Abel Galindo v. State ( 2018 )

Opinion issued August 30, 2018
In The
Court of Appeals
For The
First District of Texas
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NO. 01-17-00419-CR
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ABEL GALINDO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Case No. 1502015
OPINION
Appellant Abel Galindo pleaded guilty, without an agreed punishment
recommendation from the State, to cruelty to nonlivestock animals. He also
pleaded true to a deadly-weapon allegation in the indictment. A pre-sentence
investigation report was completed and a sentencing hearing was conducted. The
trial court found Galindo guilty, and it found the deadly-weapon allegation to be
true. It sentenced him to five years in prison.
Relying on the recent decision in Prichard v. State, 533 S.W.3d 315 (Tex.
Crim. App. 2017), Galindo contends that the evidence was legally insufficient to
support the deadly-weapon finding, and his sentence is therefore void. We
conclude that Prichard is distinguishable because the evidence before the trial
court supported a finding that the canine victim of Galindo’s abuse was not the
sole object of his use of a deadly weapon. Because the evidence supported a
finding that Galindo threatened human bystanders with the knife that he also used
to injure a dog, we affirm the judgment.
Background
The appellant, Abel Galindo, lived with and physically abused Luisa Becerra
for two years. Galindo choked Becerra, he threatened her with a knife, and he beat
her many times. Galindo also threatened Becerra in front of her nine-year-old son,
who was afraid of him. They owned a dog.
One night, the dog chewed an ottoman. Galindo grabbed and hit the dog,
which bit him. In retaliation, Galindo stabbed the dog with a kitchen knife, leaving
“a large 5 to 6 inch laceration.”
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Galindo was charged with committing the state jail felony offense of cruelty
to nonlivestock animals. See TEX. PENAL CODE § 42.092(b)(1), (c). The indictment
alleged that he “did . . . unlawfully, INTENTIONALLY, KNOWINGLY AND
RECKLESSLY, TORTURE AN ANIMAL, namely, A DOG, by CUTTING THE
DOG WITH A KNIFE . . . .” The indictment further alleged that at the time
Galindo committed the offense, “he used and exhibited a deadly weapon, namely, a
KNIFE, during the commission of said offense and during the immediate flight
from said offense.”
Galindo executed a “Waiver of Constitutional Rights, Agreement to
Stipulate, and Judicial Confession,” which indicated that he understood the
allegations in the indictment, and they were true. In that document, he waived his
rights to a trial by jury and to require the appearance, confrontation, and
cross-examination of witnesses. He additionally consented, in open court, to the
oral and written stipulation of evidence, and to the introduction of affidavits and
other documentary evidence. The document was signed and sworn by Galindo, and

Act of May 28, 2007, 80th Leg., R.S., ch. 886, § 2, 2007 Tex. Gen. Laws
2163, 2165 (amended 2017) (current version at TEX. PENAL
CODE § 42.092(b)(1), (c-1)). The offense and the trial court proceedings
occurred before the September 1, 2017 effective date of amendments to
Penal Code Section 42.092, which amended subsection (c) and added
subsection (c-1), and which designated an offense under
Section 42.092(b)(1) as a third-degree felony. Under the law applicable to
this direct appeal, an offense under Section 42.092(b)(1) was a state jail
felony.
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it was approved in writing by his attorney and by the assistant district attorney. It
was filed with the papers of the case and approved in writing by the trial judge.
The trial court admonished Galindo about the consequences of his guilty
plea, including the possibility of an enhanced sentence based upon the
deadly-weapon allegation. Galindo pleaded guilty to the offense, and he also
pleaded true to the deadly-weapon paragraph. The court accepted both pleas, and it
found the deadly-weapon paragraph to be true. It ordered a pre-sentencing
investigation (PSI) report.
The court subsequently held a sentencing hearing, at which the State offered
the PSI report and a Texas Risk Assessment System (TRAS) report into evidence.
Both documents were accepted into evidence without objection.
A written statement by Becerra, which she made under penalty of perjury on
the evening of the incident, was attached to the PSI report. According to that
statement, Galindo injured the dog after it chewed an ottoman. Becerra returned
home from work to find that the dog had been stabbed. Her son informed her that
Galindo had grabbed the dog, and he hit the dog until it retaliated by biting him.
Galindo stabbed the dog, and he then threatened to hit Becerra’s son for failing to
stop the dog from chewing the furniture.
The TRAS report indicated that on the night of the incident, law
enforcement officers responded to a report of a terroristic threat. According to that
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report, Becerra told them that Galindo attacked their dog with a kitchen knife “for
no reason” and because “he was mad at her.” The report stated that Becerra said
Galindo “became irate from a fight they had the previous night and during the
altercation he threatened her with a knife and stabbed the dog.” The report further
indicated that the officers observed the dog’s injury, and it appeared to have been
caused by a blade. Becerra’s son also informed officers that he saw Galindo “slice
the dog with a kitchen knife.”
Galindo testified at the sentencing hearing. He admitted that he injured the
dog because he was stressed about problems in his relationship with Becerra. The
trial judge found Galindo guilty of the cruelty-to-animals offense, and it found the
deadly-weapon allegation to be true. The judge sentenced Galindo to five years in
prison.
Analysis
On appeal, Galindo contends that the deadly-weapon finding was made
under circumstances in which a deadly weapon was used or exhibited only against
a “nonhuman.” He argues that the evidence therefore was legally insufficient to
support the deadly-weapon finding.
Galindo relies upon the recent decision in Prichard v. State. The appellant in
Prichard was accused of killing his dog by repeatedly hitting it on the head with a
shovel and then drowning it in a swimming pool. 533 S.W.3d at 317. He was
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indicted for cruelty to a non-livestock animal. Id.; see Act of May 28, 2007, 80th
Leg., R.S., ch. 886, § 2, 2007 Tex. Gen. Laws 2163, 2165 (amended 2017) (current
version at TEX. CODE CRIM. PROC. art. § 42.092(b)(1), (c-1)). The indictment
alleged that the shovel or the pool water, or the combination of both, constituted
use of a deadly weapon. Prichard, 533 S.W.3d at 317. The jury found Prichard
guilty, and it found that he had used a deadly weapon during the commission of the
offense. Id. 317–18. Because of the affirmative deadly-weapon finding, the
permissible range for punishment was increased from that of a state jail felony to
that of a third-degree felony, and the jury assessed punishment at imprisonment for
6½ years. Id. at 318; see also TEX. PENAL CODE § 12.35(c)(1).
On appeal, Prichard argued that the evidence was legally insufficient to
support the deadly-weapon finding because no human was harmed or placed at risk
of harm because of his conduct. Prichard, 533 S.W.3d at 318. After analyzing the
statute, the Court of Criminal Appeals held that evidence is legally insufficient to
support a deadly-weapon finding “under circumstances in which the sole recipient
or being against whom a deadly weapon was used or exhibited was a nonhuman.”
Id. at 331. Because the permissible range of punishment was affected by the
deadly-weapon finding, the Court remanded the case for a new punishment
hearing. Id. at 330–31.
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The State points out two differences between Prichard and Galindo’s case.
Galindo pleaded true to the deadly-weapon allegation, while Prichard pleaded not
true to the deadly-weapon allegation, and the affirmative finding on that issue was
made by a jury. 533 S.W.3d at 318. The State also asserts that the facts are
distinguishable because in Prichard there was no indication that any human was in
danger, or that any human other than Prichard was present when he killed the dog.
In contrast, although the record reflects different accounts of Galindo’s offense,
both accounts reflected that either Becerra or her son was present during the
offense.
A defendant who pleads guilty in a criminal prosecution generally waives
his right to challenge the sufficiency of the evidence. Keller v. State, 125 S.W.3d
600, 605 (Tex. App.—Houston [1st Dist.] 2003), pet. dism’d, improvidently
granted, 146 S.W.3d 677 (Tex. Crim. App. 2004) (per curiam). In such cases, our
review is confined to determining whether sufficient evidence supports the trial
court’s judgment of guilt. Id. Upon a guilty plea, the State must introduce evidence
of the defendant’s guilt into the record, and the evidence must be accepted by the
court as the basis for its judgment. TEX. CODE CRIM. PROC. art. 1.15. “The State,
however, is not required to prove the defendant’s guilt beyond a reasonable doubt;
the supporting evidence must simply embrace every essential element of the
charged offense.” Staggs v. State, 314 S.W.3d 155, 159 (Tex. App.—Houston [1st
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Dist.] 2010, no pet.). A judicial confession alone is usually sufficient to satisfy the
State’s burden under article 1.15. Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim.
App. 2009). Likewise, a judicial confession that includes an admission to the use
of a deadly weapon is sufficient evidence to show use of a deadly weapon, and the
record need not otherwise provide proof. See Keller, 125 S.W.3d at 605. A judicial
confession that fails to establish each element of the offense charged will not
authorize the trial court to convict the defendant, but a deficiency in one form of
proof may be cured by other competent evidence in the record. Menefee, 287
S.W.3d at 14.
Galindo argues that he is entitled to challenge the sufficiency of the evidence
to support the deadly-weapon finding, although his brief did not address the effect
of his guilty plea or the evidence that humans were at least peripherally involved in
the offense. Assuming without deciding that Galindo may challenge the sufficiency
of the evidence of the deadly-weapon finding despite pleading “true” to the
allegation, we conclude that the facts of this case are distinguishable from Prichard
and the evidence was sufficient to support the judgment.
Our evidentiary review considers the entire plea proceeding, including
sentencing, to determine whether there was sufficient evidence independent of
Galindo’s confessions to substantiate his guilt. See Dinnery v. State, 592 S.W.2d
343, 352 (Tex. Crim. App. 1979); see also Menefee, 287 S.W.3d at 14 n.20. The
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indictment alleged that Galindo “used and exhibited a deadly weapon, namely, a
KNIFE, during the commission” of the offense, and it did not specify whether the
use and exhibition of the knife was against the dog, Becerra, her son, or some
combination thereof.
At sentencing, the State presented evidence of two different versions of
events. The account included in the PSI report, which is consistent with the
arguments made by defense counsel and by the State at the sentencing hearing,
indicated that Galindo became upset during an argument with Becerra and he
threatened her with a knife. He then used the knife to cut the dog in front of
Becerra and her son. Becerra’s affidavit claimed that Galindo injured the dog after
it bit him. In contrast to the PSI report, the affidavit suggested that Becerra was not
present when Galindo stabbed the dog in front of her son.
The Court of Criminal Appeals in Prichard concluded that evidence is
legally insufficient to support a deadly-weapon finding “under circumstances in
which the sole recipient or being against whom a deadly weapon was used or
exhibited was a nonhuman.” 533 S.W.3d at 331. The reference to the nonhuman as
the “sole” object of the use of the deadly weapon left open the possibility of a
deadly-weapon finding under circumstances when the weapon was used or
exhibited against a human during the commission of an offense against an animal.
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Galindo does not offer any argument as to why his use of the knife in either
version of events supported by the evidence does not constitute use or exhibition of
a deadly weapon against a human. The trial court found sufficient evidence to
support his guilty plea, and it accepted his plea that the deadly-weapon paragraph
was true. We conclude that Galindo’s stipulation of guilt, his judicial confession,
and the evidence presented at the sentencing hearing are sufficient evidence to
support the trial court’s judgment under article 1.15 of the Code of Criminal
Procedure. See Ex parte Palmberg, 491 S.W.3d 804, 808 (Tex. Crim. App. 2016).
We overrule Galindo’s first issue.
In his second issue, Galindo argues that a deadly-weapon finding cannot be
made in this case, and his sentence is therefore illegal because it is outside of the
permissible range for a state jail felony. See TEX. PENAL CODE § 12.35. However,
as discussed above, the evidence supports the court’s deadly-weapon finding. The
court therefore properly sentenced Galindo within a permissible range for a
third-degree felony. We overrule Galindo’s second issue.
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Conclusion
We affirm the judgment of the trial court.
Michael Massengale
Justice
Panel consists of Justices Keyes, Bland, and Massengale.
Publish. TEX. R. APP. P. 47.2(b).
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