim
perceived a threat, despite not seeing the appellant discharge the firearm. Id.
Specifically, the evidence showed that the victim heard the firearm discharge at her
vehicle, looked at her vehicle to determine what had struck her vehicle, called law
enforcement after observing bullet holes in her truck, and was placed in fear by
appellant’s actions. Id. The Court reversed the judgment of the appellate court
concluding that “there is no statutory requirement that a victim must
instantaneously perceive or receive [the] threat of imminent bodily injury as the
actor is performing it” Id. at 350-51.
Arguments
The fact scenario in Olivas closely parallels that in the instant case. While
McCann did not see Appellant point the firearm in her direction or discharge the
firearm, there is ample evidence of a perceived threat under the Olivas rationale.
The facts and circumstances surrounding the shooting clearly show that McCann
perceived a threat.
11
At trial, the jury heard evidence of the tumultuous relationship between
Appellant and McCann. The jury heard about the numerous occasions Appellant
had threatened McCann and how angry and upset he was with her on January 15,
2012. State’s Exhibits 21, 22; RR. Vol. III at 65. McCann told Hernandez and
Campbell that she and Appellant were in an argument before he shot at her. RR.
Vol. III at 86, 96; State’s Exhibits 21, 22. Evidence was presented that McCann
was laying in a bed roughly five feet from Appellant when he discharged the
firearm. RR. Vol. V at 60. Furthermore, by his own admissions, Appellant was
angry with McCann at the time he pulled the trigger on the .38 revolver. RR. Vol.
III at 86; RR. Vol. V at 56, 60.
Appellant was furious with McCann because he believed she was
responsible for ruining his airbrush gun. RR. Vol. III at 86. Appellant also believed
that McCann was cheating on him and was angry about her leaving the house to go
to a party with her cousin. Id. at 96.
During the argument, Appellant had the .38 revolver on his lap. RR. Vol. V
at 59. Although he claimed that the revolver was only there for protection from
members of the Texas Syndicate who were after him for money, the factfinder
could easily infer that he used the gun on his lap during a fight with his unarmed
wife to show force and threaten her. Id. at 61. The argument over cheating and
Appellant’s claim that McCann had ruined his airbrush gun, along with his anger
12
and his display of the firearm, clearly demonstrated a threat before Appellant
actually pulled the trigger.
Appellant described himself as being at his breaking point and exploding
when he fired the shot. Although Appellant at trial tried to claim McCann was
sleeping when the shot was fired, McCann testified that she was awake and heard
the shot. RR. Vol. III at 74. Similarly in Olivas, the victim heard shots that
sounded like rocks hitting her car. Olivas, 203 S.W. 3d. at 350. Only later, when
the victim observed bullet holes in the vehicle, did the victim realize that the
sounds she heard were gunshots. Id. Here, McCann knew Appellant had a firearm.
She heard the gunshot when Appellant fired the weapon, and recognized the sound
as a gunshot. RR. Vol. III at 74. She was also aware that the bullet hit the bedpost
of the bed she was lying in. Id. at 75. In this case and Olivas, both victims testified
that they did not see the gun pointed at them or in their direction when the gun was
fired. Nevertheless, in Olivas, the Court still held that the victim “did perceive the
threat made by appellant at the time the offense occurred” Id. If the victim in
Olivas was found to have perceived the appellant’s threat – though not knowing
until sometime later that the sounds she heard were gunshots – McCann clearly
perceived the threat when she heard the gunshot and instantly knew that the bullet
hit the post of her bed.
13
The circumstances after Appellant shot at McCann show further evidence of
a threat. Just like the victim in Olivas, McCann was frightened and scared after
Appellant shot at her. RR. Vol. III at 65. Alarmed, she looked directly at the
Appellant and immediately confronted him for shooting at her. RR. Vol. III at 76.
She was clearly frightened enough by the shot to run to her mother’s house,
disclose what Appellant had done, and contemplate moving away from Appellant.
Her alarmed mother also confronted Appellant about having guns in the residence
with her pregnant daughter. RR. Vol. III at 104.
Months after Appellant threatened her with a deadly weapon as she lay in
bed, Appellant shot at her again, this time hitting her in the face. RR. Vol. III at 92.
Appellant’s shooting in McCann’s direction was not an isolated event. The jury in
this case heard about Appellant shooting at McCann in June of 2012 when she was
nine months pregnant. On that occasion, where the two were having an argument,
Appellant threatened to kill McCann and burn down her sister’s residence.
Because the facts in Appellant’s case parallel – and in some instances,
exceed – those found sufficient by the Court of Criminal Appeals in Olivas v.
State, there was legally sufficient evidence that Appellant threatened McCann.
When viewing the combined and cumulative force of the evidence in the light most
favorable to the verdict, the facts and circumstances before, during, and after
14
Appellant shot at McCann were legally sufficient to prove Appellant’s guilt, and
Appellant’s first point of error should be denied.
THERE WAS SUFFICIENT EVIDENCE OF CR2012-428 AND
APPELLANT’S LINK TO THAT CASE AS THE PERSON CONVICTED
Summary of the Argument
In his second point of error, Appellant complains that the court’s order
cumulating his sentence for Count I in CR2012-427 with his sentence in CR2012-
428 is invalid. Appellant’s Brief at 11. He asserts that there is a lack of evidence of
the CR2012-428 conviction and a lack of evidence that Appellant was the person
convicted in that cause number. Id. He claims that “no record evidence of a prior
conviction in CR2012-428 was offered.” Id. at 14.
However, contrary to Appellant’s arguments, the cumulation order in the
instant case is valid and should be affirmed. First, the cumulation order was
entered in the same court and pronounced by the same presiding judge as the
sentences to which it is made cumulative. Second, there is ample evidence in the
record of the prior conviction in CR2012-428. Third, the record contains sufficient
evidence that Appellant is the same person convicted and sentenced in CR2012-
428.
15
Authorities
Courts must sustain the trial court’s decision if it is correct on any theory of
law applicable to the case. State v. Gray, 158 S.W.3d 465, 467 (Tex. Crim. App.
2005) (also noting appellate courts will “view the evidence in the light most
favorable to the trial court’s ruling and assume that the trial court made implicit
findings of fact that support its ruling as long as those findings are supported by the
record”) (citing State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000)).
The trial court, in its discretion, may cumulate sentences in accordance with
Tex. Crim. Proc. Code Art. 42.08. Typically, the courts have required some
evidence of the prior conviction to validate the cumulation order. Ward v. State,
523 S.W.3d 682 (Tex. Crim. App. 1975); Miller v. State, 733 S.W.2d 218 (Tex.
Crim. App. 1987); Mungaray v. State, 188 S.W.3d 178 (Tex. Crim. App. 2006). As
explained in Miller v. State, all that is required is that some evidence be put before
the court of a previous conviction along with evidence linking the defendant with
that previous conviction. 733 S.W.2d at 221.
In Miller, the Court validated the cumulation order made by the trial judge.
Miller, 33S.W.3d at 262. The Court utilized the whole record to find sufficient
evidence of the prior conviction and sufficient evidence linking the defendant to
that prior conviction. Id. Specifically, the Court relied on the admissions by the
16
defendant and the counsel for the defendant to effectuate a clear link between the
defendant and the prior conviction.
In Mungaray v. State, the Court relied on the findings in Miller when finding
the record contained sufficient evidence to establish the defendant was the same
person previously convicted in a different county. 188 S.W.3d at 184. The Court
cited portions of the State’s conversation with Court prior to voir dire, excerpts
from defense’s cross-examination of a witness, the defense’s cross-examination of
a witness, and the trial judge’s dialogue with the state during the pronouncement of
sentence. Id. at 180-84. Despite the fact that the state failed to “present evidence
on two elements of the trial court’s cumulation order” – the cause number and
court number of the prior conviction – the lack of proof of those two elements did
not render the evidence insufficient to support the cumulation order. Id.
Arguments
Evidence of Appellant’s Prior Conviction in CR2012-428
Appellant claims that there is “no record evidence of a prior conviction in
CR2013-428.” Appellant’s Brief at 14. However, his claim that no record evidence
exists of his conviction in CR2012-428 begs the question as to whether Appellant
reviewed the record prior to writing his brief. First, State’s Exhibits 28, 29, and 30
were certified copies of the convictions and judgments in CR2012-428. These
exhibits were offered, admitted, and published during the trial in the instant case.
17
RR. Vol. III at 170. State’s Exhibit 28, the judgment for Count III in CR2012-428,
indicates that Appellant pled guilty to the felony offense of unlawful possession of
a firearm, was found guilty of the said offense and was sentenced to ten years
confinement in the Texas Department of Criminal Justice. RR. Vol. VI, State’s
Exhibit 28. State’s Exhibit 29, the judgment for Count I in CR2012-428, indicates
that Appellant pled not guilty to the felony offense of aggravated assault with a
deadly weapon against a family member, was found guilty of the said offense by
the jury, and was sentenced to twenty years confinement in the Texas Department
of Criminal Justice. RR. Vol. VI, State’s Exhibit 29. State’s Exhibit 30, judgment
for Count II in CR2012-428, indicates that Appellant pled not guilty to the felony
offense of endangering a child, was found guilty of said offense by the jury, and
was sentenced to ten years confinement in the Texas Department of Criminal
Justice. RR. Vol. VI, State’s Exhibit 30.
State’s Exhibit 27, an excerpted portion of the official transcript from the
jury trial in CR2012-428, before the 207th District Court Comal County, Texas and
styled the State of Texas vs. Isreal Reyes, Sr., was also offered and admitted during
Appellant’s trial in the instant case. RR. Vol. III at 166. This exhibit specifically
recites the arraignment and plea of Appellant on October 29, 2013 before the
Honorable Jack Robison, presiding. Appellant pled not guilty to Counts I and II,
aggravated assault with a deadly weapon against a family member and endangering
18
a child. Id. Appellant pled guilty to Count III, unlawful possession of a firearm. Id.
Count III in CR2012-428 specifically alleged that Appellant was previously
convicted of the felony offense of Burglary of a Building on the 27 th day of
November, 2006, in case number CR-4276-06-A before the 92nd Judicial District
Court of Hildago County, Texas. Id. Notably, Count II in the instant case also
charged Appellant with an offense of unlawful possession of a firearm. Like Count
III in CR2012-428, Count II in the instant case also alleged Appellant was
previously convicted of the felony offense of Burglary of a Building on the 27 th
day of November, 2006, in case number CR-4276-06-A before the 92nd Judicial
District Court of Hildago County, Texas. RR. Vol. II at 199. Thus, from these
exhibits alone, it is clear that Appellant was previously convicted of aggravated
assault with a deadly weapon against a family member in CR2012-428 before the
207th Judicial District Court of Comal County, Texas and was sentenced to a term
of twenty years in the institutional division of the Texas Department of Criminal
Justice.
In addition to the exhibits discussed above, the Honorable Jack Robison
presided over both the trial in CR2012-428 and the trial in instant case. As a result,
the sentence in CR2012-428 was discussed throughout the trial in the instant case.
RR. Vol. V at 8, 49, 62, 68, 70, 73.
19
In the first exchange at trial, the State offered to admit Appellant’s guilty
plea to Count III in CR2012-428. RR. Vol. III at 164. Counsel for the defense
objected to using the plea in the prior case involving different offense dates. Id. at
64. In lodging his objection, the following dialogue occurred between the court and
counsel for the defense:
The Court: – What prior case?
Mr. Garcia: – CR-2012-428, State of Texas versus Isreal Reyes. We
have --
The Court: That’s not alleged, so how is that even relevant?
Mr. Garcia: She wants to use the plea from the prior case, from 428.
The Court: What prior case? You keep saying “prior case.” That
doesn’t make any sense.
Mr. Garcia: The one we’ve already tried.
The Court: Oh, the one we’ve already tried. Oh, well, you anticipated
that on the issue of what came in on the – yeah, that will be overruled.
(Id. at 166.)
Counsel for the defense references CR2012-428 by its exact cause number and
then links his client directly to the prior conviction.
The second exchange occurred during the punishment hearing for the
instant case. The following exchange between the court and counsel for the
defense:
The Court: – All right. Now, Mr. Garcia, remind me, didn’t he set –
wasn’t he sentenced by a jury to 20 years?
Mr. Garcia: – On the previous case, Your Honor.
The Court: – Yes, that’s right.
Mr. Garcia: – 20 on the --
The Court: And then we tried again for the shooting the bedpost.
Right?
Mr. Garcia: Correct.
20
The Court: I remember.
(RR. Vol. V at 8).
From this exchange, it is clear that the court is inquiring from defense counsel
about Appellant’s punishment in CR2012-428. In response, counsel for the defense
reminded the court that Appellant’s punishment was assessed at twenty years,
which correlates with the sentence of twenty years reflected on State’s Exhibit 29.
Furthermore, the court interrupted the State’s closing arguments on
punishment to establish the timeline and judgments for the offenses and
convictions in CR2012-428 and the instant case. The following exchange occurred:
The Court: – This case actually happened before the other one that the
jury gave him 20 and 10. Right?
Ms. Rankin: – Yes
The Court: And that 20 is aggravated robbery with a deadly weapon,
so --- I mean, aggravated assault with a deadly weapon, so it’s 3g.
Right?
Ms. Rankin: That is correct.
The Court: This is 3g as well, Count I. Got it. So they maxed him –
the jury maxed him?
Ms. Rankin: No Your Honor. He was five to 99 because it was also
SBI and family violence. So the range of punishment in the first case
was five to 99. The jury returned a sentence of 20 years on Count I.
The Court: Yeah, and ten on Count II. Right?
Ms. Rankin: Yes, Your Honor.
The Court: I looked at it earlier this morning.
(RR. Vol. V at 68-69).
Again, this exchange clearly refers to the judgments and sentences in CR2012-428.
State’s Exhibits 28-30. Prior to the court cumulating the sentence after the jury’s
finding of guilt in Count I of this indictment, the court sought clarification as to the
21
sentences imposed in CR2012-428. Id. at 70. The State then concluded her first
portion of closing arguments and urged the court to consider assessing a twenty
year punishment for Count I to “run consecutive with the cause number CR-2012-
428” Id.
During the punishment phase, counsel for the defense objected to the State’s
questions directed to Appellant on relevance grounds. Id. at 57. Counsel for the
defense referenced CR2012-428 when urging his relevance objection by claiming
the court had already heard “punishment and everything” on that separate case
and trial. Id. (emphasis added). Appellant testified regarding his version about how
McCann sustained the injuries to her face. Id. Counsel for the defense continued to
make reference to Appellant’s previous conviction in cause number CR2012-428
while objecting to State’s inquiries during the instant trial, claiming the court had
already heard the evidence in the prior cause number. Id. at 62. The court sustained
defense counsel’s objection stating “[h]e’s already been found guilty of it” and
“the fact finder has already found that he [Appellant] intentionally shot her
[McCann]”. Id.
Counsel for the defense even pled with the court to consider a low number of
years and concurrent sentences, claiming Appellant already had to serve ten years
before he would be eligible for parole because of his conviction in Count I of
CR2012-428. RR. Vol. V at 73. Nowhere in the record did counsel for the defense
22
refute or even attempt to refute that Appellant was the same person previously
convicted in CR2012-428. Defense counsel never objected to or corrected the court
on any of the numerous times the court referred to Appellant’s conviction in
CR2012-428. There was no objection made claiming the state had not established
that Appellant was in fact the “Isreal Reyes, Sr.” named in the State’s exhibits.
State’s Exhibits 27-30. The defense’s failure to refute the state’s representations –
coupled with the arguments consistent with the state’s assertions – link Appellant
to the conviction in CR2012-428.
Appellant’s own testimony at trial further links him to the previous
convictions in CR2012-428. First, when he was asked on cross examination how
many times he had been convicted of a felony, Appellant sought clarification as to
whether the State was referring to the “prior conviction that [he] got for the
incident where she got struck in the face.” RR. Vol. V at 49. The complainant
named in the indictment in both CR2012-428 and the instant case is Billie Jean
McCann, Appellant’s familial or household member as defined by the Texas
Family Code. State’s Exhibit 27; CR 6, 7. Count I of CR2012-428 alleged
Appellant caused serious bodily injury, a wound to the chin, to Billie Jean
McCann. State’s Exhibit 27. Count I of instant case alleged that Appellant
threatened Billie Jean McCann with a deadly weapon. CR 6, 7. The “she”
Appellant referenced was Billie Jean McCann. Thus, Appellant clearly
23
acknowledged on cross examination his prior conviction in Count I of CR2012-428
for injuring Billie Jean McCann’s face.
Appellant also admitted to the prior conviction from November 2006 for the
felony offense burglary of a building, he acknowledged that he had been convicted
of a felony offense on one other occasion. RR. Vol. IV at 50. He also explained
how the revolver used to commit the offenses alleged in the trial in CR2012-428
differed from the revolver discharged in McCann’s direction in the instant case. Id.
at 58-59.
Cumulative sentences are not void for lack of strict compliance with the five
recommended elements of a cumulation order as set out in Ward v. State, 523 S.W.
2d 681, 682 (Tex. Crim. App. 1975). The court in Miller held that admissions by a
defendant’s counsel are sufficient evidence to link him to prior convictions for the
purpose of cumulating sentences. Miller, 33 S.W.3d at 262. The Court in
Mungarary held that the State’s failure to put forth evidence of two elements listed
in Ward did not result in insufficient evidence to support the cumulated sentence.
Mungaray, 188 S.W.3d at 184. The Courts in Miller and Mungaray refused to
look only to the post-conviction record which would ignore relevant portions of the
trial record.
The State’s exhibits, assertions by defense counsel, exchanges between the
court, the state, and counsel for the defense, coupled with Appellant’s testimony at
24
trial establish a clear link between Appellant and prior conviction CR2012-428 for
purposes of cumulating sentences. The facts and circumstances set forth in
Mungaray and Miller closely correlate with the facts in the instant case. In light of
those cases and their holdings, it is clear that there is sufficient evidence within the
record to establish that Appellant was the same person convicted and sentenced in
CR2012-428.
Judicial Notice of CR2012-428
The trial court could and did take judicial notice of the prior conviction in
CR2012-428. Even though the trial judge did not explicitly state that he was taking
judicial notice of CR2012-428, he could have taken judicial notice on his own or
by motion of either party. Kubosh v. State, 241 S.W.3d 60, 66-67 (Tex. Crim. App.
2007). The court may formally take judicial notice as allowed by Rule 201 of the
Texas Rules of Criminal Evidence. “In a criminal case, a trial court may notice
judicially all of its own records, including all judgments and convictions entered by
it. 35 Tex. Jur.3d, Evidence, § 63, p. 109; 24 Tex. Jur.3d, Crim. Law, § 2980, p.
155; 31 C.J.S., Evidence, § 50(1), p. 1018; 29 Am.Jur.2d, Evidence, § 57, p. 89;
Baker v. State, 79 Tex. Crim. App. 510, 187 S.W. 949 (1916); Calloway v. State,
91 Tex. Cr. App. 502, 240 S.W. 553 (1922); Dunn v. State, 92 Tex. Cr. App. 126,
242 S.W. 1049 (1922); Hardison v. State, 450 S.W.2d 638 (Tex.Cr.App.1970);
Wilson v. State, 677 S.W.2d 518, 523 (Tex.Cr.App.1984), citing 1 Ray, Tex.
25
Practice, Evidence, § 186, p. 237.” Turner v. State, 733 S.W.2d 218, 221-22 (Tex.
Crim. App. 1987). A trial court may take judicial notice upon request or sua
sponte. Tex. R. Evid. 201(c); Jacobs v. State, 294 S.W.3d 192, 196 (Tex. App.—
Texarkana 2009, pet. ref’d). The court is not required to announce it is taking
judicial notice. Courts may infer the trial court took judicial notice based on its
actions. Kubosh, 241 S.W.3d at 66-67.
The record clearly shows that the trial court contemplated the twenty year
sentence decided by the jury in CR2012-428. RR. Vol. V at 75. The court justified
a sentence lower than twenty years confinement by differentiating the facts in the
CR2012-428 with the facts of the instant case during his pronouncement of
sentence by stating that “shooting a bedpost is a little less heinous than shooting
your pregnant wife in the face”. RR. Vol. V at 75. The sentence in the instant case
is half of what the jury imposed in CR2012-428. The court sentenced Appellant on
Count I to a term of ten years confinement in the Texas Department of Criminal
Justice “consecutive with the other case” Id. The “other case” which the court
refers to can only refer to the CR2012-428 conviction. It is the only other case that
the court could use its discretion to legally cumulate a sentence in this case in
compliance with Tex. Code Crim. Proc. Ann. 42.08.
The court also differentiated which counts in the instant case were to run
consecutively with the sentence in CR2012-428 and those that are to run
26
concurrent. The court pronounced sentence for a term of five years confinement for
Count II in current case to run “concurrent with the other cases.” Id. After
assessing punishment, the court stated that “[t]he only one that’s stacked is Count
I, and it’s stacked on the other case. So that will increase your certainty of being in
prison for five years. Under the circumstances, I think that’s fair.” Id. Each and
every time the court, counsel for either side, or even the Appellant himself made
reference to “the other case,” it is clear that the other case was CR2012-428 where
Appellant was convicted of shooting his pregnant wife, McCann, in the face.
Invited Error
The objections by the defense counsel (supra at 20) not only help to show
the connection between Appellant and prior conviction in CR2012-428, but also
raise a situation of estoppel under the doctrine of invited-error. The “law of invited
error estops a party from making an appellate error of an action it induced.”
Vennus v. State, 282 S.W.3d 70, 74 (Tex. Crim. App. 2009) (citing Druery v. State,
225 S.W.3d 491, 505-06 (Tex. Crim. App. 2007)). “[U]nder [the] invited-error
doctrine, a party who has prevented proof of a fact by his erroneous objection will
not be permitted to take advantage of his own wrong, and the reviewing court will
assume that the fact was duly proved.” Id. at 73 (citing Watenpaugh v. State
Teacher’s Retirement System, 51 Cal. 2d 675 (1959)).
27
Appellant prevented the State from presenting evidence of Appellant’s prior
conviction in CR2012-428 through his objections. If Appellant had not prevented
the State’s questions, the State would have proved the prior conviction and
Appellant’s link to that conviction through its cross-examination of the Appellant.
Because Appellant effectively conceded that the trial court could take judicial
notice of CR2012-428, that the evidence was already before the court, and that
further evidence on the subject would be repetitious, he may not now on appeal
make an error of action he induced. See Vennus, 282 S.W.3d at 74. Because further
proof of these facts was prevented by Appellant’s ‘repetitious’ objection, the Court
should assume the fact was duly proved to prevent Appellant from taking
advantage of his own wrong. See id. at 73.
Conclusion
There is record evidence of a prior conviction in CR2012-428. The official
record from the arraignment and plea were offered and admitted along with the
certified judgments from CR2012-428. Counsel for the defense made numerous
references throughout the trial to the twenty year sentence in CR2012-428 and the
specific facts of that case. The state also referenced CR2012-428 throughout the
course of the trial and questioned numerous witnesses, including Appellant, about
28
the facts of that case. The court had dialogue with counsel for both sides clarifying
the exact sentence assessed by the jury in CR2012-428.
There is record evidence that Appellant is the same Isreal Reyes Senior
convicted in CR2012-428. Appellant himself acknowledged his previous
conviction in CR2012-428, referring to the prior conviction as the one where he
shot the complaining witness in the face. The court also identifies Appellant as the
person previously convicted in CR2012-428 throughout the course of the trial and
through sentencing. Counsel for defense never refuted the assertions made to the
court or State identifying Appellant as the person previously convicted in CR2012-
428, nor did the defense object when the court clearly indicated it had reviewed
that case file and notes when considering that prior offense. In fact, counsel for the
defense acknowledged Appellant’s previous conviction in CR2012-428 when
formulating the basis for his arguments and objections. Appellant also prevented
the State from eliciting said information with his ‘repetitious’ objection –
essentially conceding that the information was already in the record through
judicial notice. He cannot now claim the evidence was insufficient. Accordingly,
there is sufficient evidence to support the cumulation order.
29
THE JUDGMENT IS VALID UNDER WILLIAMS V. STATE
Summary of the Argument
In his third point of error, Appellant asserts that the cumulation order in the
CR2012-427 judgment is invalid due to the lack of specificity. Appellant’s Brief at
15. He argues specifically that the cumulation order lacks compliance with the five
elements set forth in Ward. Id. Appellant requests that the Court reform the
judgment in Count I allowing the sentence to run concurrent with all other cases.
While the judgment clearly lacks some of the recommended elements listed
in Ward, the order is still valid and should be affirmed. In the alternative, should
the Court find the cumulation order insufficient, the Court has the authority to
reform the cumulation order to comply strictly with Ward and honor the intentions
of the trial court.
Authorities
A “cumulation order which refers only to a prior cause number is sufficient
if the order is entered in the same court as the sentence to which it is made
cumulative.” Williams v. State, 675 S.W.2d 754, 764 (Tex. Crim. App. 1984). The
Court in Williams initially set aside the cumulation order of the trial court, which
stacked on 99 years to a sentence being served by the appellant, due to lack of
compliance with Ward. Id. at 760. On rehearing, however, the original sentence
and judgment of the trial court was affirmed. The Court found that the term
30
“stacked” in a criminal sentencing is synonymous with the terms cumulative or
consecutive. Id. at 762. Stating that “a better practice in cumulating sentences is to
track the statutory language set out in Art. 42.08,” the Court ultimately held that
using the word “stacked” in the context of a criminal sentencing is sufficient to let
the Texas Department of Corrections know the sentence begins when the sentence
in the prior case ceases to operate. Id. at 763.
Williams also considered the five recommended elements set forth in Ward.
The trial court in Williams lacked three of the recommended elements. Id. at 764.
Specifically, it failed to list the dates and names of the courts of the previous
convictions, designate the counties where the prior convictions arose, and the
nature of the prior convictions. Id. The Court nevertheless affirmed the original
cumulation order, stating that “a cumulation order which refers only to a prior
cause number is sufficient if the order is entered in the same court as the sentence
to which it is made cumulative.” Id.
An appellate court can reform a judgment where it has the required data and
evidence before it. In Banks v. State, the Court of Criminal Appeals of Texas
considered whether the San Antonio Court of Appeals decision to reform the
sentence of the trial court from a consecutive to concurrent sentence was proper.
708 S.W.2d 460, 462 (Tex. Crim. App. 1986). The San Antonio Court of Appeals
invalidated the cumulation order on grounds of enough information to comply with
31
the rulings in Ward. Id. The cumulation order in Banks neglected to include the
five recommended, elements stating only that the sentence would “run
consecutively (sic) with cause number 80-CR0430-A and 80-CR-0431-A”. Id. at
461. While the order on its face was insufficient, the record contained the
necessary information “to allow the appellate court to accomplish that which was
clearly intended” by the trial court at the time of sentencing. Id. The Court of
Criminal Appeals reviewed the trial record and determined that the record
contained all of the five recommended elements set forth in Ward and reformed the
judgment and sentence to reflect the trial court’s intention to stack the sentences.
Banks at 461-62. Just as appellate courts could reform judgments to reflect an
affirmative finding of a deadly weapon to be “apparent to penitentiary authorities,”
so too could they reform judgments to comply with Ward. Id.
Argument
The post-conviction judgment for Count I in instant case indicates only that
the sentence is to run consecutively with CR2012-428. Because the same trial court
oversaw both convictions, under Williams, that is all that is required. See 675 S.W.
2d at 763. Additionally, the other four of the Ward recommended elements are
found within the record as a whole. Although the cumulation order does not
included all of the recommended elements set forth in Ward, in light of the holding
in Williams, the cumulation order is still valid and should be affirmed. The judge
32
presiding over CR2012-428 is the same judge that presided over the trial in the
instant case and pronounced the sentence to cumulate with CR2012-428. CR at 5;
State’s Exhibits 27-30. Additionally, this Court’s record in the dismissed appeal
03-14-00446-CR will also show the Honorable Jack Robison was the judge in
CR2012-428, and this Court may take judicial notice of that fact. Bridges v. State,
468 S.W.2d 451; Watkins v. State, 245 S.W.3d 444, 455-56 (Tex. Crim. App.
2008) (stating an appellate court may exercise discretion and take judicial notice of
“adjudicated facts” for the first time on appeal). The cases were both held in the
207th Judicial District Court of Comal County, Texas. The Appellant was
represented at trial by the same attorney in both trials. Since the cumulated
sentences were imposed by the same court, by the same judge, Appellant was
represented by the same attorney, only seven months lapsed between the sentences,
and the cause number was included in the order, the judgment should be affirmed
under Williams. See 675 S.W.2d at 764.
In the alternative, if the Court would nevertheless require the additional
Ward elements, the Court can reform the cumulation order to include more specific
language to comply with Ward.
The record before the Court contains the all of the recommended elements
under Ward. The previous trial court number, CR2012-428, is correctly contained
within the cumulation order and is referenced throughout the trial. CR at 43. The
33
correct name of the court, the 207th Judicial District Court of Comal County, and
dates of prior convictions are in the record before the Court. The term of years,
twenty years confinement in the Texas Department of Criminal Justice, and nature
of the previous conviction in CR2012-428, aggravated assault with a deadly
weapon against a family member, are also in the record before the Court. RR. Vol.
III at 170; State’s Exhibits 28-30.
Furthermore, Appellant acknowledges in his brief that the Court has the
authority to reform a judgment to reflect Appellant’s pleas of “not guilty,” the true
pleas entered by Appellant at arraignment. Appellant’s Brief at 16. Under
Appellant’s same rationale, the proper remedy would be to reform the judgment by
adding all of the Ward requisites to reflect the trial court’s true intention in
cumulating the sentence with the sentence imposed in CR2012-428. Appellant
seems to only acknowledge the Court’s authority to reform judgments in ways
which comply with Appellant’s positions.
34
THE COURT SHOULD REFORM THE JUDGMENTS TO REFLECT
APPELLANT’S “NOT GUILTY” PLEAS
Summary of Argument
Appellant requests the Court reform the judgments to reflect his pleas of
“not guilty.” The State agrees that the judgments should be reformed to reflect said
pleas.
Argument
In his fourth point of error, Appellant requests that the judgments reflect
pleas of “not guilty” to Counts I and II of the instant case. Appellant’s Brief at 16.
Appellant suggests reformation of the judgments to reflect Appellant’s “not guilty”
pleas. The State agrees that the judgments should be reformed to reflect
Appellant’s pleas of “not guilty” to Counts I and II of the indictment. RR. Vol. II at
199; CR at 43, 47. The Court has the authority to reform judgments when the
necessary evidence and data is before the Court. Splawn v. State, 160 S.W.3d 103
(Tex. App. – Texarkana 2005, pet. ref’d).
35
PRAYER
WHEREFORE, PREMISES CONSIDERED, the State respectfully prays
that this Court deny Appellant’s first three points of error and affirm the judgment
of the trial court.
Respectfully Submitted,
/s/ Christine Rankin
Christine Rankin
Assistant Criminal District Attorney
SBN: 24044716
150 N. Seguin Ave., Suite 307
New Braunfels, Texas 78130
Phone: (830) 221-1300
Fax: (830) 608-2008
rankic@co.comal.tx.us
ATTORNEY FOR THE STATE
36
CERTIFICATE OF SERVICE
I, Christine Rankin, attorney for the State of Texas, Appellee, hereby certify
that a true and correct copy of this brief has been delivered to the attorney of
record for the opposing party:
Richard Wetzel
wetzel_law@1411west.com
1411 West Avenue, Suite 100
Austin, TX 78701
By electronically sending it to the above email address through efile.txcourts.gov
e-filing service, this 10th day of February, 2015.
/s/ Christine Rankin
Christine Rankin
CERTIFICATE OF COMPLIANCE
I, Christine Rankin, hereby certify that this document was prepared in MS
Word and it does not exceed the allowable length for an appellate brief, pursuant to
Tex. R. App. Pro. 9.4, as amended and adopted on November 30, 2012, by Order
of the Texas Court of Criminal Appeals. The approximate total of words in this
document, as calculated by the word processing software, is 7,882 words.
/s/ Christine Rankin
Christine Rankin
37