                    PD-0660-15
                                                          June 1, 2015

                    NO. _____________

         IN THE COURT OF CRIMINAL APPEALS

                    STATE OF TEXAS


              ANDRES ALFREDO SEGOVIA,

                      PETITIONER

                           VS.

                 THE STATE OF TEXAS,

                      RESPONDENT
   ___________________________________________________

       PETITION IN CAUSE NUMBER 04-14-00367-CR
  APPEALED FROM THE 399TH JUDICIAL DISTRICT COURT
 OF BEXAR COUNTY, TEXAS AND THE COURT OF APPEALS
FOR THE FOURTH SUPREME JUDICIAL DISTRICT OF TEXAS

   ___________________________________________________


        PETITION FOR DISCRETIONARY REVIEW

   ___________________________________________________

                                 BARRY P. HITCHINGS
                                 645 South Presa
                                 San Antonio, Texas 78210
                                 (210) 224-1433
                                 (210) 224-4840 (telecopier)
                                 hpb@stic.net
                                 ATTORNEY FOR PETITIONER
                                 State Bar No. 09723600
         IDENTITY OF PARTIES, COUNSEL AND JUDGES
APPELLANT/PETITIONER: Andres Alfredo Segovia
TRIAL DEFENSE
ATTORNEYS:              Mr. Tony Jimenez, III
                        State Bar No. 10666800
                        214 Dwyer Avenue, Suite 315
                        San Antonio, Texas 78204
                        (210) 225-0777
                        Ms. Catherine Valenzuela
                        State Bar No. 788575
                        P.O. Box 780395
                        San Antonio, Texas 78278
                        (210) 382-4335
TRIAL PROSECUTORS:      Mr. Steven Speir
                        State Bar No. 24047633
                        Ms. Julie Wright
                        State Bar No. 00788722
                        Assistant Criminal District Attorneys
                        Paul Elizondo Tower
                        101 W. Nueva, 4th Floor
                        San Antonio, Texas 78205
                        (210) 335-2377
APPELLATE DEFENSE
ATTORNEY:               Barry P. Hitchings
                        State Bar No. 09723600
                        645 South Presa
                        San Antonio, Texas 78210
                        (210) 224-1433
                        (210) 224-4840 (fax)
APPELLATE STATE’S
ATTORNEY:               Nathan E. Morey
                        State Bar No. 24074756
                        Assistant Criminal District Attorney
                        Paul Elizondo Tower
                        101 W. Nueva, Suite 370
                        San Antonio, Texas 78205
                        (210) 335-2414
                        (210) 335-2436

                                ii
TRIAL JUDGE:          Judge Ray J. Olivarri, Jr.
                      399th District Court
                      Bexar County Justice Center
                      300 Dolorosa
                      San Antonio, Texas 78205
                      Judge George Godwin
                      Senior Retired Judge
                      Sitting for the 299th District Court
                      300 Dolorosa
                      San Antonio, Texas 78205
                      (At Punishment Hearing)
APPELLATE JUSTICES:   Patricia O. Alvarez
                      Luz Elena D. Chapa
                      Jason Pulliam




                               iii
                                        TABLE OF CONTENTS
IDENTITY OF PARTIES, COUNSEL AND JUDGES . . . . . . . . . . . . . . . . . . ii-iii
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2
STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
GROUNDS FOR REVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
                  1. The Court of Appeals erred in holding that a “sudden
                  passion arising from an adequate cause” instruction is
                  never warranted in a murder conviction in which a
                  defendant admits to two (2) prior felony convictions

                  2. The Court of Appeals erred in holding that the trial
                  court did not abuse its discretion in failing to solicit a plea
                  on the State’s enhancement allegations requiring the State
                  to prove each enhancement allegation beyond a reasonable
                  doubt and without a plea of true, then instructing the jury
                  that “you will find” the enhancement allegations to be true

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-15

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17




                                                          iv
                                      INDEX OF AUTHORITIES


TEXAS CASES                                                                                                    Page(s)

Bell v. State,

 (Tex. Crim. App. 1999). . . . . . . . . . . . . . . . . . . . 14

Cornett v. State,

 (Tex.App.–Houston [1st Dist.] 2013, pet.ref’d) 8-9

Daniels v. State,

645 S.W.2d 459

 (Tex. Crim. App. 1983) . . . . . . . . . . . . . . . . . 6-7

Mims v. State,

3 S.W.3d 923

 (Tex. Crim. App. 1999) . . . . . . . . . . . . . . . . . . . . 1, 7

Roberts v. State,

321 S.W. 3d 545

 (Tex.App.–Houston [14th Dist.]2010 pet.
     ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-14

State v. Mancuso,

919 S.W.2d 86

 (Tex. Crim. App. 1996) . . . . . . . . . . . . . . . 10-12

Trevino v. State,

100 S.W.3d 232

 (Tex. Crim. App. 2003) . . . . . . . . . . . . . . . . . 1, 7

Washington v. State,

677 S.W. 2d 524

 (Tex. Crim. App. 1984) overruled
     on other grounds Bell v. State,

994 S.W.2d 173

 Tex.Crim.App. 1999) .14-15

Wooten v. State,

400 S.W.3d 601

 (Tex. Crim. App. 2013) . . . . . . . . . . . . . . . 1, 6-7


TEXAS STATUTES AND CODES

TEX. PENAL CODE ANN. § 12.35 (Vernon 2013) . . . . . . . . . . . . . . . . . . . 10, 12

TEX. PENAL CODE ANN. § 12.42 (Vernon 2013) . . . . . . . . . . . . . . . 1, 4-5,10,12

TEX. PENAL CODE ANN. § 19.02 (Vernon 2013). . . . . . . . . . . . . . . . . . . . . . 1, 4

TEX. GOV’T CODE ANN. § 311.021 (Vernon 1995) . . . . . . . . . . . . . . . . . . 10, 11

TEX. GOV’T CODE ANN. § 311.026 (Vernon 1995) . . . . . . . . . . . . . . . . . . . . . 11

                                                           v
                      Statement Regarding Oral Argument

      Oral argument is requested in this case since as the Fourth Texas Court of

Appeals’ ruling in the Petitioner’s case notes — “[i]n this case of first impression, we

are asked to determine whether a defendant who presents evidence on the statutory

requirements of the requested instruction, but is prohibited from receiving the

statutory benefit of the requested instruction, is entitled to the instruction.”

(Appendix: Fourth Court of Appeals opinion at page 18).           The Texas Court of

Criminal Appeals has ruled that the Section 19.02 Texas Penal Code (Murder

requiring a sudden passion charge if raised by the evidence) charge should be given

to a jury if raised by the evidence. Wooten v. State,

400 S.W.3d 601, 605

 (Tex. Crim.

App. 2013); Trevino v. State,

100 S.W.3d 232, 238

 (Tex. Crim. App. 2003); Mims

v. State,

3 S.W.3d 923, 928

(Tex. Crim. App. 1999). However, Wooten, Trevino and

Mims did not involve the issue of reconciling Section 19.02 of the Texas Penal Code

with Section 12.42 (d) (Habitual Felony) of the Texas Penal Code. This case

represents a conflict between Sections 19.02 and 12.42 (d) of the Texas Penal Code.

Statement of the Case

Petitioner was charged by indictment with the offense of Murder. (CR-8). The

State subsequently filed a “Notice of Intent to Use Two Prior Convictions for

Enhancement of Punishment.” (CR-52-53). Petitioner filed an “Election of

1
Punishment” in which he requested “that the jury assess the punishment in this case

in the event the jury finds the defendant guilty.” (CR-65). A jury found the Petitioner

guilty of murder. (CR-79). The jury assessed punishment for fifty-five (55) years in

the Institutional Division of the Texas Department of Criminal Justice. (CR 92-93).

The trial court judge signed a Trial Court’s Certification of Defendant’s Right to

Appeal on May 6, 2014. (CR-95). Petitioner timely filed a “Notice of Appeal”

including an additional “Trial Court’s Certification of Defendant’s Right of Appeal”

on May 22, 2014. (CR 100-101). On April 29, 2015, the Fourth Court of Appeals

issued an opinion affirming the ruling of the trial court. (See Appendix).

Statement of Procedural History

On April 29, 2015, the Fourth Court of Appeals issued an opinion affirming the

ruling of the trial court. (See Appendix). No Motion for Rehearing was filed.

Ground for Review

1. The Court of Appeals erred in holding that a “sudden passion
arising from an adequate cause” instruction is never warranted in
a murder conviction in which a defendant admits to two (2) prior
felony convictions

2. The Court of Appeals erred in holding that the trial court did
not abuse its discretion in failing to solicit a plea on the State’s
enhancement allegations requiring the State to prove each
enhancement allegation beyond a reasonable doubt and without
a plea of true, then instructing the jury that “you will find” the
enhancement allegations to be true

2
Argument

In its April 29, 2015 Opinion, the Fourth Court of Appeals discussed the facts

and law relating to Petitioner’s Grounds for Review numbers 1 and 2 under the

heading of “Punishment Charge” on pages 14 through 23 of its opinion. (See

Appendix). The Opinion of the Fourth Court of Appeals notes that Petitioner claims

that the trial court’s charge contained two (2) errors: “(1) failure to include a sudden

passion instruction and (2) instructing the jury that ‘you will find’ rather than ‘if you

find’ on the habitual offender instruction.” (Appendix, Fourth Court of Appeals

Opinion at page 14).

Lack of a Sudden Passion Charge

At the conclusion of the testimony at the punishment phase of the trial, the trial

court conducted a charge conference regarding the Charge of the Court on

Punishment. (RR. 7, pp. 190-196). Petitioner had submitted a “Defendant’s Special

Requested Charge #1" requesting the trial court to issue instructions to the jury on the

issue of “whether the [Petitioner] caused the death under the immediate influence of

sudden passion arising from an adequate cause” based upon the provisions of Section

19.02 of the Texas Penal Code. (CR 80-82). The trial court judge noted that since the

Petitioner admitted to two prior felony convictions at punishment requiring a

3
punishment range between 25 to 99 years imprisonment pursuant to Texas Penal

Code Section 12.42 (d) the trial court would deny Petitioner’s request for a Section

19.02 charge on “sudden passion arising from an adequate cause.” (RR. Vol 7, p.

193).

Petitioner’s trial attorney subsequently re-urged the sudden passion instruction

and argued that:

MR. JIMENEZ: . . . . I want to reurge it on the grounds that my
client has a right to present a complete defense on his behalf
including punishment. In this particular instance, a complete
defense would include the passion, the heat of passion instruction.
We’re making that request now under the Sixth and Fourteenth
Amendments of the United States Constitution. That also impact,
Your Honor, the right to effective representation of counsel under
the Sixth Amendment.

(RR. 8, p. 5). However, the trial judge responded by informing Petitioner’s attorney

that his objection on the lack of a sudden passion instruction “will be overruled once

again.” (RR. 8, p. 6).

Texas Penal Code § 19.02 (entitled “Murder”) provides in part:

(a) In this section:
(1) “Adequate cause” means cause that would commonly
produce a degree of anger, rage, resentment, or terror in a person
of ordinary temper, sufficient to render the mind incapable of cool
reflection.
(2) “Sudden passion” means passion directly caused by and
arising out of provocation by the individual killed or another
acting with the person killed which passion arises at the time of

4
the offense and is not solely the result of former provocation.
(b) A person commits an offense if he:
(1) intentionally or knowingly causes the death of an
individual;
(2) intends to cause serious bodily injury and commits an
act clearly dangerous to human life that causes the death of an
individual.
[c] Except as provided by Subsection (d), an offense under this
section is a felony of the first degree.
(d) At the punishment stage of a trial, the defendant may raise the
issue as to whether he caused the death under the immediate
influence of sudden passion arising from an adequate cause. If
the defendant proves the issue in the affirmative by a
preponderance of the evidence, the offense is a felony of the
second degree.

Texas Penal Code § 12.42 (entitled “Penalties for Repeat and Habitual Felony

Offenders on Trial for First, Second or Third Degree Felony”) provides in part:

(d) . . . . if it is shown on the trial of a felony offense other
than a state jail felony punishable under section 12.35 (a) that the
defendant has previously been finally convicted if two felony
offenses, and the second previous felony conviction is for an
offense that occurred subsequent to the first previous conviction
having become final, on conviction the defendant shall be
punished by imprisonment in the Texas Department of Criminal
Justice for life, or for any term of not more than 99 years or less
than 25 years. . . .

In Petitioner’s case, the Petitioner was indicted for the First Degree offense of

Murder. (CR 8). The State also filed a “Notice of Intent to Use Two Prior

Convictions for Enhancement of Punishment.” (CR 52-53). On appeal before the

Fourth Court of Appeals, the State in the State’s Brief recited that “the State does not

5
dispute that Appellant introduced sufficient evidence that raised the defensive issue

of ‘sudden passion.’” (State’s Brief to the Fourth Court of Appeals at page 18).

In Wooten v. State, after the jury rejected a murder defendant’s self defense

claim, the trial court denied the murder defendant’s request for a sudden passion

charge at punishment in which the murder defendant claimed that “once the shooting

began, that he was overwhelmed by emotions of fear, disorientation, confusion. .

. .”

400 SW3d 601, 604

 (Tex. Crim. App. 2013). In reversing the court of appeals,

the Court of Criminal Appeals in Wooten ruled that:

             [t]o justify a jury instruction on the issue of sudden passion at the
             punishment phase, the record must at least minimally support an
             inference: 1) that the defendant in fact acted under the immediate
             influence of a passion such as terror, anger, rage, or resentment;
             2) that his sudden passion was in fact induced by some
             provocation by the deceased or another acting with him, which
             provocation would commonly produce such a passion in a person
             of ordinary temper; 3) that he committed the murder before
             regaining his capacity for cool reflection; and 4) that a causal
             connection existed “between the provocation, passion, and
             homicide.” It does not matter that the evidence supporting the
             submission of a sudden passion instruction may be weak,
             impeached, contradicted, or unbelievable. If the evidence thus
             raises the issue from any source, during either phase of trial, then
             the defendant has satisfied his burden of production, and the trial
             court must submit the issue in the jury charge – at least if the
             defendant requests it.

Id. at 605

 (Emphasis Added). However, after conducting a harm analysis, the Court

of Criminal Appeals in Wooten citing Daniels v. State noted that “‘a bare claim of’

                                           6
fear will not necessarily support a claim of sudden passion, but that fear that ‘rises to

the level of terror’ will suffice (if the cause is adequate)” to invoke a sudden passion

instruction. Wooten at 607 citing Daniels,

645 S.W.2d 459, 460

 (Tex. Crim. App.

1983). The Court of Criminal Appeals in Wooten then concluded that:

              whatever error the trial court may have committed by failing to
              charge the jury with respect to sudden passion did not harm the
              appellant. Finding our harm analysis thus dispositive, we need
              not address whether the trial court did, in fact, err not to include
              the instruction.

Id. at 607

.

      Earlier Texas Court of Criminal Appeals’ rulings in Trevino v. State (“sudden

passion charge should be given if there is some evidence to support it, even if that

evidence is weak, impeached, contradicted or unbelievable”) and Mims v. State (“if

raised by the evidence, the sudden passion issue should be submitted in the

punishment phase of an attempted murder prosecution”) support giving a “sudden

passion” charge if supported by the evidence. Trevino,

100 S.W.3d 232, 238

 (Tex.

Crim. App. 2003); Mims,

3 S.W.3d 923, 928

 (Tex. Crim. App. 1999). Since an

attempted murder defendant (in which attempted murder would be a second degree

felony) would be entitled to a “sudden passion arising from an adequate charge”

instruction in Mims, the offense would remain a second degree felony even though

Mims would get the benefit of the mitigation charge of “sudden passion arising from

                                            7
an adequate cause.” Thus a “sudden passion arising from an adequate charge”

instruction would serve the dual purpose of (1) a charge reduction and/or (2) a

mitigation instruction.

      Although briefed and argued to the Fourth Court of Appeals, the Fourth Court

of Appeals should have followed the example of Cornett v. State,

405 S.W.3d 752, 754-756

 (Tex.App.-Houston [1st Dist.] 2013, pet. ref’d). Cornett involved the three

(3) factors in Petitioner Segovia’s case, i.e. (1) a murder conviction; (2) a stipulation

to two prior felony convictions; and (3) a request for a “sudden passion arising from

an adequate cause” punishment instruction which the trial court judge in Cornett

granted.

Id. at 756

.

      The jury in Cornett sentenced the defendant to serve a sentence of forty-two

(42) years confinement for a first degree murder. However, the sole issue before the

1st District Court of Appeals was not whether to give a “sudden passion arising from

an adequate cause” instruction (since such a charge was given) but whether the

punishment phase jury charge on the sudden passion special issue erroneously

allowed the jury to return a non-unanimous verdict on the sudden passion issue. The

1st District Court of Appeals ruled that the jury instruction improperly “conditioned

the first-degree felony punishment range on only a failure to find sudden passion

unanimously rather than a unanimous negative finding on the issue.”

Id. at 760

.

                                           8
However, in its harm analysis, the 1st District Court of Appeals concluded that the

erroneous punishment instruction on sudden passion (relating to “unanimity”) did not

cause the defendant egregious harm. Id at 754, 763.

      There is no reference in the Fourth Court of Appeals’ opinion in the

Petitioner’s case to the opinion in Cornett in which the Texas Court of Criminal

Appeals denied discretionary review. Instead, the Fourth Court of Appeals appeared

overly concerned that to give the “sudden passion” charge requested by defense

counsel: (1) “could have potentially led jurors to believe that a penalty range was a

possibility” and (2) “such a discrepancy in the charge could have potentially been

misleading or allowed for some form of jury nullification.” (Appendix, Fourth Court

of Appeals opinion at page 18).

      Applying, Cornett, the trial court judge should have: (1) granted Petitioner’s

“sudden passion arising from an adequate cause” jury instruction request; (2)

instructed the jury that if they found “sudden passion arising from an adequate cause”

the charge would then be reduced to a second degree felony with a range of

punishment from 2 to 20 years imprisonment; and (3) further instructed the jury that

if the jury found that the State had proved beyond a reasonable doubt that the

defendant had twice before been convicted of non-state jail felonies then the range

of punishment would be imprisonment in the Texas Department of Criminal Justice

                                          9
for life, or for any term of not more than 99 years or less than 25 years. Such a charge

would have given Petitioner Segovia his statutory entitlement to a “sudden passion

arising from an adequate cause” charge and applied the Section 12.42 (d) Texas Penal

Code habitual offender requirement of a range of punishment of life or not more than

99 years or less than 25 years.     Instead, the Fourth Court of Appeals published

opinion in Petitioner Segovia’s case effectively now holds that in Texas a sudden

passion instruction is never warranted in a murder conviction in which a defendant

admits to two (2) prior felony convictions. Such a ruling now precludes murder

defendants in Texas with two (2) prior felonies from using “sudden passion arising

from an adequate cause” for either charge reduction or mitigation purposes.

      The Fourth Court of Appeals could have resolved the apparent conflict between

Texas Penal Code § 19.02 (Murder) and Texas Penal Code § 12.42 (d) (Habitual

Felony Offenders) by following the logic of the Texas Court of Criminal Appeals in

State v. Mancuso,

919 S.W.2d 86

(1996). In Mancuso, the Texas Court of Criminal

Appeals:

granted the State’s petition for discretionary review to determine
whether the Court of Appeals erred in holding the trial judge
properly sentenced appellees under Tex.Penal Code Ann. § 12.35
and art. 42.12 § 15, rather than Tex.Penal Code Ann. § 12.42 (d)

In Mancuso, the Texas Court of Criminal Appeals construed Tex. Gov’t Code §§s

10
311.021 (entitled “Intention in Enactment Statutes”); 311.023 (entitled “Statute

Construction Aids”); 311.026(a) and 311.026(b) (entitled “Special or Local Provision

Prevails over General”). In construing statutes the Texas Court of Criminal Appeals

noted:

It is the duty of the Legislature to make laws, and it is the
function of the Judiciary to interpret those laws. Cites omitted.
When we interpret statutes we seek to effectuate the ‘collective’
intent or purpose of legislators who enacted the legislation. Cites
omitted. Consequently, we focus on the text of the statute and
interpret it in a literal manner attempting to discern the fair,
objective meaning of the text. Cites omitted. It is our duty while
interpreting the statute to give the ordinary and plain meaning to
the language of the Legislature. Cites omitted. Where the statute
is clear and unambiguous, the Legislature must be understood to
mean what it has expressed, and it is not for the courts to add or
subtract from such a statute. Cites omitted. Only when the
application of a statute’s plain language is ambiguous or would
lead to absurd consequences which the Legislature could not
possibly have intended, should we look to extratextual factors.
Cites omitted. These extratextual factors include, but are not
limited to executive and/or administrative interpretations,
consequences of construction, goal of legislation, circumstances
under which the statute was enacted and legislative history. Cites
omitted. This exception to the general rule is not intended to, nor
should it, intrude upon the lawmaking powers of the legislative
branch and it should not be construed as an invasion of legislative
authority. Failing an absurd consequence or ambiguous language
this Court need not delve into the extratextual factors affecting a
statute. Cites omitted. It is presumed in the enactment of a statute
that the entire statute and all words in the statute are intended to
be effective, and the language therein will create a just and
reasonable result. Cite omitted. If a general provision conflicts
with a specific provision, the provisions shall be construed, if

11
possible, so that effect is given to both. Cites omitted. If the
statutes are unable to be reconciled, the specific statute will
prevail as an exception to the general statute, unless the general
statute is the later enactment and the manifest intent is that the
general provision prevail. Cite omitted.

In Mancuso, then Art. 42.12 § 15 of the Texas Code of Criminal Procedure

specifically provided for the enhancement of punishment for offenses under §

12.35(a) [State Jail Felonies] when there were two or more felony convictions and §

12.42 (d) of the Texas Penal Code providing for enhancements on the trial of a

felony offense in which there were two prior felony convictions enhancing the

punishment to life or not more than 99 years or less than 25 years. The State

contended that § 12.42 (d) applied to all felonies, including state jail felonies. Id. at

89. Applying the statutory construction aids, the Texas Court of Criminal Appeals

in Mancuso affirmed the Court of Appeals in ruling that state jail felonies could not

be enhanced under § 12.42 (d) of the Texas Penal Code. Id. at 90. Section 12.42 (d)

of the Texas Penal Code was amended after the Mancuso opinion to recite “on trial

of a felony offense other than a state jail felony.”

Habitual Felony Offender Punishment Charge

In its “Charge of the Court on Punishment” the trial court included a charge

that instructed the Jury that — “You will find that the defendant has previously been

finally convicted of two felony offenses, as alleged, and the second previous felony

12
conviction is for an offense that occurred subsequent to the first previous conviction

having become final.” (CR 87-88). The Petitioner’s attorney objected to the “You

will find” language and requested an instruction using the words – “If you find.” (RR

8, pp. 4-6). Petitioner’s trial attorney argued that the “You will find” instruction

constituted “a comment on the weight of the evidence” by the trial court judge. (RR

8, pp. 4-6).

In its opinion, the Fourth Court of Appeals ruled that the trial court judge in

Segovia committed error in submitting the “You will find” language in the Court’s

charge to the jury. (Appendix - Fourth Court of Appeals’ Opinion at page 19). After

reviewing the record on appeal, the Fourth Court concluded that in Petitioner

Segovia’s case “because there was no plea, the burden of proof rested on the State

and the trial court’s charge usurped that burden.” Id. Accordingly, the charge was

in error.” (Appendix – Fourth Court of Appeals Opinion at page 19).

In its subsequent “harm analysis” the Fourth Court of Appeals relied on

Roberts v. State,

321 S.W.3d 545

 (Tex. App. – Houston [14th Dist.] 2010, pet. ref’d).

In Roberts, the defendant’s trial court attorney did not object to the punishment

charge which instructed the jury to find each of four enhancement allegations true

despite defendant Robert’s plea of not true to one of the enhancement allegations. Id

at 533. However, in Petitioner Segovia’s case, his trial court attorney vigorously

                                         13
objected to the trial court’s charge of “You will find.” (RR. 8, pp. 4-6). The Fourth

Court noted that the harm analysis in Roberts would focus on the issue of “egregious

harm” while the Segovia harm analysis would focus on “some harm” to require

reversal. (Appendix– Fourth Court of Appeals Opinion at p. 21). In Petitioner

Segovia’s case the Fourth Court of Appeals concluded that – “Even assuming error,

the record does not support any finding of harm.” Id. at 22.

      Petitioner Segovia contends that the more analysis of the trial court’s judge’s

“You will find” jury charge instruction is in Washington v. State,

677 S.W.2d 524, 528-29

 (Tex. Crim. App. 1984) overruled on other grounds Bell v. State,

994 S.W.2d 173, 175

(double jeopardy issues generally not applicable to noncapital sentencing

proceedings). In Washington, after a jury found a defendant guilty the trial court

judge immediately discharged the jury because the trial court judge found that the

defendant had “admitted to the truth of the enhancement allegations when he testified

at the guilt state of trial” and thus “there was no issue for the jury to resolve. Id. at

527. The Texas Court of Criminal Appeals concluded that the trial court judge in

Washington erred since “an accused person in Texas does have the statutory right to

have the jury assess his punishment.” Id. The Texas Court of Criminal Appeals in

Washington concluded that:

even though appellant admitted when he testified to the alleged

14
prior felony convictions, nevertheless, a question of fact still
existed that, because of his election, was to be answered by the
jury, and not the trial judge. . . . The admission by the
defendant does not warrant the trial judge taking the case from the
jury, because the jury is still charged with the responsibility of
determining guilt. . . . In dismissing the jury prematurely, the
trial court deprived appellant of a valuable statutory right.

Id. at 529.

Prayer for Relief

WHEREFORE, Petitioner prays that this Honorable Court of Criminal Appeals

will grant this Petition for Discretionary Review. Petitioner further prays that upon

reviewing the decision of the Fourth Court of Appeals, that this Court reverse the

decision and enter a ruling reversing the judgment of the trial court and the Fourth

Court of Appeals and remand this case for a new trial.

Respectfully submitted,

LAW OFFICES OF
HITCHINGS & POLLOCK
645 South Presa
San Antonio, Texas 78210
(210) 224-1433
(210) 224-4840 (telecopier)

By: /S/ Barry P. Hitchings
BARRY P. HITCHINGS
State Bar No. 09723600
ATTORNEYS FOR Petitioner

15
CERTIFICATE OF COMPLIANCE

1. This Petition for Discretionary Review complies with the type-volume
limitation of TEX. R. APP. P. 9.4 (i)(1)(2)because this brief contains 4508 words,
excluding parts of the brief exempted by TEX. R. APP. P. 9.4 (i)(1).

2. This Petition for Discretionary Review complies with the typeface and
type style requirements of TEX. R. APP. P. 9.4 (e) because this Petition for
Discretionary Review has been prepared in a proportionally spaced typeface using
Word Perfect X4 for Windows in 14 point font size and Times New Roman type
style.

/S/ Barry P. Hitchings
BARRY P. HITCHINGS
Attorney for Appellant Andres Alfredo
Segovia
Dated: May 29, 2015

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on this 29th day of May, 2015, a true and
correct copy of this Petition for Discretionary Review was served by e-filing at
nathan.morey@bexar.org and hand-delivered to the Bexar County Criminal District
Attorneys Office, Paul Elizondo Tower, 101 W. Nueva Street, San Antonio, Texas
78205 and served upon the State Prosecuting Attorney, P.O. Box 12405, Austin,
Texas 78711 by e-filing at information@spa.texas.gov.

/S/ Barry P. Hitchings
BARRY P. HITCHINGS

16
APPENDIX

17
Envelope Details

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Envelope 5473053
Case Information
Location Court Of Criminal Appeals
Date Filed 05/29/2015 02:36:28 PM
Case Number
Case Description
Assigned to Judge
Attorney Barry Hitchings
Firm Name Hitchings & Pollock
Filed By Julie Pollock
Filer Type Not Applicable
Fees
Convenience Fee $0.00
Total Court Case Fees $0.00
Total Court Filing Fees $0.00
Total Court Service Fees $0.00
Total Filing & Service Fees $0.00
Total Service Tax Fees $0.00
Total Provider Service Fees $0.00
Total Provider Tax Fees $0.00
Grand Total $0.00
Payment
Account Name Hitchings & Pollock
Transaction Amount $0.00
Transaction Response
Transaction ID 8983783
Order # 005473053-0

Petition for Discretionary Review
Filing Type EFileAndServe
Filing Code Petition for Discretionary Review
Filing Description SegoviaAndresPetitionForDiscretionaryReview
Reference Number 04-14-00367-CR
Comments
Status Rejected
Fees
Court Fee $0.00
Service Fee $0.00
Rejection Information
Rejection Time Rejection Comment
Reason
06/01/2015 The petition for discretionary review does not contain a certification in compliance
Other 02:43:43 with T.R.A.P. 9.4(i)(3); counsel indicates the petition contains 4508 words which

https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=846a069a-d670-4cdb-9ce2-56c279effa55[6/1/2015 2:49:21 PM]
Envelope Details

PM exceeds the limit of 4500. You have ten days to file a corrected petition.
Documents
Lead Document Segovia PDR.pdf [Original]
Attachments Segovia4thCtOpinionAppendix.pdf [Original]

eService Details
Name/Email Firm Service Type Status Served Date/Time Opened
State Prosecuting Attorney 05/29/2015
EServe Sent Yes
information@spa.texas.gov 03:28:32 PM
Nathan Morey 05/29/2015
EServe Sent Yes
nathan.morey@bexar.org 03:25:18 PM

https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=846a069a-d670-4cdb-9ce2-56c279effa55[6/1/2015 2:49:21 PM]