Case Information

*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 10/14/2015 9:09:34 PM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 01-15-00394-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 10/14/2015 9:09:34 PM CHRISTOPHER PRINE CLERK

No. 01-15-00394-CR

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IN THE COURT OF APPEALS FOR THE

FIRST SUPREME JUDICIAL DISTRICT AT HOUSTON

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HECTOR MARIO GONZAEZ § APPELLANT

V. §

STATE OF TEXAS § APPELLEE

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On appeal in Cause No. 1397723 from the 174 TH District Court of Harris County

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BRIEF OF APPELLANT

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J. Sidney Crowley

214 Morton St.

Richmond, Tx. 77469

(281) 232-8332 TBC No. 05170200 Attorney for Appellant

INTERESTED PARTIES

TRIAL JUDGE

Honorable Ruben Guerrero

174 th District Court

APPELLANT

Hector Mario Gonzalez

Texas Department of Criminal Justice

Correctional Division

TRIAL COUNSEL

R. P. Cornelius

2028 Buffalo Terrace

Houston, Texas 77019

APPELLATE COUNSEL

J. Sidney Crowley

214 Morton St.

Richmond, Texas 77469

Devon Anderson

District Attorney

Harris County

Adam Brodrick

Assistant District Attorney

Harris County

TABLE OF CONTENTS

LIST OF INTERESTED PARTIES............................................................................2

INDEX OF AUTHORITIES.......................................................................................4

STATEMENT OF THE CASE....................................................................................5

POINTS OF ERROR.................................................................................................6

STATEMENT OF FACTS..........................................................................................7

SUMMARY OF THE ARGUMENT...................................................................... 10

POINT OF ERROR ONE

The trial court reversibly erred when it completely failed to admonish Appellant on the range of punishment prior to accepting his plea of guilty...............................................................................................................11 PRAYER FOR RELIEF.............................................................................................13

CERTIFICATE OF COMPLIANCE..........................................................................13

CERTIFICATE OF SERVICE...................................................................................13

INDEX OF AUTHORITIES

Statutes and Rules

TEX.CODE CRIM.PROC., art.26.13(a)...................................................................11

TEX.R. APP.PROC., Rule 44.2(b).............................................................................11

Cases

Aguirre-Mata v. State, 125 S.W.3d 473 (Tex.Crim.App. 2003)...............................11

*5

STATEMENT OF THE CASE TO THE HONORABLE COURT OF APPEALS:

Appellant, charged by indictment with the felony offense of aggravated robbery,

entered a plea of guilty to the jury, which assessed his punishment at confinement for

30 years in the Texas Department of Criminal Justice, Correctional Division.

POINTS OF ERROR

POINT OF ERROR ONE

The trial court reversibly erred when it completely failed to admonish Appellant on the range of punishment prior to accepting his plea of guilty.

STATEMENT OF FACTS

Appellant was charged by indictment with the aggravated robbery of Eloy Canales. After being arraigned, Appellant entered a plea of guilty before the jury.

Eloy Canales testified that on August 11, 2013, he was at a car wash in Pasadena cleaning some containers (RR-4, p. 11). A truck drove to the bay where he

was located and a young man, identified as Appellant, got out carrying a rifle (RR-4,

p. 17). Appellant held the rifle to his chest and and told him not to turn around.

Appellant took his wallet, which contained $50, and cell phone and threw the keys to

Canales’ truck into the street. Canales then went home and called the police (RR-4, p.

50).

Andrew Rohm, a Pasadena police officer, testified that he was dispatched to the car wash in reference to a robbery and met with Canales (RR-4, p. 28). He obtained

a description of a blue Dodge truck driven by a Hispanic male and broadcast it over

the police radio channel. After learning that a suspect had been apprehended, he

transported Canales to a Denny’s restaurant to identify the robber (RR-4, p. 36).

Enrique Castillo testified that on the same day he was in the parking lot of a Foodtown grocery store on Richey Rd. He was in his vehicle talking with a young

woman who was in a separate car. A blue truck pulled up and blocked him in. A man,

whom he identified as Appellant, exited the truck with a shotgun and cocked it (RR-4,

p. 47). Appellant demanded his wallet and cellphone. As Appellant drove away

Castillo was able to record the license number of the truck (RR-4, p. 53).

Laurence Garza testified that he and his wife were grocery shopping at the Mi Tienda store on Spencer Highway. He had left the store and was walking to his truck

As he began opening the driver’s side door Appellant racked a long gun and placed

it to his head (RR-4, p. 56), demanding his wallet and cellphone. When Gonzo’s wife

approached Appellant demanded her purse. Appellant took the items and drove away

in a blue Dodge truck (RR-4, p.59).

Feliz Garza. Laurence’s wife, testified that as she was walking to her truck with bags of groceries she saw someone holding a long object that resembled a cane. Her

husband told her to give the man her purse, which she did. They then called police

(RR-4, p. 79).

Pasadena police officer Jason Mitchell testified that he was on patrol when he received the description of the robber’s truck. He began searching for it and located

it within ten minutes (RR-4, p.89). He pulled in behind the truck and followed it,

activating his emergency lights. Appellant began to flee and Mitchell chased him for

several miles. Appellant lost control of the truck and crashed into a house. He was

taken into custody and a shotgun, several wallets, cellphones and a purse were

recovered (RR-4, p. 108).

Olga Rubalcava testified that on August 2, 2013, she had gone to a Fiesta store with her sister and daughter to buy fish (RR-5, p.5). As she was opening her car door

a blue truck pulled up and blocked them in. Appellant exited the truck holding a rifle

and asked for her purse. He took the purse and a cellphone and left (RR-5, p.12).

Appellant testified on his own behalf. He described his life growing up and numerous hardships he had encountered. He also testified that he had begun using

drugs after beginning a relationship with a woman. He was in need of money when he

committed the robberies with which he was charged.

SUMMARY OF THE ARGUMENT Point of Error One

The record is devoid of any indication that Appellant was admonished on the range of punishment prior to entering his plea of guilty.

.

POINT OF ERROR ONE

The trial court reversibly erred when it completely failed to admonish Appellant

on the range of punishment prior to accepting his plea of guilty.

Argument and Authorities

The trial record indicates that after being arraigned Appellant decided to plead guilty (RR-3). The court accepted his plea and a jury was then empaneled to assess

punishment. There were no oral admonishments given as required by TEX.CODE

CRIM.PROC. Art. 26.13(a). A search of the clerk’s record does not reveal any written

admonishments that Appellant signed. In fact, the record is completely devoid of any

admonishments at all prior to Appellant’s plea.

The trial court’s error in failing to show on the record that it admonished a guilty pleading defendant on the range of punishment guilty is nonconstitutional error, subject

to harm analysis under TEX.R.APP. PROC. Rule 44.2(b). Aguirre-Mata v. State, 125

S.W.3d 473 (Tex.Crim.App. 2003). The failure to show on the record that Appellant

was admonished prior to his guilty plea is therefore error. Appellant would argue that

such failure affected his substantial rights under Rule 44.2(b). The record, other than

the jury charge on punishment, did not contain any references to the correct range of

punishment ,unlike the situation in Aguirre-Mata, supra. In addition, Appellant’s case

was enhanced with a prior felony conviction, which elevated the possible range of

punishment. There is nothing to indicate that Appellant was aware of any of the

possible ranges of punishment when he entered his plea. Point of Error One should be

sustained.

PRAYER FOR RELIEF WHEREFORE, PREMISES CONSIDERED, Appellant prays that the judgment of the trial court be REVERSED and REMANDED for a new trial.

Respectfully submitted, /s/ J. Sidney Crowley

J. SIDNEY CROWLEY 214 Morton St, Richmond, Texas 77469 281-232-8332 TBC 05170200 Attorney for Appellant CERTIFICATE OF COMPLIANCE The foregoing document contains 2009 words computer generated, CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing instrument was delivered

by electronic service to the Harris County District Attorney’s Office, this the 15 th

day of October, 2015.

/s/ J. Sidney Crowley