ACCEPTED
04-15-00204-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
9/28/2015 4:56:05 PM
KEITH HOTTLE
CLERK
NO. 04-15-00204-CR
IN THE FOURTH COURT OF APPEALS FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS SAN ANTONIO, TEXAS
09/28/15 4:56:05 PM
KEITH E. HOTTLE
Clerk
ROBERT RODRIGUEZ,
Appellant
VS.
THE STATE OF TEXAS,
Appellee
APPELLANT’S BRIEF
SUSAN SCHOON
ORAL ARGUMENT Schoon Law Firm, P.C.
NOT REQUESTED 200 N. Seguin Avenue
New Braunfels, Texas 78130
PH: (830) 627-0044
FAX: (830) 620-5657
State Bar No. 24046803
susan@sehoonlawfirm.com
Attorney for Appellant
IDENTITY OF PARTIES AND COUNSEL
Appellant: Robert Rodriguez
Attorney for Appellant: Susan Schoon
(on appeal)
Attorney for Appellant: Richard Tim Molina
(at trial)
Attorneys for State: Keith Hemieke, Assistant District Attorney
Jacqueline Phillips, Assistant District
Attorney
Trial Court: Honorable Michael McCormick
Visiting Judge
274th Judicial District
TABLE OF CONTENTS
IDENTITY OF PARTIES i
iNDEX OF AUTHORITIES iii
STATEMENT OF THE CASE 1
IS SUE PRESENTED 2
STATEMENT OF FACTS 3
SUMMARY OF ARGUMENT 5
ARGUMENT AND AUTHORITIES:
I. The Trial Court Erred in Denying Appellant’s
Requested Instruction on Mistake of Fact 6
A. The Court’s Charge 9
B. Denial of the Requested Instruction
on Mistake Of Fact Was Error 7
C. Harm 9
PRAYER 13
CERTIFICATE OF COMPLIANCE 14
CERTIFICATE OF SERVICE 14
II.
INDEX OF AUTHORITIES
CASES PAGES
Aimanza v. State,
686 S.W.3d 157 (Tex.Crirn.App. 1985) 9
Arline v. State,
721 S.W.2d 348 (Tex. Grim. App. 1986) 9, 10
Barrios v. State,
283 S.W.3d 348 (Tex. Grim. App. 2009) 9
Barron v. State,
353 S.W.3d 879 (Tex. Grim. App. 2011) 9
Louis v. State,
393 S.W.3d 246 (Tex. Grim. App. 2012) 7, 8, 9, 10, 13
Muniz v. State,
851 S.W.2d 238 (Tex. Grim. App. 1993) 7
Ngo v. State,
175 S.W.3d 738 (Tex. Crim. App. 2005) 7
Thompson v. State,
236 S.W.3d 787 (Tex.Crim.App. 2007) 6, 7, 9
STATUTES AND RULES
TEX.PENAL CODE Art. 8.02 passim
TEX.PENAL CODE Art. 6.04 8
111.
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
COMES NOW ROBERT RODRIGUEZ, Appellant in this cause, by and
through his attorney of record, Susan Schoon, and pursuant to the provisions of
Tex.R.App.Pro. 38, et seq., files this brief on appeal.
STATEMENT OF THE CASE
Robert Rodriguez, Appellant was indicted in Cause Number 13-0797-CR-A
for aggravated assault/serious bodily injury (Count I) and aggravated robbery
(Count II). (CR3) Immediately prior to trial, the State abandoned Count I and
elected to proceed to trial on the aggravated robbery alone (RR, Vol. 2, p. 6)
The jury acquitted Appellant of aggravated robbery, but found him guilty of
the lesser-included offense of aggravated assault/serious bodily injury. (CR 79)
The jury sentenced Appellant to twelve years imprisonment, and a $10,000 fine.
(CR 79) Notice of Appeal and a Motion for New Trial were filed on March 16,
2015. (CR 75-76) The clerk’s record was filed on May 15, 2015 and the reporter’s
record was filed on June 22, 2015.
I
ISSUES PRESENTED
I. The trial court erred in denying Appellant’s requested instruction on
Mistake of Fact
2
STATEMENT OF FACTS
On March 3, 2013 at approximately 1:00 A.M., Omar Avila, a D.J. was
packing up and leaving his job at Club Azul, a bar in Seguin, Texas. (RR, Vol. 3,
p. 15) As he was getting into his car, he was approached by two men who asked
him for a ride. (RR, Vol. 3, p. 16) He refused and quickly got into his car, locking
the doors. As he was leaving the parking lot, the two men pounded on the
windows of his car, and he took off quickly to get away from them. (RR, Vol. 3, p.
18)
Minutes later, as the bar was closing, Maricella Plaud-Acosta and her
husband Francisco Plaud-Acosta were leaving the bar and were accosted by the
same two men. (RR, Vol. 3, p. 124-25) The men demanded a ride, and both
Maricella and Francisco refused. Id. Maricella got into the driver’s side of the car,
and Francisco walked to the passenger side. As Francisco was attempting to get
into the car, one of the men, Anthony Rodriguez, Appellant’s brother, grabbed
Francisco by a chain he was wearing around his neck. (RR, Vol. 3, pp. 125-26) He
pulled him out of the car and the men began to struggle. At some point, Appellant
approached from behind and became involved in the altercation. (RR, Vol. 3, p.
127, 140, 200) During the struggle, Francisco sustained a fractured tibia plateau’,
which is the bottom part of the knee. (RR, Vol. 3, p. 166) Meanwhile, Maricella
had run back to the bar and pounded on the door. When the employees of the bar
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emerged, Anthony Rodriguez and Appellant began walking away. (RR, Vol. 3, p.
128, 199) The police were called and subsequently found the men hiding behind a
nearby convenience store. (RR, Vol. 3, p. 58, 77-78) The men were returned to the
scene, identified by the witnesses and thereafter arrested. (RR, Vol. 3, p. 59, 201)
4
SUMMARY OF ARGUMENT
Robert Rodriguez, Appellant in this cause, complains on appeal that that trial
court erred in denying his requested jury instruction on the defense of mistake of
fact as contained in Texas Penal Code §8.02. Because Appellant’s request was
denied, he was effectively prevented from presenting his only viable defense to the
charge of aggravated assault, and was therefore harmed.
5
ARGUMENT AND AUTHORITIES
The Trial Court Erred In Denying Appellant’s Requested Instruction
On Mistake Of Fact
A. The Court’s Charge
Over Appellant’s objection, the trial court instructed the jury on the
law of “transferred intent.” (RR, Vol. 4, p. 9) The instruction was as
follows:
The State’s accusation is that the defendant intentionally or
knowingly caused serious bodily injury to Francisco Plaud
Acosta.
“Transferred intent” means a person is criminally
responsible for causing a result if the only difference between
what actually occurred and what the person desired,
contemplated or risked is, one, a different offense was
committed; or, two, a different person or property was injured,
harmed, or otherwise affected.
This means that a person is criminally responsible for causing
serious bodily injury to a person although the person did not
intend or contemplate that the bodily injury be “serious” as long
as the person intended or had knowledge that his conduct
would cause any bodily injury to the person.
(CR 55)
Afier the court overruled his objection to this language, and citing
Thompson v. State, 236 S.W.3d 787 (Tex.Crim.App. 2007), Appellant then
requested a charge on mistake-of-fact. The trial court denied his request.
(RR, Vol.4, p. 10-il)
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B. Denial of the Requested Instruction on Mistake of Fact Was Error
In reviewing a jury charge, the court must first determine if
error occurred. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App.
2005). If error is found, the court then determines whether sufficient
harm resulted from the error to require reversal. See Ngo, 175 S.W.3d
at 743.
A defendant is entitled to a defensive instruction if the issue is
raised by the evidence, whether the particular evidence is “strong,
weak, unimpeached, contradicted, or unbelievable.” Louis v. State,
393 S.W.3d 246, 271 (Tex. Crim. App. 2012), citing Muniz v. State,
851 S.W.2d 238, 254 (Tex. Crim. App. 1993). The mistake-of-fact
defense found in Texas Penal Code §8.02 states, “It is a defense to
prosecution that the actor through mistake formed a reasonable belief
about a matter of fact if his mistaken belief negated the kind of
culpability required for commission of the offense.”
When Appellant requested the defensive instruction of mistake-
of-fact, he directed the trial court to the Court of Criminal Appeals
holding in Thompson v. State, 236 S.W.3d 787 (Tex.Crim.App. 2007).
In Thompson, the defendant had seriously injured a child by beating
him with a free branch, purportedly as a form of discipline for
7
behavior in a bible study class. Id. at 90. The court charged the jury
on the law of “transferred intent,” as contained in Texas Penal Code
§6.04 (b)(1), thereby authorizing the jury to find the defendant guilty
of the first degree, rather than third degree offense of injury to a child,
“if he merely intended to cause bodily injury, so long as he actually
caused serious bodily injury.” Id. at 790 (emphasis in original). On
appeal, Thompson argued that it was improper to elevate the third
degree offense in this manner. The Court held that §6.04(b)(1) allows
for the transfer of a culpable mental state between offenses contained
in the same statute and also between greater and lesser offenses. Id. at
800. Important to the instant appeal, the Court fUrther held:
Where 6.04(b)(1) permits the transfer of a culpable mental
state, mistake of fact may be raised as a defense. The mistake
must be reasonable for it to constitute a circumstance that
exculpates the defendant of the offense charged, and of course,
the defendant would still be guilty of any lesser included
offense that would be applicable if the facts were as the
defendant believed. Id.
In Louis v. State, a similar case involving transferred intent, the
Court agreed with the court of appeals that it was error to deny
Appellant’s requested mistake-of-fact instruction. Louis, 393 S.W.3d
at 254. “The transferred intent doctrine could be used to transfer intent
from the bodily injury offense to the serious bodily injury offense, but
8
the mistake-of-fact defense would prevent such a transfer if the
defendant had a reasonable, but mistaken belief that he was inflicting
only bodily injury.” Id. at 253.
In the instant case, as with Thompson and Louis, the transferred
intent doctrine was used to transfer the intent from the bodily injury
offense (assault) to the serious bodily injury offense (aggravated
assault). The inclusion of a transferred intent instruction entitled
Appellant to urge the mistake-of-fact defense—that he had a
reasonable, but mistaken belief that he was only inflicting bodily
injury.
There was evidence in the record sufficient to support the
submission of this defense, as detailed below.
C. HARM
Because Appellant objected to the omission of the mistake of
fact defense in the court’s charge, en-or was preserved. See Barrios v.
State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). Therefore,
Appellant is entitled to a new trial if the en-or is not harmless, but
“calculated to injure the rights of the defendant.” Id. (quoting Aimanza
v. State, 686 S.W.3d 157, 171 (Tex.Crim.App. 1985); Barron v. State,
353 S.W.3d 879, 883 (Tex. Crim. App. 201 1)(quotingArline v. State,
9
721 S.W.2d 348, 351 (Tex. Crim. App. 1986) (“[T]he presence of any
harm, regardless of degree, which results from preserved charging
error, is sufficient to require a reversal of the conviction.”)).
In reviewing for harm, the appellate court considers all of the
evidence, the entire jury charge, and the parties’ arguments. Louis,
393 S.W.3d at 271, 272.
In applying the “some harm” standard in Louis v. State, the
Court of Criminal Appeals explained that “failure to instruct the jury
on the defense of mistake of fact was an impediment to [Louis’s]
ability to present his defense that he did not have the requisite mens
rea to be found guilty and to argue that defense to the jury.?? Further,
the “[flack of the requested instruction effectively prevented [Louis]
from presenting his defense. . . .“ Id. at 271-73.
In the case at bar, appellant’s intent regarding the injury
inflicted was not even contested—both sides agreed that Appellant
intended to cause bodily injury, not serious bodily injury. Therefore
the state relied on the transfer of that intent to prove its case, as argued
by the prosecutor during closing:
[Appellant’s lawyer] talked to you about transferred
intent. I guess he doesn’t like the ~aw because it’s so bad
for his client. It’s bad for his client because his client
intended to cause Mr. Flaud-Acosta injury and ended up
10
causing hi in serious bodily injury and he’s responsible for
that. When we talked about this in voir dire, if a purse
snatcher causes someone to fall to the ground and they
get paralyzed by hitting their neck on a curb, they’re
responsible for serious bodily injury. People are
responsible for their actions. Robert Rodriguez is
responsible for his actions that night.
(RR, Vol. 4, p. 55)
The state’s theory of the case was that Appellant and his
brother, Anthony were attempting to steal the victim’s car when the
assault occurred. The evidence was clear that Appellant’s brother
started the altercation with Mr. Plaud-Acosta, and that Appellant
joined in the fight to help his brother. The defense argued that there
was insufficient evidence of the attempted theft of the car, and that the
altercation was essentially a “bar fight,” that began when Mr. Plaud
Acosta refused to give the men, who were extremely intoxicated, a
ride home from the bar. (RR, Vol. 4, pp. 38-39, 46) The defense
essentially conceded the assault, but contested whether the evidence
was sufficient to prove serious bodily injury. Without the mistake of
fact defense available to him, there was little more to argue.
The jury agreed that the evidence of attempted theft of the
vehicle was insufficient, and found Appellant not guilty of the
aggravated robbery. Between the lesser-included offenses of assault
and aggravated assault, and with no mistake of fact defense available
11
to them, the verdict came down to whether or not the jury believed
Appellant caused serious bodily injury, regardless of his intent.
During closing, Appellant’s attorney argued:
And all we ask though is that you limit your
debate on aggravated robbery and that you see it for what
it is. It’s overcharged. It’s been as a result of a snowball
effect gone astray. It’s charged as a first degree felony
when really the debate should be whether or not this was
an aggravated assault causing serious bodily injury, a bar
fight type situation or a fight, as the doctor put it, in the
parking lot that resulted in what you determine to be
either a major or minor injury; or whether it was an
assault.
(RR, Vol. 4, pp. 49-50)
There was no evidence in the record to support Appellant
having the intent to cause serious bodily injury—in fact, just the
opposite. No weapons were used, and the injury was unusual for a
“bar fight.” The doctor who testified classified it as a “high impact
injury,” typically seen in car accidents, or falls from significant
heights. (RR, Vol. 4, p. 172). He testified that it is also seen in
football and rugby players, when “a very fast and athletic linebacker
could hit your knee when it was planted.” (RR, Vol. 4 p. 173-74).
Appellant was attempting to assist his brother in a fight, and
certainly by hitting or kicking, or pushing the victim down, he
intended to cause bodily injury, and it would not have been
12
unreasonable for him to be mistaken about the type of injury his
actions would cause. However, because the trial court declined to
instruct the jury on the defense of mistake of fact, Appellant was
denied the ability to present his defense that he did not have the
requisite mens rea to be found guilty and to argue that defense to the
jury. Therefore, he was harmed by this error. See Louis v. State, 393
S.W.3d at 271-73).
PRAYER
Appellant, Robert Rodriguez prays that this Court reverse his
conviction and remand for a new trial.
Respectfully Submitted:
SUSAN SCHOON
Schoon Law Firm, P.C.
200 N. Seguin Avenue
New Braunfels, TX 78130
State Bar No. 24046803
PH: (830) 627-0044
FAX: (830) 620-5657
susan@schoonlawfirm.com
Attorney for Appellant
13
CERTIFICATE OF COMPLIANCE
According to Microsoft Word’s word count tool, this document contains 2312
words.
CERTIFICATE OF SERVICE
I hereby certify that a true and conect copy of Appellant’s Brief was delivered to
the District Attorney of Guadalupe County, Texas on this the 28th day of
September, 2015 by fax to
SUSAN SCHOON
14