ACCEPTED
02-17-00225-CR
SECOND COURT OF APPEALS
FORT WORTH, TEXAS
12/20/2017 2:07 PM
DEBRA SPISAK
CLERK
No. 02-17-00225-CR
____________________________________
FILED IN
2nd COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE FORT WORTH, TEXAS
SECOND DISTRICT OF TEXAS 12/20/2017 2:07:34 PM
____________________________________ DEBRA SPISAK
Clerk
CHRISTOPHER GUTIERREZ,
APPELLANT
V.
THE STATE OF TEXAS,
APPELLEE
____________________________________
On Appeal from the Criminal District Court Number Three, Tarrant County, Texas
Trial Court No. 1473780D
Honorable Rob Catalano, Judge Presiding
APPELLANT'S BRIEF
COLIN T. MCLAUGHLIN
McLaughlin Law, PLLC
State Bar of Texas No. 24060892
2101 Moneda St.
Fort Worth, TX 76117
Tel: (817) 482-6263
Fax: (817) 877-5610
colintmclaughlin@gmail.com
Counsel for Christopher Gutierrez
IDENTITY OF PARTIES AND COUNSEL
The undersigned counsel of record certifies that the following listed persons and
entities are the parties to the trial court’s judgment and trial and appellate counsel as
described in Texas Rule of Appellate Procedure 38.1(a).
District Judge: Hon. Robb Catalano
Appellant / Defendant: Christopher Gutierrez
Counsel for Appellant at Trial: Daniel Collins
State Bar No. 24071079
3663 Airport Freeway
Fort Worth, TX 76111
Counsel for Appellant on Appeal: Colin T. McLaughlin
State Bar No. 24060892
2101 Moneda St.
Fort Worth, TX 76117
Appellee: The State of Texas
Tarrant County Criminal
District Attorney’s Office
401 W. Belknap
Fort Worth, TX 76196
Counsel for Appellee at Trial: Erin Cofer
State Bar No. 24066277
Tarrant County Criminal
District Attorney’s Office
401 W. Belknap
Fort Worth, TX 76196
Counsel for Appellee on Appeal: Debra Windsor
State Bar No. 00788692
ii
Tarrant County Criminal
District Attorney’s Office
401 W. Belknap
Fort Worth, TX 76196
/s/ Colin T. McLaughlin
Colin T. McLaughlin
iii
TABLE OF CONTENTS
PAGE
IDENTITY OF PARTIES AND COUNSEL............................................................ ii
TABLE OF CONTENTS ......................................................................................... iv
INDEX OF AUTHORITIES .................................................................................... vi
STATEMENT OF THE CASE ..................................................................................1
STATEMENT REGARDING ORAL ARGUMENT ................................................1
ISSUE PRESENTED .................................................................................................2
STATEMENT OF FACTS ........................................................................................3
SUMMARY OF THE ARGUMENT.........................................................................5
POINT OF ERROR....................................................................................................6
The trial court erred by accepting Appellant’s plea of guilty to the first count of the
aggravated robbery indictment. ..................................................................................6
I. Argument and Authorities ..........................................................................6
a. Applicable Law ..........................................................................................6
b. Discussion...................................................................................................8
CERTIFICATE OF SERVICE ................................................................................11
iv
CERTIFICATE OF COMPLIANCE .......................................................................12
v
INDEX OF AUTHORITIES
Cases
Aldrich v. State, 104 S.W.3d 890, 893 (Tex. Crim. App. 2003) ..........................9, 11
Baggett v. State, 342 S.W.3d 172, 174 (Tex. App.—Texarkana 2011) ...........7, 8, 10
Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) .................................6
Brown v. State, 270 S.W.3d 564 (Tex. Crim. App. 2008) .........................................6
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) ............................................7
Jackson v. Virginia, 443 U.S. 307, 319 (1979) ................................................6, 7, 10
Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009) .........................8, 10, 11
Moon v. State, 572 S.W.2d 681 (Tex. Crim. App. 1978) ...........................................8
Sanchez v. State, 543 S.W.2d 132 (Tex. Crim. App. 1976) .......................................8
Williams vs. State, 235 S.W.3d 642 (Tex. Crim. App. 2007) ....................................7
Woodberry v. State, 560 S.W.2d 629 (Tex. Crim. App. 1977) ..................................8
Statutes
TEX. CODE CRIM. PROC. ANN. art. 38.04 ....................................................................6
Tex. Code Crim. Proc. Art. 1.15 ................................................................................7
Tex. Penal Code § 46.01(3) ......................................................................................10
vi
RECORD ON APPEAL
The Clerk’s Record on Appeal is cited as “CR at [page number]”
The Reporter’s Record on Appeal is cited as “[volume number] RR at [page number]”
vii
STATEMENT OF THE CASE
This case involves a judgment of the felony-level offense of aggravated robbery
in the Criminal District Court Number Three of Tarrant County, Texas. CR at 6, 96-
97. Appellant plead guilty, without benefit of a plea bargain, to the charge of
aggravated robbery on May 2, 2017. CR at 89, 96; 2 RR at 5. The trial court ordered
that a pre-sentence investigation report be prepared. CR at 92; 2 RR at 5. The trial
court then conducted a punishment hearing on June 23, 2017. 2 RR at 5. After hearing
the evidence and the arguments of counsel, the trial court sentenced Appellant to
fifteen years in the Institutional Division of the Texas Department of Criminal Justice.
CR at 96; 2 RR at 61.
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is not requested.
1
ISSUE PRESENTED
The trial court erred in not complying with article 1.15 of the Texas Code of
Criminal Procedure, as there was not sufficient evidence to accept Appellant’s plea of
guilty to “Count 1” of the indictment of Aggravated Robbery because the elements of
that offense were not met. The evidence produced at Appellant’s sentencing hearing
showed that Appellant used a BB gun, not a firearm as charged in the indictment.
2
STATEMENT OF FACTS
Appellant was indicted on February 10, 2016 for the offense of aggravated
robbery with a firearm. CR at 6. Appellant plead guilty, without benefit of a plea
bargain, to the charge of “Count 1” of an aggravated robbery indictment on May 2,
2017. CR at 89, 96; 2 RR at 5. The trial court ordered that a pre-sentence
investigation report be prepared. CR at 92; 2 RR at 5. The trial court then conducted a
punishment hearing on June 23, 2017. 2 RR at 5.
The State asked the trial court to take judicial notice of the pre-sentence
investigation report, which was granted without objection. 2 RR at 5. The State did
not ask the trial court to take judicial notice of the Clerk’s file, which contained
Appellant’s previous plea papers.
A. Z. testified for the State. 2 RR at 6. A. Z. is the listed complainant in the
indictment. CR at 6; 2 RR at 6. A. Z. testified that she was seventeen at the time of
the offense. 2 RR at 7. A. Z. testified that a person robbed the Subway at which she
worked. 2 RR at 9-10. A. Z. stated that the person struck A. Z. with a handgun a
couple of times. 2 RR at 9. A. Z. stated that she was scared that she was going to get
shot. 2 RR at 10. The State introduced surveillance video of the offense, without
objection, through A. Z. 2 RR at 8-9. The State then rested. 2 RR at 11.
Appellant called Maria Bonitez, Appellant’s girlfriend’s mother. 2 RR at 12.
3
Ms. Bonitez testified that Appellant would be welcomed into her home if Appellant
was given probation. 2 RR at 14.
Next, Appellant’s girlfriend, Michelle Acosta, testified. 2 RR at 15. Ms. Acosta
stated that Appellant’s actions on the video were out of character for the Appellant. 2
RR at 15-16. Ms. Acosta explained that she and Appellant were homeless at the time
of the robbery. 2 RR at 17, 20-21, 24. Ms. Acosta also stated that the gun used in the
robbery was a $25 BB gun that was kept in Appellant’s twelve-year-old brother’s toy
box. 2 RR at 28, 29.
Finally, Appellant testified on his own behalf. 2 RR at 33. Appellant stated that
he was eighteen years old, and he was filled with remorse for his actions. 2 RR at 33-
34. Appellant described his upbringing, stating he did not know his father and was
placed in foster care. 2 RR at 34. His mother was the victim of abuse, and Appellant
had to survive on the streets since he was approximately twelve years old. 2 RR at 36-
37. Appellant also maintained that he used a BB gun in the robbery. 2 RR at 43-44.
Later, Appellant clarified that the BB gun was really a pellet gun that shoots metal
BBs. 2 RR at 50. Appellant asserted that the BB gun was unloaded at the time of the
robbery. 2 RR at 50.
4
SUMMARY OF THE ARGUMENT
The trial court erred in accepting Appellant’s plea of guilty to “Count 1” of the
Aggravated Robbery indictment. The evidence produced at Appellant’s sentencing
hearing indicated that Appellant used a BB gun, not a firearm as charged in the
indictment. Appellant’s refusal to admit that he used a firearm should have caused the
trial court to either allow Appellant to rescind his plea of guilty or find Appellant guilty
of the lesser offense of robbery.
5
POINT OF ERROR
The trial court erred by accepting Appellant’s plea of guilty to the first count of
the aggravated robbery indictment.
I. Argument and Authorities
a. Applicable Law
The United States Constitution requires that a criminal conviction be supported
by evidence “necessary to convince a trier of fact beyond a reasonable doubt of the
existence of every element of the offense.” Jackson v. Virginia, 443 U.S. 307, 319
(1979); see also Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). The
trier of fact must be the judge of the weight and credibility of the evidence. See Tex.
Code Crim. Proc. Ann. art. 38.04; Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim.
App. 2008), cert. denied, 129 S. Ct. 2075 (2009). The reviewing court must
“determine whether the necessary inferences are reasonable based upon the combined
and cumulative force of all the evidence when viewed in the light most favorable to the
verdict.” Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007); see also
Williams vs. State, 235 S.W.3d 642, 750 (Tex. Crim. App. 2007). In other words, the
trier of fact cannot, and must not, draw conclusions based on guesswork. Hooper v.
State, 214 S.W.3d at 15. A reviewing court may consider all the evidence in the light
most favorable to the verdict to determine whether any rational trier of fact could have
6
found all of the elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. at
319.
Under article 1.15, the State is required to introduce evidence demonstrating the
defendant’s guilt. Tex. Code Crim. Proc. Art. 1.15. A guilty plea, even if the
defendant states that he or she is pleading guilty to the charges in the indictment under
oath, does not constitute a judicial confession because the defendant is merely entering
a plea, “not confessing to the truth and correctness of the indictment or otherwise
providing substance to the plea.” Baggett v. State, 342 S.W.3d 172, 174 (Tex. App.—
Texarkana 2011), quoting Menefee v. State, 287 S.W.3d 9, 13, 15 (Tex. Crim. App.
2009). Moreover, a judicial confession that omits an element of the offense is
insufficient to support a guilty plea. Menefee v. State, 287 S.W.3d at 14. Importantly,
a claim of error for noncompliance with article 1.15 is not forfeited or waived by the
failure to object to the trial court. Baggett v. State, 342 S.W.3d at 175.
Historically, when evidence introduced reasonably raises an issue of fact, a trial
court is required to, sua sponte, withdraw a defendant’s guilty plea and enter a not
guilty plea for the defendant. Moon v. State, 572 S.W.2d 681 (Tex. Crim. App. 1978);
Sanchez v. State, 543 S.W.2d 132 (Tex. Crim. App. 1976). The rule’s purpose is to
prevent an involuntary plea, and the totality of each case is assessed to assure the
voluntary nature of the plea. Woodberry v. State, 560 S.W.2d 629 (Tex. Crim. App.
7
1977). This rule has been applied even when a plea of guilty is before the court
without a jury. Aldrich v. State, 104 S.W.3d 890, 893 (Tex. Crim. App. 2003).
However, the trial court may find a defendant guilty of a lesser offense or even find the
defendant not guilty. Id. Since the trial court takes on the role of fact-finder when a
jury is waived, it is not necessary to enter a plea of not guilty for a defendant. Id.
b. Discussion
Appellant plead guilty, without benefit of a plea bargain, to the charge of “Count
1” of an aggravated robbery indictment. CR at 89, 96; 2 RR at 5. “Count 1” of the
indictment charged Appellant with committing the offense with a “firearm.” CR at 6.
Appellant’s plea paperwork did not guarantee that the trial court was going to find
Appellant guilty. CR at 90.
At Appellant’s sentencing hearing, the State did not offer Appellant’s plea
paperwork into evidence, nor did it request the trial court take judicial notice of the
plea paperwork. During the hearing, Appellant maintained that he used an unloaded
BB gun in the robbery. 2 RR at 43-44, 50. Ms. Acosta also stated that Appellant used
a BB gun. 2 RR at 28-29. Nowhere in the sentencing hearing is there any mention of a
firearm being used, and Appellant never admitted guilt to each of the elements
contained in “Count 1.” See Baggett v. State, 342 S.W.3d at 174.
8
When A. Z. testified, she answered the State’s questions in reference to a
handgun. 2 RR 9. However, she never stated that Appellant used a firearm. This is
important because the word “firearm” is defined by statute. A firearm is defined in
Section 46.01 of the Texas Penal Code as:
Any device designed, made, or adapted to expel a projectile through a
barrel by using the energy generated by an explosion or burning
substance or any device readily convertible to that use. Tex. Penal Code
§ 46.01(3).
There was no testimony that the weapon used was a firearm. Instead, the
only testimony as to the item used in the robbery indicated that the item was a
BB gun. Appellant certainly never admitted to using a firearm during the
robbery. See Menefee v. State, 287 S.W.3d at 14. Thus, article 1.15, requiring
the State to introduce evidence demonstrating the defendant’s guilt, was not
complied with.
Because article 1.15 was not satisfied in Appellant’s sentencing hearing,
Appellant’s rights were violated. See Jackson v. Virginia, 443 U.S. at 319; see
also Menefee v. State, 287 S.W.3d at 14. Accordingly, the trial court should
have not found Appellant guilty of “Count 1” of the State’s aggravated robbery
charge. See Aldrich v. State, 104 S.W.3d at 893. At most, the trial court had
enough information to find Appellant guilty of the lesser-included offense of
robbery. See Id.
9
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays that
his issue on appeal be sustained, his sentence vacated, and he be acquitted of this
offense. Appellant additionally prays for such other and further relief to which he may
be entitled.
Respectfully submitted,
/s/ Colin T. McLaughlin
COLIN T. MCLAUGHLIN
State Bar of Texas No. 24060892
2101 Moneda St.
Fort Worth, TX 76117
Tel: (817) 482-6263
Fax: (817)
colintmclaughlin@gmail.com
Counsel for Christopher Gutierrez
10
CERTIFICATE OF SERVICE
I, Colin T. McLaughlin, certify that on December 20, 2017, a true copy of this
brief has been served upon the following persons in the following manners:
Via e-mail
Debra Windsor
Assistant Criminal District Attorney
401 W. Belknap
Fort Worth, TX 76196
/s/ Colin T. McLaughlin
COLIN T. MCLAUGHLIN
11
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of Tex. R. App. 9.4 (i)(2)
because it contains approximately 1544 words, excluding the parts of the brief
exempted by Tex. R. App. 9.4 (i)(l).
2. The electronic copy of this brief complies with Tex. R. App. 9.4 (i)(l) because it
has been directly converted from Microsoft Word into a searchable document in
Portable Document File (PDF) format.
/s/ Colin T. McLaughlin
COLIN T. MCLAUGHLIN
12