Case Information
*0 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 08/12/2015 1:04:54 PM KEITH E. HOTTLE Clerk *1 ACCEPTED 04-15-00236-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 8/12/2015 1:04:54 PM KEITH HOTTLE CLERK
No. 04-15-00236-CR IN THE
FOURTH COURT OF APPEALS OF TEXAS
AT SAN ANTONIO, TEXAS SABRINA NICOLE ANGEL , Appellant
v. THE STATE OF TEXAS , Appellee
TRIAL CAUSE NO. 436068 APPEAL FROM COUNTY COURT NO. 13 OF BEXAR COUNTY, TEXAS HONORABLE CRYSTAL CHANDLER, JUDGE PRESIDING APPELLANT’S BRIEF RICHARD B. DULANY, JR. Assistant Public Defender Bexar County Public Defender’s Office 101 W. Nueva St., Suite 370 San Antonio, Texas 78205 ORAL ARGUMENT IS (210) 335-0701
NOT REQUESTED FAX (210) 335-0707
richard.dulany@bexar.org Texas Bar No. 06196400 ATTORNEY FOR APPELLANT *2 Identity of Parties and Counsel
Pursuant to T EX .R.A PP .P. 38.1(a), the parties are as follows:
Sabrina Nicole Angel was the Defendant and is the Appellant.
The State of Texas , by and through the Bexar County District Attorney’s Office,
prosecuted this case and is the Appellee.
For the State:
At trial:
Nicole Meyer
Amanda Henarie Vasquez
Assistant District Attorneys
Bexar County District Attorney’s Office Paul Elizondo Tower
101 W. Nueva St., Fourth Floor
San Antonio, TX 78205
On appeal: Nicholas A. LaHood/Appellate Section
Bexar County District Attorney’s Office Paul Elizondo Tower
101 W. Nueva St., Suite 710
San Antonio, TX 78205
For the Appellant:
At trial:
Theresa A. Connolly
Texas Bar No. 00790014
Attorney at Law
106 S. St. Mary’s, Suite 260
San Antonio, TX 78205
On appeal: Richard B. Dulany, Jr.
Texas Bar No. 06196400
Assistant Public Defender
Bexar County Public Defender’s Office 101 W. Nueva St., Suite 370
San Antonio, TX 78205
ii
The Trial Court:
Hon. Crystal Chandler, Judge Presiding
County Court at Law No. 13
Cadena-Reeves Justice Center
300 Dolorosa Street, Third Floor
San Antonio, TX 78205
iii
Table of Contents
Identity of Parties and Counsel .................................................................................... ii
Table of Contents ......................................................................................................... iv
Index of Authorities ..................................................................................................... v
A Note on Record References ...................................................................................... vi
Certificate of Compliance with Word Limit ................................................................ vi
Statement of the Case ................................................................................................... 1
Statement Regarding Oral Argument .......................................................................... 2
First Issue for Review (Presented) ............................................................................... 3
The trial court orally pronounced that the $1,000 fine would be "fully probated," so the judgment must be modified reflect that the fine was probated and was not "ordered executed." .................................................. 3 Statement of Facts ........................................................................................................ 4
Summary of the Argument ........................................................................................... 8
Argument...................................................................................................................... 9
First Issue for Review (Restated) ................................................................... 9 Conclusion and Prayer for Relief ................................................................................. 11
Certificate Of Service................................................................................................... 11
iv *5 Index of Authorities Cases
Burt v. State , 445 S.W.3d 752, 757 (Tex. Crim. App. 2014) .............................................. 9
Thompson v. State , 108 S.W.3d 287, 290 (Tex. Crim. App. 2003) ..................................... 9
Statutes
T EX . P ENAL C ODE A NN . § 22.01(a) & (b) (West 2015) ...................................................... 1
T EX . P ENAL C ODE A NN . § 31.03(e)(4)(A) (West 2011) ...................................................... 1
Rules
T EX . R. A PP . P. 9.10(a)(3).................................................................................................... 4
T EX .R.A PP .P. 9.4(i)(1) ........................................................................................................ vi
T EX .R.A PP .P. 9.4(i)(2)(B) .................................................................................................. vi
v *6 A Note on Record References The reporter’s record in this case consists of five volumes. Volume 1 is the Master Index. Volume 5 is the Exhibit Index. References to the reporter’s record
will be: ([Volume Number] RR at ___ ).
The clerk’s record consists of a single volume. Thus, a reference to the clerk’s record will be: (CR at ___ ).
Certificate of Compliance with Word Limit Pursuant to T EX .R.A PP .P. 9.4(i)(1) & (i)(2)(B), the total word count is 2,190. vi
TO THE COURT OF APPEALS FOR THE FOURTH COURT OF APPEALS
DISTRICT OF TEXAS:
This brief is filed on behalf of Appellant, Sabrina Nicole Angel, by Richard B. Dulany, Jr., an Assistant Public Defender with the Appellate Unit of the Bexar
County Public Defender’s Office. This is an appeal from a jury trial upon
Appellant’s plea of “not guilty” to the charged offense.
Statement of the Case Appellant, Sabrina Nicole Angel, was charged by information with assault causing bodily injury, a Class A misdemeanor. [1] (CR at 8). The offense was alleged
to have been committed in Bexar County, Texas, on or about June 19, 2013. (CR at
8). A jury found Appellant guilty of the charged offense and she was placed on
community supervision for one year, to begin on March 27, 2015. (CR at 38-39,
41). The trial court accurately certified that Appellant has the right of appeal. (CR
at 40). Appellant was found to be indigent, and the Bexar County Public
Defender’s Office was appointed to represent her on appeal. (CR at 47). Trial
counsel timely filed a notice of appeal on Appellant’s behalf (CR at 43), and this
appeal follows.
*8 Statement Regarding Oral Argument The issue raised in this appeal may be determined from the record and cited authority alone. For that reason, undersigned counsel does not request oral
argument, but will present oral argument if it is requested by the State.
First Issue Presented for Review (Presented) The trial court orally pronounced that the $1,000 fine would be "fully
probated," so the judgment must be modified reflect that the fine was
probated and was not "ordered executed."
Statement of Facts The voir dire proceedings are not summarized because they are not relevant to this appeal. The jury was sworn. (2 RR at 85). Trial on the merits began on
March 26, 2015. (3 RR at 1). Appellant pleaded not guilty to the charged offense.
(3 RR at 13). The facts of the case are summarized only briefly because the issue
presented for review concerns only the written judgment.
Felipe Arevalo and Appellant are the biological parents of two children: V.A., a three year old girl, and E.A., a five-month old boy. [2] (3 RR at 20). On June
19, 2013, Arevalo and his then-girlfriend, Violet Lazarin, [3] were keeping V.A. and
E.A. for Appellant while she was at work. (3 RR at 21). Arevalo drove to his
immigration lawyer’s office that day. Violet, V.A. and E.A. were in the vehicle
with him. (3 RR at 24). Appellant and her friend or aunt, named “Laura,” were
already there, waiting in the lawyer’s parking area. (3 RR at 24). Appellant saw
Violet holding the baby boy, E.A., so Appellant started “hitting” Violet. (3 RR at
28). Arevalo claimed that he saw Appellant hit Violet on the ear and face. (3 RR at
28-29). Arevalo then ran around the vehicle and grabbed Appellant in “kind of like
a bear hug.” (3 RR at 29). He told her to “chill,” but she was “all mad.” (3 RR at
29). He moved Appellant away from Violet. (3 RR at 30). Arevalo heard Laura say
*11 to Appellant, “we have the kids, let’s just leave.” (3 RR at 30). He let go of
Appellant, but she started hitting Violet again. (3 RR at 31). Arevalo grabbed
Appellant again, and this time she bit his arm and hit his face. (3 RR at 31-32). He
let Appellant go and she left with Laura and her children. Arevalo then called the
police. (3 RR at 32). Photographs of Arevalo’s injuries were admitted without
objection as State’s Exhibits 1-4. (3 RR at 33).
Violet Lazarin testified that she was dating Arevalo on June 19, 2013. (3 RR at 82). Violet said Appellant is Arevalo’s “first baby mom.” (3 RR at 82). She
had never met Appellant until the day of the alleged assault. (3 RR at 105). Violet
and Arevalo drove with the two children, V.A. and E.A., to the lawyer’s office to
discuss child custody. (3 RR at 84). Violet believed that Arevalo was supposed to
give the children to Appellant that day. (3 RR at 84). As Violet was getting E.A.
out of the car seat, she saw that Appellant was “having a discussion” with Arevalo.
Violet said Appellant then saw her and “went towards” her to get E.A. (3 RR at
85). Appellant hit Violet because Violet wouldn’t give E.A. to her. (3 RR at 86).
Violet said, “…all [Appellant] was doing was trying to get her kids that day.” (3
RR at 87). Violet finally released E.A. to Appellant, but Appellant kept hitting her
anyway. (3 RR at 87). Appellant stopped hitting Violet when Arevalo restrained
her the second time. (3 RR at 88). Violet never saw Appellant “do anything
physical to” Arevalo. (3 RR at 88). Photographs of Violet’s injuries were admitted
without objection as State’s Exhibits 5-8. (3 RR at 90).
The State rested. (4 RR at 12).
Sabrina Nicole Angel , the Appellant, testified that she worked late the night before the alleged assault and asked Arevalo to watch the children. (4 RR at 17).
Arevalo did not have scheduled visitation with the children that day. (4 RR at 44).
Arevalo called Appellant on the morning of the alleged assault and told her he was
not going to give the children back to her. (4 RR at 19). Arevalo said he was going
to his lawyer’s office. (4 RR at 20). Appellant knew where the lawyer’s office was,
so she had her aunt Laura take her there. (4 RR at 21).
Appellant saw Arevalo in the lawyer’s parking lot, and saw a “random girl” holding her son, E.A. (4 RR at 22). Appellant twice asked the girl (Violet) to “give
me my son.” Violet said, “no,” so Appellant grabbed E.A. from her arms and gave
him to Laura. (4 RR at 22-23). Appellant did not strike Violet before taking E.A.
from her. (4 RR at 26). But she saw Violet swing at her, so she grabbed Violet’s
hair and punched her with “a closed fist.” (4 RR at 27). While Appellant was
fighting with Violet, she said Arevalo came up to her and “slams his hands into my
mouth, he busts my lip.” (4 RR at 28). He then put her in a “chokehold” and
dragged her to the back of the truck. (4 RR at 28). She did not fight him back.
Appellant said she did not bite Arevalo. (4 RR at 38). She slapped Arevalo first, before he hit her mouth. (4 RR at 39). She did it because she thought he was
trying to take her kids away. (4 RR at 40). On cross-examination, Appellant agreed
that she slapped Arevalo “out of pure anger” and not in defense of anyone. (4 RR
at 43). Appellant did not call the police or take photos of the injuries that Arevalo
caused to her. (4 RR at 43).
Both parties rested and closed. (4 RR at 51). Defense counsel affirmatively stated that she had “no objections” to the jury instructions in this cause. (4 RR at
65). The trial court instructed the jury on the defenses of self-defense and defense
of another person. (CR at 17-29).
The jury found Appellant guilty of the charged offense. (4 RR at 106). The trial court determined punishment. (4 RR at 109). Appellant admitted that she hit
Arevalo. (4 RR at 110). She lost her job because she could not take time off for the
trial. (4 RR at 111). The trial court orally pronounced the sentence to include two
years of probation and a fully probated $1,000 fine. (4 RR at 113-114). This appeal
follows.
Summary of the Argument First Issue for Review (Summarized):
The judgment must be reformed to reflect the trial court’s oral pronouncement that the $1,000 fine imposed is “fully probated.”
Argument and Authorities First Issue for Review (Restated) The trial court orally pronounced that the $1,000 fine would be "fully probated," so the judgment must be modified reflect that the fine was probated and was not "ordered executed."
The trial court orally pronounced the fine as part of the sentence: “I assess a $1,000 fine, that fine will be fully probated.” (4 RR at 112). But the judgment
states that the fine is “ordered executed.” [4] (CR at 38). The judgment also states that
Appellant owes a total of $1,357.00, because the $1,000 fine is erroneously
included in the total amount of the costs. (CR at 39).
“A written judgment is simply the ‘declaration and embodiment’ of that pronouncement. Therefore, when there is a conflict between the oral
pronouncement and the written judgment, the oral pronouncement controls.” Burt
v. State , 445 S.W.3d 752, 757 (Tex. Crim. App. 2014)(citations omitted). For that
reason, the judgment must be amended to show that the fine was orally assessed to
be “fully probated,” and not as part of Appellant’s sentence to be executed
immediately. Thompson v. State , 108 S.W.3d 287, 290 (Tex. Crim. App.
2003)(“The solution in those cases in which the oral pronouncement and the
*16 written judgment conflict is to reform the written judgment to conform to the
sentence that was orally pronounced”).
Conclusion and Prayer for Relief WHEREFORE, PREMISES CONSIDERED, Appellant prays that his conviction be reversed for a new trial if her conviction in cause number 436067 is
reversed, prays that the judgment be modified to reflect that the fine imposed is
fully probated, and prays for all other relief to which she is entitled.
Respectfully submitted, /s/ Richard B. Dulany, Jr. ____________________________ RICHARD B. DULANY, JR. Texas Bar No. 06196400 Assistant Public Defender Bexar County Public Defender’s Office 101 W. Nueva St., Suite 370 San Antonio, Texas 78205 (210) 335-0701 FAX (210) 335-0707 richard.dulany@bexar.org ATTORNEY FOR APPELLANT Certificate of Service I hereby certify that a true and correct copy of the foregoing Appellant’s Brief has been delivered electronically to the Bexar County District Attorney’s
Office, Appellate Division, Paul Elizondo Tower, 101 W. Nueva St., Suite 710,
San Antonio, Texas 78205, on August 12, 2015 .
/s/ Richard B. Dulany, Jr. ____________________________________ RICHARD B. DULANY, JR.
[1] See T EX . P ENAL C ODE A NN . § 22.01(a)(1) & (b) (West 2015).
[2] Initials are used in place of the names of the minor children. T EX . R. A PP . P. 9.10(a)(3).
[3] Arevalo had already married and divorced Violet by the time this case went to trial. He called Violet “my ex-wife” while testifying. (3 RR at 21-23).
[4] The judgment recites: “THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED THAT THE IMPOSITION OF SENTENCE (EXCEPT THAT PORTION THEREOF PERTAINING TO A FINE OF $1,000.00 AND COSTS OF PROSECUTION $357.00, WHICH IS HEREBY ORDERED EXECUTED) IS SUSPENDED.” (CR at 38).