ACCEPTED
03-14-00539-CR
4701991
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/30/2015 8:00:58 PM
JEFFREY D. KYLE
CLERK
NO. 03-14-00539-CR
FILED IN
3rd COURT OF APPEALS
IN THE AUSTIN, TEXAS
3/30/2015 8:00:58 PM
COURT OF APPEALS JEFFREY D. KYLE
Clerk
FOR THE THIRD SUPREME JUDICIAL DISTRICT OF TEXAS
__________________________________________
DENNIS DWIGHT GALINDO,
Appellant.
VS.
THE STATE OF TEXAS,
Appellee.
__________________________________________
From the 340TH Judicial District Court
Tom Green County, Texas
Honorable Ben Woodward, Judge Presiding
__________________________________________
BRIEF OF STATE
__________________________________________
ORAL ARGUMENT REQUESTED ONLY
IF REQUESTED BY THE COURT
MEAGAN WHITE
Assistant District Attorney
51st Judicial District
124 W. Beauregard, Suite B
San Angelo, Texas 76903
(325) 659-6583
TSB #24060973
ATTORNEY FOR STATE
TABLE OF CONTENTS
PAGE
LIST OF AUTHORITIES ............................................................................. 2
STATEMENT OF THE CASE ..................................................................... 5
STATEMENT OF FACTS ........................................................................... 6
STATE’S COUNTERPOINT ONE ............................................................... 8
SUMMARY OF THE ARGUMENT ..................................................... 8
ARGUMENT AND AUTHORITIES ..................................................... 8
STATE’S COUNTERPOINT TWO ............................................................ 11
SUMMARY OF THE ARGUMENT ................................................... 11
ARGUMENT AND AUTHORITIES ................................................... 11
STATE’S COUNTERPOINT THREE......................................................... 15
SUMMARY OF THE ARGUMENT ................................................... 15
ARGUMENT AND AUTHORITIES ................................................... 15
PRAYER ................................................................................................... 19
CERTIFICATE OF COMPLIANCE ............................................................ 20
CERTIFICATE OF SERVICE .................................................................... 20
LIST OF AUTHORITIES
Cases
Allen v. State, 249 S.W.3d 680 (Tex. App.—Austin 2008, no pet.) ...... 16, 17
Brooks v. State, 323 15 S.W.3d 893 (Tex. Crim. App. 2010) .................... 15
Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011) ............................. 15
Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007) .................. 16, 18
Ex Parte Kunkle, 852 S.W.2d 499 (Tex. Crim. App. 1993) ........................ 12
Jackson v. State, 877 S.W.2d 768 (Tex. Crim. App. 1994) ....................... 12
Jackson v. Virginia, 443 U.S. 307 (1979) .................................................. 16
Kemp v. State, 892 S.W.2d 112 (Tex. App.—Houston [1st Dist.] 1994, pet.
ref’d) ................................................................................................ 12, 13
Lane v. State, 763 S.W.2d 785 (Tex. Crim. App. 1989) ............................ 17
Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009) .......................... 16
Matthews v. State, No. 03-13-00037-CR, 2014 Tex. App. LEXIS 13722, at
*8 (Tex. App.—Austin Dec. 23, 2014)(mem. op., not designated for
publication) ............................................................................................ 16
McMillon v. State, 505 S.W.2d 872 (Tex. Crim. App. 1974) ........................ 9
Moff v. State, 131 S.W.3d 485 (Tex. Crim. App. 2004); ............................ 16
Morales v. State, 293 S.W.3d 901 (Tex. App.—Texarkana 2009, pet. ref'd)
.............................................................................................................. 17
Padilla v. State, 326 S.W.3d 195 (Tex. Crim. App. 2010) .......................... 16
Randolph v. State, 152 S.W.3d 764 (Tex. App.—Dallas 2004, no pet.) .... 18
Sexton v. State, 51 S.W.3d 604 (Tex. App., Tyler, 2000, pet. ref ’d.) .......... 9
State v. Bates, 889 S.W.2d 306 (Tex. Crim. App. 1994) ............................. 8
2
Stokes v. State, 277 S.W.3d 20 (Tex. Crim. App. 2009) ............................. 9
Strickland v. Washington, 466 U.S. 668 (1984)................................... 11, 12
Vinson v. State, 6 S.W.3d 704 (Tex. App., Waco 1999, no pet.) ................. 8
Wallace v. State, 106 S.W.3d 103 (Tex. Crim. App. 2003) ........................ 10
Statutes
Tex. Penal Code Ann. § 1.07 .................................................................... 17
Tex. Penal Code Ann. § 22.01 .................................................................. 17
Tex. Penal Code Ann. § 22.01(b)(2)(A) ..................................................... 17
Codes
Tex. Code Crim. Proc. Ann. art. 38.04 ...................................................... 16
Rules
Tex. R. App. P. 21.4 ................................................................................. 10
Tex. R. App. P. 21.8 ............................................................................... 8, 9
3
NO. 03-14-00539-CR
IN THE
COURT OF APPEALS
FOR THE THIRD SUPREME JUDICIAL DISTRICT OF TEXAS
__________________________________________
DENNIS DWIGHT GALINDO,
Appellant.
VS.
THE STATE OF TEXAS,
State.
__________________________________________
From the 340TH Judicial District Court
Tom Green County, Texas
Honorable Ben Woodward, Judge Presiding
__________________________________________
BRIEF OF STATE
__________________________________________
TO THE HONORABLE COURT OF APPEALS FOR THE THIRD
SUPREME JUDICIAL DISTRICT OF TEXAS:
COMES NOW, The State of Texas, in the above entitled and
numbered cause, and files this the BRIEF OF STATE and in support
thereof, the State would show this Honorable Court as follows:
4
STATEMENT OF THE CASE
Appellant was indicted for Assault Family Violence with a previous
conviction. (C.R. p. 6-7). Appellant filed Defendant’s Amended Election as
to Punishment on June 18, 2014. (C.R. p. 11). On June 18, 2014 the
Appellant completed a written waiver of jury. (C.R. p. 13). On June 23,
2014 and the matter was tried before the court. (R.R. Vol. 3 p. 5). The
Judge found the Appellant guilty. (R.R. Vol. 4 p. 53). On June 24, 2014 after
punishment evidence was presented the Judge sentenced the defendant to
ten years confinement. (R.R. Vol. 4 p. 88).
Appellant timely filed a Motion for New Trial and Motion in Arrest of
Judgment on June 30th, 2014, stating that the verdict was contrary to the
law and the evidence. (C.R. p. 20). The court held a hearing on Motion for
New Trial on August 4, 2014, with Defense Counsel Stephanie Goodman
present. The following notations on the docket were made: “Court will not
rule on Motion for New Trial at this time and will likely allow it to be
overruled as an operation of law.” (C.R. p. 38). Defense Counsel
Stephanie Goodman filed Notice of Motion to Withdraw as Counsel on
August 19, 2014. (C.R. p. 27). Appellant filed his Notice of Appeal on
August 29, 2014. (C.R. p. 29).
5
STATEMENT OF FACTS
On November 21, 2013, San Angelo police officer Cobey Bradshaw
was dispatched to 114 W. 24th St, San Angelo, Texas. (R.R. Vol. 3 p. 9).
Officer Bradshaw arrived at the residence and found a female and two
children. (R.R. Vol. 3 p. 9). The female was identified to be Dorothy Ortega,
the alleged victim. Officer Bradshaw observed that Dorothy was agitated
and the children appeared to be worried. (R.R. Vol. 3 p. 10). Officer
Bradshaw spoke with the children and Dorothy Ortega on scene. (R.R. Vol.
3 p. 10). Officer Bradshaw was unable to speak to the Appellant because
he was not there (R.R. Vol. 3 p. 12). Officer Bradshaw also took pictures of
Dorothy Ortega and the scene (R.R. Vol. 3 p. 14).
Dorothy Ortega has a son with the Appellant named Dominique
Galindo (R.R. Vol. 3 p. 20). Dorothy Ortega testified during trial that she
dropped Dominique off at boxing practice earlier that day and believed that
the Appellant was going to pick up Dominique after practice. (R.R. Vol. 3 p.
21). She received a phone call asking that she pick up Dominique (R.R. Vol.
3 p. 21). After Dorothy Ortega arrived back at her residence she began
making food for Dominique (R.R. Vol. 3 p. 16). Dominique called the
Appellant asking him to drop off money for a shirt (R.R. Vol. 3 p. 21). The
Appellant came into the house alone (R.R. Vol. 3 pp. 25-26). Dorothy Ortega
6
and the Appellant began to argue about the Appellant’s failure to pick
Dominique up from boxing practice. (R.R. Vol. 3 p. 21). During the argument
Dorothy Ortega was in the kitchen by the stove, Dominique was seated at the
kitchen table approximately five feet away, and Dorothy’s daughter, Aliyah,
was in the living room. (R.R. Vol. 3 p. 22).
Dorothy testified that Appellant struck her face with his hand (R.R. Vol.
3 p. 23). Aliyah testified that she saw the Appellant strike Dorothy. (R.R. Vol.
3 p. 42). After the Appellant struck Dorothy Ortega, he walked out the door
and the children followed him out of the door (R.R. Vol. 3 p. 23).
The defense called Sean Sanchez as a witness and he testified that he
was in the house during an argument between the Appellant and Dorothy
Ortega (R.R. Vol. 3 p. 57). Sean Sanchez testified that the argument about
who should have picked Dominique up from boxing practice took place not in
November but in October. (R.R. Vol. 3 p. 58). He testified that he saw
Dorothy swing at the Appellant and then he and the Appellant left. (R.R. Vol.
3 p. 59). Dorothy Ortega later testified that Sean Sanchez has never been to
her residence (R.R. Vol. 4 p. 18).
The Appellant testified that he did not go to Dorothy’s residence on
November 21st . (R.R. Vol. 3 p. 88). He stated that he went to Dorothy’s
house in October 2013 and that she hit him but he never touched her. (R.R.
7
Vol. 3 p. 90). On cross examination the Appellant admitted that he had
previous felony convictions including an assault, burglary of a habitation and
“a drug charge.” (R.R. Vol. 3 p. 99). The Judge found the Appellant guilty.
(R.R. Vol. 4 p. 53).
STATE’S COUNTERPOINT ONE
The Trial Court held a hearing on the Motion for New Trial on
August 4, 2014, and did not err in not setting a subsequent hearing.
SUMMARY OF THE ARGUMENT
Appellant’s Motion for New Trial was denied by operation of law 75
days after sentencing.
ARGUMENT AND AUTHORITIES
When a motion for new trial is filed, the trial court can grant or deny
the motion by written order or allow the motion to be denied by operation of
law after 75 days after sentencing. Tex. R. App. P. 21.8.; State v. Bates,
889 S.W.2d 306 (Tex. Crim. App. 1994); Vinson v. State, 6 S.W.3d 704
(Tex. App., Waco 1999, no pet.). A written order is necessary to prevent
8
the overruling of a motion for new trial by operation of law; an oral
pronouncement, absent a written order, is insufficient. Tex. R. App. P. 21.8.
After 75 days, the motion is deemed to be denied and the trial court loses
jurisdiction to take any further action on the new trial motion. Sexton v.
State, 51 S.W.3d 604 (Tex. App., Tyler, 2000, pet. ref ’d.). Unlike the
notation on an unsigned proposed order, an entry on a docket sheet
indicating that a new trial motion was presented was found sufficient on the
theory that it was a far more reliable indicator of the trial judge’s decision
and business because it is likely that only the judge and those authorized to
act on his or her behalf have access to the docket sheets and can make
entries to them. Stokes v. State, 277 S.W.3d 20, 25 (Tex. Crim. App.
2009)—(notation of presentment on docket sheet gives accurate account of
motion’s disposition without need for trial judge’s signature).
A motion for new trial is left to the sound discretion of the trial court.
McMillon v. State, 505 S.W.2d 872, 874 (Tex. Crim. App. 1974). The
court’s decision in denying a new trial will not be disturbed unless an abuse
of discretion is shown. Id..
A trial court is not obligated to hold a hearing on a motion for new trial
if the motion is not verified or supported by affidavit. Wallace v. State, 106
S.W.3d 103, 108, 2003 Tex. Crim. App. LEXIS 95, 7-8 (Tex. Crim. App.
9
2003). An amended motion for new trial may be filed any time within thirty
days after sentence has been imposed or suspended in open court if the
previously filed motion or amended motion has not been overruled. Tex. R.
App. P. 21.4. Under this provision, a motion for new trial may be amended
without leave of court, as long as it is done within the thirty day time limit.
Id..
Appellant was sentenced on June 24, 2014. (R.R. Vol. 4 p. 88). The
Motion for New Trial was originally filed on June 30, 2014 (C.R. p. 20).
There was a hearing on Appellant’s motion for new trial on August 4, 2014
(C.R. p. 38). The docket entry states as follows: “Court will not rule on
Motion for New Trial at this time and will likely allow it to be overruled as an
operation of law.” Id. Appellant did not file a subsequent amended motion
for new trial. (C.R.). It is also not evident from the record that Appellant
requested an additional hearing. (C.R.). The trial court did not issue an
order granting the Motion for New Trial therefore the motion was overruled
by operation of law. Consequently, Appellant’s Point of Error No. One
should be denied.
10
STATE’S COUNTERPOINT TWO
Appellant received effective assistance of counsel at trial.
SUMMARY OF THE ARGUMENT
Appellant’s trial counsel was not ineffective for stipulating to Appellant’s
jurisdictional prior.
ARGUMENT AND AUTHORITIES
As stated by the Supreme Court of the United States in Strickland v.
Washington, 466 U.S. 668, 688-89 (1984), to show ineffective assistance of
counsel, the defendant must first show a deficiency in trial counsel’s
performance and then show the deficient performance prejudiced the
defense to the extent that the defendant was deprived of a fair trial.
Judicial scrutiny of counsel’s performance must be highly deferential,
and a fair assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time. Strickland 466 U.S. at 688-
11
89; Ex Parte Kunkle, 852 S.W.2d 499, 505 (Tex. Crim. App. 1993). A court
must indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance. Id. To show prejudice,
the defendant has the burden of proving that there is a reasonable
probability that, but for counsel’s errors, the result of the proceeding would
have been different. Strickland 466 U.S. at 688-89. The defendant must
also show harm sufficient to undermine confidence in the outcome of the
trial. Id..
In determining whether counsel was ineffective at trial, the reviewing
court “must presume that counsel is better positioned than the appellate
court to judge the pragmatism of the particular case, and that he made all
significant decisions in the exercise of reasonable professional judgment.”
Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.—Houston [1st Dist.] 1994,
pet. ref’d), citing Jackson v. State, 877 S.W.2d 768 (Tex. Crim. App. 1994).
The Court went on to say “that only in a rare and egregious circumstance
would a record on direct appeal suffice to rebut the presumption of sound
trial strategy.” Kemp 892 S.W.2d at 115.
Appellant filed a motion for new trial and a hearing was held on
Appellant’s motion for new trial. (C.R. p. 38). Appellant did not seek to
12
explore and develop this ineffectiveness claim at a hearing on motion for new
trial. Appellant alleges that defense trial counsel was the former Assistant
District Attorney that had prosecuted him on the prior assault case. This is
not apparent from the record. (C.R.). State’s exhibit number 1, the judgment
in Cause no. 00-01319, does not indicate that defense counsel Stephanie
Goodman was the prosecutor. (R.R. Vol. 5 p. 7-8). In fact the face of the
judgment indicates the case was prosecuted by the County Attorney’s Office,
not the District Attorney’s Office. Id.
The Court is left without the specifics of the trial strategy employed by
the defense in deciding to have Appellant plea true to the jurisdictional
enhancement. In determining whether counsel was ineffective at trial, the
reviewing court must presume that counsel made all significant decisions in
the exercise of reasonable professional judgment. Kemp 892 S.W.2d at
115, citing Jackson, 877 S.W.2d 768. The instant case is not one of those
rare and egregious circumstances sufficient to rebut the presumption of
sound trial strategy. The Appellant, while testifying during the guilt
innocence phase of trial stated that he had prior convictions for assault and
a “drug charge”. (R.R. Vol. 3 p. 99). During the appellant’s direct
examination he also stated that he has pled guilty to assault family violence
13
offenses before, but defendant did not plead guilty during guilt innocence
because he “didn’t do it this time.” (R.R. Vol. 3 p. 94). This line of
questioning helped draw a distinction between his prior guilty pleas and this
case in which he had pled not guilty. The Appellant’s choice to stipulate to
the jurisdictional prior could have been trial strategy.
Appellant has not met his burden of affirmatively proving that trial
counsel’s actions fell below an objective standard of reasonableness or that
the actions were unsound trial strategy. Furthermore, Appellant has not
met the burden of affirmatively proving prejudice to the Appellant due to
any error of trial counsel.
Appellant had an opportunity to explore and develop his ineffectiveness
claim at the hearing on his Motion for New Trial but failed to do so.
Speculation is all there is in this case and that should not be enough to
declare the work of an attorney ineffective.
For the foregoing reasons, the State respectfully requests this Court
overrule the Appellant’s Point of Error No. Two.
14
STATE’S COUNTERPOINT THREE
The evidence was factually or legally sufficient to convict Appellant.
SUMMARY OF THE ARGUMENT
The evidence was sufficient to sustain a conviction for Assault
causing Bodily Injury to a family member enhanced with a prior assault
family violence conviction.
ARGUMENT AND AUTHORITIES
Due process requires that the State prove, beyond a reasonable
doubt, every element of the crime charged. Byrd v. State, 336 S.W.3d 242,
246 (Tex. Crim. App. 2011). In Texas, evidence to support a verdict is
legally sufficient if viewed in a light most favorable to the verdict, the
evidence, and all reasonable inferences therefrom would allow a rational
trier of fact to find the essential elements of the crime beyond a reasonable
doubt. Brooks v. State, 323 15 S.W.3d 893, 912 (Tex. Crim. App. 2010).
The Court will review all the evidence in the light most favorable to the
verdict and assume that the trier of fact resolved conflicts in testimony,
weighed the evidence, and drew reasonable inferences in a manner that
15
supports the verdict. Jackson v. Virginia, 443 U.S. 307, 318 (1979); Laster
v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Matthews v. State,
No. 03-13-00037-CR, 2014 Tex. App. LEXIS 13722, at *8,9 (Tex. App.—
Austin Dec. 23, 2014)(mem. op., not designated for publication).
In determining the legal sufficiency of the evidence, the Court must
consider all the evidence in the record, whether direct or circumstantial,
properly or improperly admitted, or submitted by the prosecution or the
defense. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007); Moff v. State, 131 S.W.3d 485, 489-90 (Tex. Crim. App. 2004); Allen
v. State, 249 S.W.3d 680, 688-89 (Tex. App.—Austin 2008, no pet.).
The trier of fact, as the exclusive judge of the facts, is entitled to
weigh and resolve conflicts in the evidence and draw reasonable
inferences therefrom. Clayton, 235 S.W.3d at 778; see Tex. Code Crim.
Proc. Ann. art. 38.04. Thus, when faced with a record of historical facts that
supports conflicting inferences, a reviewing court must presume that the
trier of fact resolved any such conflicts in favor of the verdict. Jackson v.
Virginia, 443 U.S. at 326; Padilla v. State, 326 S.W.3d 195, 200 (Tex. Crim.
App. 2010). Every fact does not need to point directly and independently to
the guilt of the appellant, as long as the cumulative force of all the
incriminating circumstances is sufficient to support the conviction. Allen 249
16
S.W.3d at 689. The role of a court reviewing a sufficiency argument is not
that of a fact finder but rather as a due process safeguard, ensuring only
the rationality of the trier of fact's finding of the essential elements of the
offense beyond a reasonable doubt. Allen 249 S.W.3d at 688.
Appellant was found guilty of the offense of felony assault causing
bodily injury to a family member enhanced with a prior assault family
violence. The elements of the offense of Assault family violence under Tex.
Penal Code Ann. § 22.01(b)(2)(A) are that Appellant intentionally,
knowingly or recklessly caused bodily injury to a family or household
member. Further under Tex. Penal Code Ann. § 22.01, to be punished as a
felony offense, the State had to show that Appellant had a prior conviction
for an offense under Tex. Penal Code Ann. § 22.01.
Appellant limits his sufficiency argument to the element of bodily
injury. Bodily injury is defined in Tex. Penal Code Ann. § 1.07 as physical
pain, illness, or any impairment of physical condition. "This definition
appears to be purposefully broad and seems to encompass even relatively
minor physical contacts so long as they constitute more than mere
offensive touching." Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App.
1989); Morales v. State, 293 S.W.3d 901, 907 (Tex. App.—Texarkana
2009, pet. ref'd). "A fact finder may infer that a victim actually felt or
17
suffered physical pain because people of common intelligence understand
pain and some of the natural causes of it." Randolph v. State, 152 S.W.3d
764, 774 (Tex. App.—Dallas 2004, no pet.).
Dorothy Ortega stated during her testimony that when the defendant
struck her that it hurt (R.R. Vol. 3 p. 31). Dorothy Ortega also stated that
she had a red mark on her face from where the defendant struck her (R.R.
Vol. 3 p.31). The trial court as trier of fact was the arbitrator of credibility
and weight given to the evidence. Clayton, 235 S.W.3d at 778; see Tex.
Code Crim. Proc. Ann. art. 38.04. The evidence presented to the trial court
was sufficient to sustain Appellant’s conviction for Assault causing bodily
injury to a family member enhanced with a prior assault family violence.
18
PRAYER
WHEREFORE, the State prays this Court overrule all issues
presented by Appellant and Affirm the Judgment of the trial court for the
reasons stated herein.
Respectfully Submitted,
ALLISON PALMER
51ST DISTRICT ATTORNEY
___________________________
MEAGAN WHITE
Assistant District Attorney
51ST & 119th Judicial District
124 W. Beauregard, Suite B
San Angelo, Texas 76903
(325) 659-6583
TSB# 24060973
ATTORNEY FOR STATE
19
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i), I hereby certify,
based upon the computer program used to generate this brief, that this
brief contains 2,761 words, excluding words contained in those parts of the
brief that Rule 9.4(i) exempts from inclusion in the word count. I further
certify that this brief is in a conventional 14-point typeface.
___________________________
MEAGAN WHITE
Assistant District Attorney
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Brief of
State was electronically served on TODD L. ALVEY
(tlalaw@sbcglobal.net), P. O. Box 1815, Pampa, Texas 79066, counsel for
Appellant on the 30th day of March 2015.
___________________________
MEAGAN WHITE
Assistant District Attorney
20