Sabrina Nicole Angel v. State
04-15-00235-CR
| Tex. App. | Aug 12, 2015Background
- Appellant Sabrina Nicole Angel was convicted by a jury of Class A misdemeanor family-violence assault for striking Felipe Arevalo; she received community supervision, an oral pronouncement that a $1,000 fine was "fully probated," an affirmative family-violence finding, and a $100 payment to a battered-women's shelter.
- The incident: Arevalo had Appellant's two young children in his care and drove to a lawyer's office seeking custody; Appellant went there to retrieve the children, a confrontation occurred, and Appellant struck Arevalo and Violet Lazarin after attempting to recover her infant.
- Appellant testified she acted to prevent Arevalo (and Violet, who held the baby) from taking her children and feared they would be taken away; defense requested a jury instruction on the statutory necessity defense, which the trial court refused.
- At sentencing the court orally stated the $1,000 fine would be fully probated but the written judgment said the fine was "ordered executed;" the court also ordered a $100 payment to a family-violence center without expressly considering Appellant's ability to pay.
- Appellant appeals arguing (1) erroneous denial of a necessity instruction, (2) written judgment conflicts with the oral pronouncement re: the $1,000 fine, and (3) the $100 family-violence-center payment was imposed without considering ability to pay.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Angel) | Held |
|---|---|---|---|
| Whether trial court erred by refusing necessity instruction | No instruction required because evidence did not raise statutory elements of necessity | Evidence, when viewed favorably to defense, showed Appellant reasonably believed imminent harm (kidnapping of her children) and force was immediately necessary | Court of appeals brief argues error; appellant entitled to new trial because charge omission caused some harm |
| Whether written judgment must be reformed to reflect oral pronouncement that $1,000 fine was fully probated | Written judgment controls the record of sentence | Oral pronouncement controls where conflict exists between oral sentence and written judgment | Oral pronouncement controls; judgment should be reformed to show fine was probated (appellant seeks modification) |
| Whether trial court erred by imposing $100 family-violence-center fee without considering ability to pay | Statute mandates $100 when probation granted after family-violence finding | Trial court must consider probationer's ability to pay before ordering payments under art. 42.12; record shows court treated fee as mandatory without that inquiry | Appellant entitled to remand for the trial court to consider ability to pay and reconsider probating or reducing the fee |
| Whether error in this case affected the companion cause tried together (assault on Violet) | Separate defenses/instructions were given for self-defense re: Violet | Omitted necessity instruction likely affected both causes because they were tried together and necessity is distinct from self-defense | Appellant contends reversal in this cause should require retrial in companion cause as well |
Key Cases Cited
- Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (standard for harm from jury-charge error)
- Pennington v. State, 54 S.W.3d 852 (Tex. App.—Fort Worth 2001) (elements and analysis for necessity defense)
- Devine v. State, 786 S.W.2d 268 (Tex. Crim. App. 1989) (definition of "imminent" for necessity)
- Brazelton v. State, 947 S.W.2d 644 (Tex. App.—Fort Worth 1997) (limitations where generalized fear insufficient to show imminence)
- Reeves v. State, 420 S.W.3d 812 (Tex. Crim. App. 2013) (factors for assessing harm from charge error)
- Mathis v. State, 424 S.W.3d 89 (Tex. Crim. App. 2014) (trial court must consider probationer’s ability to pay before ordering payments under art. 42.12)
- Burt v. State, 445 S.W.3d 752 (Tex. Crim. App. 2014) (oral pronouncement controls over conflicting written judgment)