ACCEPTED
01-15-00394-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
10/14/2015 9:09:34 PM
CHRISTOPHER PRINE
CLERK
No. 01-15-00394-CR
__________________________________________________________________
FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS
FOR THE 10/14/2015 9:09:34 PM
FIRST SUPREME JUDICIAL DISTRICTCHRISTOPHER A. PRINE
Clerk
AT HOUSTON
__________________________________________________________________
HECTOR MARIO GONZAEZ § APPELLANT
V. §
STATE OF TEXAS § APPELLEE
__________________________________________________________________
On appeal in Cause No. 1397723 from the 174TH District Court of Harris County
________________________________________________________________
BRIEF OF APPELLANT
__________________________________________________________________
J. Sidney Crowley
214 Morton St.
Richmond, Tx. 77469
(281) 232-8332
TBC No. 05170200
Attorney for Appellant
INTERESTED PARTIES
TRIAL JUDGE
Honorable Ruben Guerrero
174th District Court
APPELLANT
Hector Mario Gonzalez
Texas Department of Criminal Justice
Correctional Division
TRIAL COUNSEL
R. P. Cornelius
2028 Buffalo Terrace
Houston, Texas 77019
APPELLATE COUNSEL
J. Sidney Crowley
214 Morton St.
Richmond, Texas 77469
Devon Anderson
District Attorney
Harris County
Adam Brodrick
Assistant District Attorney
Harris County
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TABLE OF CONTENTS
LIST OF INTERESTED PARTIES............................................................................2
INDEX OF AUTHORITIES.......................................................................................4
STATEMENT OF THE CASE....................................................................................5
POINTS OF ERROR.................................................................................................6
STATEMENT OF FACTS..........................................................................................7
SUMMARY OF THE ARGUMENT...................................................................... 10
POINT OF ERROR ONE
The trial court reversibly erred when it completely failed to admonish
Appellant on the range of punishment prior to accepting his plea of
guilty...............................................................................................................11
PRAYER FOR RELIEF.............................................................................................13
CERTIFICATE OF COMPLIANCE..........................................................................13
CERTIFICATE OF SERVICE...................................................................................13
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INDEX OF AUTHORITIES
Statutes and Rules
TEX.CODE CRIM.PROC., art.26.13(a)...................................................................11
TEX.R. APP.PROC., Rule 44.2(b).............................................................................11
Cases
Aguirre-Mata v. State, 125 S.W.3d 473 (Tex.Crim.App. 2003)...............................11
4
STATEMENT OF THE CASE
TO THE HONORABLE COURT OF APPEALS:
Appellant, charged by indictment with the felony offense of aggravated robbery,
entered a plea of guilty to the jury, which assessed his punishment at confinement for
30 years in the Texas Department of Criminal Justice, Correctional Division.
5
POINTS OF ERROR
POINT OF ERROR ONE
The trial court reversibly erred when it completely failed to admonish Appellant
on the range of punishment prior to accepting his plea of guilty.
6
STATEMENT OF FACTS
Appellant was charged by indictment with the aggravated robbery of Eloy
Canales. After being arraigned, Appellant entered a plea of guilty before the jury.
Eloy Canales testified that on August 11, 2013, he was at a car wash in
Pasadena cleaning some containers (RR-4, p. 11). A truck drove to the bay where he
was located and a young man, identified as Appellant, got out carrying a rifle (RR-4,
p. 17). Appellant held the rifle to his chest and and told him not to turn around.
Appellant took his wallet, which contained $50, and cell phone and threw the keys to
Canales’ truck into the street. Canales then went home and called the police (RR-4, p.
50).
Andrew Rohm, a Pasadena police officer, testified that he was dispatched to the
car wash in reference to a robbery and met with Canales (RR-4, p. 28). He obtained
a description of a blue Dodge truck driven by a Hispanic male and broadcast it over
the police radio channel. After learning that a suspect had been apprehended, he
transported Canales to a Denny’s restaurant to identify the robber (RR-4, p. 36).
Enrique Castillo testified that on the same day he was in the parking lot of a
Foodtown grocery store on Richey Rd. He was in his vehicle talking with a young
woman who was in a separate car. A blue truck pulled up and blocked him in. A man,
whom he identified as Appellant, exited the truck with a shotgun and cocked it (RR-4,
7
p. 47). Appellant demanded his wallet and cellphone. As Appellant drove away
Castillo was able to record the license number of the truck (RR-4, p. 53).
Laurence Garza testified that he and his wife were grocery shopping at the Mi
Tienda store on Spencer Highway. He had left the store and was walking to his truck
As he began opening the driver’s side door Appellant racked a long gun and placed
it to his head (RR-4, p. 56), demanding his wallet and cellphone. When Gonzo’s wife
approached Appellant demanded her purse. Appellant took the items and drove away
in a blue Dodge truck (RR-4, p.59).
Feliz Garza. Laurence’s wife, testified that as she was walking to her truck with
bags of groceries she saw someone holding a long object that resembled a cane. Her
husband told her to give the man her purse, which she did. They then called police
(RR-4, p. 79).
Pasadena police officer Jason Mitchell testified that he was on patrol when he
received the description of the robber’s truck. He began searching for it and located
it within ten minutes (RR-4, p.89). He pulled in behind the truck and followed it,
activating his emergency lights. Appellant began to flee and Mitchell chased him for
several miles. Appellant lost control of the truck and crashed into a house. He was
taken into custody and a shotgun, several wallets, cellphones and a purse were
recovered (RR-4, p. 108).
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Olga Rubalcava testified that on August 2, 2013, she had gone to a Fiesta store
with her sister and daughter to buy fish (RR-5, p.5). As she was opening her car door
a blue truck pulled up and blocked them in. Appellant exited the truck holding a rifle
and asked for her purse. He took the purse and a cellphone and left (RR-5, p.12).
Appellant testified on his own behalf. He described his life growing up and
numerous hardships he had encountered. He also testified that he had begun using
drugs after beginning a relationship with a woman. He was in need of money when he
committed the robberies with which he was charged.
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SUMMARY OF THE ARGUMENT
Point of Error One
The record is devoid of any indication that Appellant was admonished on the
range of punishment prior to entering his plea of guilty.
.
10
POINT OF ERROR ONE
The trial court reversibly erred when it completely failed to admonish Appellant
on the range of punishment prior to accepting his plea of guilty.
Argument and Authorities
The trial record indicates that after being arraigned Appellant decided to plead
guilty (RR-3). The court accepted his plea and a jury was then empaneled to assess
punishment. There were no oral admonishments given as required by TEX.CODE
CRIM.PROC. Art. 26.13(a). A search of the clerk’s record does not reveal any written
admonishments that Appellant signed. In fact, the record is completely devoid of any
admonishments at all prior to Appellant’s plea.
The trial court’s error in failing to show on the record that it admonished a guilty
pleading defendant on the range of punishment guilty is nonconstitutional error, subject
to harm analysis under TEX.R.APP. PROC. Rule 44.2(b). Aguirre-Mata v. State, 125
S.W.3d 473 (Tex.Crim.App. 2003). The failure to show on the record that Appellant
was admonished prior to his guilty plea is therefore error. Appellant would argue that
such failure affected his substantial rights under Rule 44.2(b). The record, other than
the jury charge on punishment, did not contain any references to the correct range of
punishment ,unlike the situation in Aguirre-Mata, supra. In addition, Appellant’s case
was enhanced with a prior felony conviction, which elevated the possible range of
11
punishment. There is nothing to indicate that Appellant was aware of any of the
possible ranges of punishment when he entered his plea. Point of Error One should be
sustained.
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PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant prays that the judgment
of the trial court be REVERSED and REMANDED for a new trial.
Respectfully submitted,
/s/ J. Sidney Crowley
J. SIDNEY CROWLEY
214 Morton St,
Richmond, Texas 77469
281-232-8332
TBC 05170200
Attorney for Appellant
CERTIFICATE OF COMPLIANCE
The foregoing document contains 2009 words computer generated,
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing instrument was delivered
by electronic service to the Harris County District Attorney’s Office, this the 15th
day of October, 2015.
/s/ J. Sidney Crowley
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Hector Mario Gonzalez v. State
Combined Opinion