Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 10/5/2015 9:37:14 AM JEFFREY D. KYLE Clerk No. 03-15-00233-CR THIRD COURT OF APPEALS 10/5/2015 9:37:14 AM JEFFREY D. KYLE AUSTIN, TEXAS 03-15-00233-CR *1 ACCEPTED [7220822] CLERK IN THE COURT OF APPEALS THIRD DISTRICT
AT AUSTIN, TEXAS
__________________________________________________________________
ISREAL REYES, SR. Appellant v.
THE STATE OF TEXAS ON APPEAL FROM THE 207 TH DISTRICT COURT OF COMAL COUNTY
TRIAL COURT CAUSE NUMBER CR2012-428 __________________________________________________________________
BRIEF FOR APPELLANT __________________________________________________________________
Richard E. Wetzel State Bar No. 21236300 1411 West Ave., Suite 100 Austin, Texas 78701 (512) 469-7943 (512) 474-5594 wetzel_law@1411west.com Attorney for Appellant Isreal Reyes, Sr.
ORAL ARGUMENT REQUESTED *2 Identity of Parties and Counsel Appellant: Isreal Reyes, Sr.
Trail Counsel for Appellant: Mr. Joseph E. Garcia
Attorney at Law 200 North Seguin P.O. Box 310702 New Braunfels, Texas 78131 Appeal Counsel for Appellant: Richard E. Wetzel
Attorney at Law 1411 West Ave., St. 100 Austin, Texas 78701 Appellee: State of Texas
Trial Counsel for Appellee: Christine P. Rankin
Daniel A. Palmitier Assistant Criminal District Attorneys 150 North Seguin, Suite 307 New Braunfels, Texas 78130 Appeal Counsel for Appellee: Josh Presley
Assistant Criminal District Attorney 150 North Seguin, Suite 307 New Braunfels, Texas 78130 Trial Judge: Hon. Jack Robison
207 th District Court Comal County, Texas ii
Table of Contents
Page List of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Index of Authorities . . . . . . . .. . . . . . . . . . . . . . . . . . . . . .iv
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
Point of Error One . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
The evidence is insufficient to prove the complainant sustained serious bodily
injury in the aggravated assault conviction.
Point of Error Two . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
The evidence is insufficient to prove an imminent danger of death, bodily injury, or
physical impairment to the unborn child in the endangering a child conviction.
Point of Error Three . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
The trial court failed to admonish Reyes on the deportation consequences of his
plea of guilty to unlawful possession of a firearm (3 RR 13).
Point of Error Four . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33
The judgment for court count two should be reformed to reflect Reyes was
convicted of the state jail felony offense of endangering a child (CR 60).
Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
iii
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37
Index of Authorities
Page Cases
Aguirre–Mata v. State, 125 S.W.3d 473
(Tex. Crim. App. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
Anderson v. State, 182 S.W.3d 914
(Tex. Crim. App. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
Banargent v. State , 228 S.W.3d 393
(Tex. App.—Houston [14th Dist.] 2007, pet. ref'd) . . . . . . . . . . . . . . . . . . .22
Bowen v. State , 374 S.W.3d 427
(Tex. Crim. App. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
Brooks v. State, 323 S.W.3d 893
(Tex. Crim. App. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
Brown v. State, 605 S.W.2d 572
(Tex. Crim. App. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
Campbell v. State , 49 S.W.3d 874
(Tex. Crim. App. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
Carter v. State, 678 S.W.2d 155
(Tex. App.-Beaumont 1984, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
Coshatt v. State, 744 S.W.2d 633
(Tex. App.-Dallas 1987, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
Fancher v. State, 659 S.W.2d 836
(Tex. Crim. App. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
Ford v. State , 334 S.W.3d 230
(Tex. Crim. App. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
iv
Hart v. State, 581 S.W.2d 675
(Tex. Crim. App. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
Hernandez v. State , 946 S.W.2d 108
(Tex. App.—El Paso 1997, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
Hooper v. State, 214 S.W.3d 9
(Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
Howell v. State , 563 S.W.2d 933
(Tex. Crim. App. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
Hwang v. State, 130 S.W.3d 496
(Tex. App.-Dallas 2004, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
Jackson v. State , 288 S.W.3d 60
(Tex. App. – Houston [1 st Dist.] 2009, pet. ref’d) . . . . . . . . . . . . . . . . . . .35
Jackson v. Virginia, 443 U.S. 307
(1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
Kelley v. State , 237 S.W.3d 906
(Tex. App.—Houston [14th Dist.] 2007, pet. ref'd) . . . . . . . . . . . . . . . . . . .32
Lancon v. State, 253 S.W.3d 699
(Tex. Crim. App. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
Land v. State , 291 S.W.3d 23
(Tex. App. – Texarkana 2009, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35
Malik v. State, 953 S.W.2d 234
(Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
McCoy v. State, 932 S.W.2d 720
(Tex. App.-Fort Worth 1996, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
Millslagle v. State, 81 S.W.3d 895
(Tex. App.–Austin 2002, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
v
Moore v. State, 278 S.W.3d 444
(Tex. App.-Houston [14th Dist.] 2009, no pet.) . . . . . . . . . . . . . . . . . . .31
Moore v. State, 739 S.W.2d 347
(Tex. Crim. App. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
Moore v. State, 802 S.W.2d 367
(Tex. App.-Dallas 1990, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
Newsom v. B.B., 306 S.W.3d 910
(Tex. App.–Beaumont 2010, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
Padilla v. State, 326 S.W.3d 195
(Tex. Crim. App. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
Pitts v. State, 742 S.W.2d 420
(Tex. App.-Dallas 1987, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
Sizemore v. State , 387 S.W.3d 824
(Tex. App.—Amarillo 2012, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
Splawn v. State , 160 S.W.3d 103
(Tex. App. - Texarkana 2005, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35
State v. Webb , 12 S.W.3d 808
(Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
Stuhler v. State, 218 S.W.3d 706
(Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
Thornton v. State , 425 S.W.3d 289
(Tex. Crim. App. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
Vannortrick v. State, 227 S.W.3d 706
(Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
Webb v. State, 801 S.W.2d 529
(Tex. Crim. App. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
vi
Winfrey v. State, 393 S.W.3d 763
(Tex. Crim. App. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
Statutes
T EX . C RIM . P ROC . C ODE art. 26.13(a)(1) . . . . . . . . . . . . . . . . . . .31
T EX . C RIM . P ROC . C ODE art. 26.13(a)(4) . . . . . . . . . . . . . . . . . . .31
T EX . C RIM . P ROC . C ODE art. 42.01 § 14 . . . . . . . . . . . . . . . . . . .34
T EX . P EN . C ODE § 1.07(a)(8) . . . . . . . . . . . . . . . . . . .20
T EX . P EN . C ODE § 1.07(a)(46) . . . . . . . . . . . . . . . . . . .20
T EX . P EN . C ODE § 12.35(a) . . . . . . . . . . . . . . . . . . .34
T EX . P EN . C ODE § 12.35(c) . . . . . . . . . . . . . . . . . . .34
T EX . P EN . C ODE § 12.35(c)(1) . . . . . . . . . . . . . . . . . . .33
T EX . P EN . C ODE § 22.01(a)(1) . . . . . . . . . . . . . . . . . . .20
T EX . P EN . C ODE § 22.02(a) . . . . . . . . . . . . . . . . . . .16
T EX . P EN . C ODE § 22.02(b)(1) . . . . . . . . . . . . . . . . . . .16
T EX . P EN . C ODE § 22.041(c) . . . . . . . . . . . . . . . . . . .29
T EX . P EN . C ODE § 22.041(f) . . . . . . . . . . . . . . . . . . .33
Rules
T EX . R. A PP . P. 9.4 . . . . . . . . . . . . . . . . . . .36
T EX . R. A PP . P. 43.2(b) . . . . . . . . . . . . . . . . . . .35
T EX . R. A PP . P. 44.2(b) . . . . . . . . . . . . . . . . . . .33
vii
Statement of the Case This is an appeal from a criminal proceeding. Isreal Reyes, Sr., was indicted by a Comal County grand jury for the offenses of aggravated assault, endangering
a child, and unlawful possession of a firearm (CR 11). A jury was selected and
sworn (2 RR 145, 147). Reyes entered pleas of not guilty to aggravated assault and
endangering a child and a plea of guilty to unlawful possession of a firearm (3 RR
13). The jury found him guilty of all three offenses (CR 45, 48, and 49, 5 RR 90).
Reyes elected for the jury to assess punishment (CR 39). The jury assessed
punishment at 20 years for aggravated assault, 10 years for endangering a child,
and 10 years for unlawful possession of a firearm (CR 70 – 72, 6 RR 86). The
sentences were ordered to run concurrently (CR 57, 60, and 63, 6 RR 86). Reyes
was sentenced in open court (6 RR 86).
Reyes previously attempted to appeal these convictions and the appeal was dismissed due to an untimely notice of appeal (CR 90). An out of time appeal was
granted by the Court of Criminal Appeals (1 st Supp. CR 5). Notice of appeal was
timely filed (CR 101). The trial court certified Reyes’ right to appeal (CR 73).
Issues Presented on Appeal Point of Error One
The evidence is insufficient to prove the complainant sustained serious bodily
injury in the aggravated assault conviction.
Point of Error Two
The evidence is insufficient to prove an imminent danger of death, bodily
injury, or physical impairment to the unborn child in the endangering a child
conviction.
Point of Error Three
The trial court failed to admonish Reyes on the deportation consequences of
his plea of guilty to unlawful possession of a firearm (3 RR 13).
Point of Error Four
The judgment for court count two should be reformed to reflect Reyes was
convicted of the state jail felony offense of endangering a child (CR 60).
Statement of Facts On June 6, 2012, Comal County Deputy Sheriff Jared Medrano responded to a reported shooting at a home near Canyon Lake in Comal County (3 RR 24).
Upon his arrival at the scene, Medrano encountered Shawna Flowers who was
hysterical and asking him to help her sister Billie Jean McCann (3 RR 27).
Flowers told the officer she was inside her home and McCann was on the porch
when McCann was shot (3 RR 44). Flowers did not see the shooting, but she heard
a gunshot followed by her sister yelling “you shot me” and Reyes responding “no,
I didn’t” (3 RR 44). Flowers provided Medrano with a description of Reyes and
his vehicle (3 RR 30).
When Medrano initially approached McCann, she had a towel pressed to her
face (3 RR 46). McCann removed the towel and Medrano saw blood coming from
a wound to McCann’s chin (3 RR 46). He also noticed she had a wound to her jaw
(3 RR 28). McCann told Medrano that Reyes shot her (3 RR 29). When medical
personnel arrived, McCann walked to the ambulance (3 RR 32). It was obvious to
Medrano that McCann was pregnant (3 RR 34). Flowers told Medrano that Reyes
was the father of McCann’s unborn child (3 RR 51).
Comal County Deputy Sheriff Daniel Weaver responded to McCann’s shooting (3 RR 56). He spoke with McCann in the ambulance and she told him
that she did not think Reyes had shot her on purpose (3 RR 59). While in the
ambulance at the scene, McCann’s chin was no longer bleeding and medical
personnel were not providing services to her (3 RR 66).
Comal County Deputy Sheriff James Leal is in charge of the 911 communications center for the Sheriff’s Office (3 RR 81). Leal identified the 911
call placed by Flowers after McCann was shot (3 RR 83). The recording was
played for the jury (3 RR 86, 7 RR SX 1).
Shawna Flowers is McCann’s younger sister (3 RR 88). Flowers has known Reyes for 15 years (3 RR 88). McCann dated and lived with Reyes for about a
year before the shooting (3 RR 89).
On the day of shooting, Flowers was home inside her house (3 RR 90). She heard McCann and Reyes arguing on the front porch and then heard a loud pop
followed by McCann saying “you shot me” and Reyes responding “no, I didn’t” (3
RR 90). When Flowers went outside on the porch, she saw McCann with blood
coming from a wound to McCann’s chin (3 RR 90). Flowers called 911 for help (3
RR 90). McCann was about eight months pregnant at the time of the shooting (3
RR 91).
After Flowers had spoken with the authorities, she went to the hospital to see McCann (3 RR 99). Medical personnel were cleaning her wound and putting
stiches in her chin (3 RR 99). McCann gave birth a week after the shooting (3 RR
102). McCann had a medical procedure involving her chin a couple of months
later (3 RR 101).
Dr. John Myers is a trauma surgeon at University Hospital in San Antonio (3 RR 123). He treated McCann for the wounds to her chin and jaw (3 RR 125). She
received pain medication and antibiotics (3 RR 127). The plastic surgery
department washed and closed her wounds (3 RR 127).
Myers explained a bleeding and untreated wound, if bleeding enough, can pose a risk to life (3 RR 128). An untreated wound can result in infection (3 RR
128). An untreated gunshot wound to a pregnant woman could result in fetal
demise or premature delivery (3 RR 129). An infection resulting from a lack of
treatment can cause the infection to travel through the mother’s bloodstream and
infect the fetus or uterus (3 RR 129).
Myers believed a projectile entered at McCann’s jaw, followed her jawline, and exited out her chin (3 RR 130). She suffered no nerve damage or facial
fractures (3 RR 130, 136). The projectile did not strike a vital organ, major blood
vessel, or cause internal bleeding (3 RR 148). The injuries carried no chance of
immediate death (3 RR 149). By the time he saw her in the hospital, her wounds
were not bleeding and she was able to speak (3 RR 141). She was discharged the
following day (3 RR 141).
Myers stated that McCann’s injuries caused no distress or injury to her baby (3 RR 141). Her delivery of the baby a week later was uneventful (3 RR 142).
Comal County Deputy Sheriff Rex Campbell investigated the shooting (3 RR 154). He spoke with McCann a week after the shooting (3 RR 154). She was
in the hospital after having delivered her child on the previous day (3 RR 154). He
recorded his conversation with McCann as well as a conversation he had with
McCann’s mother, Deidra McCann (3 RR 155, 157, 7 RR SX 28 and 29).
Campbell investigated the scene and could not find a bullet (3 RR 158). He found various posts by Reyes on McCann’s Facebook page which included
admissions by Reyes concerning the shooting (3 RR 159, 7 RR SX 26 and 27).
One of the posts by Reyes said the shooting was accidental (3 RR 167).
Campbell obtained a warrant for Reyes’ arrest (3 RR 172). After arresting Reyes at home, a search of his residence was conducted (3 RR 175). A search of
the home revealed ammunition for a .38 caliber pistol, a .38 caliber revolver, three
bongs, five used syringes, and a controlled substance in a purse (3 RR 178).
Campbell interrogated Reyes after his arrest (3 RR 187). A recording of the interrogation was admitted and played for the jury (3 RR 190, 7 RR SX 44).
During the interrogation, Reyes variously admitted shooting at, near, or the
direction of McCann, while all the while maintaining the shooting was an accident
(3 RR 192).
McCann told Campbell she was shot with a .38 caliber Colt revolver (4 RR 6). Campbell never recovered a shell casing in relation to the shooting (4 RR 15).
On August 15, 2012, Campbell received metal fragments which were recovered from McCann’s face (4 RR 18). The fragments were never tested (4 RR
34). Campbell did not know what type of metal was removed from McCann’s face
(4 RR 69).
A week after the shooting, Campbell saw scarring and disfigurement to McCann’s chin after she delivered her child (4 RR 27). When he saw her a week
before trial the wounds to her face had healed (4 RR 39).
Campbell saw McCann’s newborn child the day after her birth and she was not injured or under distress (4 RR 38).
Campbell’s investigation showed McCann was on the porch and Reyes on the ground at the time of the shooting (4 RR 47). He believes the bullet that struck
McCann first hit the door frame, then ricocheted, and then hit McCann (4 RR 49).
He believed the shooting to have been reckless rather than intentional or knowing
(4 RR 85).
Dr. Michael Berkus is a maternal fetal medical specialist from San Antonio (4 RR 54). On June 6, 2012, he saw McCann in the hospital after she was treated
for her facial wounds in order to check on her unborn child (4 RR 55). The
examination revealed that “everything was okay” with the fetus (4 RR 57). The
fetus was at 36 or 37 weeks gestation at the time Berkus examined McCann (4 RR
61). Had there been any issues with the fetus as a result of McCann’s injuries,
Berkus would have delivered the child (4 RR 60).
Berkus agreed firing a gun and striking a pregnant woman could endanger the fetus a number of different ways (4 RR 59). First a wound to the mother might
cause blood to flow to her injury and away from the uterus (4 RR 59). If there was
a gunshot wound directly to the pregnancy itself, the placenta or uterus could be
damaged and the fetus could be injured or killed (4 RR 59). Delivery at 37 weeks
is termed “late premature” and could present respiratory problems, feeding
problems, or bonding problems (4 RR 60). Finally, any injury to the mother could
carry a risk of infection for the mother (4 RR 60).
Deidra McCann is McCann’s mother (4 RR 100). Her daughter and Reyes lived together and had a child (4 RR 103). She went to the hospital after her
daughter was injured and saw she had a hole in her chin and her jaw (4 RR 104).
The scar on her daughter’s face had healed by the time of trial (4 RR 108). After
healing, the scar to her chin was about the size of a dime and the injury to her jaw
was the size of the end of a marker (4 RR 109). After her McCann’s baby was
born, a procedure was performed to remove metal fragments from McCann’s jaw
(4 RR 112). Her daughter has no pain or discomfort from the injury and no trouble
with her jaw following discharge from the hospital (4 RR 112, 121).
Raymond Nunley had difficulty testifying due to a recent snakebite (4 RR 129). After watching his interview by Campbell, Nunley was able to recall some
events concerning the shooting (4 RR 132, 7 RR SX 45). He was with Reyes at the
time McCann was shot (4 RR 134). Reyes had a .38 caliber pistol and Nunley saw
a flash toward the ground (4 RR 135). Reyes was not aiming the pistol toward
McCann when she was shot (4 RR 138).
Reyes stipulated to his previous 2006 state jail felony conviction for burglary of a building and one year sentence from Hidalgo County (4 RR 145, 7
RR SX 59). The defense rested and both sides closed (4 RR 148).
No objections were voiced to the court’s charge (5 RR 29). The charge was read to the jury (5 RR 35). Argument was presented (5 RR 53, 74). The jury
found Reyes guilty as charged in the indictment for all three counts (5 RR 90).
The punishment phase, before the same jury, commenced (5 RR 93). On June 15, 2011, New Braunfels Police Officer Chad Adams responded to a reported
assault of Brittany Vaillant by Reyes at a motel (5 RR 96). Vaillant told Adams
that Reyes had assaulted her (5 RR 99).
Vaillant testified she dated Reyes for three or four years (5 RR 104). She denied Reyes ever assaulted her or that she told the police he assaulted her (5 RR
106).
Comal County Deputy Sheriff Jason Cline is responsible for gang member identification in Comal County (5 RR 111). Cline stated that Reyes is a self-
admitted member of the Valluco prison gang (5 RR 116). Cline described various
tattoos on Reyes and their significance to gang membership (5 RR 118). Cline
explained that prison gang members continue to commit acts of criminal violence
even after they are released from prison (5 RR 120). The State rested on
punishment (5 RR 126).
Shawna Flowers testified she did not know the location of her sister, McCann, or the reason she failed to comply with her subpoena to appear at trial (5
RR 128). She believes her sister’s injury was accidental (5 RR 128). Reyes has
never abused her sister and is good around Flowers’ own children (5 RR 129).
Deidra McCann testified that Reyes had always been good to her daughter (5 RR 132). She believes the shooting and resulting injury was an accident (5 RR
133).
Elizabeth Gonzales was previously married to Reyes (5 RR 137). After they divorced, Reyes continued to see their two children and was current on his child
support obligations (5 RR 138). During their 11 years together, Reyes was never
violent toward Gonzales (5 RR 138).
Billie Jean McCann, the complainant, stated that she and Reyes had been together for two or three years and they have a child (6 RR 6). She is not afraid of
Reyes and believes the shooting was accidental (6 RR 7). McCann did not come to
court as directed in her subpoena because of threats she perceived from Reyes’
mother (6 RR 18). The recordings of Campbell’s interview of McCann in the
hospital were played for the jury (6 RR 33, 7 RR SX 28 and 29). The defense
rested on punishment (6 RR 49).
Comal County Deputy Sheriff Chris Koepp was called on rebuttal by the State (6 RR 50). He picked up McCann on a writ of attachment for not appearing
in court as directed (6 RR 51). A recording of McCann while in his patrol car was
admitted into evidence and played for the jury (6 RR 58, 7 RR SX 62). On the
recording, McCann was crying and said she was afraid to come to court because of
Reyes’ mother (6 RR 54). The State rested on rebuttal and both sides closed.
No objection was voiced to the trial court’s punishment charge (6 RR 5).
The charge was read to the jury (6 RR 62). Argument was presented (6 RR 68,
75). The jury returned punishment verdicts of 20 years for aggravated assault, 10
years for endangering a child, and 10 years for unlawful possession of a firearm (6
RR 86). The court directed the sentences be served concurrently and Reyes was
sentenced in open court (6 RR 86).
Summary of the Argument Four points of error are presented on direct appeal. Two challenge the sufficiency of the evidence to support the convictions under the first and second
counts of the indictment. The third point argues Reyes was not properly
admonished on the deportation consequences of his guilty plea to the third count of
the indictment. Finally, Reyes seeks reformation of the judgment for the second
count because it erroneously states the degree of felony for which he was
convicted. Reyes seeks for this Court to reverse the judgment of conviction under
the first count and remand for a new punishment hearing, reverse the judgment of
conviction under the second and reform to an acquittal, reverse the judgment of
conviction under the third count and remand for a new trial, reform the judgment
under the second count of the indictment, or enter any other relief appropriate
under the facts and the law.
The first count of the indictment alleges that while in a dating relationship with McCann, Reyes caused serious bodily injury to McCann by shooting her in
the chin with a firearm. The offense is a felony of the first degree. By his first
point of error, Reyes urges the evidence presented at trial is insufficient to prove
McCann suffered serious bodily injury as that term is statutorily defined and
judicially construed. After viewing the totality of the relevant evidence, this Court
should conclude no rational trier of the facts could find McCann suffered serious
bodily injury. The only definition of serious bodily injury arguably relevant is that
of serious permanent disfigurement. However, simply that an injury causes
scarring is not sufficient, on its own, to establish serious permanent disfigurement.
A reviewing court must find more than mere scarring alone; instead, it must find in
the record evidence of some significant cosmetic deformity in order to conclude
that the evidence of serious bodily injury was sufficient. None is present in this
cause. The only evidence of scarring is from McCann’s mother indicating a scar
the size of dime to her chin and the size of an end to a marker to her jaw. Reyes
submits such evidence does not show “significant cosmetic deformity” sufficient to
support a finding of serious bodily injury. He seeks a reformation of the judgment
to a felony of the second degree and a remand to the trial court for a new
punishment hearing.
The second count of the indictment alleges Reyes committed the offence of endangering a child upon placing McCann’s unborn child in imminent danger of
death, bodily injury, or physical impairment by shooting a firearm at or in the
direction of McCann who was pregnant with the child at the time (CR 12). The
trial court’s charge to the jury tracked the allegations of the indictment in
instructing the jury under what circumstances to convict for the offense of
endangering a child (2 nd Supp. CR 12). By the second point of error, Reyes
contends the evidence presented at trial, while showing a potential for imminent
danger, is insufficient to show an imminent danger of death, bodily injury, or
physical impairment to the unborn child. The evidence merely shows that Reyes
placed the unborn child in a potentially dangerous situation by shooting a firearm
at or in the direction of the child’s mother. No rational factfinder could determine
beyond a reasonable doubt, based on the evidence in the record, that Reyes placed
the child in imminent danger. No evidence shows that physical pain or impairment
was ready to take place.
While the evidence suggests that the situation could have turned for the
worse and that the child could have been seriously injured, those potential
scenarios do not satisfy a showing of imminent danger required by the statute. No
rational factfinder could have determined that Reyes placed the unborn child in
imminent danger of death, bodily injury, or physical impairment. In view of the
insufficient evidence to support the jury’s verdict of imminent rather than potential
danger, this Court should reverse the judgment of the trial court and render a
judgment of acquittal.
Reyes entered a plea of guilty to the third count of the indictment alleging the offense of unlawful possession of a firearm (3 RR 13). In connection with that
plea of guilty, the trial court failed to admonish Reyes of the deportation
consequences of the plea. The record is silent as to Reyes’ citizenship status and
therefore it is impossible to determine with any certainty whether his decision to
plead guilty would have changed had he been properly admonished as required.
Accordingly, this Court cannot have a fair assurance that Reyes’ decision to plead
guilty would not have changed had he been admonished. The error is not
harmless. When the trial court fails to admonish a defendant about the immigration
consequences of his guilty plea, a silent record on citizenship, or a record that is
insufficient to determine citizenship, establishes harm. This Court is compelled to
sustain the third point of error and reverse the judgment of conviction for unlawful
possession of a firearm.
By his final point of error, Reyes seeks reformation of the judgment relative to his conviction under the second count of the indictment. The second count of
the indictment alleges Reyes committed the state jail felony offense of endangering
a child (CR 11). The jury found him guilty of the second count as alleged in the
indictment (CR 48, 5 RR 90). He was punished for a third degree felony due to the
use or exhibition of a deadly weapon during the commission of the offense. The
judgment erroneously recites he was convicted of a third degree felony (CR 59).
The record contains the necessary data and information for modification of the
judgment. This Court should modify the judgment to properly reflect the degree of
felony for which Reyes was convicted in the second count was that of a state jail
felony rather than a third degree felony offense.
Point of Error One
The evidence is insufficient to prove the complainant sustained serious bodily
injury in the aggravated assault conviction.
The first count of the indictment alleges that while in a dating relationship with McCann, Reyes caused serious bodily injury to McCann by shooting her in
the chin with a firearm. See T EX . P EN . C ODE §§ 22.02(a) and 22.02(b)(1). The
offense is a felony of the first degree. § 22.02(b)(1). By this point of error, Reyes
urges the evidence presented at trial is insufficient to prove McCann suffered
serious bodily injury as that term is statutorily defined and judicially construed.
He seeks a reformation of the judgment to a felony of the second degree and a
remand to the trial court for a new punishment hearing.
When Deputy Medrano initially approached McCann, she had a towel
pressed to her face (3 RR 46). McCann removed the towel and Medrano saw
blood coming from a wound to McCann’s chin (3 RR 46). He also noticed she had
a wound to her jaw (3 RR 28). When medical personnel arrived, McCann walked
to the ambulance (3 RR 32).
Deputy Weaver responded to McCann’s shooting (3 RR 56). While in the ambulance at the scene, McCann’s chin was no longer bleeding and medical
personnel were not providing services to her (3 RR 66).
After Flowers had spoken with the authorities, she went to the hospital to see McCann (3 RR 99). Medical personnel were cleaning her wound and putting
stiches in her chin (3 RR 99). McCann had a medical procedure involving her chin
a couple of months later (3 RR 101).
Dr. John Myers treated McCann for the wounds to her chin and jaw (3 RR 125). She received pain medication and antibiotics (3 RR 127). The plastic
surgery department washed and closed her wounds (3 RR 127).
Myers explained a bleeding and untreated wound, if bleeding enough, can potentially pose a risk to life (3 RR 128). An untreated wound can potentially
result in infection (3 RR 128).
Myers believed a projectile entered at McCann’s jaw, followed her jawline, and exited out her chin (3 RR 130). She suffered no nerve damage or facial
fractures (3 RR 130, 136). The projectile did not strike a vital organ, major blood
vessel, or cause internal bleeding (3 RR 148). The injuries carried no chance of
immediate death (3 RR 149). By the time he saw her in the hospital, her wounds
were not bleeding and she was able to speak (3 RR 141). She was discharged the
following day (3 RR 141).
A week after the shooting, Deputy Campbell saw scarring and disfigurement to McCann’s chin (4 RR 27). When he saw her again a week before trial the
wounds to her face had healed (4 RR 39).
Deidra McCann is McCann’s mother (4 RR 100). She went to the hospital after her daughter was injured and saw that her daughter had a hole in her chin and
her jaw (4 RR 104). The scar on her daughter’s face had healed by the time of trial
(4 RR 108). After healing, the scar to her chin was about the size of a dime and the
injury to her jaw was the size of the end of a marker (4 RR 109). After her
daughter’s baby was born, a procedure was performed to remove metal fragments
from her daughter’s jaw (4 RR 112). Her daughter has no pain or discomfort from
the injury and no trouble with her jaw following discharge from the hospital (4 RR
112, 121).
In a sufficiency of the evidence review, all of the evidence is viewed in the light most favorable to the verdict to determine whether any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.
Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013); see Brooks v.
State, 323 S.W.3d 893, 894–95, 899 (Tex. Crim. App. 2010) (citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979). Deference is given to the jury's responsibility
to fairly resolve conflicting testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Jackson, 443 U.S. at 319). When
the record of historical facts supports conflicting inferences, it will be presumed
the trier of fact resolved any such conflicts in favor of the prosecution, and an
appellate court will defer to that resolution. Padilla v. State, 326 S.W.3d 195, 200
(Tex. Crim. App. 2010). The jury, as the sole judge of the credibility of the
witnesses, is free to believe or disbelieve all or part of a witness's testimony. See
Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008).
Sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234,
240 (Tex. Crim. App. 1997). The hypothetically correct charge is one that
“accurately sets out the law, is authorized by the indictment, does not
unnecessarily increase the State's burden of proof or unnecessarily restrict the
State's theories of liability, and adequately describes the particular offense for
which the defendant was tried.” Id.
A person commits assault if he intentionally, knowingly, or recklessly causes bodily injury to another. § 22.01(a)(1). To establish the offense of
aggravated assault, the State must prove the defendant caused serious bodily injury
to another. § 22.02(a)(1). “Bodily injury” is defined as “physical pain, illness, or
any impairment of physical condition.” T EX . P EN . C ODE § 1.07(a)(8). “Serious
bodily injury” is “bodily injury that creates a substantial risk of death or that causes
death, serious permanent disfigurement, or protracted loss or impairment of the
function of any bodily member or organ.” T EX . P EN . C ODE § 1.07(a)(46). Thus,
serious bodily injury is bodily injury plus one or more of the following effects: (1)
a substantial risk of death, (2) death, (3) serious permanent disfigurement, (4)
protracted loss of the function of any bodily member, (5) protracted impairment of
the function of any bodily member, (6) protracted loss of the function of any bodily
organ, or (7) protracted impairment of the function of any bodily organ. Moore v.
State, 739 S.W.2d 347, 355 (Tex. Crim. App. 1987) (Clinton, J., concurring).
Bodily injury cannot be elevated to “serious bodily injury” by postulating potential complications which are not in evidence. See Moore, 739 S.W.2d at 354.
The state must present evidence that the victim suffered bodily injury. Moore, 739
S.W.2d at 352. In other words, the state must present relevant and probative
evidence from which the trier of fact could infer beyond a reasonable doubt that
the injury itself constituted serious bodily injury. Moore, 739 S.W.2d at 352;
Hernandez v. State , 946 S.W.2d 108, 112 (Tex. App.—El Paso 1997, no pet.).
The record does not suggest that the injuries to McCann caused death, created a substantial risk of death, caused protracted loss of the function of any
bodily member, caused protracted impairment of the function of any bodily
member, caused protracted loss of the function of any bodily organ, or caused
protracted impairment of the function of any bodily organ. Thus, it is appropriate
to focus on the remaining aspect of the definition of “serious bodily injury,”
namely, serious permanent disfigurement.
The rule is well established that the relevant issue is the disfiguring effect of the bodily injury as it was inflicted , not after the effects had been ameliorated or
exacerbated by other actions such as medical treatment. See Stuhler v. State, 218
S.W.3d 706, 714 (Tex. Crim. App. 2007); Fancher v. State, 659 S.W.2d 836, 838
(Tex. Crim. App. 1983); Brown v. State, 605 S.W.2d 572, 575 (Tex. Crim. App.
1980). There are no wounds that constitute “serious bodily injury” per se.
Hernandez, 946 S.W.2d at 111 (citing as examples Webb v. State, 801 S.W.2d 529,
533 (Tex. Crim. App. 1990), and Moore, 739 S.W.2d at 352. Instead, whether an
injury constitutes a serious bodily injury must be determined on a case-by-case
basis, evaluating each case on its own facts to determine whether the evidence was
sufficient to permit the finder of fact to conclude that the injury fell within the
definition of “serious bodily injury.” See Moore, 739 S.W.2d at 352; Banargent v.
State , 228 S.W.3d 393, 399 (Tex. App.—Houston [14th Dist.] 2007, pet. ref'd).
“Serious bodily injury” may be established without a physician's testimony when the injury and its effects are obvious. See Carter v. State, 678 S.W.2d 155,
157 (Tex. App.-Beaumont 1984, no pet.). The person who sustained the at-issue
injury is qualified to express an opinion about the seriousness of that injury. Hart
v. State, 581 S.W.2d 675, 677 (Tex. Crim. App. 1979); Coshatt v. State, 744
S.W.2d 633, 636 (Tex. App.-Dallas 1987, pet. ref'd).
Simply that an injury causes scarring is not sufficient, on its own, to establish serious permanent disfigurement. Hernandez, 946 S.W.2d at 113; see
McCoy v. State, 932 S.W.2d 720, 724 (Tex. App.-Fort Worth 1996, pet. ref'd). A
reviewing court must find more than mere scarring alone; instead, it must find in
the record evidence of “some significant cosmetic deformity” in order to conclude
that the evidence of serious bodily injury was sufficient. Compare Hernandez, 946
S.W.2d at 113 (finding evidence of one-inch scar from stab wound in addition to a
surgical scar insufficient to “elevate ‘bodily injury’ to ‘serious bodily injury’ ”),
and McCoy, 932 S.W.2d at 724 (concluding evidence of slight scar on lip, though
permanent, was not sufficient to show serious permanent disfigurement), with
Moore v. State, 802 S.W.2d 367, 369–70 (Tex. App.-Dallas 1990, pet. ref'd)
(finding sufficient evidence of serious bodily injury where victim's cheekbone was
fractured in three places and surgery needed to prevent significant cosmetic
deformity), and Pitts v. State, 742 S.W.2d 420, 421–22 (Tex. App.-Dallas 1987,
pet. ref'd) (concluding evidence of significant disfigurement was sufficient where
victim suffered five facial fractures necessitating several surgeries to repair
damage).
Likewise, the necessity of surgery alone is insufficient to establish serious bodily injury. See Webb, 801 S.W.2d at 533. Whether a “bodily injury” is
“serious,” in terms of the Texas Penal Code, does not depend solely upon whether
the victim received medical treatment. See Moore, 739 S.W.2d at 354. However,
in evaluating the evidence supporting serious bodily injury, courts do consider as a
relevant factor whether the injury would be permanently disfiguring without
medical treatment. See Brown, 605 S.W.2d at 575 (concluding evidence that a
broken nose would cause disfigurement and dysfunction if untreated sufficient to
establish serious bodily injury). See Sizemore v. State , 387 S.W.3d 824, 827-29
(Tex. App.—Amarillo 2012, pet. ref'd).
After viewing the totality of the relevant evidence, this Court should conclude no rational trier of the facts could find McCann suffered serious bodily
injury. The only definition of serious bodily injury arguably relevant is that of
serious permanent disfigurement. However, as noted above, simply that an injury
causes scarring is not sufficient, on its own, to establish serious permanent
disfigurement. A reviewing court must find more than mere scarring alone;
instead, it must find in the record evidence of some significant cosmetic deformity
in order to conclude that the evidence of serious bodily injury was sufficient. None
is present in this cause. The only evidence of scarring is from McCann’s mother
indicating a scar the size of dime to her chin and the size of an end to a marker to
her jaw. Reyes submits such evidence does not show “significant cosmetic
deformity” sufficient to support a finding of serious bodily injury.
Reyes does not dispute the nature of his relationship with McCann or the use of a deadly weapon. This Court has the authority to reform the judgment to the
lesser offense of second degree aggravated assault. See Thornton v. State , 425
S.W.3d 289, 297 (Tex. Crim. App. 2014); Bowen v. State , 374 S.W.3d 427, 432
(Tex. Crim. App. 2012). The judgment of conviction under the first count of the
indictment should be reformed to a felony of the second degree and the cause
remanded for a new punishment hearing on the first count of the indictment.
Point of Error Two
The evidence is insufficient to prove an imminent danger of death, bodily
injury, or physical impairment of the unborn child in the endangering a child
conviction.
The second count of the indictment alleges Reyes committed the offence of endangering a child upon placing McCann’s unborn child in imminent danger of
death, bodily injury, or physical impairment by shooting a firearm at or in the
direction of McCann who was pregnant with the child at the time (CR 12). The
trial court’s charge to the jury tracked the allegations of the indictment in
instructing the jury under what circumstances to convict for the offense of
endangering a child (2 nd Supp. CR 12). By this point of error, Reyes contends the
evidence presented at trial, while showing a potential for imminent danger, is
insufficient to show an imminent danger of death, bodily injury, or physical
impairment to the unborn child.
Comal County Deputy Sheriff Daniel Weaver responded to McCann’s shooting (3 RR 56). He spoke with McCann in the ambulance and she told him
that she did not think Reyes had shot her on purpose (3 RR 59). While in the
ambulance at the scene, McCann’s chin was no longer bleeding and medical
personnel were not providing services to her (3 RR 66).
Dr. John Myers is a trauma surgeon at University Hospital in San Antonio (3 RR 123). He treated McCann for the wounds to her chin and jaw (3 RR 125). She
received pain medication and antibiotics (3 RR 127). The plastic surgery
department washed and closed her wounds (3 RR 127). Myers stated that
McCann’s injuries caused no distress or injury to her baby (3 RR 141). Her
delivery of the baby a week later was uneventful (3 RR 142).
Comal County Deputy Sheriff Rex Campbell investigated the shooting (3 RR 154). He spoke with McCann a week after the shooting (3 RR 154). She was
in the hospital after having delivered her child on the previous day (3 RR 154).
Campbell saw McCann’s newborn child the day after her birth and she was not
injured or under distress (4 RR 38).
Dr. Michael Berkus is a maternal fetal medical specialist from San Antonio (4 RR 54). On June 6, 2012, he saw McCann in the hospital after she was treated
for her facial wounds in order to check on her unborn child (4 RR 55). The
examination revealed that “everything was okay” with the fetus (4 RR 57). The
fetus was at 36 or 37 weeks of gestation at the time Berkus examined McCann (4
RR 61). Had there been any issues with the fetus as a result of McCann’s injuries,
Berkus would have delivered the child (4 RR 60).
Berkus agreed firing a gun and striking a pregnant woman could endanger the fetus a number of different ways (4 RR 59). First a wound to the mother might
cause blood to flow to her injury and away from the uterus (4 RR 59). If there was
a gunshot wound directly to the pregnancy itself, the placenta or uterus could be
damaged and the fetus could be injured or killed (4 RR 59). Delivery at 37 weeks
is termed “late premature” and could present respiratory problems, feeding
problems, or bonding problems (4 RR 60). Finally, any injury to the mother could
carry a risk of infection for the mother which could be passed on to the fetus
through the mother’s bloodstream (4 RR 60).
In a sufficiency of the evidence review, all of the evidence is viewed in the light most favorable to the verdict to determine whether any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.
Winfrey, 393 S.W.3d at 768; see Brooks, 323 S.W.3d at 894–95, 899 (citing
Jackson, 443 U.S. at 319). Deference is given to the jury's responsibility to fairly
resolve conflicting testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13 (quoting
Jackson, 443 U.S. at 319). When the record of historical facts supports conflicting
inferences, it will be presumed the trier of fact resolved any such conflicts in favor
of the prosecution, and an appellate court will defer to that resolution. Padilla, 326
S.W.3d at 200. The jury, as the sole judge of the credibility of the witnesses, is
free to believe or disbelieve all or part of a witness's testimony. See Lancon, 253
S.W.3d at 707.
Sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik, 953 S.W.2d at 240. The
hypothetically correct charge is one that “accurately sets out the law, is authorized
by the indictment, does not unnecessarily increase the State's burden of proof or
unnecessarily restrict the State's theories of liability, and adequately describes the
particular offense for which the defendant was tried.” Id.
Here, Reyes attacks the sufficiency of the evidence to prove that he endangered a child. He specifically contends the evidence is insufficient to show
that he placed the child in “imminent” danger. The record reflects that the charge
and the indictment tracked the language of the statute, except that they also
included the manner and means in which the child was allegedly endangered—i.e.,
by shooting a firearm at or in the direction of Billie Jean McCann who was
pregnant with the child at the time.
A person commits the offense of endangering a child when he “intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in
conduct that places a child younger than 15 years in imminent danger of death,
bodily injury, or physical or mental impairment.” T EX . P EN . C ODE § 22.041(c).
The word “imminent” is not defined in the Texas Penal Code, but generally means “ready to take place, near at hand, impending, hanging threateningly over
one's head, menacingly near.” Millslagle v. State, 81 S.W.3d 895, 898 (Tex. App.–
Austin 2002, pet. ref'd). It is not sufficient that a defendant “placed the child in a
situation that is potentially dangerous[;]” rather, the defendant's conduct “must
threaten the child with immediate, impending death, bodily injury, or impairment.”
Id. “ [T]o be ‘imminent’ for [the purpose] of imposing responsibility pursuant to §
22.041(c), the situation must be immediate and actual, not potential or future, at the
moment of the act or omission by the defendant.” Newsom v. B.B., 306 S.W.3d
910, 918 (Tex. App.–Beaumont 2010, pet. denied). “[T]he danger must be
imminent at the moment the defendant engages in the conduct.” Id.
The evidence merely shows that Reyes placed the unborn child in a potentially dangerous situation by shooting a firearm at or in the direction of the
child’s mother. No rational factfinder could determine beyond a reasonable doubt,
based on the evidence in the record, that Reyes placed the child in imminent
danger. No evidence shows that physical pain or impairment was ready to take
place. See Millslagle, 81 S.W.3d at 898. While the evidence suggests that the
situation could have turned for the worse and that the child could have been
seriously injured, those potential scenarios do not satisfy a showing of imminent
danger required by the statute. No rational factfinder could have determined that
Reyes placed the unborn child in imminent danger of death, bodily injury, or
physical impairment. In view of the insufficient evidence to support the jury’s
verdict of imminent rather than potential danger, this Court should reverse the
judgment of the trial court and render a judgment of acquittal.
Point of Error Three
The trial court failed to admonish Reyes on the deportation consequences of
his plea of guilty to unlawful possession of a firearm (3 RR 13).
Reyes entered a plea of guilty to the third count of the indictment alleging the offense of unlawful possession of a firearm (3 RR 13). In connection with that
plea of guilty, the trial court failed to admonish Reyes of the deportation
consequences of the plea as required by T EX . C RIM . P ROC . C ODE art. 26.13(a)(4). [1]
A trial court must admonish the defendant of the fact that if the defendant is not a citizen of the United States of America, a plea of guilty or nolo contendere
for the offense charged may result in deportation, the exclusion from admission to
this country, or the denial of naturalization under federal law. T EX . C RIM . P ROC .
C ODE art. 26.13(a)(4). Here, it is undisputed that the trial court failed to admonish
Reyes as to the deportation consequences of his guilty plea to the third count of the
indictment. The trial court erred in failing to admonish Reyes about the
deportation consequences of his plea. See Hwang v. State, 130 S.W.3d 496, 499
(Tex. App.-Dallas 2004, pet. ref'd).
A nonconstitutional violation of article 26.13 is subject to a harm analysis under T EX . R. A PP . P. 44.2(b). Aguirre–Mata v. State, 125 S.W.3d 473, 473 (Tex.
Crim. App. 2003). The essential question in determining harm is, “[C]onsidering
the record as a whole, do we have a fair assurance that the defendant's decision to
*39 plead guilty would not have changed had the court admonished him?” Anderson v.
State, 182 S.W.3d 914, 919 (Tex. Crim. App. 2006). Three issues should be
considered in the “fair assurance” analysis: (1) whether the defendant knew the
consequences of his plea, (2) the strength of the evidence of guilt, and (3) the
defendant's citizenship. Vannortrick v. State, 227 S.W.3d 706, 712 (Tex. Crim.
App. 2007); Kelley v. State , 237 S.W.3d 906, 908 (Tex. App.—Houston [14th
Dist.] 2007, pet. ref'd).
On the first issue, the record is silent on the immigration consequences of Reyes’ guilty plea. When the record is silent regarding the consequences of
conviction in the context of a guilty plea, the court must infer that the defendant
did not know the consequences of his plea. Vannortrick, 227 S.W.3d at 710–11.
A court cannot infer from a silent record that the defendant was aware of the
consequences of his plea. Id. On the second issue, the strength or weakness of the
evidence of guilt has little relevance when coupled with a finding that the
defendant was not aware of the consequences of his plea. Id. at 713; Kelley , 237
S.W.3d at 908.
The record is silent as to Reyes’ citizenship status and therefore it is impossible to determine with any certainty whether his decision to plead guilty
would have changed had he been properly admonished as required. Accordingly,
this Court cannot have a fair assurance that Reyes’ decision to plead guilty would
not have changed had he been admonished. The error is not harmless. When the
trial court fails to admonish a defendant about the immigration consequences of his
guilty plea, a silent record on citizenship, or a record that is insufficient to
determine citizenship, establishes harm by the standard of Rule 44.2(b).
Vannortrick, 227 S.W.3d at 714; Kelley v. State , 237 S.W.3d at 909. This Court is
compelled to sustain the issue and reverse the judgment of conviction for unlawful
possession of a firearm.
Point of Error Four
The judgment for court count two should be reformed to reflect Reyes was
convicted of the state jail felony offense of endangering a child (CR 60).
The second count of the indictment alleges Reyes committed the state jail felony offense of endangering a child (CR 11). See T EX . P EN . C ODE §§ 22.041(c)
and 22.041(f). The jury found him guilty of the second count as alleged in the
indictment (CR 48, 5 RR 90). He was punished for a third degree felony due to the
use or exhibition of a deadly weapon during the commission of the offense. See
T EX . P EN . C ODE § 12.35(c)(1). The judgment erroneously recites he was
convicted of a third degree felony (CR 59).
Both Campbell v. State , 49 S.W.3d 874 (Tex. Crim. App. 2001) and State v. Webb , 12 S.W.3d 808 (Tex. Crim. App. 2000) acknowledge state jail felony
offenses are classified as either “aggravated” or “unaggravated/non-aggravated”.
See Campbell , 49 S.W.3d at 877; Webb , 12 S.W.3d at 811. Whether or not a state
jail felony offense is aggravated or unaggravated depends upon whether the
offense is punishable under § 12.35(a), reserved for unaggravated state jail
offenses, or punishable under § 12.35(c), reserved for aggravated state jail
offenses. See Webb , 12 S.W.3d at 811.
As explained in Ford v. State , 334 S.W.3d 230 (Tex. Crim. App. 2011), while the punishment range for an offense may be enhanced, the enhancement has
no bearing on the character of the underlying offense. Ford , 334 S.W.3d at 234.
When applicable, § 12.35(c) increases the punishment level for a § 12.35(a) state
jail felony to a third-degree felony, but the primary offense itself remains a state
jail felony. Id.
Even if a defendant is not being harmed by a deficiency in a judgment, he nevertheless has an interest in having the judgment correctly reflect the findings of
the trial court and the jury. Howell v. State , 563 S.W.2d 933, 936 (Tex. Crim. App.
1978). A judgment should properly recite the degree of the offense for which the
defendant was convicted. T EX . C RIM . P ROC . C ODE art. 42.01 § 14.
The general rule is that if an appellate court has the necessary data and evidence before it, the judgment may be modified or reformed on appeal. Splawn
v. State , 160 S.W.3d 103, 107 (Tex. App. - Texarkana 2005, pet. ref’d). This Court
has the authority to modify the judgment of a trial court. T EX . R. A PP . P. 43.2(b).
The authority to modify a judgment includes reformation of a judgment which fails
to correctly reflect the degree of the offense for which the defendant was
convicted. Land v. State , 291 S.W.3d 23, 31 (Tex. App. – Texarkana 2009, pet.
ref’d); Jackson v. State , 288 S.W.3d 60, 64 (Tex. App. – Houston [1 st Dist.] 2009,
pet. ref’d).
The record contains the necessary data and information for modification of the judgment. This Court should modify the judgment to properly reflect the
degree of felony for which Reyes was convicted in the second count was that of a
state jail felony rather than a third degree felony offense.
Prayer Reyes prays this Court will reverse the judgment of conviction under the first count and remand for a new punishment hearing, reverse the judgment of
conviction under the second and reform to an acquittal, reverse the judgment of
conviction under the third count and remand for a new trial, reform the judgment
under the second count of the indictment, or enter any other relief appropriate
under the facts and the law.
Respectfully submitted, /s/ Richard E. Wetzel Richard E. Wetzel State Bar No. 21236300 1411 West Avenue Suite 100
Austin, TX 78701 (512) 469-7943 (512) 474-5594 – facsimile wetzel_law@1411west.com Attorney for Appellant Isreal Reyes, Sr.
Certificate of Compliance This pleading complies with T EX . R. A PP . P. 9.4. According to the word count function of the computer program used to prepare the document, the brief
contains 7,789 words excluding the items not to be included within the word count
limit.
/s/ Richard E. Wetzel Richard E. Wetzel State Bar No. 21236300 *44 Certificate of Service
I, Richard E. Wetzel, counsel for appellant, do hereby certify that a true and correct copy of the foregoing document was emailed to counsel for the State, Josh
Presley, Assistant Criminal District Attorney, at his email address,
preslj@co.comal.tx.us on this the 5 th day of October, 2015.
/s/ Richard E. Wetzel Richard E. Wetzel State Bar No. 21236300
[1] The trial court also failed to admonish Reyes of the punishment range attached to the offense. See T EX . C RIM . P ROC . C ODE art. 26.13(a)(1). That error is harmless because the prosecutor mentioned the punishment range in the voir dire examination of the prospective jurors (2 RR 50). See Moore v. State, 278 S.W.3d 444, 448 (Tex. App.-Houston [14th Dist.] 2009, no pet.) (holding failure to admonish on punishment range did not affect defendant's substantial rights when defendant was present when punishment range was explained during voir dire).