1 NO. PD -0372- 15

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

LUIS SANCHEZ

, Appellant

V.

STATE OF TEXAS,

Appellee

On Petition for Discretionary Review

from the 11 th Court of Appeals

No. 11- 12 -00279- CR

On appeal from the 161 st Judicial District Court

of Ector County, Texas

Tr ial Court Cause Number B-37,135

STATE’S APPELLATE BRIEF

Michael Bloch

Assistant District Attorney

Ector County District Attorney’s Office

Ector County Courthouse

300 N. Grant, Room 305

Odessa, Texas 79761

(432) 498-4230 Phone

(432) 498-4293 Fax

michael.bloch@ector countytx.gov

Attorney for the State PD-0372-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 10/2/2015 2:06:32 PM

Accepted 10/2/2015 2:18:45 PM

ABEL ACOSTA

CLERK2 Identity of Parties and Counsel

ATTORNEYS FOR THE STATE :

At trial: Dusty Gallivan, Assistant Distri ct Attorney

On appeal: Michael Bloch, Assistant District Attorney

Ector County Courthouse

300 N. Grant, Room 305

Odessa, Texas 79761

ATTORNEY FOR THE APPELLANT AT TRIAL:

William R. Bowden, Jr.

221 W. 4 th St.

Odessa, Texas 79761

ATTORNEY FOR THE APPELLANT ON DIRECT APPEAL AND ON

PDR :

M. Michele Greene

2833 Wildwood

Odessa, Texas 79761

TRIAL COURT:

Hon. John W. Smith

161 st District Court of Ector County

300 N. Grant, Room 316

Odessa, Texas 797613 Table of Contents

Identity of Parties a nd Counsel

................................ ................................ ................. 2

Index of Authorities

................................ ................................ ................................ ... 4

Statement of the Case

................................ ................................ ................................ . 7

Statement Regarding Oral Argument

................................ ................................ ........ 7

Procedural History

................................ ................................ ................................ ..... 7

Issue s Presented

................................ ................................ ................................ ........ 8

Stateme nt of Facts

................................ ................................ ................................ ..... 8

Summary of the Argument

................................ ................................ ...................... 10

Argument

I. Could the trial court have rationally concluded t hat

Appellant and the victim, Rachael Price, were never married

and that the assault occurred between individuals who

merely “have had” a dating relationship

................................ ... 11

II. Did the 11th Court of Appeals err when it determined that

Appellant could be convicted of assa ulting his former spouse

based solely on their past dating relationship under Tex. Pen.

Code § 22.01 (b) (2) and Tex. Fam. Code § 71.0021 (b)? ........13

Conclusio n and Prayer

................................ ................................ ........................... 19

Certificate of Service

................................ ................................ ............................... 20

Certificate of Compliance

................................ ................................ ........................ 204 Index of Authori ties

CASES

Baird v. State

, 398 S.W.3d 220, 229 (Tex. Crim. App. 2013)

................................ ........................ 15

Bays v. State

, 396 S.W.3d 580, 585 (Tex. Crim. App. 2013)

................................ ........................ 15

Bingham v. State

, 913 S.W.2d 208, 209 (Tex. Crim. App. 1995)

................................ ........................ 14

Halton v. State

, 2015 Tex. App. LEXIS 6769 (Tex. App. Dallas July 1, 2015, no pet.)

.................. 17

Hill v. State

, No. 01

- 10

- 00926

- CR, 2012 Tex. App. LEXIS 2225, 2012 WL 983338 (Tex.

App.

— Houston [1st Dist.] Mar. 22, 2012, no pet.)

................................ ................. 17

Preston v. State

, 2015 Tex. App. LEXIS 7240 (Tex. App. Dallas July 14, 2015, no pet.)

................ 17

Sanchez v. State,

460 S.W.3d 675 (Tex. App.

– Eastland 2015, pet. granted)

........ 7, 13, 14, 15, 17, 18

Stanul v. State

, 870 S.W.2d 329, 334 (Tex. App.

-- Austin 1994, pet. ref'd)

................................ ..... 16

State v. Hardy

, 963 S.W.2d 516, 520 (Tex. Crim. App. 1997)

................................ ........................ 14

Tov ar v. State

, 949 S.W.2d 370, 373 (Tex. App. San Antonio 1997) aff’d 978 S.W.2d 584 (Tex.

Crim. App. 1998)

................................ ................................ ................................ ..... 165

White v. State

, No. 05

- 09

- 00112

- CR, 2010 Tex. App. LEXIS 5985, 2010 WL 2951748 (Tex.

App.

— Dallas July 29, 2010, pet. ref'd)

................................ ................................ ... 17

STATUTES

Tex . Fam. Code § 2.401 (a) (2)

................................ ................................ ................ 12

Tex. Fam. Code § 71.0021 (b)

................................ .............. 8, 10, 11, 13, 15, 16, 18

Tex. Gov’t Code § 311.023

................................ ................................ ...................... 15

Tex. Pen. Code § 22.01 (b) (2)

................................ ................................ . 8, 10, 13, 15

Tex. Pen. Code § 22.01 (b) (2) (B)

................................ .............................. 11, 16, 186 NO. PD

- 0372

- 15

IN THE COURT OF CRIMINAL APP EALS

OF TEXAS

LUIS SANCHEZ,

Appellant

V.

STATE OF TEXAS,

Appellee

On Petition for Discretionary Review

from the 11 th Court of Appeals

No. 11

- 12

- 00279

- CR

On appeal from the 161 st Judicial District Court

of Ector County, Texas

Trial Court Cause N umber B

- 37,135

STATE’S APPELLATE BRIEF

TO THE HONORABLE JUDGES OF SAID COURT:

COMES NOW , Appellee, the STATE OF TEXAS , by and through its

District Attorney, R.N. (Bobby) Bland and Assistant District Attorney Michael

Bloch and presents for receipt its A ppellate Brief in the above

- styled and

numbered cause of action.7 Statement of the Case

On March 22, 2010, Luis Sanchez, hereinafter Appellant, was indicted for

the third degree felony offense of assault

- family violence; the indictment alleged

that Appellant knowingly or recklessly impeded the normal breathing or

circulation of the blood of victim Rachel Price, with whom he has or has had a

dating relationship, by applying pressure to Price’s throat or neck. CR 5.

Immediately prior to trial, Appel lant pled not guilty. 4 RR 8. Appellant waived

his right to a jury trial, and the case was tried before the bench on September 6,

2012. 4 RR 6

- 138. The trial court found Appellant guilty, and sentenced him to

six years incarceration in the TDCJ

– Insti tutional Division. Id . at 138; 5 RR 10.

Statement Regarding Oral Argument

This Court noted that oral argument would not be permitted in this case.

Procedural History

Appellant filed a brief on direct appeal with the 11 th Court of Appeals on

August 22, 2 013

. The Court of Appeals affirmed Appellant’s conviction . See

Sanc h e z v. State, 460 S.W.3d 675 (Tex. App.

– Eastland 2015, pet. granted)

.

Appellant filed his petition for discretionary review on April 21, 2015. This Court

granted Appellant’s petition for discretionary review on July 1, 2015. Appellant

filed his brief in this PDR on August 18, 2015

.8 Issue s Presented

1. Could the trial court have rationally concluded that Appellant and the victim,

Rachael Price, were never married and that the assault occu rred between

individuals who merely “have had” a dating relationship ?

2. Did the 11 th Court of Appeals err when it determined that Appellant could be

convicted of assaulting his former spouse based solely on their past dating

relationship under Tex. Pen. Code § 22.01 (b) (2) and Tex. Fam. Code §

71.0021 (b)?

Statement of Facts

Only the facts relevant to Appellant’s claims will be discussed here. During

the trial, Price testified that her and Appellant had been in a relationship for about

two and a half years , beginning in June of 2006 and ending in December of 2009.

5 RR 19. On cross

- examination, Appellant brought up the issue as to whether they

were in fact married. Id. at 47. Price initially stated that they were “common law”

and later divorced. Id. S he acknowledged DX 1, which was a divorce petition

filed on her behalf. However, the following exchange also occurred:

Q: Isn’t it true, Ms. Price, that you were married with this man from 2006

on?

A: No.9

Q: Correct?

A: No.

Q: Okay. When did you mar ry him?

A: We never.

Q: I am not talking about a formal marriage, I am talking about when did

you consider yourself married?

A: I never did.

Q: You never did?

A: No.

Id . at 48. She went on to testify that while she did seek a divorce from Appellant

a nd filed a pleading alleging that they were common law married, she did so only

because she was advised to do so by her legal aid attorney, who cited the length of

time Price and Appellant lived together and the fact that they filed one or more

joint tax r eturns. Id . at 49, 67.

Price further testified on redirect that

Q: Defendant’s Exhibit No. 1 the petition for divorce that you filed?

A: Yes.

Q: Or that was filed on your behalf?

A: Yes.10

Q: Did you use an attorney to file this f or you?

A: Yes.

Q: Prior t o this event when you sou ght legal help, did you consider

yourself married to [Appellant]?

A: No.

5 RR 67.

Summary of the Argument

The trial court could have rationally concluded that Price and Appellant

were ne ver married because Price never agreed to marry Appellant and did not

consider herself married to Appellant. Given Price’s testimony, the trial court as

finder of fact could reasonably conclude that the elements of common law

marriage were never met in th at relationship, divorce petition notwithstanding.

Hence, Price and Appellant were merely in a dating relationship as the indictment

alleged, and the State proved that element at trial.

The Court of Appeals correctly found that Appellant could be convict ed of

assaulting his former spouse based solely on their past dating relationship under

Tex. Pen. Code § 22.01 (b) (2) and Tex. Fam. Code § 71.0021 (b). Ordinarily,

language is the best indicator of legislative intent and if the meaning should have

been p lain to the legislators who voted for it, reviewing courts should give effect to11

the plain meaning of the language. The relevant language in this case is not

ambiguous and does not lead to an absurd result. Based upon the clear wording of

§71.0021 and Pen al Code § 22.01 (b) (2) (B), the legislature intended to punish as

third degree felony family violence one who impedes breathing or circulation of a

victim with whom the perpetrator had a dating relationship, no matter how long

ago that relationship was. The State alleged in its indictment that Appellant caused

bodily injury to Price, “a person with whom the Defendant has or has had a dating

relationship, as described by 71.0021 (b), Family [C]ode” CR 5. The Sanchez

majority correctly found that there was no fatal variance.

Argument

I. Could the trial court have rationally concluded that

Appellant and the victim, Rachael Price, were never

married and that the assau lt occurred between individuals

who merely “have had” a dating relationship?

In the indictment, the State alleged that Appellant caused bodily injury to Price,

“a person with whom the Defendant has or has had a dating relationship, as

described by Section 71.0021(b), Family code...” Appellant contends he is

entitled to an acquittal from this Court because Appellant and Price were not

merely in a dating relationship, but were instead common law spouses. The State12

contends that the evidence adduced at trial did not necessarily show that they were

in fact married. The State made this argument in its brief on direct appeal, but the

Court of Appeals ’ opinion ruled that “[a]s a result of the intervening divorce

proceedings, the evidence conclusively negat es the possibility that the alleged

assault occurred between individuals who ‘have’ a dating relationship.” The State

would respectfully request this Court visit the issue.

During her testimony, Price indicated that she and Appellant were “formerly in

a relationship” and had a child together. 4 RR 18

- 19. The relationship began in

June 2006 and ended December 2009. Id . at 19. As previously noted, while

acknowledging the common

- law divorce petition filed on her behalf by legal aid,

Price never co nsidered herself married to Appellant. Id . at 48. She testified that

while she did seek a divorce from Appellant and filed a pleading alleging that they

were common law married, she did so only because she was advised to do so by

her legal aid attorney, who cited the length of time Price and Appellant lived

together and the fact that they filed one or more joint tax returns. Id . at 49, 67.

Price did not consider herself married to Appellant prior to seeking that legal

assistance. Id . at 67. Tex. Fam. Code § 2.401 (a) (2) provides that a man and

woman are “common

- law” married if the man and woman agreed to be married

and after the agreement they lived together in this state as husband and wife and13

there represented to others that they were married. Gi ven Price’s testimony, the

trial court as finder of fact could reasonably conclude that Price never agreed to

marry Appellant, and hence the elements of common law marriage were never met

in that relationship, divorce petition notwithstanding. The trial c ourt could have

rationally concluded that Price and Appellant’s were merely in a dating

relationship, which was well

- supported by the evidence. See 4 RR 18

- 19; 67.

II. Did the 11th Court of Appeals err when it determined that

Appellant could be convicted of assaulting his former

spouse based solely on their past dating relationship under

Tex. Pen. Code § 22.01 (b) (2) and Tex. Fam. Code §

71.0021 (b)?

As this Court is aware, Appellant contends that the majority opinion in

Sanchez erred when it found that th e evidence showed that the assault occurred

between Appellant and Price and constituted a third degree felony under Penal

Code § 22.01 (b) (2) because Appellant and Price “have had” a previous dating

relationship as that term appears in Tex. Fam. Code § 71 .0021 (b)

. The majority

opinion no tes that while there was a marriage that occurr ed , there was no fatal

variance between the indictment and the proof at trial because there was a dating

relationship between Ap pellant and Price in the past. Sanchez , 460 S .W.3d at 680.

Appellant conten ds that the intervening marriag e causes there to be a fatal variance14

between the indictment and the proof raised at trial because a marriage and dating

relationship are two separate and distinct categories

. Further, Appellan t points out

the dissenting opinion’s statement that [the majority’ s interpretation of “have had”

a dating relationship ] :

would mean that it would not matter when a dating relationship

existed, even decades prior, and would give no regard to intervening

c ircumstances, so long as the relationship ended at some indefinite

time prior to the time of an assault for which the State charges a

person. The words that the legislature actually used do not indicate to

me that the legislature intended that result.

San chez , 460 S.W.3d a t 683. Appellant characterizes such conclusion as absurd

and contends that such conclusion was clearly not the intent of the Texas

Legislature. Appellant’s brief at 15.

Ordinarily, l anguage is the best indicator of legislative intent a nd if the

meaning should have been plain to the legislators who voted for it, reviewing

courts should give effect to the plain meaning of the language. Bingham v. State

,

913 S.W.2d 208, 209 (Tex. Crim. App. 1995). This Court should "presume that

every word in a statute has been used for a purpose and that each word, phrase, and

sentence should be given effect if reasonably possible." State v. Hardy

, 963 S.W.2d

516, 520 (Tex. Crim. App. 1997). If, on the other hand, the meaning of the literal

text of a sta tute is ambiguous or would cause an absurd result, considering extra

-15

textual factors to discern the Legislature's intent in enacting the statute may be

appropriate. Bays v. State

, 396 S.W.3d 580, 585 (Tex. Crim. App. 2013).

As for ambiguity, it exists whe n a statute may be understood by reasonably

well

- informed persons to have two or more different meanings. Bays, 396 S.W.3d

at 585 ; see also Baird v. State

, 398 S.W.3d 220, 229 (Tex. Crim. App. 2013)

(statute is ambiguous when the language it employs is "re asonably susceptible to

more than one understanding"). In construing ambiguous statutes, relevant factors

that this Court may consider include the legislative history behind the statute and

the consequences of a particular construction. See Bays

, 396 S.W. 3d at 585; Tex.

Gov’t Code § 311.023

. Both Appellant and the Sanchez dissent express the belief

that the majority’s opinion is not in line with legislative intent

. With regard to the

statute in issue, there is nothing ambiguous about it. Tex. Fam. Code § 71.0021 (b)

states that “For purposes of this title, "dating relationship" means a relationship

between individuals who have or have had a continuing relationship of a romantic

or intimate nature.” [emphasis supplied]. Clearly, the plain meaning of the st atute

is that a defendant may be convicted of family violence under Tex. Pen. Code §

22.01 (b) (2) if at any point during or prior to the offense the defendant and the

victim had a dat ing relationship

. There is nothing ambiguous about that.16

Reviewing court s will not give effect to a statute's plain meaning, however,

if to do so would reap absurd results

. See Stanul v. State

, 870 S.W.2d 329,

334 (Tex. App.

-- Austin 1994, pet. ref'd). In this case, Appellant contends that the

plain meaning of the statute is a bsurd because the majority’s interpretation of “has

had” a dating relationship would mean that it would not matter when a dating

relationship existed, even decades prior, just so long as the relationship ended at

some indefinite time prior to the time of t he assault being prosecuted. Does this

make the clear wording of Penal Code § 22.01 (b) (2) (B) and Tex. Fam. Code §

71.0021 (b) absurd? That the result of a statute may seem harsh does not make the

result absurd. Tovar v. State

, 949 S.W.2d 370, 373 (Tex

. App. San Antonio 1997)

aff’d 978 S.W.2d 584 (Tex. Crim. App. 1998). Based upon the clear wording in

the statute, the legislature obviously intended to punish under Penal Code §22.01

(b) (2) (B) family violence involving a victim with whom the perpetrat or had a

dating relationship, no matter how long ago that relationship was. That may be

harsh, but by no means absurd. And, had the legislature intended for a prosecution

to be barred because of a certain elapse of time between the end of the dating

rela tionship and the subsequent assault, it could have certainly put such a provision

in the statute. It did not.17

In support of their decision, the Sanchez majority cited to two unpublished

opinions from sister Courts: White v. State

, No. 05

- 09

- 00112

- CR, 201 0 Tex. App.

LEXIS 5985, 2010 WL 2951748 (Tex. App.

— Dallas July 29, 2010, pet. ref'd) and

Hill v. State

, No. 01

- 10

- 00926

- CR, 2012 Tex. App. LEXIS 2225, 2012 WL

983338 (Tex. App.

— Houston [1st Dist.] Mar. 22, 2012, no pet.). Sanchez

, 460

S.W.3d at 680. The se holdings provide that the “have had” element of § 71.0021

(b) eliminates the requirement of an ongoing dating relationship at the time of the

alleged assault. Id

.

Two more recent Court of Appeals opinions further support that position.

See Preston v. State , 2015 Tex. App. LEXIS 7240 (Tex. App. Dallas July 14, 2015

,

no pet. ) (mem op. not designated for publication)

, (“A past continuing relationship

of an intimate nature is sufficient to qualify as a ‘dating relationship’”); Halton v.

State , 2015 Tex. App. LEXIS 6769 (Tex. App. Dallas July 1, 2015 , no pet. )(mem.

op. not designated for publication). (“[T]he family code definition of dating

relationship encompasses both a contemporaneous and a past dating relationship”).

White

, Hill, Preston and Halton all stand for the proposition that a dating

relationship need not be ongoing at the time of the family violence assault . T he

past dating relationship in this case falls within the provisions of the statute that

increase this assault to a third

- degree felo ny. Based upon the clear wording of18

Family Code §71.0021 and Penal Code § 22.01 (b) (2) (B), the legislature intended

to punish as third degree felony family violence one who impedes breathing or

circulation of a victim with whom the perpetrator had a dat ing relationship, no

matter how long ago that relationship was. The Sanchez dissent’s claim that “have

had” a past dating relationship means that the relationship must have ended

recently is

, with all due respect, unworkable

. Sanchez

, 460 S.W.3d at 683. How

recently would the relationship have to have ended? A week? A month? A year?

The statute doesn’t say, so how would we know? Indeed, had the legislature

intended for there to be a cut

- off time the statute would have said so. The State

alleged in its indictment that Appellant caused bodily injury to Price, “a person

with whom the Defendant has or has had a dating relationship, as described by

71.0021 (b), Family [C]ode” CR 5. The Sanchez majority correctly found that

there was no variance.

Appel lant’s point of error should be overruled.19 Conclusion and Prayer

The State of Texas prays this C ourt overrule Appellant’s point of error and

affirm Appellant’s conviction.

Respectfully Submitted,

R.N. (Bobby) Bland

Ector County District Attorney

BY: /s/ Michael Bloch

Michael Bloch

Assistant District Attorney

SBN 24009906

Ector County District Attorney’s Office

Ector County Courthouse

300 N. Grant, Room 305

Odessa, Texas 79761

(432) 498

- 4230 Phone

(432 ) 498

- 4293 Fax

michael.bloch@ectorcountytx.gov20 CERTIFICATE OF SERVICE

Pursuant to Rule 9.5 of the Texas Rules of Appellate Procedure, I certify that

on this 2 nd day of October, 2015 , a copy of the foregoing State’s Appellate Brief

was served via efile to counsel for Appellant:

M. Michele Greene

2833 Wildwood

Odessa, Texas 79761

/s/ Michael Bloch

Michael Bloch

Assistant District Attorney

CERTIFICATE OF COMPLIANCE

I certify that the foreg oing brief consists of 3, 368 words and is typed in 14

-

point Times New Roman font.

/s/ Michael Bloch

Michael Bloch

Assistant District Attorney