Opinion issued August 30 , 2018

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01 - 17 - 00419 - CR

——————————— ABEL GALINDO , Appella nt

V. THE STATE OF TEXAS , Appell e e
On Appeal from the 184th District Court

Harris County, Texas Tria l Court Ca se No. 1502015

O P I N I O N Appellant Abel Galindo pleaded guilty , without an agreed punishment recommendation from the State, to cruelty to nonlivestock animals . He also pleaded true to a deadly

- weapon alle gation in the indictment. A pre

- sent ence investigation report was completed and a sentencing hearing was conducted. T he2

trial court found Galindo guilty, and it found the dead ly

- weapon allegation to be
true . It sentenced him to five years in prison. Relying on the recent decision in Prichar d v. State , 533 S.W.3d 315 (Tex. Crim. App. 2017) , Galindo contends that the evidence was legally insufficient to support the deadly

- weapon finding, and his sentence is therefore void. We conclude that Prichard is distinguishable because the evidence befor e the trial court supported a finding that the canine victim of Galindo’s abuse was not the sole object of his use of a deadly weapon. Because the evidence supported a finding that Galindo threatened human bystanders with the knife that he also used to inj ure a dog, we affirm the judgment. Background The appellant, Abel Galindo , lived with and physically abused Luisa Becer r a for two years. Galindo choked Be ce r ra, he threatened her with a knife, and he beat her many times. Galindo also threatened Be ce r ra in front of her nine

- year - old son, who was afraid of him

. They owned a dog. One night, the dog chewed an ottoman. Galindo grabbed and hit the dog, which bit him. In retaliation, Galindo stabbed the dog with a kitchen knife , leaving “a large 5 to 6 inch lacera tion

. ”3

Galindo was charged with committing the state jail felony offense of cruelty to nonlivestock animals

. See T EX
. P ENAL C ODE § 42.092(b)(1), (c)

.  The indictment alleged that he “ did

. . . unlawfully, INTENTIONALLY, KNOWINGLY AND RECKLESSLY, TORTURE A N ANIMAL, namely, A DOG, by CUTTING THE DOG WITH A KNIFE .

. . .” The indictment further alleged that at the time Galindo committed the offense , “ he used and exhibited a deadly weapon, namely, a KNIFE, during the commission of said offense and during the i mmediate flight from said offense. ” Galindo executed a “Waiver of C onstitutional Rights, A greem ent to Stipulate, and Judicial Confession,” which indicated that he understood the allegations in the indictment, and the y were true
. In that document, he waived his right s to a trial by jury and to require the appearance, confrontation, and

cross - examination of witnesses. He additionally consent ed , in open court, to the oral and written stipulation of evidence, and to the introduction of affidavits and other docu mentary evidence. The document was signed and sworn by Galindo, and

 Act of May 28, 2007, 80th Leg., R.S., ch. 886, § 2, 2007 Tex. Gen. Laws 2163, 2165 (amended 2017) ( current version at T EX
. P ENAL C ODE § 42.092(b)(1), (c

- 1 ) )

. The offense and the trial court proceedings occurred before the September 1, 2017 effective date of amendments to Penal Code Section 42.092 , which amended subs ection (c) and added subsection (c

- 1 ), and which designated an offense under Section 42.092(b)(1) as a third

- degree felony. Under the law applicable to this direct appeal, an offense under Section 42.092(b)(1) was a state jail felony.4

it was approved in writing by his attorney and by the assistant district attorney. It

was filed with the papers of the case and approved in writing by the trial judge. The trial court adm onished Galindo about the consequences of his guilty plea, including the possibility of an enhanced sentence based upon the deadly

- weapon allegation. Galindo pleaded guilty to the offense, and he also pleaded true to the deadly

- weapon paragraph. The court accepted both pleas, and it found the dea dly

- weapon paragraph to be true . It ordered a pre

- sentencing investigation (PSI) report
. The court subsequently held a sentencing hearing , at which the State offered the PSI report and a Texas Risk Assessment Syste m (TRAS) report into evidence. Both documents were accepted into evidence without objection. A written statement by Becerra, which she made under penalty of perjury on the evening of the incident, was attached to the PSI report. According to that
statement , Galindo injured the dog after it chewed an ottoman. Becerra returned home from work to find that the dog had been stabbed. Her son informed her that Galindo had grabbed the dog, and he hit the dog until it retaliated by biting him. Galindo stabbed the do g, and he then threatened to hit Be ce r ra ’s son for failing to stop the dog from chewing the furniture. The TRAS report indicate d that on the night of the incident, law enforcement officers responded to a report of a terroristic threat. According to that5

r eport, Be cer r a told them that Galindo attacked their dog with a kitchen knife “for

no reason ” and because “he was mad at her.” The report stated that Becerra said Galindo “became irate from a fight they had the previous night and during the altercation he threatened her with a knife and stabbed the dog.” The report further indicate d that the officers observed the dog’s injury, and it appeared to have been caused by a blade. Be cer r a’s son also informed officers that he saw Galindo “ slice the dog with a kitch en knife. ” Galindo testified at the sentencing hearing

. He admitted tha t he injured the dog because he was stressed about problems in his relationship with Becerra. T he trial judge found Galindo guilty of the cruelty

- to

- an imals offense, and it found the d eadly

- weapon allegation to be true. The judge sentenced Galindo to five years in prison. Analysis On appeal, Galindo contends that the deadly

- weapon finding was made under circumstances in which a deadly weapon was used or exhibited only against

a “ nonhum an. ” He argues that the evidence therefore was legally insufficient to support the deadly

- weapon finding. Galindo relies upon the recent decision in Prichard v. State

. The appellant in Prichard was accused of killing his dog by repeatedly hitting it on the head with a shovel and then drowning it in a swimming pool. 533 S.W.3d at 317. He was6

indicted for cruelty to a non

- livestock animal. Id. ; see Act of May 28, 2007, 80th Leg., R.S., ch. 886, § 2, 2007 Tex. Gen. Laws 2163, 2165 (amended 2017 ) (current versi on at T EX
. C ODE C RIM
. P ROC
. art. § 42.092(b)(1), (c

- 1 )). The indictment alleged that the shovel or the pool water , or the combination of both, constituted use of a deadly weapon. Prichard , 533 S.W.3d at 317. The jury found Prichard guilty, and it found tha t he had used a deadly weapon during the commission of the offense. Id. 317

– 18. Because of the affirmative deadly

- weapon finding, the permissible range for punishment was increased from that of a state jail felony to that of a third

- degree felony, and the jury assessed punishment at imprisonment for 61⁄2 years. Id. at 318; see also T EX
. P ENAL C ODE § 12.35 (c)(1). On appeal, Prichard argued that the evidence was legally insufficient to support the deadly

- weapon finding because no human was harmed or placed at risk of harm because of his conduct. Prichard , 533 S.W.3d at 318 . After analyzing the statute, t he Court of Criminal Appeals held that evidence is legally insufficient to support a deadly

- weapon finding “under circumstances in which the sole recipient or b eing against whom a deadly weapon was used or exhibited was a nonhuman.” Id. at 331. Because the permissible range of punishment was affected by the deadly

- weapon finding, the Court remanded the case for a new punishment hearing. Id. at 330

– 31.7

The State points out two differences between Prichard and Galindo’s case . Galindo pleaded true to the deadly

- weapon allegation, wh ile Prichard pleaded not true to the deadly

- weapon allegation, and the affirmative finding on that issue was made by a jury. 533 S.W.3d at 318. The State also asserts that the facts are distinguishable because in Prichard there was no indication that any human was in danger, or that any human other than Prichard was present when he killed the dog. In contrast, although the record reflects different accounts of Galindo’s offense , both account s reflected that either Be cerra or her son was present during the offense

. A defendant who pleads guilty in a criminal prosecution generally waives his right to challenge the sufficiency of the evidence. Keller v. State , 125 S.W.3d 600, 605 (Tex. App.

— Houston [1st Dist.] 2003 ) , pet. dism’d , improvidently granted , 146 S.W.3d 677 (Tex. Crim. App. 2004 ) (per curiam) . In such cases, our review is confined to determining whether sufficient evidence supports th e trial court’s judgment of guilt. Id. Upon a guilty plea, t he State must introduce evidence of the defendant’s guilt into the record, and the evidence must be accepted by the court as the basis for its judgment. T EX
. C ODE C RIM
. P ROC
. art. 1.15. “The State , however, is not required to prove the defendant’s guilt beyond a reasonable doubt; the supporting evidence must simply embrace every essential element of the charged offense.” Staggs v. State , 314 S.W.3d 155, 159 (Tex. App.

— Houston [1st8

Dist.] 2010, no p et.). A judicial confession alone is usually sufficient to satisfy t he State’s burden under article 1.15. Menefee v. State , 287 S.W.3d 9, 13 (Tex. Crim. App. 2009). Likewise, a judicial confession that includes an admission to the use of a deadly weapon is sufficient evidence to show use of a deadly weapon, and the record need not otherwise provide proof. See Keller , 125 S.W.3d at 605

. A judicial confession that fails to establish each element of the offense charged will not authorize the trial court to con vict the defendant, but a deficiency in one form of proof may be cured by other competent evidence in the record. Menefee , 287 S.W.3d at 14. Galindo argues that he is entitled to challenge the sufficiency of the evidence to support the deadly

- weapon findin g, although his brief did not address the effect of his guilty plea or the evidence that humans were at least peripherally involved in the offense. Assuming without deciding that Galindo may challenge the sufficiency of the evidence of the deadly

- weapon fi nding despite pleading “true” to the allegation, we conclude that the facts of this case are distinguishable from Prichard and the evidence was sufficient to support the judgment. Our evidentiary review considers the entire plea proceeding , including
sente ncing, to determine whether there was su fficient evidence independent of Galindo’s confessions to substantiate his guilt. See Dinnery v. State , 592 S.W.2d 343, 352 (Tex. Crim. App. 1979) ; see also Menefee , 287 S.W.3d at 14 n

. 20. The9

indictment alleged that Galindo “used and exhibited a deadly weapon, namely, a KNIFE, during the commission” of the offense, and it did not specify whether the use and exhibition of the knife was against the dog, Becerra, her son, or some combination thereof. At sentencing , t he State presented evidence of two different versions of events. The account included in the PSI report, which is consistent with the arguments made by defense counsel and by the State at the sentencing hearing, indicate d that Galindo became upset during an a rgument with Becerra and he threatened her with a knife. He then used the knife to cut the dog in front of Becerra and her son. Becerra’s affidavit claim ed that Galindo injured the dog after it bit him . In co ntrast to the PSI report, the affidavit suggeste d that Becerra was not present when Galindo stabbed the dog in front of her son. The Court of Criminal Appeals in Prichard conclu ded that evidence is legally insufficient to support a deadly

- weapon finding “under circumstances in which the sole recipient or being against whom a deadly weapon was used or exhibited was a nonhuman.” 533 S.W.3d at 331. The reference to the nonhuman as the “sole ” object of the use of the deadly weapon left open the possibility of a deadly

- weapon finding under circumstances when the weapon was used or exhibited against a human during the commission of an offense against an animal

.10

Galindo does not offer any argument as to why his use of the knife in either version of events supported by the evidence does not constitute use or ex hibition of a deadly weapon against a human. The trial court found s ufficient evidence to support his guilty plea, and it accepted his plea that the deadly

- weapon paragraph
was true . We conclude that Galindo’s stipulation of guilt, his judicial confession, and the evidence presented at the sentencing hearing are sufficient evidence to support the trial court’s judgment under article 1.15 of the Code of Criminal Procedure

. See Ex parte Palmberg , 491 S.W.3d 804, 808 (Tex. Crim. App. 2016). We overrule Galindo ’s first issue. In his second issue, Galindo argues that a deadly

- weapon finding cannot be made in this case, and his sentence is therefore illegal because it is outside of the permissible range for a state jail felony. See T EX
. P ENAL C ODE § 12.35

. Howeve r, as discussed above, the evidence supports the court’s deadly

- weapon finding. The court therefore properly sentenced Galindo within a permissible range for a third

- degree felony. We overrule Galindo’s second issue.11 Conclusion We affirm the judgment of the trial court.

Michael Massengale Justice Panel consists of Justices Keyes, Bland, and Massengale. Publish. T EX
. R. A PP
. P. 47.2(b).