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

Fax: (915) 975-8028

SBN 24053384

defense@weslawyer.com

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
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 islegally

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

ofthisCourt.......................................................................................................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 ofthe 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 PetitionerVigil 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 thatshe 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’stestimony 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 inferencestherefrom, a rational factfinder 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, itsubstituted 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

isthe 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 waslegally 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 

waslegally 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 thatshe 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. The court of appeals therefore improperly 1

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

See page 7 of the Opinion, which states, “We agree with Vigil that, from a direct 1

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). The 2

Paragraph B of the information, which alleged that Vigil caused bodily injury to Jimenez 2

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-bythreat 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 nonstatutory, 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 ofthe 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'stheories 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 failsto 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

generalrequirement 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 ortreatedmanner 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 Vigilrespectfully 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 typevolume 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,

 Appellant,

v.

VANDA VIGIL,

 Appellee.

§

§

§

§

§

§ 

No. 08-13-00273-CR

Appeal from the

County Court at Law No. 7

of El Paso County, Texas

(TC# 20120C10835)

O P I N I O N

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.”
2

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
3

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.
4

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 
5

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 
6

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.
7

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 
8

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). 
9

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 
10

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)
COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

THE STATE OF TEXAS,

 Appellant,

v.

VANDA VIGIL,

 Appellee.

§

§

§

§

§

§ 

No. 08-13-00273-CR

Appeal from the

County Court at Law No. 7 

of El Paso County, Texas

(TC# 20120C10835)

J U D G M E N T

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: 

OFFENSE: ASSAULT CAUSES BODILY IN.J 

D.O.B.: 07/10/68 

WARRANT: M12W7593 

AGENCY: EL PASO POLICE 

( ) CAPIAS REQUESTED 

1757605 NCIC: 13990001 

INFORMATION JtJ%aa 

STATE OF TEXAS 

vs. 

VANDAVIGIL 

cer-J 

ADDRESS: 210 WEST REDO RD 708 

EL PASO, TX 79932 

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 BODIL YINJURY TO ELIZABETH 

JIMENEZ BY PUSHING OR THROWING ELIZABETH JIMENEZ TO THE GROUND, 

PARAGRAPH D 

DID THEN AND THERE INTENTIONALLY, KNOWINGL YOR RECKLESSLY CAUSE BODILY INJURY TO ELIZABETH 

JIMENEZ BY STRIKING ELIZABETH JIMENEZ ABOUT THE HEAD WITH THE DEFENDANT'S HAND, 

SQ 

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