Elizondo, Jose Guadalupe Rodriguez
PD-1039-14
| Tex. App. | Mar 12, 2015Background
- Appellant Jose Guadalupe Rodriguez Elizondo sought discretionary review after the Thirteenth Court of Appeals affirmed his conviction and addressed multiple jury-charge errors.
- In the court of appeals opinion, the court mistakenly stated that trial counsel had objected to a jury instruction that, if the jury found provocation, it should find the defendant guilty of murder.
- Appellant’s counsel relied on that erroneous statement when filing the petition for discretionary review and repeated the error in the petition.
- While preparing the brief on the merits, counsel discovered the court of appeals’ error — the provocation/self-defense charge error was in fact unobjected to at trial.
- Counsel filed an unopposed motion for leave to amend the petition for discretionary review to correct the preservation/objection error, apologized for the oversight, and concurrently filed an amended petition; the State did not oppose the motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the provocation/self-defense jury-charge error was preserved by objection | Elizondo initially argued (relying on the court of appeals’ statement) that counsel had objected and thus standard is review for harm under preserved-error framework | State did not oppose correcting the record; concedes error in petition should be amended | Counsel acknowledged the court of appeals erred about preservation; motion to amend filed and unopposed; amended petition submitted |
| Proper standard of review for the unobjected-to charge error | Even if unpreserved, Almanza factors apply; appellant will argue under "some" or "egregious" harm and that court of appeals failed to analyze Almanza factors | State allowed amendment; no substantive opposition to applying correct Almanza analysis on the merits | Appellant will brief the correct standard (Almanza) and factors on the merits; preservation status corrected in amended petition |
| Duty of candor and correction of pleadings | Counsel must correct known errors in filings and inform court; seeks leave to amend to comply with duty of candor | State does not oppose correction | Motion to amend filed to cure inadvertent misstatement; counsel apologized and amended petition filed |
| Relief requested — leave to amend petition for discretionary review | Amend petition to correct error about preservation and proceed with merits briefing under correct standard | State not opposed | Motion unopposed; leave requested and amended petition concurrently filed |
Key Cases Cited
- Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (establishes harm analysis for jury-charge error)
- Reeves v. State, 420 S.W.3d 812 (Tex. Crim. App. 2013) (applies Almanza factors in harm assessment)
- Bailey v. State, 867 S.W.2d 42 (Tex. Crim. App. 1993) (discusses assessing charge error in context of entire trial record)