Christopher Gutierrez v. State
02-17-00225-CR
| Tex. App. | Dec 20, 2017Background
- Christopher Gutierrez pleaded guilty without a plea bargain to Count 1 (aggravated robbery with a firearm) and was later sentenced to 15 years after a punishment hearing.
- At sentencing the State admitted the pre-sentence investigation report into evidence; it did not introduce the plea papers or ask the court to take judicial notice of the clerk’s file.
- Victim A.Z. testified the robber struck her with a handgun and she feared being shot; surveillance video of the robbery was admitted without objection.
- Appellant, his girlfriend, and her mother testified that the weapon was a $25 BB/pellet gun (Appellant said it was unloaded).
- Appellant refused to admit he used a firearm; the only testimony affirmatively describing a ‘‘firearm’’ was the victim’s reference to a handgun, not testimony identifying a weapon that met the Penal Code definition of a firearm.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court complied with Tex. Code Crim. Proc. art. 1.15 in accepting Gutierrez’s guilty plea to aggravated robbery with a firearm | Gutierrez: sentencing evidence showed only a BB/pellet gun, not a statutory firearm, and Gutierrez never admitted the firearm element; therefore the State failed to introduce evidence of every element and the court should have allowed rescission or found a lesser offense | State relied on victim testimony (‘‘handgun’’) and surveillance video; trial court accepted plea and sentenced | Appellant contends the court erred for lack of evidence proving the firearm element and requests vacatur or conviction reduced to robbery (appellate court ruling not included in this brief) |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (constitutional requirement that conviction be supported by evidence proving every element beyond a reasonable doubt)
- Menefee v. State, 287 S.W.3d 9 (Tex. Crim. App.) (judicial confession omissions insufficient; article 1.15 requires State to introduce evidence of guilt)
- Baggett v. State, 342 S.W.3d 172 (Tex. App.—Texarkana) (a guilty plea alone does not constitute judicial confession for omitted elements; article 1.15 claims not forfeited)
- Aldrich v. State, 104 S.W.3d 890 (Tex. Crim. App.) (trial court must address plea issues and may find defendant guilty of lesser offense when appropriate)