Appellant, Raul Benavides, was convicted of assault family violence, enhanced to a habitual felony offense because of two prior felony convictions, and sentenced to twenty-five years in the Texas Department of Criminal JusticeInstitutional Division (TDCJ-ID). See TEX. PENAL CODE ANN. § 22.01 (West 2011). In three issues, which we re-number as two, Benavides argues that the trial court’s failure to grant his motion for continuance (1) violated his Confrontation Clause rights under the United States Constitution and (2) did not allow him to present a complete defense. We affirm because Benavides failed to preserve his error. Continue reading
13-12-00246-CR FRED CORONA v. THE STATE OF TEXAS–Appeal from 117th District Court of Nueces County
Before Justices Rodriguez, Garza and PerkesMemorandum Opinion by Justice Garza
By a single issue, appellant Fred Corona contends he was denied effective assistance of counsel at his combined adjudication/revocation hearing in appellate cause numbers 13-12-245-CR, 13-12-246-CR, and 13-12-247-CR. We affirm.
I. BACKGROUND
In January 2011, pursuant to plea bargain agreements, appellant pleaded guilty to the following offenses: (1) in appellate cause number 13 -12-245-CR, unauthorized use of a vehicle, a first-degree felony offense, see TEX. PENAL CODE ANN. § 31.07 (West 2011); (2) in appellate cause number 13-12-246-CR, one count of aggravated assault of a public servant, a first-degree felony offense, see id. § 22.02 (a)(2), (b)(2)(B), and one count of evading arrest or detention with a vehicle, a state jail felony o ffense, see id. § 38.04(a), (b)(1)(B) (West 2011)[1]; and (3) in appellate cause number 13-12-247-CR, three counts of fraudulent use or possession of identifying information, each a state jail felony offense. See id. § 32.51 (b)(1), (c)(1) (West 2011).[2] Pursuant to the agreements, the trial court deferred adjudication of appellant’s guilt on the aggravated assault charge in appellate cause number 13-12-246-CR, placed him on community supervision for five years, and assessed a $1,500 fine. As to each of the remaining offenses, the trial court found appellant guilty, assessed a two-year state jail sentence and a $1,500 fine, suspended the sentence, and placed appellant on community supervision for five years, with all of those sentences to run concurrently. Continue reading
13-12-00245-CR FRED CORONA v. THE STATE OF TEXAS–Appeal from 117th District Court of Nueces County
Before Justices Rodriguez, Garza and PerkesMemorandum Opinion by Justice Garza
FRED CORONA,
THE STATE OF TEXAS,
By a single issue, appellant Fred Corona contends he was denied effective assistance of counsel at his combined adjudication/revocation hearing in appellate cause numbers 13-12-245-CR, 13-12-246-CR, and 13-12-247-CR. We affirm.
I. BACKGROUND
In January 2011, pursuant to plea bargain agreements, appellant pleaded guilty to the following offenses: (1) in appellate cause number 13 -12-245-CR, unauthorized use of a vehicle, a first-degree felony offense, see TEX. PENAL CODE ANN. § 31.07 (West 2011); (2) in appellate cause number 13-12-246-CR, one count of aggravated assault of a public servant, a first-degree felony offense, see id. § 22.02 (a)(2), (b)(2)(B), and one count of evading arrest or detention with a vehicle, a state jail felony o ffense, see id. § 38.04(a), (b)(1)(B) (West 2011)[1]; and (3) in appellate cause number 13-12-247-CR, three counts of fraudulent use or possession of identifying information, each a state jail felony offense. See id. § 32.51 (b)(1), (c)(1) (West 2011).[2] Pursuant to the agreements, the trial court deferred adjudication of appellant’s guilt on the aggravated assault charge in appellate cause number 13-12-246-CR, placed him on community supervision for five years, and assessed a $1,500 fine. As to each of the remaining offenses, the trial court found appellant guilty, assessed a two-year state jail sentence and a $1,500 fine, suspended the sentence, and placed appellant on community supervision for five years, with all of those sentences to run concurrently. Continue reading
13-12-00098-CR JAMES GONZALEZ A/K/A JAMES A. GONZALES v. THE STATE OF TEXAS–Appeal from 28th District Court of Nueces County
Before Justices Rodriguez, Garza, and PerkesMemorandum Opinion by Justice Rodriguez
Appellant James Gonzalez a/k/a James A. Gonzales appeals from his conviction for driving while intoxicated, a third-degree felony as a result of appellant’s two prior DW I convictions. See TEX. PENAL CODE ANN. §§ 49.04(a), 49.09(b)(2) (West Supp. 2011). The indictment alleged two additional enhancements for his prior convictions for burglary and murder, which, if true, subjected appellant to a minimum of twenty-five years’ incarceration as a habitual felony offender. See id. § 12.42(d) (West Supp. 2011). Appellant entered an open plea of guilty to the charged offense and pleaded true to the four enhancement paragraphs. The trial court sentenced appellant to twenty-five years’ incarceration and assessed court costs. Continue reading
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13-12-00042-CR ALFREDO ARAUJO v. THE STATE OF TEXAS–Appeal from 75th District Court of Liberty County – Rev.
Before Justices Rodriguez, Garza, and PerkesMemorandum Opinion by Justice Rodriguez
Appellant Alfredo Araujo challenges his conviction for indecency with a child, a second-degree felony. See TEX. PENAL CODE ANN. § 21.11(a)(1), (d) (West 2011). By three issues, Araujo argues that the trial court abused its discretion in seating a juror that withheld material information during voir dire. We reverse and remand.
I. Background[1]Araujo was indicted for indecency with a child in connection with an incident at his
restaurant in which he allegedly touched the breast of a sixteen -year-old female Continue reading
13-11-00758-CR BRIAN STEER v. THE STATE OF TEXAS–Appeal from 94th District Court of Nueces County
counts of burglary of a habitation. See TEX. PENAL CODE ANN. §§ 29.03, 30.02 (West
2011). After Steer pleaded true to two prior felonies, the trial court assessed his
punishment at seventy-five years in the Institutional Division of the Texas Department of
Criminal Justice. By two issues, Steer complains that the trial court abused its discretion
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13-11-00529-CR ARTURO RODRIGUEZ v. THE STATE OF TEXAS–Appeal from 357th District Court of Cameron County
Before Justices Rodriguez, Garza and Perkes
Memorandum Opinion by Justice Garza
A jury convicted appellant, Arturo Rodriguez, of murder and aggravated assault. See TEX. PENAL CODE ANN. §§ 19.02 (b)(1), 22.02 (West 2011). Trial testimony showed that appellant stabbed Alfredo Bustinza and Jose Rodriguez in a bar fight. Bustinza died from his injuries; Rodriguez survived and testified at trial. Following a punishment hearing before a visiting judge, the trial court assessed punishment at life imprisonment and a $10,000 fine. By six issues, appellant contends: (1) the trial court erred in denying his request for a continuance at the punishment phase of trial; (2) he was denied effective assistance of counsel; (3) the trial court erred in admitting autopsy photographs and the pathologist’s’ video deposition testimony; (4) the prosecutor engaged in improper closing argument; (5) the trial court erred in denying his motion for new trial; and (6) the trial court erred in admitting evidence of appellant’s gang affiliation at the punishment phase of trial. We affirm. Continue reading
WR-67,592-18 BARKER, ARTHUR JOYAL DALLAS COUNTY
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated robbery and sentenced to 80 years’ imprisonment. Continue reading
WR-5,843-13 JOHNSON, ELLOYD DALLAS COUNTY
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of delivery of a controlled substance and sentenced to ninety-nine years’ imprisonment. Continue reading
WR-65,017-03 JOHNSON, KEVIN LAMAR BEXAR COUNTY
Relator has filed a motion for leave to file an application for a writ of mandamus pursuant to the original jurisdiction of this Court. In it, he contends that on June 16, 2010 and January 19, 2011, he filed motions for DNA testing under Chapter 64 of the Code of Criminal Procedure and that the trial court has not ruled on his motions. He also contends that he sent written inquiries to the District Clerk but received no response. He urges this Court to order the trial court to rule on his motions and to order the District Clerk to respond to his inquiries. Continue reading
WR-68,994-01 HOLBERG, BRITTANY MARLOWE AKA RANDALL COUNTY
This is a post-conviction application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071.
In March 1998, a jury convicted Applicant of the offense of capital murder. The jury answered the special issues submitted under Article 37.071 of the Texas Code of Criminal Procedure, and the trial court, accordingly, set punishment at death. This Court affirmed Applicant’s conviction and sentence on direct appeal. Holberg v. State, 38 S.W.3d 137 (Tex. Crim. App. 2000). Continue reading
PD-0207-12 CONCURRING OPINION JUDGE COCHRAN – Concurrence.
I join in the Court’s opinion. I agree that appellant’s trial attorney was not ineffective for failing to request a jury instruction on the statutory mistake-of-fact defense for two distinct reasons: (1) It is not at all clear that appellant was entitled to any instruction on mistake of fact, and (2) The jury instruction that the trial judge gave was more favorable to appellant’s defensive theory than an instruction on the statutory mistake-of-fact defense would have been. Furthermore, appellant cannot show prejudice even if his counsel should have requested such an instruction because the jury rejected the more defense-friendly theory of appellant’s honest, if stupid, mistaken belief in the authenticity of the bills. Continue reading
PD-0207-12 OKONKWO, CHIDIEBELE GABRIEL FROM FORT BEND COUNTY – 14-11-00037-CR – Rev. – Pub.
The State’s petition for discretionary review asks whether trial counsel for Chidiebele Gabriel Okonkwo, appellant, rendered ineffective assistance by failing to request a jury instruction on the defense of mistake of fact. (1) Answering this question in the affirmative, the court of appeals reversed appellant’s conviction for forgery of money. Okonkwo v. State, 357 S.W.3d 815, 821 (Tex. App.–Houston [14th Dist.] 2011); Tex. Penal Code § 32.21(b). (2) The State asserts two challenges. First, it contends that the court of appeals erroneously used a subjective standard to assess whether defense counsel was ineffective. Second, it argues that, under an objective standard, counsel could not be held ineffective for failing to request a mistake-of-fact instruction because the State had to prove that appellant knew the money was forged as an element of its case. We disagree with the State on its first challenge and agree on its second. The court of appeals did properly apply an objective standard, although it erred by failing to weigh the evidence in a light most favorable to the trial court’s ruling. Furthermore, the court of appeals erred by determining that counsel was objectively ineffective in light of the record in this case, which shows that it was an inconsistent, alternative theory asserted by appellant’s trial counsel, and its inclusion may have lessened the State’s burden of proof. We, therefore, reverse the judgment of the court of appeals. Continue reading
PD-1522-11 DISSENTING OPINION JUDGE JOHNSON – Dissent.
I find no reason to disavow Hutch v. State, 922 S.W.2d 166 (Tex. Crim. App. 1996). It correctly followed the dictates of Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh’g), which is still the standard for jury-charge error. And this case is very close to being on all fours with Hutch and should be resolved in the same way.
Almanza says that reviewing courts must consider the charge itself, the state of the evidence, including contested evidence, and the weight of the probative evidence, the arguments of counsel, and any other relevant information revealed by the record of the trial as a whole. Almanza at 171. Continue reading
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PD-1522-11 DISSENTING OPINION JUDGE PRICE – Dissent.
The court of appeals did not regard the plurality opinion in Hutch to be of binding precedential value, (1) but nevertheless found it to be persuasive authority and opted to follow it. (2) I also find at least aspects of the plurality opinion in Hutch to be persuasive, and for reasons which I elaborate upon in this opinion, I agree with the court of appeals that the appellant suffered egregious harm in this case. Therefore, I respectfully dissent. Continue reading
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PD-1522-11 DISSENTING OPINION JUDGE MEYERS – Dissent.
I have always loved great theater and this case has all the makings of a Tony Award winner. On stage right we have Judge Keasler and the plurality sterilizing Charlie Baird’s plurality opinion in Hutch v. State, 922 S.W.2d 166 (Tex. Crim. App. 1996), and in the process basically eliminating the possibility of ever getting relief under the egregious harm standard of Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985). Entering from stage left, we have Judge Price’s impassioned defense of Almanza. Lastly, our heroine Judge Cochran saves the day for the plurality by concluding “that the error in this jury charge did not cause appellant egregious harm because the jury instruction was just an indecipherable lump of legal gobbledy-gook that no one (including the lawyers and the judge) either understood or paid attention to.” See Cochran, J., concurring opinion at *4-5. (1) But this case is a classic example of the Almanza tragedy. Continue reading
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PD-1522-11 CONCURRING OPINION JUDGE COCHRAN – Concurrence.
Let’s face it. This jury (1) did not read the Article 38.23 jury instructions; (2) did read the instructions, but did not understand what they really said, and therefore ignored them; or (3) did read the instructions, knew that they were wrong, and therefore ignored them. The third option is the least likely; after all, neither the parties nor the trial judge knew that the instructions were wrong at the time that they were written or read. The most likely option is the first, which simply proves the old adage of “garbage in, garbage out.” These instructions are 100% legalese. They make no sense. Trial judges should not be giving instructions like this. This is not a case in which the reviewing court should apply the usual presumption that the jury understood and applied the court’s charge in the way it was written. (1) Here, we know that the jury, composed of normal people, was unlikely to have understood the jury charge as it was written because not even the lawyers and trial judge, attuned though they may be to legalese, understood what the instructions said. Continue reading
PD-1522-11 CONCURRING OPINION PRESIDING JUDGE KELLER – Concurrence.
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1522-11
JAMES HENRY GELINAS, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE EIGHTH COURT OF APPEALS
EL PASO COUNTY
I join the Court’s opinion. To its cogent refutation of the reasoning in Hutch, (1) I would add the point raised in my dissent in that case: the error in the application part of the jury instructions was to the defendant’s benefit. The application portion of the instructions (2) in Hutch essentially told the jury (incorrectly and to Hutch’s benefit) to disregard legally obtained evidence. It did not tell the jury what to do if the evidence was illegally obtained. (3) But the abstract portion of the instructions did. It told the jury that illegally obtained evidence was inadmissible, explained to the jury that a police officer could stop someone only if criminal activity was rationally suspected, and set forth the failure to wear seatbelts as the suspected crime that would be the basis of the stop. (4) Considered as a whole, the instructions essentially told the jury that it had to disregard the evidence if it was obtained illegally or if it was obtained legally. “[T]he only way the jury could have convicted was by disregarding the erroneous [application] instruction and acting in accord with the rest of the jury charge and the jury arguments.” (5)
PD-1522-11 GELINAS, JAMES HENRY FROM EL PASO COUNTY – 08-09-00246-CR – Rev. – Pub. – Concurrence. – Dissent.
The State asks us to overrule Hutch v. State (1) upon which the lower court relied in finding that Gelinas suffered egregious harm from an erroneous jury instruction. Upon review, we believe Hutch was flawed and produces unjust results, and we hereby disavow it. We find the contested jury instruction in the instant case was erroneous, but egregious harm did not result. Accordingly, we reverse the court of appeals’ judgment. Continue reading
PD-1584-11 CONCURRING OPINION JUDGE COCHRAN – Concurrence.
I agree that the offense of falsely holding oneself out as a lawyer contains only one culpable mental state, the intent to obtain an economic benefit. (1) I also agree that the trial judge did not err by instructing the jury on the definition of “foreign legal consultant.” But I do, however, respectfully disagree with the majority that appellant “was not entitled to an instruction on a mistake-of-fact defense because his requested instruction did not negate the culpability required for the offense.” (2) If appellant had offered evidence that he reasonably, but mistakenly, believed that he was authorized to practice law in Texas, he would have been entitled to a mistake-of-fact instruction because that mistaken belief would negate the kind of culpability required for the offense. (3) Continue reading