Vigil, Vanda

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PD-0740-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 7/17/2015 6:04:44 PM Accepted 7/22/2015 2:45:10 PM ABEL ACOSTA CLERK CAUSE NO. PD-0740-15 ____________________________________________ IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS ____________________________________________ THE STATE OF TEXAS Respondent/ Appellant v. VANDA VIGIL Petitioner/ Appellee _____________________________________________________________ FROM THE COUNTY COURT AT LAW NUMBER SEVEN TRIAL COURT NO. 20120C10835 THE COURT OF APPEALS EIGHTH DISTRICT OF TEXAS NO. 08-13-00273-CR ____________________________________________________________ AMENDED PETITION FOR DISCRETIONARY REVIEW _____________________________________________________________ WILLIAM W. NAVIDOMSKIS Counsel for Petitioner,Vanda Vigil 701 St. Vrain El Paso, Texas 79902 Tel: (915) 730-8644 July 22, 2015 Fax: (915) 975-8028 SBN 24053384 defense@weslawyer.com IDENTITY OF JUDGE, PARTIES, AND COUNSEL PETITIONER: Vanda Vigil, represented in Trial and on Appeal by: William W. Navidomskis 711 Myrtle Street El Paso, Texas 79901 RESPONDENT: The State of Texas represented Appeal by: Jaime Esparza, District Attorney Ronald Banerji, Assistant District Attorney 500 E. San Antonio El Paso, Texas 79901 Trial Counsel: Jaime Esparza, District Attorney Alejandro Cuellar, Assistant District Attorney Sarah Rogness, Assistant District Attorney Patrick Sloan, Assistant District Attorney 500 E. San Antonio El Paso, Texas 79901 TRIAL COURT: County Court at Law Number Seven, El Paso, Texas, the Honorable Tom Spieczny, Presiding. i TABLE OF CONTENTS IDENTITY OF JUDGE, PARTIES, AND COUNSEL..............................................i TABLE OF CONTENTS.....................................................................................ii, iii INDEX OF AUTHORITIES.................................................................................iv, v STATEMENT REGARDING ORAL ARGUMENT.................................................1 STATEMENT OF THE CASE AND.........................................................................1 STATEMENT OF PROCEDURAL HISTORY........................................................1 GROUNDS PRESENTED.........................................................................................2 ARGUMENT..............................................................................................................3 1. The court of appeals’ ruling that the evidence supporting a conviction is legally sufficient whenever the trier of fact believes the testimony of the victim alone conflicts with decisions of the United States Supreme Court..........................3 2. By treating the legal sufficiency test of whether “any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt” as established whenever the victim’s testimony alone is believed by the trier of fact, the court of appeals has decided a case which conflicts with decisions of the United States Supreme Court and with decisions of this Court...........6 3. The court of appeals’ decision to vacate the trial court’s order granting a new trial on legal insufficiency grounds when there were no eyewitnesses connecting Petitioner Vigil to the assault and the State confessed error on this point conflicts with applicable decisions of this Court ...................................9 4. The court of appeals’ ruling that a reviewing court can “infer” that a defendant is a primary actor in an assault case involving multiple assailants without identifying the specific conduct the defendant engaged in conflicts with applicable decisions of this Court ..................................................................11 ii 5. The court of appeals’ determination that the manner and means paragraphs alleged in a charging instrument which are descriptive of an essential element of the charged offense are mere surplusage conflicts with applicable decisions of this Court.......................................................................................................14 6. The court of appeals departed from the Jackson v. Virginia legal sufficiency test by measuring the sufficiency of the evidence against a charge which was hypothetically incorrect because it failed to consider the manner and means allegations of the charging instrument ...........................................................16 7. The court of appeals’ treatment of the manner and means paragraphs of a charging instrument as mere surplusage conflicts with decisions of the U.S. Supreme Court which require a charging instrument to provide a defendant with fair and adequate notice of the offense charged.......................................18 PRAYER....................................................................................................................19 CERTIFICATE OF COMPLIANCE.........................................................................21 CERTIFICATE OF SERVICE..................................................................................21 APPENDIX................................................................................................................22 iii INDEX OF AUTHORITIES FEDERAL CASES PAGES Hamling v. United States, 418 U.S. 87, 117 (1974)................................................19 Jackson v. Virginia, 443 U.S. 307, 318-319 (1979)........................4, 5, 6, 7, 8, 9, 16 McKoy v. North Carolina, 494 U.S. 433, 449 (1990).............................................18 Schad v. Arizona, 501 U.S. 634 (1991) (plurality opinion)....................................18 STATE CASES Adames v. State, 353 S.W.3d 854 (Tex. Crim. App. 2011).....................................17 Durham v. State, 16 S.W.2d 1092, 1095 (Tex. Crim. App. 1929)..........................13 Gomez v. State, No. 08-10-00276-CR, 2012 WL 390970 at *8)..........................7, 8 Hall v. State, 225 S.W.3d 524, 536 (Tex.Crim.App.2007).....................................15 Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim. App.2007).......................................7 Isassi v. State, 330 S.W.3d 633, at 638 (Tex.Crim. App. 2010)...............................5 Jefferson v. State, 189 S.W.3d 305 (Tex.Crim.App. 2006).....................................18 Lucio v. State, 351 S.W.3d 878, 894 (Tex.Crim.App. 2011)....................................6 Malik v. State, 956 S.W.2d 234 (Tex.Crim.App. 1997)....................................16, 17 McCuin v. State, 505 S.W.2d 827, 830 (Tex. Crim. App. 1974)............................13 Ransom v. State, 920 S.W.2d 288, 301-302(Tex. Crim. App. 1994)......................12 iv Saldano v. State, 70 S.W.3d 873, 884 (Tex.Crim.App. 2002)................................11 Sanchez v. State, 376 S.W.3d 767, 772 (2012).......................................................16 Schmidt v. State, 278 S.W.3d 353 (Tex.Crim.App. 2009)......................................15 Stuhler v. State, 218 S.W.3d 706 (Tex. Crim. App. 2007)......................................18 Williams v. State, 235 SW 3d 742 (Tex. Crim.App. 2007).......................................7 v STATEMENT REGARDING ORAL ARGUMENT Petitioner, Vanda Vigil, hereby waives oral argument. STATEMENT OF THE CASE This petition concerns the decision of the court of appeals to vacate and set aside a trial court’s order granting a new trial after the Petitioner, Vanda Vigil, was convicted of the criminal offense of Class “A” assault. Vigil based her motion for new trial in part on allegations that the evidence was legally insufficient to support the verdict. After conducting a hearing on Petitioner’s motion for new trial and hearing argument from both the State and Defense, the trial court granted Vanda Vigil’s motion for new trial. STATEMENT OF PROCEDURAL HISTORY 1. The court of appeals handed down its opinion on May 15, 2015. 2. No motion for rehearing was filed. Page -1- QUESTIONS PRESENTED FOR REVIEW 1. Did the court of appeals err in holding that it is well-established rule or test of legal sufficiency that the victim’s testimony alone, if believed, is legally sufficient to support a conviction? 2. Did the court of appeals err in treating the Jackson v. Virginia legal sufficiency test of whether “any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt” as established whenever the victim’s testimony is believed by trier of fact? 3. Was it proper for the court of appeals to disregard the trial court’s order granting a new trial on legal insufficiency grounds when there were no eyewitnesses connecting Petitioner Vigil to the alleged assault, especially since the State confessed error on this point? 4. Was it error for court of appeals to rule that a reviewing court can “infer” that a defendant was a primary actor in any assault involving multiple assailants without identifying the specific conduct which was engaged in by that defendant? 5. Did the court of appeals err by treating the manner and means paragraphs alleged in the charging instrument as mere surplusage, when these allegations were descriptive of an essential element of the charged offense? 6. Did the court of appeals depart from the Jackson v. Virginia legal sufficiency test by measuring the sufficiency of the evidence against a charge which was hypothetically incorrect because it failed to take into consideration the manner and means allegations of the charging instrument? 7. Can a court of appeals treat the manner and means paragraphs set out in a charging instrument as mere surplusage when decisions of the U.S. Supreme Court which require a charging instrument provide a defendant with fair and adequate notice of the offense charged? Page -2- ARGUMENT 1. The court of appeals’ ruling that the evidence supporting a conviction is legally sufficient whenever the trier of fact believes the testimony of the victim alone conflicts with decisions of the United States Supreme Court Petitioner, Vanda Vigil, was convicted after a jury trial for Class “A” assault. The complaining witness, Elizabeth Jimenez, testified that she was attempting to exit Coconut’s Bar when she was attacked from behind by Petitioner Vigil and Vigil’s daughter, Alexis Gonzalez. RR 3, 10. Jimenez was asked by the prosecutor, “How did they attack you?” (Id.), and replied: As I was leaving, I felt Alexis grabbing for my right breast, I guess, and she started hitting me on my head, and then Vanda got in and started pulling my hair and hitting me on the head. And that’s when I fell. RR 3,10. When asked, “Did you fight back at all?”, Jimenez replied: “I – I wasn’t even able to. I did not even see them attacking me.” Id. Jimenez testified that right after she fell to the floor a bouncer separated her from her attackers. Jimenez’ cousin, Cecilia Archuleta, was also present in Coconuts’ bar. Id. Like Jimenez, Archuleta failed to link Vigil to the assault and commented that “It all happened so quick.” RR 3, 26-29. Stephanie Chavez, a defense witness, testified that she did not see Vigil pull anyone’s hair, punch anyone, or engage in any violence. RR 3, 73. Petitioner Vigil also took the stand. She testified that she had witnessed Jimenez instigate the matter with her daughter, Alexis Gonzalez, by calling her daughter a “disgusting lesbian” Page -3- and then pushing her daughter. RR 3, 81-82. Vigil indicated the pushing incident between Jimenez and her daughter resulted in the two falling to the floor, at which time a bouncer intervened and separated them. RR 3, 83. Vigil testified that the entire incident “happened like seconds. It was literally seconds” and that she did not strike or injure Jimenez in any way, but only approached “to go help [her] daughter get up, try to separate her, or something.” RR 3, 83. On page 6 of its opinion, the court of appeals acknowledges Vigil’s contention that the evidence was legally insufficient as to (1) the identity of Vigil as the perpetrator of the Class “A” assault offense; and (2) the causation element of this alleged offense. But on the next page of its opinion, it rejects Vigil’s contention that the evidence was legally insufficient as to the identity element: We agree with Vigil that, from a direct evidence standpoint, the identity issue ultimately boils down to a he-said, she-said dispute turning on the testimony of a single witness: Jimenez. However, it is well-established that the victim’s testimony alone, if believed, is legally sufficient to support a conviction. See Gomez v. State, No. 08-10-00276-CR, 2012 WL 390970, at *8 (Tex.App.–El Paso Feb. 8, 2012, no pet.) (not designated for publication). This analysis conflicts with the analysis adopted by the Supreme Court in Jackson v. Virginia, 443 U.S. 307, 318-319 (1979), wherein the following legal sufficiency test was created: “Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact Page -4- could have found the essential elements of the crime beyond a reasonable doubt.” Id., at 319 (emph. added). Under Jackson, a reviewing court is not permitted to forego review of the evidence for legal sufficiency merely because the trier of fact believed the victim of a crime. A reviewing court is obligated to determine whether any rational trier of fact could find all of the essential elements of the offense charged beyond a reasonable doubt. The court of appeals asserts on page 7 of its opinion that it cannot act as a “thirteenth juror” and cites to case law applicable to a factual sufficiency review. (See Isassi v. State, 330 S.W.3d 633, at 638 (Tex.Crim. App. 2010). But this case authority is inapplicable to Vigil’s case because Vigil has raised a legal sufficiency challenge to her conviction -- not a factual sufficiency challenge. Under a legal sufficiency analysis, the court of appeals should have found the evidence legally insufficient because Jimenez readily admitted that she did not observe either Vigil or the other alleged assailant strike her or injure her in any way. When asked if she had fought back after being attacked from behind, Vigil testified, “I wasn’t even able to. I did not even see them attacking me.” RR 3, 10. There is no basis for the court of appeals’ holding that if a victim’s testimony is believed by the trier of fact, the legal sufficiency of evidence cannot be challenged. Under Jackson v. Virginia, no such requirement is imposed. The only inquiry is Page -5- whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. 2. By treating the legal sufficiency test of whether “any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt” as established whenever the victim’s testimony alone is believed by the trier of fact, the court of appeals has decided a case which conflicts with decisions of the United States Supreme Court and with decisions of this Court On page 6 of its opinion the court of appeals set forth the following test for determining whether the evidence was legally sufficient to support a conviction: In determining whether the evidence is legally sufficient to support a conviction, a reviewing court must consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. It then cited to Lucio v. State, 351 S.W.3d 878, 894 (Tex.Crim.App. 2011) and to Jackson v. Virginia, 443 U.S. 307, 318-319 (1979) as authority for this legal sufficiency test. But on the next page of its opinion, it substituted the following legal sufficiency test for the Jackson legal sufficiency test in addressing Vigil’s legal sufficiency challenge to the identity element of the assault offense charged: “However, it is well-established that the victim’s testimony alone, if believed, is legally sufficient to support a conviction.” As support for this version of the legal Page -6- sufficiency test, the court of appeals cited to its unpublished decision in Gomez v. State, No. 08-10-00276-CR, 2012 WL 390970 at *8). The U.S. Supreme Court held that the test of legal sufficiency is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, at 319 (1979). In Jackson, the Supreme Court did not attach any significance to whether the eyewitness to an alleged offense is the alleged victim or a mere observer. Nor did it attach any significance to whether or not the trier of fact believed the alleged victim’s testimony. It did not attempt to identify any type of evidence which was inherently credible or would withstand a legal sufficiency challenge. Since Jackson was decided, the Supreme Court has not once carved an exception to or otherwise modified the legal sufficiency test it created. The test of legal sufficiency is and remains the same. The same is true of this Court’s analysis. Based on the Jackson test, it has stated, "...we consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt.” Williams v. State, 235 SW 3d 742 (Tex. Crim.App. 2007); Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim. App.2007). Page -7- Although the court of appeals in this case purports to apply the legal sufficiency test the Supreme Court created in Jackson v. Virginia, it actually created an entirely different test. It notes that its earlier unpublished decision in Gomez v. State, supra, held that a crime victim’s testimony alone, if believed, establishes that the evidence legally sufficient to support a conviction. But the Gomez case, like this case, was wrongly decided. The court of appeals’ erroneously held that its test (i.e. that the victim’s testimony alone, if believed, is legally sufficient to support a conviction) is the same as the Jackson legal sufficiency test (i.e. whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.). But it is not. This point becomes evident when the two tests are applied to the facts of this case. Under the Jackson v. Virginia test, Jimenez’ initial trial testimony that Vigil hit her on the head and pulled her hair cannot be reconciled with Jimenez’ later testimony that she did not observe who struck her from behind. The alleged victim’s testimony would be legally insufficient under Jackson because no rational trier of fact could find beyond a reasonable doubt that Vigil injured Jimenez. However, Jimenez’ trial testimony would meet the court of appeals’ legal sufficiency test since the only showing the State had to make to prove it case was that the jury believed Jimenez’ testimony that Vigil attacked and hit her. Page -8- The flaw in the court of appeals’ legal sufficiency test is that it is based on circular reasoning. Under its analysis, establishing that the defendant was convicted would in turn establish that the trier of fact believed the victim’s testimony, which in turn would establish that the evidence was legally sufficient. In contrast, the Jackson v. Virginia legal sufficiency test is not based on circular reasoning, but on whether any rational trier of fact could have found all of the elements of the offense beyond a reasonable doubt. Nevertheless, the court of appeals’ attempts to meld its legal sufficiency test with that of the Jackson test by stating that “it would be rational for a jury to conclude Vigil assaulted Jimenez based on Jimenez’s testimony.” (See Opinion, p. 9). This attempt fails, however, since there is no aspect of the Jackson v. Virginia test which is based on whether the trier of fact believed the alleged victim or for that matter, the testimony of any witness. This Court should therefore reject the court of appeals’ determination that “...the victim’s testimony alone, if believed, is legally sufficient to support a conviction....” as a misguided legal sufficiency test. 3. The court of appeals’ decision to vacate the trial court’s order granting a new trial on legal insufficiency grounds when there were no eyewitnesses connecting Petitioner Vigil to the assault and the State confessed error on this point conflicts with applicable decisions of this Court The court of appeals rejected the trial court’s determination that the evidence was legally insufficient without giving a reason.(See opinion, pp. 4-8). It ignored the Page -9- difficulty the trial court faced in attempting to harmonize the initial testimony of Jimenez, the complaining witness, with her later testimony. Although Jimenez initially testified that Petitioner Vigil and her daughter Alexis had hit her on the head from her backside and that Vigil had pulled her hair, during further questioning Jimenez admitted that she did not see any of her attackers – her precise words being, “I did not even see them attacking me.” RR 3, 10. This admission by Jimenez along with the fact that she was the only witness to link Vigil to the alleged assault (a point which the court of appeals concedes) tends to explain why the prosecutor confessed error and told the trial court at the motion for new trial hearing that she did not consider the evidence legally sufficient to support Vigil’s conviction of Class “A” assault. The failure of Jimenez to identify a part of her body where she sustained injury or suffered bodily pain also presented legal sufficiency issue. The court of appeals disregarded these deficiencies in the evidence, however. In particular, it overlooked Jimenez’ testimony that she did not see her attackers while she was being attacked from the rear. Instead, based on the assumption that the prosecutor confessed error, it vacated the trial court’s order granting Vigil a new trial. In doing so, it failed to consider the important admission by Jimenez that she did not see any of her attackers during the attack. It also ignored the rule of this Court that reviewing courts are to grant great weight to the representations of prosecutors in Page -10- confessing error. Saldano v. State, 70 S.W.3d 873, 884 (Tex.Crim.App. 2002). Further, the court of appeals disregarded the rule that appellate courts [are to] uphold the trial court's ruling on appeal absent an "abuse of discretion." That is to say, as long as the trial court's ruling was at least within the zone of reasonable disagreement, the appellate court will not intercede. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991). Although Jimenez’ testimony that she did not see her attackers might not be a concern to the court of appeals, it should have been a concern. Clearly, the trial court acted within a reasonable zone of disagreement by finding Jimenez’ testimony of not having observed the persons who assaulted her dispositive of the legal sufficiency issue –- especially since no other eyewitness identified Vigil as participating in the assault.1 The court of appeals therefore improperly disregarded the trial court’s ruling and also failed to give respect the State’s decision to confess error on this legal sufficiency point. 4. The court of appeals’ ruling that a reviewing court can “infer” that a defendant is a primary actor in an assault case involving multiple assailants without identifying the specific conduct the defendant engaged in conflicts with applicable decisions of this Court In the third point for review of her brief to the court of appeals, Petitioner Vigil argued that the State failed to prove up its case because it had limited its 1 See page 7 of the Opinion, which states, “We agree with Vigil that, from a direct evidence standpoint, the identity issue ... turn[s] on he testimony of a single witness: Jimenez.” Page -11- prosecution theory to proving that Vigil was a primary actor, rather than a party to the offense. However, the court of appeals rejected this argument by Vigil based on the following reasoning: Vigil correctly notes that the State did not charge Vigil under law of the parties, and that as such, Vigil cannot be held criminally liable for injuries caused by Alexis Gonzalez. Even so, this is not fatal. Jimenez testified that both Vigil and Gonzalez attacked her. Assuming it believed her testimony, a reasonable jury could infer that because Jimenez said both women attacked her, and because she suffered injuries, at least some of the injuries could be attributed to Vigil. Under Texas law, the State was required to prove that the defendant was either a primary actor or party to the Class “A” assault offense alleged. Ransom v. State, 920 S.W.2d 288, 301-302(Tex. Crim. App. 1994). The court of appeals agreed that Vigil could not be found guilty as a party to the offense. However, it nonetheless concluded that Vigil was still guilty as a primary actor “because Jimenez said both women attacked her, and because she suffered injuries, at least some of the injuries could be attributed to Vigil.” In so ruling, the court of appeals excused the State from having to prove how Vigil injured Jimenez. Vigil has been unable to find a single Texas case where a court has “inferred” that a defendant, acting with one or more other persons, was found guilty as a principal or primary actor without some evidence of how that defendant injured Page -12- the victim of the alleged crime. In McCuin v. State, 505 S.W.2d 827, 830 (Tex. Crim. App. 1974), this Court held that to determine whether appellant was a primary actor or was a party to the offense, the trial court first had to remove from consideration the acts and conduct of the non-defendant actor. Then, if the evidence of the conduct of the defendant then on trial would be sufficient, in and of itself, to sustain the conviction, no submission of the law of principals was required. This carried forward the rule it had previously established in Durham v. State, 16 S.W.2d 1092, 1095 (Tex. Crim. App. 1929) (holding "[w]hen the evidence shows that the accused on trial was a principal actor in the commission of the offense, no charge on principals would be necessary, although the proof may also disclose that in doing the criminal act another took an equal part."). None of this caselaw has any continued validity if a defendant can be labeled a primary actor in a multiple assailant case, without the State having to specify what conduct that defendant engaged in, vis a vis the other defendant(s) involved in the offense. Under the court of appeals’ analysis, there is no longer any distinction between parties and primary actors or principals since the causation element of a criminal offense can be inferred. Review should therefore be granted to establish that a defendant’s “primary actor” status cannot be simply “inferred” in a criminal case involving multiple assailants. Page -13- 5. The court of appeals’ determination that the manner and means paragraphs alleged in a charging instrument which are descriptive of an essential element of the charged offense are mere surplusage conflicts with applicable decisions of this Court Elizabeth Jimenez, the complaining witness, was asked only one question regarding whether she suffered pain. RR 3, 32. During her second redirect examination, the prosecutor asked her: “When you were attacked, did you feel pain?” Id. Jimenez’ response to this question was, “Yes, I did.” Id. Jimenez did not indicate where she felt pain. Nor did she identify a particular blow from Vigil which caused her to suffer pain. Id. Nevertheless, the court of appeals rejected her legal sufficiency challenge to the “bodily injury” element of the assault offense charged by ruling: Jimenez testified that Vigil hit her head and pulled her hair, and that she felt pain during the attack. This testimony is sufficient to establish that Jimenez suffered bodily injury. The court of appeals thus ignored Vigil’s argument that the evidence was legally insufficient to prove any of the manner and means allegations of the information, i.e. that Jimenez suffered pain when her hair was pulled (paragraph A); that Jimenez sustained bodily injury after being thrown or pushed to the ground (paragraph C); or that Jimenez sustained bodily injury by being hit on the head (paragraph D).2 The 2 Paragraph B of the information, which alleged that Vigil caused bodily injury to Jimenez by grabbing or squeezing Jimenez’ breast, was abandoned by the State at the start of the trial. Page -14- court of appeals instead held that Jimenez’ testimony that she felt pain during the alleged attack was sufficient to prove the assault offense alleged, even though no parties charge was submitted to the jury. In Schmidt v. State, 278 S.W.3d 353 (Tex.Crim.App. 2009), the Court of Criminal Appeals cited to prior caselaw as establishing that where a fact alleged in an indictment or information is descriptive of an essential element of the offense, that fact is not mere surplusage and must be proven by the State as part of its burden of proof. In Schmidt, the State argued that the "striking” allegation was not required to be pled and is unnecessary surplusage that is "merely descriptive of an element but not statutorily required." Id., at 359. The Court held, however, that “The State's argument in this case that the non-statutory, manner and means allegation of ‘striking’ should not be considered a ‘fact required’ to establish the charged retaliation-by- threat offense is contrary to our decision in [ Hall v. State, 225 S.W.3d 524, 536 (Tex.Crim.App.2007)]. In Hall, the Court of Criminal Appeals considered the non- statutory, manner and means allegation of "shooting the individual with a gun" to be a "fact required" to establish the charged murder offense. Id. Accordingly, the Court of Criminal Appeals in Schmidt explained that facts which describe an element of an offense must be proven up because these facts bear upon the defendant has been given fair and adequate notice of the offense charged: Page -15- ...that appellant could have been convicted of this retaliation-by-threat offense under an indictment omitting the "to-wit: striking" allegation does not necessarily make this allegation unnecessary surplusage. We note that this Court's decision in Doyle v. State would support a holding that a defendant's timely motion to quash such an indictment would require the State to provide the "to-wit: striking" allegation for purpose of providing adequate notice. See Doyle v. State, 661 S.W.2d 726, 729-31 (Tex.Cr.App. 1983)(defendant's timely motion to quash a "nonfundamentally defective" retaliation-by-threat indictment entitled the defendant to notice of "how and to whom the threat was made"). Id. This Court should reject the court of appeals’ determination that the State need only prove Vigil caused bodily injury and that it could ignore the manner and means allegations of the information in its legal sufficiency analysis. 6. The court of appeals departed from the Jackson v. Virginia legal sufficiency test by measuring the sufficiency of the evidence against a charge which was hypothetically incorrect because it failed to considering the manner and means allegations of the charging instrument The Court of Criminal Appeals in Malik v. State, 956 S.W.2d 234 (Tex.Crim.App. 1997) altered the legal sufficiency analysis previously applied in Texas, which had been to compare the legal sufficiency of the evidence against the actual charge given to the jury. See Sanchez v. State, 376 S.W.3d 767, 772 (2012). In Malik, the Court of Criminal Appeals held that the legal sufficiency of the evidence would be determined by comparing the evidence adduced at trial against Page -16- a hypothetically correct charge. Id., at 230. In Adames v. State, 353 S.W.3d 854 (Tex. Crim. App. 2011), the Court rejected the argument that the Malik sufficiency standard is a purely state law standard that is foreign to federal constitutional norms and does not apply to a constitutional evidentiary-sufficiency review. Id., at 860. It noted that under Malik "such a charge would be 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." Malik, at 240. In Vigil’s case, the court of appeals did not base its analysis on the allegations contained in the four manner-and-means paragraphs of the charging instrument. It held that because Jimenez testified that both Vigil and Gonzalez attacked her, “a reasonable jury could infer that Jimenez suffered injuries, at least some of the injuries could be attributed to Vigil.” It thus relied on a hypothetically incorrect charge analysis to affirm Vigil’s conviction. Vigil has been unable to find a single decision from any federal court which has held that legal sufficiency to be measured against a generic offense, which fails to take into consideration the manner and means allegations of a charging instrument. Review of this point is therefore warranted. Page -17- 7. The court of appeals’ treatment of the manner and means paragraphs of a charging instrument as mere surplusage conflicts with decisions of the Supreme Court which require a charging instrument to provide a defendant with fair and adequate notice of the offense charged While the United States Supreme Court has determined that "there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict" and that an indictment can allege different manner and means of committing a crime without rendering the indictment duplicitous, it has never dispensed with or treated manner and means allegations as mere surplusage. Schad v. Arizona, 501 U.S. 634 (1991) (plurality opinion); McKoy v. North Carolina, 494 U.S. 433, 449 (1990). The Supreme Court’s analysis in Schad is consistent with this Court’s analysis in Jefferson v. State, 189 S.W.3d 305 (Tex.Crim.App. 2006) and Stuhler v. State, 218 S.W.3d 706 (Tex. Crim. App. 2007), which likewise recognizes that manner and means allegations in an indictment are not mere surplusage. Thus, even where different jurors can agree that the offense alleged was committed by different manner and means, neither court has ever treated manner and means allegations in an indictment or information as something which can be ignored altogether. The court of appeals went well beyond the Supreme Court’s analysis of the “unanimity” issue presented in Schad v. Arizona, however. It treated the the Page -18- manner and means allegations of the information in Vigil’s case as mere surplusage in conducting its legal sufficiency analysis. It determined that the evidence was legally sufficient to support Vigil’s conviction for assault so long as the evidence proved Vigil had committed the assault offense alleged by any means. The Supreme Court has held "[A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S. 87, 117 (1974). The court of appeals’ analysis thus dispenses with both requirements of Hamling, supra, but most particularly the requirement that the charge fairly inform the defendant of the offense charged. By holding that the State need only prove a generic “assault” offense rather than the specific “assault” offense alleged in the information – it dispensed with the fair and adequate notice requirement of Hamling v. United States, 418 U.S. 87, 117 (1974). This Court should address whether manner and means allegations of a charging instrument which describes an offense element can be treated as mere surplusage when they provide notice of the offense charged. Page -19- PRAYER WHEREFORE, premises considered, Appellant Vigil respectfully requests the Court of Criminal Appeals to grant the amended petition for discretionary review in this case and order the parties to brief each of the issues presented for review. Respectfully submitted, /s/ William W. Navidomskis WILLIAM W. NAVIDOMSKIS Attorney for Appellant 701 N. St. Vrain El Paso, Texas 79902 Tex. Bar No. 24053384 Tel. (915) 730-8644 Fax (915) 975-8028 defense@weslawyer.com Page -20- CERTIFICATE OF COMPLIANCE WITH RULE 9.4 This amended petition for discretionary review complies with the type- volume limitations of 9.4 and contains 4,373 words, excluding the parts of the petition exempted by 9.4(1); and this petition for discretionary review complies with the typeface requirements of 9.4(e) because this brief has been prepared in a proportionally spaced typeface using Corel Word Perfect in Times New Roman, 14-point. /s/ William W. Navidomskis WILLIAM W. NAVIDOMSKIS CERTIFICATE OF SERVICE This is to certify that on July 17, 2015, a true and correct copy of the Amended Petition for Discretionary Review was delivered to District Attorney Office: District Attorney Jaime Esparza, 500 E. San Antonio, El Paso, Texas 79901 in accordance with the Texas Rules of Civil Procedure. /s/ William W. Navidomskis WILLIAM W. NAVIDOMSKIS Page -21- APPENDIX 1. Opinion and Judgment 2. Information Page -22- 1. Opinion and Judgment COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS § THE STATE OF TEXAS, No. 08-13-00273-CR § Appellant, Appeal from the § v. County Court at Law No. 7 § VANDA VIGIL, of El Paso County, Texas § Appellee. (TC# 20120C10835) § OPINION The  State  appeals   the  trial  court’s   order granting Vanda Vigil a new trial following her conviction on one count of misdemeanor assault. We reverse. BACKGROUND Factual History On   August   17,   2011,   Vigil,   her   daughter   Alexis   Gonzalez,   and   Alexis’   then-girlfriend Stephanie Chavez were present at Coconuts Bar in Central El Paso. Elizabeth Jimenez1, the complaining   witness   and   Alexis’   step-sister, testified at trial that she and her cousin Ceci Archuleta   came   to   Coconuts   that   night   to   celebrate   Archuleta’s   twentieth   birthday.     As   they   entered   the   bar,   Jimenez   saw   Vigil   and   Gonzalez.     Jimenez   stated   that   Archuleta’s   boyfriend,   1 Jimenez’s name  is  spelled  “Jimenez”  and  “Jiminez”  in  the  record,  because  the  actual  spelling  of  her  name  is   unclear,  we  will  refer  to  her  as  “Jimenez.” who was with the group, commented on the fact that Vigil and Gonzalez seemed to be staring at them. A bartender turned Archuleta away for not having her identification and for not being over age twenty-one, so she, her boyfriend, and Jimenez decided to leave. As they left the bar, the group passed in front of Vigil, Gonzalez, and Chavez. At this point, the testimony diverges. Jimenez claimed that as she was trying to exit the bar, Vigil and Gonzalez   stopped   her   and   attacked,   with   Vigil   pulling   Jimenez’s   hair.     Vigil   and   Chavez   disputed  Jimenez’s  account  of  events.    Chavez  testified  that  Jimenez  approached  Gonzalez  and   that the two exchanged words. According to Vigil,   Jimenez   called   Gonzalez   a   “disgusting   lesbian.”    Jimenez  and  Gonzalez  began  to  fight  and  fell  to  the  floor.    Vigil  maintained  at  trial  that   she left her chair to try and break up the fight, but that before she could reach Jimenez and Gonzalez, a bouncer arrived and separated the women. Chavez also testified that she did not see Vigil punch or hit Jimenez. Procedural History Following trial, the jury found Vigil guilty of assault. The trial court sentenced Vigil to ninety days in jail, suspended the sentence, placed her on probation for ninety days, and credited her with time served. During the course of the sentencing hearing, the trial court remarked: I’m   in   a   very   difficult   situation.     If   this   case   would   have   been   tried   to   me,   I   believe I would have  found  you  not  guilty,  ma’am. I found your testimony to be somewhat credible. I found the other side to be somewhat credible. I did have reasonable doubt. But under our system, a jury makes those determinations. This jury did make that determination. And unless those jury verdicts are set aside, I need to respect and honor those determinations. Vigil subsequently moved for a new trial on actual innocence, legal insufficiency, and interest of justice grounds. The trial court granted Vigil a new trial. The State appealed. DISCUSSION 2 In its sole appellate issue, the State contends that the trial court abused its discretion by ordering a new trial and thereby substituting its judgment for that of the jury when legally sufficient evidence underpinned Vigil’s  conviction.    Vigil  counters  that  the  evidence  was  legally   insufficient to establish her identity as the assailant or any injury to the victim, and, alternatively, that  the  trial  court’s  new  trial  order  is  justified  by  defects  in  the  indictment. I. Confession of Error As a threshold matter, Vigil also maintains that the State confessed error during the new trial   hearing   when   the   prosecutor   commented   that   she   did   not   personally   believe   Vigil’s   guilt   could be established by proof beyond a reasonable doubt. As such, she is entitled to acquittal and   the   State   should   be   “estopped”   from   further   proceedings.     Vigil   bases   her   claim   on   the   following colloquy between the prosecutor and the trial court: THE COURT: [...] Okay. Let me hear from the State. . . . [PROSECUTOR]: Before this motion for a new trial was filed, even you and I had  a  conversation.  I  agree  with  you.  I  don’t  -- if I had been a juror, I would have thought there was reasonable doubt and would have found her not guilty as well. That  said,  I  think  the  crux  here  is  that  I  wasn’t  a  juror.  The  six  who  were   chosen, after voir dire was conducted, were. And it was their job to weigh the facts, weigh the credibility of the witnesses and determine whether or not they saw reasonable doubt. So I just wanted to say -- I  don’t  know.  I  just  wanted  to  say   that . . . . THE COURT: Let me ask you a question which will be a difficult question for you, but I think it is a question I need answered. You are an officer of the court. [PROSECUTOR]: Right. THE COURT: Your oath as a district attorney is that you are to seek justice. [PROSECUTOR]: Right. 3 THE COURT: Not to try to just get every notch under your belt and get every conviction, but to seek justice. So as someone who has taken that oath, what is your position with regard to this Motion? [PROSECUTOR]: Before -- I   think   that’s   actually   a   simple   question.   Before   every  trial,  even  if  I’m  second-chairing,  I  evaluate  whether  or  not  there’s  probable   cause  to  go  forward.  If  there’s  not,  it’s  easy  for  me  to  dismiss.  And  here  I  thought   there  was  definitely  probable  cause.  That’s  why  -- THE COURT: No one is doubting your decision to go forward and present the case. [PROSECUTOR]: Right. THE COURT: The question I am asking is much more narrow, and it is: Right now, today, with the evidence that was presented and with the Motion that is before the Court, what is your position as someone who tried this case and heard all the evidence with regard to this Motion? [PROSECUTOR]: I argue that the verdict should stand -- THE COURT: All right. [PROSECUTOR]: -- because  I  wasn’t  a  juror,  Your  Honor. THE COURT: All right. We   question   whether   the   prosecutor’s   comment   that   “if   [she]   had   been   a   juror,   [she]   would   have   thought   there   was   reasonable   doubt   and   would   have   found   her   not   guilty   as   well”   constituted   an   actual   confession   of   error.     Even   if   it   did,   the   State’s   confession of error is not dispositive. We grant great weight to the representations of prosecutors in confessing error, “[b]ut  such  a  confession  does  not  relieve  this  Court  of  the  performance  of  the  judicial  function.”     Saldano v. State, 70 S.W.3d 873, 884 (Tex.Crim.App. 2002)(citing Young v. United States, 315 U.S. 257, 258-59, 62 S.Ct. 510, 511, 86  L.Ed.  832  (1942)).    “[O]ur  judicial  obligations  compel   us   to   examine   independently   the   errors   confessed”   on   their   merits.     Id. at 884. Assuming arguendo that the comment did constitute confession of error, that alone does not preclude our 4 review  of  the  trial  court’s  decision  or  automatically  entitle  Vigil  to  acquittal  by  estoppel.    To  the   extent she argues otherwise, we overrule Issue Five. We must still review the alleged error. Bearing these things in mind, we proceed. II. New Trial Order New Trials: Standard of Review and Applicable Law We  review  the  trial  court’s  new  trial  ruling  for  abuse  of  discretion.    State v. Herndon, 215 S.W.3d 901, 906 (Tex.Crim.App. 2007). A trial   judge   “cannot   grant   a   new   trial   on   mere   sympathy,   an   inarticulate   hunch,   or   simply  because  he  personally  believes  that  the  defendant  is  innocent  or  received  a  raw  deal.”    Id. at 907 [Internal quotation marks omitted]. Instead, even where a defendant urges a new trial on interest  of  justice  grounds,  “[a]  motion  for  a  new  trial,  whether  for  guilt  or  punishment,  requires   a  valid  legal  claim.”    State v. Thomas, 428 S.W.3d 99, 107 (Tex.Crim.App.  2014).    “To  grant  a   new trial for a non-legal or legally invalid reason   is   an   abuse   of   discretion.”     Herndon, 215 S.W.3d at 907 (contrasting Texas law with federal appellate precedent). The trial court must grant the defendant a new trial for any of the reasons articulated in TEX.R.APP.P. 21.3,   including   “when   the   verdict is   contrary   to   the   law   and   the   evidence.”     TEX.R.APP.P. 21.3(h). The trial court retains the discretionary power to grant a new trial for any legal reason not listed in TEX.R.APP.P. 21.3.     While   “[t]he   defendant   need   not   establish   reversible error as a matter of law before the trial court may exercise its discretion in granting a motion for new trial[,] . . . trial courts do not have the discretion to grant a new trial unless the defendant demonstrates that his first trial was seriously flawed and that the flaws adversely affected   his   substantial   rights   to   a   fair   trial.”     Herndon, 215 S.W.3d at 909. The Court of Criminal Appeals has declined to set bright-line rules for the appellate courts to use in assessing 5 the  trial  court’s  exercise  of  discretion,  but the  Court  has  suggested  that  “a  trial  court  would  not   generally abuse its discretion in granting a motion for new trial if the defendant: (1) articulated a valid legal claim in his motion for new trial; (2) produced evidence or pointed to evidence in the trial record that substantiated his legal claim; and (3) showed prejudice to his substantial rights under   the   standards   in   Rule   44.2   of   the   Texas   Rules   of   Appellate   Procedure.”     Herndon, 215 S.W.3d at 909. A. Legal Insufficiency In  her  first  three  responses  to  the  State’s  appeal, Vigil argues we can uphold the new trial grant because the State failed to prove beyond a reasonable doubt that (1) she was actually the person that attacked Jimenez, (2) that Jimenez suffered bodily injury, or (3) that she and not a third party caused  any  of  Jimenez’s  injuries.    We  disagree.2 “In   determining   whether   the   evidence   is   legally   sufficient   to   support   a   conviction,   a   reviewing court must consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder  could  have  found  the  essential  elements  of  the  crime  beyond  a  reasonable  doubt.”    Lucio v. State, 351 S.W.3d 878, 894 (Tex.Crim.App. 2011); see also Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61  L.Ed.2d  560  (1979).    “Our  role  on  legal  sufficiency  review  is   not to usurp the jury and replace its verdict with our own; instead, we serve as a procedural safeguard, ensuring that whatever verdict the jury rendered comports  with  due  process.”    Urias v. State, No. 08–12–00090–CR, 2014 WL 1259397, at *2 (Tex.App.--El Paso Mar. 26, 2014, no 2 We note that Vigil presented an actual innocence claim before the trial court. She does not address it in her brief. As the State correctly points out in its brief, actual innocence claims require new evidence not originally presented to the trial court that would have established innocence at trial. Ex parte Garcia, No. 08-11-00232-CR, 2013 WL 1182211, at *5-*6 (Tex.App.--El Paso Mar. 20, 2013, no pet.)(not designated for publication). Since Vigil did not present new evidence in her motion, we considered her actual innocence claims as having merged with her legal sufficiency claim and review the trial evidence under the legal sufficiency standard. 6 pet.)(not   designated   for   publication).     “Our   role   on   appeal   is   restricted   to   guarding   against   the   rare occurrence when a factfinder does  not  act  rationally.”     [Internal quotation marks omitted]. Isassi v. State,   330   S.W.3d   633,   638   (Tex.Crim.App.   2010).     “We   do   not   overturn   a   verdict   unless  it  is  irrational  or  unsupported  by  proof  beyond  a  reasonable  doubt.”    Smallwood v. State, No. 08-12-00215-CR, 2014 WL 4269155, at *3 (Tex.App.--El Paso Aug. 29, 2014, pet. ref’d)(not  designated  for  publication). 1. Identity First, we turn to the issue of identity. Vigil argues that the testimony of both State witnesses who identified her as the attacker is legally insufficient to uphold her conviction. Specifically, Vigil maintains that Archuleta never actually saw Vigil touch or hit Jimenez, and that   Jimenez’s   testimony   is   not   credible.     We   agree   with   Vigil   that,   from   a   direct   evidence   standpoint, the identity issue ultimately boils down to a he-said, she-said dispute turning on the testimony of a single witness: Jimenez. However, it is well-established   that   the   victim’s   testimony alone, if believed, is legally sufficient to support a conviction. See Gomez v. State, No. 08-10-00276-CR, 2012 WL 390970, at *8 (Tex.App.--El Paso Feb. 8, 2012, no pet.)(not designated  for  publication).    Since  we  no  longer  possess  the  power  to  sit  as  the  “thirteenth  juror”   and re-weigh the evidence on a factual sufficiency review in a criminal case, see Isassi, 330 S.W.3d at 638, and since it would be rational for a jury to conclude Vigil assaulted Jimenez based   on   Jimenez’s   testimony,   we   cannot   overturn   the   jury’s   implicit   finding   on   the   issue   of   identity for legal insufficiency. 2. Bodily Injury Second, Vigil contends there is legally insufficient evidence to establish Jimenez suffered 7 bodily   injury.     Vigil   points   out   that   Jimenez’s   testimony   that   her   lip   and   knees   bled   after   the   attack is belied by video and photographic evidence in the record.3 In a video statement given after the fight, Jimenez appears composed and does not show any visible signs of injury to her face. Likewise, pictures of her body, including her legs and knees, fail to show any blood or visible injuries. Even so, visible evidence of physical injury is not necessary to sustain an assault charge.     Bodily   injury   is   defined   as   “physical pain, illness, or any impairment of physical condition[,]” [Emphasis added], TEX.PENAL CODE ANN. § 1.07(a)(8)(West Supp. 2014), and can encompass   “even   relatively   minor   physical   contacts   so   long   as   they   constitute   more   than   mere   offensive   touching.”     [Internal quotation marks omitted]. Wingfield v. State, 282 S.W.3d 102, 105 (Tex.App.--Fort Worth 2009, pet. ref’d).    Jimenez  testified  that  Vigil  hit  her  head  and  pulled   her hair, and that she felt pain during the attack. This testimony is sufficient to establish that Jimenez suffered bodily injury. 3. Causation Finally, Vigil also maintains that even if identity and bodily injury were proven beyond a reasonable  doubt,  the  State  failed  to  prove  that  Jimenez’s  injuries  were  caused  by  Vigil  and  not   Alexis Gonzalez. Vigil correctly notes that the State did not charge Vigil under law of the parties, and that as such, Vigil cannot be held criminally liable for injuries caused by Alexis Gonzalez. Even so, this is not fatal. Jimenez testified that both Vigil and Gonzalez attacked her. Assuming it believed her testimony, a reasonable jury could infer that because Jimenez said both women attacked her, and because she suffered injuries, at least some of the injuries could be attributed to Vigil. This point is without merit. 3 We   may   review   “indisputable”   video   evidence   in   the   record   de novo. State v. Duran, 396 S.W.3d 563, 570-71 (Tex.Crim.App. 2013). 8 B. Indictment Defects Finally, Vigil raises two separate complaints about defects in the indictment. First, Vigil complains   that   the   State’s   prosecuting   attorney   gave   a   materially   inaccurate   reading   of   the   indictment  at  the  trial’s  inception  by  alleging  she  caused  Jimenez  bodily  injury  “by  pushing  or   struggling Elizabeth  Jimenez  to  the  ground”  when  the  criminal  information  actually  alleged  that   she  caused  bodily  injury  “by  pushing  or  throwing Elizabeth  Jimenez  to  the  ground[.]”    Second,   Vigil argues that the State spelled Jimenez’s   surname   two   different   ways   in   the   information— “Jimenez”  and  “Jiminez”— and that this constitute a fatal variance between the information and what the State proved at trial. We note, and Vigil concedes, that she did not present either of these grounds to the trial court in her motion for a new trial. However, Vigil maintains we can address these points because they concern errors that touch on waiveable rights. See Turner v. State, 860 S.W.2d 147, 150-51 (Tex.App.--Austin 1993, pet. granted), rev’d   on   other   grounds, 897 S.W.2d 786 (Tex.Crim.App.  1995).    We  disagree.    In  reviewing  the  new  trial  grant,  “we  look  to  the  grounds   pleaded by the movant in the motion and determine whether any of these grounds provide a basis for   granting   the   new   trial.” State v. Fury, 186 S.W.3d 67, 73 (Tex.App.--Houston [1st Dist.] 2005,  pet.  ref’d).    Because  the  trial  court  has  no  power  to  order  a  new  trial  order  sua sponte, and because these arguments were never presented to the trial court, they could not form the basis for the new trial grant. See State v. Varkonyi, No. 08-06-00262-CR, 2008 WL 821580, at *3 (Tex.App.--El  Paso  Mar.  27,  2008,  pet.   dism’d)(not  designated   for  publication).    To  the  extent   Vigil is attempting to raise these issues on cross-appeal, we note  that  a  defendant’s  cross-points are  not  cognizable  on  State’s  appeal.    State v. Barron, No. 08-12-00245-CR, 2012 WL 5515678 (Tex.App.--El Paso Nov. 14, 2012, no pet.)(mem. op., not designated for publication)(dismissing 9 defendant’s  cross-appeal where State appealed new trial grant); cf. Sanchez v. State, No. 08-11- 00137-CR, 2014 WL 2810479 (Tex.App.--El  Paso  June  20,  2014,  pet.  ref’d)(not  designated  for   publication)(separately   addressing  defendant’s  noticed  appeal   following  disposition   of  a   state’s   appeal of a new trial grant); see also State v. Wilkins, No. 05-12-00154-CR, 2014 WL 465820, at *7 (Tex.App.--Dallas Feb. 4, 2014,   pet.   ref’d)(not designated for publication)(court of appeals had   no   jurisdiction   to   entertain   defendant’s   cross-appeal points on state’s appeal, even when defendant properly noticed appeal, because the new trial order the State attacked reversed the final judgment the defendant sought to attack). In sum, any defects in the indictment could not have formed the basis of the new trial grant because Vigil never presented those grounds to the trial court, and her complaints about the indictment as cross-points are not cognizable at this stage. Further discussion of these issues is unnecessary to the resolution of this appeal. TEX.R.APP.P. 47.1. CONCLUSION Vigil failed to advance any meritorious legal claims in support of her motion for a new trial. As such, the trial court abused its discretion in granting the new trial. Issue One is sustained.    We  reverse  the  trial  court’s  order  granting the motion for new trial and reinstate the trial  court’s  judgment  of  conviction. May 15, 2015 YVONNE T. RODRIGUEZ, Justice Before McClure, C.J., Rodriguez, and Hughes, JJ. (Do Not Publish) 10 COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS § THE STATE OF TEXAS, No. 08-13-00273-CR § Appellant, Appeal from the § v. County Court at Law No. 7 § VANDA VIGIL, of El Paso County, Texas § Appellee. (TC# 20120C10835) § JUDGMENT The Court has considered this cause on the record and concludes there was error in the judgment. We therefore reverse the trial court’s   order   granting   the   motion   for   new   trial   and   reinstate  the  trial  court’s  judgment  of  conviction,  in  accordance  with  our  opinion.    This decision shall be certified below for observance. IT IS SO ORDERED THIS 15TH DAY OF MAY, 2015. YVONNE T. RODRIGUEZ, Justice Before McClure, C.J., Rodriguez, and Hughes, JJ. 2. Information .···-··- D.A. CONTROL #12-10345 PID: 1757605 NCIC: 13990001 INFORMATION JtJ%aa OFFENSE: ASSAULT CAUSES BODILY IN.J STATE OF TEXAS cer-J vs. VANDAVIGIL D.O.B.: 07/10/68 ADDRESS: 210 WEST REDO RD 708 WARRANT: M12W7593 EL PASO, TX 79932 AGENCY: EL PASO POLICE ( ) CAPIAS REQUESTED IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS I, t::..gz)bN , ASSISTANT DISTRICT ATTORNEY IN AND FOR THE COUNTY OF EL PASO, STATE OF TEXAS, PRESENT TO THE COUNTY COURT AT LAW NO.1 OF EL PASO COUNTY, TEXAS, IN AND FOR SAID COUNTY, AT ITS JULY TERM, A.D. 2012, THAT ON OR ABOUT THE 17TH DAY OF AUGUST, 2012 AND BEFORE THE FILING OF THIS INFORMATION IN SAID COUNTY OF EL PASO, STATE OF TEXAS, VANDA VIGIL, HEREINAFTER REFERRED TO AS DEFENDANT, . PARAGRAPH A DID THEN AND THERE INTENTIONALLY, KNOWINGLY OR RECKLESSLY CAUSE BODILY INJURY TO ELIZABETH JIMENEZ BY PULLING ELIZABETH JIMINEZ'S HAIR WITH THE DEFENDANT'S HAND, PARAGRAPH B DID THEN AND THERE INTENTIONALLY, KNOWINGLY OR RECKLESSLY CAUSE BODILY INJURY TO ELIZABETH JIMENEZ BY GRABBING OR SQUEEZING ELIZABETH JIMINEZ'S BREAST WITH THE DEFENDANT'S HAND, PARAGRAPH C DID THEN AND THERE INTENTIONALLY, KNOWINGLY OR RECKLESSLY CAUSE BODILYINJURY TO ELIZABETH JIMENEZ BY PUSHING OR THROWING ELIZABETH JIMENEZ TO THE GROUND, PARAGRAPH D DID THEN AND THERE INTENTIONALLY, KNOWINGLYOR RECKLESSLY CAUSE BODILY INJURY TO ELIZABETH JIMENEZ BY STRIKING ELIZABETH JIMENEZ ABOUT THE HEAD WITH THE DEFENDANT'S HAND, AGAINST THE PEACE AND DIGNITY OF THE STATE. .... - ASSISTANT DISTRICT ATTORNEY FOR EL PASO COUNTY, STATE OF TEXAS FILED COURT AT 1 OF EL PASO COUNTY, TEXAS ON "f.Q. AT /..3 .' O'CLOCK, y2 M._ EL PASO COUNTY, TEXAS SQ