NO. 04-15-00204-CR IN THE FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS

ROBERT RODRIGUEZ, Appellant VS.
THE STATE OF TEXAS, Appellee

APPELLANT’S BRIEF

SUSAN SCHOON ORAL ARGUMENT Schoon Law Firm, P.C. NOT REQUESTED 200 N. Seguin Avenue New Braunfels, Texas 78130 PH: (830) 627-0044 FAX: (830) 620-5657 State Bar No. 24046803 susan@sehoonlawfirm.com Attorney forAppellant ACCEPTED 04-15-00204-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 9/28/2015 4:56:05 PM KEITH HOTTLE CLERKIDENTITY OF PARTIES AND COUNSEL

Appellant: Robert Rodriguez AttorneyforAppellant: Susan Schoon (on appeal) AttorneyforAppellant: Richard Tim Molina (attrial) AttorneysforState: Keith Hemieke, Assistant DistrictAttorney Jacqueline Phillips, Assistant District Attorney Trial Court: Honorable Michael McCormick Visiting Judge 274th Judicial DistrictTABLE OF CONTENTS

IDENTITY OF PARTIES i iNDEX OFAUTHORITIES iii STATEMENT OFTHE CASE 1 ISSUE PRESENTED 2 STATEMENT OF FACTS 3 SUMMARY OF ARGUMENT 5 ARGUMENTAND AUTHORITIES: I. The Trial Court Erred in Denying Appellant’s Requested Instruction on Mistake ofFact 6 A. The Court’s Charge 9 B. Denial ofthe Requested Instruction on Mistake OfFact Was Error 7 C. Harm 9 PRAYER 13 CERTIFICATE OF COMPLIANCE 14 CERTIFICATE OF SERVICE 14

II.INDEX OF AUTHORITIES

CASES PAGES Aimanza v. State, 686 S.W.3d 157 (Tex.Crirn.App. 1985) 9 Arline v. State, 721 S.W.2d 348 (Tex. Grim. App. 1986) 9, 10 Barrios v. State, 283 S.W.3d 348 (Tex. Grim. App. 2009) 9 Barron v. State, 353 S.W.3d 879 (Tex. Grim. App. 2011) 9 Louis v. State, 393 S.W.3d 246 (Tex. Grim. App. 2012) 7, 8, 

### 9, 10, 13 Muniz v. State, 851 S.W.2d 238 (Tex. Grim. App. 1993) 7 Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) 7 Thompson v. State, 236 S.W.3d 787 (Tex.Crim.App. 2007) 6, 7, 9 STATUTES AND RULES TEX.PENAL CODE Art. 8.02 passim TEX.PENAL CODE Art. 6.04 8

111.TO THE HONORABLE JUSTICES OFTHE COURT OF APPEALS:

COMES NOW ROBERT RODRIGUEZ, Appellant in this cause, by and through his attorney ofrecord, Susan Schoon, and pursuantto the provisions of Tex.R.App.Pro. 38, et seq., files this briefon appeal. STATEMENT OFTHE CASE Robert Rodriguez, Appellantwas indicted in Cause Number 13-0797-CR-A foraggravated assault/serious bodily injury (Count I) and aggravated robbery (Count II). (CR3) Immediately priorto trial, the State abandoned Count I and elected to proceed to trial onthe aggravated robbery alone (RR, Vol. 2, p. 6) Thejury acquitted Appellant ofaggravated robbery, but found him guilty of the lesser-included offense ofaggravated assault/serious bodily injury. (CR 79) Thejury sentenced Appellant to twelve years imprisonment, and a $10,000 fine. (CR 79) Notice ofAppeal and a Motion for New Trial were filed on March 16, 2015. (CR 75-76) The clerk’s record was filed on May 15, 2015 and the reporter’s record was filed on June 22, 2015.

IISSUES PRESENTED

I. The trial court erred in denying Appellant’s requested instruction on Mistake of Fact

2STATEMENT OF FACTS

On March 3, 2013 at approximately 1:00 A.M., OmarAvila, a D.J. was packing up and leaving hisjob at Club Azul, a bar in Seguin, Texas. (RR, Vol. 3, p. 15) As he was getting into his car, he was approached bytwo men who asked him fora ride. (RR, Vol. 3, p. 16) He refused and quickly got into his car, locking the doors. As he was leaving the parking lot, the two men pounded onthe windows ofhis car, and he took offquickly to get away from them. (RR, Vol. 3, p. 18) Minutes later, as the barwas closing, Maricella Plaud-Acosta and her husband Francisco Plaud-Acosta were leaving the barand were accosted bythe
same two men. (RR, Vol. 3, p. 124-25) The men demanded a ride, and both Maricella and Francisco refused. Id. Maricella got into the driver’s side ofthe car, and Francisco walked to the passenger side. As Francisco was attempting to get into the car, one ofthe men, Anthony Rodriguez, Appellant’s brother, grabbed Francisco by a chain he was wearing around his neck. (RR, Vol. 3, pp. 125-26) He pulled him out ofthe carand the men began to struggle. At some point, Appellant approached from behind and became involved in the altercation. (RR, Vol. 3, p. 127, 140, 200) During the struggle, Francisco sustained a fractured tibia plateau’, which is the bottom part ofthe knee. (RR, Vol. 3, p. 166) Meanwhile, Maricella had run backto the bar and pounded on the door. When the employees ofthe bar

3emerged, Anthony Rodriguez and Appellant began walking away. (RR, Vol. 3, p.

128, 199) The policewere called and subsequentlyfound the men hiding behind a nearby convenience store. (RR, Vol. 3, p. 58, 77-78) The men were returned to the scene, identified bythe witnesses and thereafterarrested. (RR, Vol. 3, p. 59, 201)

4SUMMARYOFARGUMENT

Robert Rodriguez, Appellant in this cause, complains on appeal thatthattrial court erred in denying his requestedjury instruction onthe defense ofmistake of fact as contained in Texas Penal Code §8.02. Because Appellant’s requestwas denied, he was effectivelyprevented from presenting his onlyviable defense to the charge ofaggravated assault, and was therefore harmed.

5ARGUMENTAND AUTHORITIES

The Trial Court Erred In Denying Appellant’s Requested Instruction On Mistake Of Fact A. The Court’s Charge OverAppellant’s objection, the trial court instructed thejury onthe law of“transferred intent.” (RR, Vol. 4, p. 9) The instruction was as follows: The State’s accusation is thatthe defendant intentionally or

knowingly caused serious bodily injuryto Francisco Plaud Acosta. “Transferred intent” means a person is criminally responsible for causing a result ifthe only difference between what actuallyoccurred and whatthe person desired, contemplated or risked is, one, a different offense was committed; or, two, a different person orpropertywas injured, harmed, or otherwise affected. This means that a person is criminally responsible for causing serious bodily injuryto a person although the person did not intend orcontemplatethatthe bodily injury be “serious” as long as the person intended or had knowledge that his conduct would cause anybodily injuryto the person. (CR 55) Afierthe court overruled his objection to this language, and citing Thompson v. State, 236 S.W.3d 787 (Tex.Crim.App. 2007), Appellant then requested a charge on mistake-of-fact. The trial court denied his request. (RR, Vol.4, p. 10-il)

6B. Denial ofthe Requested Instruction on Mistake of FactWas Error In reviewing ajury charge, the court must first determine if
erroroccurred. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Iferror is found, the courtthen determines whether sufficient harm resulted from the errorto require reversal. See Ngo, 175 S.W.3d at 743.A defendant is entitled to a defensive instruction ifthe issue is raised bythe evidence, whetherthe particular evidence is “strong, weak, unimpeached, contradicted, or unbelievable.” Louis v. State, 393 S.W.3d 246, 271 (Tex. Crim. App. 2012), citing Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993). The mistake-of-fact defense found in Texas Penal Code §8.02 states, “It is a defense to prosecution that the actorthrough mistake formed a reasonable belief about a matteroffact ifhis mistaken beliefnegated the kind of culpability required forcommission ofthe offense.” WhenAppellant requested the defensive instruction ofmistakeof-fact, he directed the trial courtto the Court ofCriminal Appeals holding in Thompson v. State, 236 S.W.3d 787 (Tex.Crim.App. 2007). In Thompson, the defendant had seriously injured a child bybeating him with afree branch, purportedlyas a form ofdiscipline for

7behavior in a bible study class. Id. at 90. The court charged thejury
on the law of“transferred intent,” as contained in Texas Penal Code §6.04 (b)(1), therebyauthorizing thejuryto find the defendant guilty ofthe first degree, ratherthan third degree offense ofinjuryto a child, “ifhe merely intended to cause bodily injury, so long as he actually caused serious bodily injury.” Id. at 790 (emphasis in original). On appeal, Thompson argued that it was improperto elevate the third degree offense in this manner. The Court held that §6.04(b)(1) allows forthe transferofa culpable mental state between offenses contained in the same statute and also between greaterand lesser offenses. Id. at 800. Important to the instant appeal, the Court fUrther held: Where 6.04(b)(1) permits the transferofa culpable mental state, mistake offact may be raised as a defense. The mistake must be reasonable for itto constitute a circumstance that exculpates the defendant ofthe offense charged, and ofcourse, the defendantwould still be guilty ofany lesser included offense thatwould be applicable ifthe facts were as the defendant believed. Id. In Louis v. State, a similar case involving transferred intent, the Court agreed with the court ofappeals that itwas errorto deny Appellant’s requested mistake-of-fact instruction. Louis, 393 S.W.3d at 254. “The transferred intent doctrine could be used to transfer intent from the bodily injury offense to the serious bodily injury offense, but

8the mistake-of-fact defense would prevent such atransfer ifthe defendant had a reasonable, but mistaken beliefthat he was inflicting only bodily injury.” Id. at 253. In the instant case, as with Thompson and Louis, the transferred intent doctrine was used to transferthe intent from the bodily injury offense (assault) to the serious bodily injury offense (aggravated assault). The inclusion ofatransferred intent instruction entitled Appellant to urge the mistake-of-fact defense—that he had a reasonable, but mistaken beliefthat he was only inflicting bodily injury.There was evidence in the record sufficient to supportthe submission ofthis defense, as detailed below. C. HARM

Because Appellant objected to the omission ofthe mistake of fact defense in the court’s charge, en-orwas preserved. See Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). Therefore, Appellant is entitled to a new trial ifthe en-or is not harmless, but “calculated to injure the rights ofthe defendant.” Id. (quotingAimanza
v. State, 686 S.W.3d 157, 171 (Tex.Crim.App. 1985); Barron v. State, 353 S.W.3d 879, 883 (Tex. Crim. App. 201 1)(quotingArline v. State,

9721 S.W.2d 348, 351 (Tex. Crim. App. 1986) (“[T]he presence ofany harm, regardless ofdegree, which results from preserved charging error, is sufficient to require a reversal ofthe conviction.”)). In reviewing for harm, the appellate court considers all ofthe evidence, the entirejury charge, and the parties’ arguments. Louis, 393 S.W.3d at 271, 272. In applyingthe “some harm” standard in Louis v. State, the Court ofCriminal Appeals explained that “failure to instructthejury
onthe defense ofmistake offactwas an impedimentto [Louis’s] abilityto present his defense that he did not have the requisite mens reato be found guilty and to argue that defense to thejury.?? Further, the “[flack ofthe requested instruction effectively prevented [Louis] from presenting his defense.

. . .“ Id. at 271-73. In the case at bar, appellant’s intent regardingthe injury inflicted was not even contested—both sides agreed that Appellant intended to cause bodily injury, not serious bodily injury. Therefore the state relied on the transfer ofthat intent to prove its case, as argued by the prosecutor during closing:

[Appellant’s lawyer] talked to you about transferred intent. I guess he doesn’t like the ~aw because it’s so bad for his client. It’s bad for his client because his client intended to cause Mr. Flaud-Acosta injury and ended up 10causing hiin serious bodily injury and he’s responsible for that. When we talked about this in voir dire, ifa purse snatcher causes someone to fall to the ground and they get paralyzed by hitting their neck on a curb, they’re responsible for serious bodily injury. People are responsible fortheiractions. Robert Rodriguez is responsible for his actions that night. (RR, Vol. 4, p. 55) The state’s theory ofthe case was thatAppellant and his brother, Anthony were attempting to steal the victim’s carwhen the assault occurred. The evidence was clearthat Appellant’s brother started the altercation with Mr. Plaud-Acosta, and thatAppellant joined in the fight to help his brother. The defense argued that there
was insufficient evidence ofthe attempted theft ofthe car, and thatthe altercationwas essentially a “bar fight,” that began when Mr. Plaud Acosta refused to give the men, who were extremely intoxicated, a ride home from the bar. (RR, Vol. 4, pp. 38-39, 46) The defense essentially conceded the assault, but contested whetherthe evidence
was sufficient to prove serious bodily injury. Without the mistake of fact defense available to him, there was little more to argue. Thejury agreed that the evidence ofattempted theft ofthe vehicle was insufficient, and found Appellant not guilty ofthe aggravated robbery. Between the lesser-included offenses ofassault and aggravated assault, and with no mistake offact defense available11to them, the verdict came down to whether or notthejury believed Appellant caused serious bodily injury, regardless ofhis intent. During closing, Appellant’s attorney argued: And all we askthough is that you limit your debate on aggravated robbery and that you see it forwhat it is. It’s overcharged. It’s been as a result ofa snowball effect gone astray. It’s charged as a first degree felony when reallythe debate should be whether or not this was an aggravated assault causing serious bodily injury, a bar fight type situation or a fight, as the doctor put it, in the parking lot that resulted in what you determine to be eithera majoror minor injury; orwhether it was an assault. (RR, Vol. 4, pp. 49-50) There was no evidence in the record to support Appellant having the intent to cause serious bodily injury—in fact, just the opposite. No weapons were used, and the injurywas unusual for a “bar fight.” The doctorwho testified classified it as a “high impact injury,” typically seen in car accidents, orfalls from significant heights. (RR, Vol. 4, p. 172). He testified that it is also seen in football and rugby players, when “avery fast and athletic linebacker could hit yourknee when itwas planted.” (RR, Vol. 4 p. 173-74). Appellantwas attemptingto assist his brother in a fight, and certainly by hitting or kicking, orpushing the victim down, he intended to cause bodily injury, and it would not have been

12unreasonable for him to be mistaken about the type ofinjury his actions would cause. However, because the trial court declined to instructthejury on the defense ofmistake offact, Appellantwas denied the abilityto present his defense that he did not have the requisite mens reato be found guilty and to argue that defense to the jury. Therefore, he was harmed bythis error. See Louis v. State, 393 S.W.3d at 271-73).

PRAYER Appellant, Robert Rodriguez prays thatthis Court reverse his conviction and remand for a new trial.
Respectfully Submitted:

SUSAN SCHOON Schoon Law Firm, P.C. 200 N. Seguin Avenue New Braunfels, TX 78130 State BarNo. 24046803 PH: (830) 627-0044 FAX: (830) 620-5657 susan@schoonlawfirm.com Attorney forAppellant

13CERTIFICATE OF COMPLIANCE

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CERTIFICATE OF SERVICE I hereby certifythat atrue and conect copy ofAppellant’s Briefwas delivered to the DistrictAttorney ofGuadalupe County, Texas on this the 28th day of September, 2015 by faxto SUSAN SCHOON

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