No. 02-17-00225-CR 

 ____________________________________ 

IN THE COURT OF APPEALS FOR THE 

SECOND DISTRICT OF TEXAS 

 ____________________________________ 

CHRISTOPHER GUTIERREZ, 

APPELLANT

V. 

THE STATE OF TEXAS, 

APPELLEE

 ____________________________________ 

On Appeal from the Criminal District Court Number Three, Tarrant County, Texas 

Trial Court No. 1473780D 

Honorable Rob Catalano, Judge Presiding 

APPELLANT'S BRIEF 

COLIN T. MCLAUGHLIN 

McLaughlin Law, PLLC 

State Bar of Texas No. 24060892 

2101 Moneda St. 

Fort Worth, TX 76117 

Tel: (817) 482-6263 

Fax: (817) 877-5610 

colintmclaughlin@gmail.com 

Counsel for Christopher Gutierrez

ACCEPTED

02-17-00225-CR

SECOND COURT OF APPEALS

FORT WORTH, TEXAS

12/20/2017 2:07 PM

DEBRA SPISAK

CLERK

 FILED IN 2nd COURT OF APPEALS FORT WORTH, TEXAS 12/20/2017 2:07:34 PM DEBRA SPISAK Clerk
 ii

IDENTITY OF PARTIES AND COUNSEL 

 The undersigned counsel of record certifies that the following listed persons and 

entities are the parties to the trial court’s judgment and trial and appellate counsel as 

described in Texas Rule of Appellate Procedure 38.1(a). 

District Judge: Hon. Robb Catalano 

Appellant / Defendant: Christopher Gutierrez 

Counsel for Appellant at Trial: Daniel Collins 

 State Bar No. 24071079 

 3663 Airport Freeway 

 Fort Worth, TX 76111 

Counsel for Appellant on Appeal: Colin T. McLaughlin 

 State Bar No. 24060892 

 2101 Moneda St. 

 Fort Worth, TX 76117 

Appellee: The State of Texas 

 Tarrant County Criminal 

 District Attorney’s Office 

 401 W. Belknap 

 Fort Worth, TX 76196 

Counsel for Appellee at Trial: Erin Cofer 

 State Bar No. 24066277 

 Tarrant County Criminal 

 District Attorney’s Office 

 401 W. Belknap 

 Fort Worth, TX 76196 

Counsel for Appellee on Appeal: Debra Windsor 

 State Bar No. 00788692 
 iii

 Tarrant County Criminal 

 District Attorney’s Office 

 401 W. Belknap 

 Fort Worth, TX 76196 

 /s/ Colin T. McLaughlin 

 Colin T. McLaughlin 

 
 iv

TABLE OF CONTENTS 

PAGE 

IDENTITY OF PARTIES AND COUNSEL............................................................ ii

TABLE OF CONTENTS ......................................................................................... iv

INDEX OF AUTHORITIES .................................................................................... vi

STATEMENT OF THE CASE .................................................................................. 1

STATEMENT REGARDING ORAL ARGUMENT ................................................ 1

ISSUE PRESENTED ................................................................................................. 2

STATEMENT OF FACTS ........................................................................................ 3

SUMMARY OF THE ARGUMENT......................................................................... 5

POINT OF ERROR .................................................................................................... 6

The trial court erred by accepting Appellant’s plea of guilty to the first count of the 

aggravated robbery indictment. .................................................................................. 6

I. Argument and Authorities .......................................................................... 6

a. Applicable Law .......................................................................................... 6

b. Discussion................................................................................................... 8

CERTIFICATE OF SERVICE ................................................................................ 11
 v

CERTIFICATE OF COMPLIANCE ....................................................................... 12
 vi

INDEX OF AUTHORITIES 

Cases

Aldrich v. State, 104 S.W.3d 890, 893 (Tex. Crim. App. 2003) .......................... 9, 11 

Baggett v. State, 342 S.W.3d 172, 174 (Tex. App.—Texarkana 2011) ........... 7, 8, 10 

Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) ................................. 6 

Brown v. State, 270 S.W.3d 564 (Tex. Crim. App. 2008) ......................................... 6 

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) ............................................ 7 

Jackson v. Virginia, 443 U.S. 307, 319 (1979) ................................................ 6, 7, 10 

Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009) ......................... 8, 10, 11 

Moon v. State, 572 S.W.2d 681 (Tex. Crim. App. 1978) ........................................... 8 

Sanchez v. State, 543 S.W.2d 132 (Tex. Crim. App. 1976) ....................................... 8 

Williams vs. State, 235 S.W.3d 642 (Tex. Crim. App. 2007) .................................... 7 

Woodberry v. State, 560 S.W.2d 629 (Tex. Crim. App. 1977) .................................. 8 

Statutes

TEX. CODE CRIM. PROC. ANN. art. 38.04 .................................................................... 6 

Tex. Code Crim. Proc. Art. 1.15 ................................................................................ 7 

Tex. Penal Code § 46.01(3) ...................................................................................... 10 
 vii

RECORD ON APPEAL 

The Clerk’s Record on Appeal is cited as “CR at [page number]” 

The Reporter’s Record on Appeal is cited as “[volume number] RR at [page number]” 
1

STATEMENT OF THE CASE 

This case involves a judgment of the felony-level offense of aggravated robbery 

in the Criminal District Court Number Three of Tarrant County, Texas. CR at 6, 96-

97. Appellant plead guilty, without benefit of a plea bargain, to the charge of 

aggravated robbery on May 2, 2017. CR at 89, 96; 2 RR at 5. The trial court ordered 

that a pre-sentence investigation report be prepared. CR at 92; 2 RR at 5. The trial 

court then conducted a punishment hearing on June 23, 2017. 2 RR at 5. After hearing 

the evidence and the arguments of counsel, the trial court sentenced Appellant to 

fifteen years in the Institutional Division of the Texas Department of Criminal Justice. 

CR at 96; 2 RR at 61. 

STATEMENT REGARDING ORAL ARGUMENT 

 Oral argument is not requested. 
2

ISSUE PRESENTED

 

 The trial court erred in not complying with article 1.15 of the Texas Code of 

Criminal Procedure, as there was not sufficient evidence to accept Appellant’s plea of 

guilty to “Count 1” of the indictment of Aggravated Robbery because the elements of 

that offense were not met. The evidence produced at Appellant’s sentencing hearing 

showed that Appellant used a BB gun, not a firearm as charged in the indictment. 
3

STATEMENT OF FACTS 

Appellant was indicted on February 10, 2016 for the offense of aggravated 

robbery with a firearm. CR at 6. Appellant plead guilty, without benefit of a plea 

bargain, to the charge of “Count 1” of an aggravated robbery indictment on May 2, 

2017. CR at 89, 96; 2 RR at 5. The trial court ordered that a pre-sentence 

investigation report be prepared. CR at 92; 2 RR at 5. The trial court then conducted a 

punishment hearing on June 23, 2017. 2 RR at 5. 

 The State asked the trial court to take judicial notice of the pre-sentence 

investigation report, which was granted without objection. 2 RR at 5. The State did 

not ask the trial court to take judicial notice of the Clerk’s file, which contained 

Appellant’s previous plea papers. 

 A. Z. testified for the State. 2 RR at 6. A. Z. is the listed complainant in the 

indictment. CR at 6; 2 RR at 6. A. Z. testified that she was seventeen at the time of 

the offense. 2 RR at 7. A. Z. testified that a person robbed the Subway at which she 

worked. 2 RR at 9-10. A. Z. stated that the person struck A. Z. with a handgun a 

couple of times. 2 RR at 9. A. Z. stated that she was scared that she was going to get 

shot. 2 RR at 10. The State introduced surveillance video of the offense, without 

objection, through A. Z. 2 RR at 8-9. The State then rested. 2 RR at 11. 

 Appellant called Maria Bonitez, Appellant’s girlfriend’s mother. 2 RR at 12. 
4

Ms. Bonitez testified that Appellant would be welcomed into her home if Appellant 

was given probation. 2 RR at 14. 

 Next, Appellant’s girlfriend, Michelle Acosta, testified. 2 RR at 15. Ms. Acosta 

stated that Appellant’s actions on the video were out of character for the Appellant. 2 

RR at 15-16. Ms. Acosta explained that she and Appellant were homeless at the time 

of the robbery. 2 RR at 17, 20-21, 24. Ms. Acosta also stated that the gun used in the 

robbery was a $25 BB gun that was kept in Appellant’s twelve-year-old brother’s toy 

box. 2 RR at 28, 29. 

 Finally, Appellant testified on his own behalf. 2 RR at 33. Appellant stated that 

he was eighteen years old, and he was filled with remorse for his actions. 2 RR at 33-

34. Appellant described his upbringing, stating he did not know his father and was 

placed in foster care. 2 RR at 34. His mother was the victim of abuse, and Appellant 

had to survive on the streets since he was approximately twelve years old. 2 RR at 36-

37. Appellant also maintained that he used a BB gun in the robbery. 2 RR at 43-44. 

Later, Appellant clarified that the BB gun was really a pellet gun that shoots metal 

BBs. 2 RR at 50. Appellant asserted that the BB gun was unloaded at the time of the 

robbery. 2 RR at 50. 
5

 SUMMARY OF THE ARGUMENT 

 The trial court erred in accepting Appellant’s plea of guilty to “Count 1” of the 

Aggravated Robbery indictment. The evidence produced at Appellant’s sentencing 

hearing indicated that Appellant used a BB gun, not a firearm as charged in the 

indictment. Appellant’s refusal to admit that he used a firearm should have caused the 

trial court to either allow Appellant to rescind his plea of guilty or find Appellant guilty 

of the lesser offense of robbery. 
6

POINT OF ERROR 

The trial court erred by accepting Appellant’s plea of guilty to the first count of 

the aggravated robbery indictment.

I. Argument and Authorities 

a. Applicable Law 

The United States Constitution requires that a criminal conviction be supported 

by evidence “necessary to convince a trier of fact beyond a reasonable doubt of the 

existence of every element of the offense.” Jackson v. Virginia, 443 U.S. 307, 319 

(1979); see also Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). The 

trier of fact must be the judge of the weight and credibility of the evidence. See Tex. 

Code Crim. Proc. Ann. art. 38.04; Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. 

App. 2008), cert. denied, 129 S. Ct. 2075 (2009). The reviewing court must 

“determine whether the necessary inferences are reasonable based upon the combined 

and cumulative force of all the evidence when viewed in the light most favorable to the 

verdict.” Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007); see also

Williams vs. State, 235 S.W.3d 642, 750 (Tex. Crim. App. 2007). In other words, the 

trier of fact cannot, and must not, draw conclusions based on guesswork. Hooper v. 

State, 214 S.W.3d at 15. A reviewing court may consider all the evidence in the light 

most favorable to the verdict to determine whether any rational trier of fact could have 
7

found all of the elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. at 

319. 

Under article 1.15, the State is required to introduce evidence demonstrating the 

defendant’s guilt. Tex. Code Crim. Proc. Art. 1.15. A guilty plea, even if the 

defendant states that he or she is pleading guilty to the charges in the indictment under 

oath, does not constitute a judicial confession because the defendant is merely entering 

a plea, “not confessing to the truth and correctness of the indictment or otherwise 

providing substance to the plea.” Baggett v. State, 342 S.W.3d 172, 174 (Tex. App.—

Texarkana 2011), quoting Menefee v. State, 287 S.W.3d 9, 13, 15 (Tex. Crim. App. 

2009). Moreover, a judicial confession that omits an element of the offense is 

insufficient to support a guilty plea. Menefee v. State, 287 S.W.3d at 14. Importantly, 

a claim of error for noncompliance with article 1.15 is not forfeited or waived by the 

failure to object to the trial court. Baggett v. State, 342 S.W.3d at 175. 

Historically, when evidence introduced reasonably raises an issue of fact, a trial 

court is required to, sua sponte, withdraw a defendant’s guilty plea and enter a not 

guilty plea for the defendant. Moon v. State, 572 S.W.2d 681 (Tex. Crim. App. 1978); 

Sanchez v. State, 543 S.W.2d 132 (Tex. Crim. App. 1976). The rule’s purpose is to 

prevent an involuntary plea, and the totality of each case is assessed to assure the 

voluntary nature of the plea. Woodberry v. State, 560 S.W.2d 629 (Tex. Crim. App. 
8

1977). This rule has been applied even when a plea of guilty is before the court 

without a jury. Aldrich v. State, 104 S.W.3d 890, 893 (Tex. Crim. App. 2003). 

However, the trial court may find a defendant guilty of a lesser offense or even find the 

defendant not guilty. Id. Since the trial court takes on the role of fact-finder when a 

jury is waived, it is not necessary to enter a plea of not guilty for a defendant. Id. 

b. Discussion 

Appellant plead guilty, without benefit of a plea bargain, to the charge of “Count 

1” of an aggravated robbery indictment. CR at 89, 96; 2 RR at 5. “Count 1” of the 

indictment charged Appellant with committing the offense with a “firearm.” CR at 6. 

Appellant’s plea paperwork did not guarantee that the trial court was going to find 

Appellant guilty. CR at 90. 

At Appellant’s sentencing hearing, the State did not offer Appellant’s plea 

paperwork into evidence, nor did it request the trial court take judicial notice of the 

plea paperwork. During the hearing, Appellant maintained that he used an unloaded 

BB gun in the robbery. 2 RR at 43-44, 50. Ms. Acosta also stated that Appellant used 

a BB gun. 2 RR at 28-29. Nowhere in the sentencing hearing is there any mention of a 

firearm being used, and Appellant never admitted guilt to each of the elements 

contained in “Count 1.” See Baggett v. State, 342 S.W.3d at 174. 
9

When A. Z. testified, she answered the State’s questions in reference to a 

handgun. 2 RR 9. However, she never stated that Appellant used a firearm. This is 

important because the word “firearm” is defined by statute. A firearm is defined in 

Section 46.01 of the Texas Penal Code as: 

Any device designed, made, or adapted to expel a projectile through a 

barrel by using the energy generated by an explosion or burning 

substance or any device readily convertible to that use. Tex. Penal Code 

§ 46.01(3). 

 There was no testimony that the weapon used was a firearm. Instead, the 

only testimony as to the item used in the robbery indicated that the item was a 

BB gun. Appellant certainly never admitted to using a firearm during the 

robbery. See Menefee v. State, 287 S.W.3d at 14. Thus, article 1.15, requiring 

the State to introduce evidence demonstrating the defendant’s guilt, was not 

complied with. 

Because article 1.15 was not satisfied in Appellant’s sentencing hearing, 

Appellant’s rights were violated. See Jackson v. Virginia, 443 U.S. at 319; see 

also Menefee v. State, 287 S.W.3d at 14. Accordingly, the trial court should 

have not found Appellant guilty of “Count 1” of the State’s aggravated robbery 

charge. See Aldrich v. State, 104 S.W.3d at 893. At most, the trial court had 

enough information to find Appellant guilty of the lesser-included offense of 

robbery. See Id. 
10

 

PRAYER

 WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays that 

his issue on appeal be sustained, his sentence vacated, and he be acquitted of this 

offense. Appellant additionally prays for such other and further relief to which he may 

be entitled. 

Respectfully submitted, 

/s/ Colin T. McLaughlin 

COLIN T. MCLAUGHLIN 

State Bar of Texas No. 24060892 

2101 Moneda St. 

Fort Worth, TX 76117 

Tel: (817) 482-6263 

Fax: (817) 

colintmclaughlin@gmail.com 

Counsel for Christopher Gutierrez 
11

CERTIFICATE OF SERVICE 

I, Colin T. McLaughlin, certify that on December 20, 2017, a true copy of this 

brief has been served upon the following persons in the following manners: 

Via e-mail 

Debra Windsor 

Assistant Criminal District Attorney 

401 W. Belknap 

Fort Worth, TX 76196 

 /s/ Colin T. McLaughlin 

COLIN T. MCLAUGHLIN 
12

CERTIFICATE OF COMPLIANCE 

1. This brief complies with the type-volume limitation of Tex. R. App. 9.4 (i)(2) 

because it contains approximately 1544 words, excluding the parts of the brief 

exempted by Tex. R. App. 9.4 (i)(l). 

2. The electronic copy of this brief complies with Tex. R. App. 9.4 (i)(l) because it 

has been directly converted from Microsoft Word into a searchable document in 

Portable Document File (PDF) format. 

 /s/ Colin T. McLaughlin 

 COLIN T. MCLAUGHLIN