Case Information
*0 FILED IN 5th COURT OF APPEALS DALLAS, TEXAS 7/2/2015 6:25:34 PM LISA MATZ Clerk *1 ACCEPTED 05-15-00368-cr FIFTH COURT OF APPEALS DALLAS, TEXAS 7/2/2015 6:25:34 PM LISA MATZ CLERK CAUSE NO. 05-15-00368-CR IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS AT DALLAS *************************************** DARLING FRANCISCO CRUZ, Appellant v.
THE STATE OF TEXAS *************************************** On Appeal from Criminal District Court Dallas County, Texas Trial Court Cause No. F14-15503-H *************************************** B RIEF OF A PPELLANT *************************************** Lawrence B. Mitchell SBN 14217500 P.O. Box 797632 Dallas, Texas 75379 Tel. No.: 214.870.3440 E-mail: judge.mitchell@gmail.com A TTORNEY F OR A PPELLANT *2 IDENTITY OF ATTORNEYS AND PARTIES This case is an appeal from criminal conviction in Dallas County, Texas.
The attorneys and parties of record are:
(1) James Jamison, trial attorney for appellant: 529 West 12 th Street, Dallas,
Texas 75208
(2) The State at trial: ADA Jay Worley, 133 N. Riverfront Blvd., Dallas,
Texas 75207.
(3) On appeal, Appellant Francisco Darling Cruz by and through his
attorney of record: Lawrence B. Mitchell, P.O. Box 797632, Dallas, Texas, 75379.
(4) On appeal the State of Texas, by and through Susan Hawk, Criminal
District Attorney of Dallas County, Texas or her designated representative, Frank
Crowley Courts Building, 133 North Riverfront Blvd., Dallas, Texas 75207.
i *3 TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL.............................................................i
TABLE OF CONTENTS...........................................................................................ii
INDEX OF AUTHORITIES....................................................................................iii
STATEMENT OF THE CASE..................................................................................2
ISSUE PRESENTED.................................................................................................2
THE COURT OF APPEALS SHOULD REFORM AND MODIFY THE JUDGMENT OF THE DISTRICT COURT DELETING THE DEADLY WEAPON FINDING STATEMENT OF FACTS........................................................................................3
SUMMARY OF THE ARGUMENT........................................................................4
ARGUMENT.............................................................................................................5
PRAYER FOR RELIEF.............................................................................................7
CERTIFICATE OF WORD-COUNT COMPLIANCE.............................................8
CERTIFICATE OF SERVICE..................................................................................8
ii *4 INDEX OF AUTHORITIES CASES: Drichas v. State , 175 S.W.3d 795 (Tex. Crim. App. 2005)......................................6
Ex parte Hopson , 688 S.W.2d 545 (Tex. Crim. App. 1985)....................................6
Medina v. State , 962 S.W.2d 83 (Tex. App. - Houston [1 st Dist.]1997)...................6
Narron v. State , 835 S.W.2d 642 (Tex. Crim. App.1992)........................................6
Santobello v. New York , 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).........6
Turner v. State , 664 S.W.2d 86 (Tex. Crim. App.1983)...........................................6
Williams v. State , 970 S.W.2d 566 (Tex. Crim. App. 1998).....................................6
STATUTES: T EXAS P ENAL C ODE : T EX . P ENAL C ODE §29.03 (a) (2) .............................................................................2
TEXAS GOVERNMENT CODE: T EX . G OV ’ T C ODE A NN . §508.145 (d) (1) ...............................................................6
TEXAS RULES OF APPELLATE PROCEDURE: T EX . R. A PP . P ROC . 9.4 (i) (1) ...................................................................................8
T EX . R. A PP . P ROC . 9.4 (i) (3) ...................................................................................8
T EX . R. A PP . P. 43.2 (b) ...........................................................................................6
iii *5 CAUSE NO. 05-15-00368-CR IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS AT DALLAS *************************************** FRANCISCO DARLING CRUZ, Appellant v.
THE STATE OF TEXAS *************************************** TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
COMES NOW FRANCISCO DARLING CRUZ, Appellant herein, and
respectfully submits this his brief on appeal from his conviction for the offense of
Robbery. Judgment was rendered in Criminal District Court, Dallas, County, Texas,
Judge Robert Burns III presiding.
STATEMENT OF THE CASE Appellant was indicted for the first degree felony offense of Aggravated
Robbery in violation of the provisions of T EX . P ENAL C ODE §29.03 (a) (2) . [CR: 12].
In the indictment it was alleged that the offense was committed on November 10,
2013 against the person and property of Rodrigo Soto. The indictment also alleged
that appellant used and exhibited a deadly weapon, to wit: a firearm, during the
commission of the offense. Appellant was convicted for the included offense of
Robbery.
ISSUE PRESENTED THE COURT OF APPEALS SHOULD REFORM AND MODIFY THE JUDGMENT OF THE DISTRICT COURT DELETING THE DEADLY WEAPON FINDING *7 STATEMENT OF FACTS The Aggravated Robbery indictment returned against appellant alleged the use
and exhibition of a deadly weapon, to wit: a firearm. [CR: 12]. However, prior to the
entry of his plea of “Guilty,” the district court noted that the State had filed a
“Motion to Reduce the Offense Charged” to the included offense of Robbery,
striking the deadly weapon allegation. [CR: 61; RR2: 4]. Appellant entered his guilty
plea to the offense of Robbery. [RR2: 6].
The plea agreement entered into between appellant and the State reflected that
he was pleading guilty to the offense of Robbery. [CR: 57]. Appellant’s judicial
confession was admitted into evidence and it reflected that the deadly weapon
allegation had been struck. [CR: 56]. Appellant was found guilty of the offense of
Robbery without a deadly weapon finding being entered. [CR: 11 & 65; RR3: 32].
However the judgment erroneously reflects that the district court entered a deadly
weapon finding. [CR: 65].
SUMMARY OF THE ARGUMENT Appellant was indicted for the offense of Aggravated Robbery which included
an allegation that he used and exhibited a deadly weapon. However, appellant pled
guilty to the included offense of Robbery without proof that a deadly weapon was
used or exhibited. The judgement erroneously reflects that a deadly weapon was used
during the commission of the offense. The judgement should be reformed to delete
the deadly weapon finding.
ARGUMENT AND AUTHORITIES THE COURT OF APPEALS SHOULD REFORM AND MODIFY THE JUDGMENT OF THE DISTRICT COURT DELETING THE DEADLY WEAPON FINDING Appellant and the State reached a plea bargain agreement that he would plead
guilty to the included offense of Robbery, a second degree felony offense. [CR: 57;
61]. Appellant’s judicial confession conspicuously has the deadly weapon language
stricken. [CR: 56]. The district court acknowledged that appellant was pleading guilty
to the offense of Robbery. [RR2: 6]. At the conclusion of the trial, the district court
did not make a deadly weapon finding. [RR3: 32]. Since the State’s proof (appellant’s
confession) did not establish the use or exhibition of a deadly weapon and it was
clearly the intent of all the parties that no deadly weapon finding be entered, the
judgment erroneously reflects a deadly weapon finding.
In Santobello v. New York , 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971),
the Supreme Court wrote that where a plea bargain agreement is entered into, it must
be enforced either by specific performance or else the defendant must be allowed to
withdraw his plea. In the instant cause it is clear that the plea bargain agreement
entered between the parties and accepted by the district court provided that there
would be no affirmative finding of a deadly weapon, an important issue for appellant
since the entry of such a finding would adversely affect his parole eligibility. See
T EX . G OV ’ T C ODE A NN . §508.145 (d) (1) .
The Court of appeals has statutory authority to reform the judgment herein.
See T EX . R. A PP . P. 43.2 (b) . The right to seek reformation of a judgment by deleting
an improper entry of a deadly weapon finding has been universally recognized by the
reviewing courts. Drichas v. State , 175 S.W.3d 795, 798 (Tex. Crim. App. 2005)
Williams v. State , 970 S.W.2d 566, 566 (Tex. Crim. App. 1998); Narron v. State , 835
S.W.2d 642, 644 (Tex. Crim. App.1992); Ex parte Hopson , 688 S.W.2d 545, 548
(Tex. Crim. App. 1985); Turner v. State , 664 S.W.2d 86, 90 (Tex. Crim. App.1983);
Medina v. State , 962 S.W.2d 83, 88 (Tex. App. - Houston [1 st Dist.]1997).
In the instant cause appellant entered into a plea bargain agreement that he
would be convicted of the included offense of Robbery with no entry of a finding that
a deadly weapon was used or exhibited during the commission of the offense. The
plea bargain agreement should be enforced. Based upon the record in this cause, this
Honorable Court should order that the judgement be reformed deleting the deadly
weapon finding.
PRAYER FOR RELIEF WHEREFORE, FOR THE FOREGOING REASONS, Appellant prays that
this Honorable Court order reformation of the judgement deleting the deadly weapon
finding.
Respectfully submitted, /S/ Lawrence B. Mitchell LAWRENCE B. MITCHELL SBN 14217500 P.O. Box 797632 Dallas, Texas 75379 Tel. No.: 214.870.3440 E-mail: judge.mitchell@gmail.com A TTORNEY F OR A PPELLANT *12 CERTIFICATE OF WORD-COUNT COMPLIANCE The undersigned attorney hereby certifies, in compliance with T EX . R. A PP .
P ROC . 9.4 (i) (3) that this document contains 862 words, including all contents except
for the sections of the brief permitted to be excluded by T EX . R. A PP . P ROC . 9.4 (i)
(1).
/s/ Lawrence B. Mitchell LAWRENCE B. MITCHELL CERTIFICATE OF SERVICE The undersigned attorney hereby certifies that a true and correct copoy of the
foregoing brief is being served on the attorney for the Sate of Texas, Lori Ordiway
by e-mail at lori.ordiway@dallascounty.org on this the 2 nd day of July, 2015.
/s/ Lawrence B. Mitchell LAWRENCE B. MITCHELL