## NUMBER 13

- 20

- 00 064

- C R

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

– EDINBURG

JOSE ROBERTO VELIZ

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

On appeal from the 63rd District Court

of Val Verde C ounty, Texas.



## MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Hinojosa and Silva

Memorandum Opinion by Justice Silva

Following a jury trial

, a ppellant Jose Roberto Veliz was convicted of the second

degree felony offense of assault involving family violence, impeding breath or circulation2 with a prior family violence conviction

. 1 S ee T EX

. P ENAL C ODE A NN . § 22.01(a), (b

- 1), Act

of May 21, 2009, 81st Leg., R.S., ch. 427, § 1, 2009 Tex. Gen. Laws 1022

– 23 ( amended

2017 & 2019) (current version at T EX

. P ENAL C ODE A NN . § 22.01(a), (b

- 3))

. 2 T he trial court

sentenc ed Veliz to seven years ’ imprisonment

. See id. § 12.42(b). By three issues

, Veliz

argues : (1) the trial court improperly arraigned him by requesting that Veliz plea d “true or

not true” rather than “guilty or not guilty”; (2) Veliz ’ s “prior conviction for an assault family

violence in which [he] pled ‘ True ’ [was] in violation of the strict compliance of Texas Code

of Criminal Procedure Article 36.01” because the prior conviction was “for enhancement

only” and “not jurisdictional ” ; and (3) “because of what happened at arraignment, these

issues fed into an improper jury charge

. ” We affirm.

I. B ACKGROUND

On April 11, 2016, the State read the indictment a t the start of trial

. The following

colloquy, in pertinent part, occurred:

[STATE] : Cause No. 138

— I ’ m sorry

— 13285CR, State of Texas

versus Jose Roberto Veliz in the District Court of Val

Verde County, Texas, 63rd Judicial District. Indictment:

In the name and by authority of the State of Texas, the

grand jurors for the County of Val Verde, State of

Texas, duly selected, impaneled, sworn, charged and

organized as such at the January term, A.D., 2015, of

the 63rd Judicial District Court of Val Verde County,

upon their oaths present in and to said court, that on or

about the 15th day of December, 2014, and before the

presentment of this indictment in said county and state,

1 This case is before this Court on transfer from the Fourth Court of Appeals in San Antonio

pursuant to a docket

- equalization order issued by the Supreme Court of Texas. See T EX

. G OV ’ T C ODE A NN

. § 73.001. Because this is a transfer case, we are bound to apply the precedent of the transferor court to

the extent it differs from our own. See T EX

. R. A PP

. P

. 41.3.

2 This statutory provision will be cited and referred to by its applicable , pre

- amendment, iteration

, Texas Penal Code § 22.01(a), (b

- 1)

, throughout.3 Jose Roberto Veliz, defendant, did then and there

intentionally, knowingly [,] or recklessly cause bodily

injury to Sylvia Martinez, a member of the defendant ’ s

family and household or a person with whom the

defendant has had a dating relationship, by grabbing

Sylvia Martinez with his hand, and by dragging Sylvia

Martinez on the ground with his hand and by seizing

Sylvia Martinez on or about [sic] the throat or neck with

his hand.

THE COURT: To that allegation, how do you plead, guilty or not

guilty?

[ VELIZ ] : Not guilty.

THE COURT: Continue.

[STATE]: And Jose Roberto Veliz did there intentionally,

knowingly [,] or recklessly impede the normal breathing

and circulation of the blood of Sylvia Martinez, a

member of said Jose Roberto Veliz ’ s family and

household or with whom Jose Roberto Veliz has had a

dating relationship, by applying pressure to the throat

or neck of Sylvia Martinez with his hand.

THE COURT: Is that allegation true or not true?

[VELIZ]: Not true

.

[STATE]: Jose Roberto Veliz before the commission of the

offense had previously been convicted of an offense

under Chapter 19, Texas Penal Code, against a

member of the defendant ’ s family or household or a

person with whom the defendant [] had a dating

relationship, to wit, on the 6th day of April, 1993, in the

372nd District Court of Tarrant County, Texas, in

Cause No. 0398505D.

THE COURT: Is that allegation true or not true?

[VELIZ]: True.4 THE COURT: All right. The Court ’ s going to receive the defendant ’ s

plea of not guilty, not true and true to the allegations

contained in the indictment.

The State did not read allegations of prior convictions contained in the indictment

which were later used for enhancement purposes during punishment. The jury charge

contained the same language read by the State at the start of trial. At no point did Veliz

object to the State ’ s recitation of the indictment , the trial court’s entry of Veliz’s plea, or

the jury charge ’ s inclusion of his prior assault family violence conviction

.

Veliz was convicted and sentenced on April 12

, 2016

. Veliz timely appealed and

thereafter filed a motion to dismiss the appeal. See T EX

. R. A PP

. P

. 42.2(a). Our sister

court dismissed Veliz ’ s appeal on June 29, 2016. Veliz v. State

, No. 04

- 16

- 00264

- CR,

2016 WL 3556821, at *1 (Tex. App.

— San Antonio June 29, 2016, no pet.) (mem. op., not

designated for publication).

On February 11, 2019, Veliz filed a n application for p ost

- c onviction w rit of h abeas

c orpus in the Texas Court of Criminal Appeals, requesting an out

- of

- time appeal. See

T EX

. R. A PP

. P

. 73.1. Veliz claimed that he “never desired to or wanted to have the appeal

dismissed,” and he signed the document requesting dismissal “upon false pretense that

the document was for the appointment of another attorney for the appeal.” On November

6, 2019, the Texas Court of Criminal Appeals issued a mandate granting Veliz ’ s request

for an out

- of

- time appeal. Ex parte Veliz

, No. WR

- 89,673

- 01, 2019 WL 5063428, at *1

(Tex. Crim. App. Oct. 9, 2019) (mem. op., not designated for publication) (per curiam)

.

The appeal before this Court followed.5 II. P RESERVATION

Veliz ’s first two issues concern the State ’ s inclusion of Veliz ’ s prior conviction for

assault family violence during the reading of the indictment and the trial court ’ s entry of

Veliz ’ s plea before the jury

— each in purported noncompliance with Texas Code of

Criminal Procedure a rticle 36.01

. See T EX

. C ODE C RIM

. P RO C

. A NN

. art. 36.01 (a)(1), (2)

.

The State argues that Veliz failed to preserve these issues for review, and therefore, they

have been waived. See T EX

. R. A PP

. P. 33.1(a)

. We agree.

“[P] reservation of error is a systemic requirement that must be reviewed by the

courts of appeals.” Williams v. State

, No. PD

- 0477

- 19,

___ S.W.3d

__, __, 2021 WL

2132167, at *5 (Tex. Crim. App. May 26, 2021)

. As a prerequisite to presenting a

complaint for appellate review, “ Texas Rule of Appellate Procedure 33.1 requires a timely,

specific objection and a ruling by the trial court.” Montelongo v. State

, 623 S.W.3d 819,

822 (Tex. Crim. App. 2021) (citing T EX

. R. A PP

. P. 33.1(a)). The appealing party carries

“the burden to bring forth a record showing that error was preserved .” Dixon v. State

, 595

S.W.3d 216, 223 (Tex. Crim. App. 2020).

There are a few exceptions to which Rule 33.1(a) does not apply : (1) “absolute

rights,” which are “widely considered so fundamental to the proper functioning of our

adjudicatory process

. . . that they cannot be forfeited

. . . by inaction alone”; and

(2) “rights that are ‘ not forfeitable ’

— they cannot be surrendered by mere inaction, but are

‘ waivable ’ if the waiver is affirmatively, plainly, freely, and intelligently made .” Garza v.

State

, 435 S.W.3d 258, 260 (Tex. Crim. App. 2014) (quoting Marin v. State

, 851 S.W.2d

275, 279

– 80 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State

, 9476 S.W.2d 262, 264 (Tex. Crim. App. 1997)). “Barring these two narrow exceptions, all

errors

— even constitutional errors

— may be forfeited on appeal if an appellant failed to

object at trial.” Id. at 260

– 61

.

C omplaints regarding non compliance with Texas Code of Criminal Procedure

a rticle 36.01

, which issues one and two on appeal concern, fall under the p u rview of Rule

33.1 (a)

. See Hernandez v. State , 190 S.W.3d 856, 868 (Tex. App.

— Corpus Christi

–

Edinburg 2006, no pet.) (noting that review of the appellant ’ s article 36.01 complaint was

possible because the appellant had objected and preserved error); see also Cantu v.

State , 939 S.W.2d 627, 646 (Tex. Crim. App. 1997) (“[A] ppellant waived any error by his

failure to object to the procedure used by the trial court in its entering of his plea before

the jury .”) ; Lee v. State

, 239 S.W.3d 873, 876

– 77 (Tex. App.

— Waco 2007, pet. ref ’ d)

( concluding that an objection is required to preserve an article 36.01 complaint for review

on appeal ); Martinez v. State

, 155 S.W.3d 491, 494

– 95 (Tex. App.

— San Antonio 2004,

no pet.) ( same )

.

Veliz did not object to the State ’ s reading of the indictment, wherein the State read

aloud the allegation concerning Veliz ’ s prior conviction

, 3 or to the trial court ’ s entry of his

plea

— each matter in alleged contravention of article 36.01. Thus, he has failed to

preserve either issue for our review

. See T EX

. R. A PP

. P. 33.1; Cantu , 939 S.W.2d at 646 ;

Lee

, 239 S.W.3d at 876

– 77; Martinez

, 155 S.W.3d at 494

– 95. We overrule issues one

and two.

3 Although we conclude that the aforementioned complaints have been waived, we nonetheless

discuss infra whether the trial court’s inclusion of a defendant ’ s prior family assault violence conviction in

the jury charge during the guilt or innocence portion of trial was erroneous given that the resolution of Veliz ’ s

third issue is predicated on this questio n.7 III. C HARGE E RROR

By Veliz ’ s third issue, he argues the trial court erred by including his prior criminal

conviction as an element of the charge d offense in the submitted jury charge at the guilt

innocence phase of trial

.

The standard of review for assessing harm from “ jury

- charge error depends on

whether the error was preserved.” Gonzalez v. State

, 610 S.W.3d 22, 27 (Tex. Crim. App.

2020) (citing Jordan v. State

, 593 S.W.3d 340, 346 (Tex. Crim. App. 2020)); see Almanza

v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Where, as here, error was not

preserved with a timely objection, such error is only reversible if we determine the error

“caused the defendant ‘ egregious harm. ’ ” Gonzalez , 610 S.W.3d at 27

. “Errors that result

in egregious harm are those that affect the very basis of the case, deprive the defendant

of a valuable right, or vitally affect a defensive theory.” Id. (quoting Ngo v. State, 175

S.W.3d 738, 743 (Tex. Crim. App. 2005)) (cleaned up).

The purpose of the trial court ’ s jury charge is to instruct the jurors on the law

applicable to the case; the trial court is under no obligation to instruct jurors on

inapplicable law. Cortez v. State , 469 S.W.3d 593, 598 (Tex. Crim. App. 2015); Vasquez

v. State , 389 S.W.3d 361, 366 (Tex. Crim. App. 2012); see T EX

. C ODE C RIM

. P ROC

. A NN

.

art. 36.14. Two statutory provisions are directly relevant to the present case. The first is

Texas Penal Code § 22.01, which prescribes the offense of assault family violence. Under

§ 22.01 (a), (b

- 1), a person commits an offense of second

- degree assault involving family

violence if the person “intentionally, knowingly, or recklessly causes bodily injury to

another,” and:8 (1) the offense is committed against a person whose relationship to or

association with the defendant is described by Section 71.0021(b),

71.003, or 71.005, Family Code;

(2) it is shown on the trial of the offense that the defendant has been

previously convicted of an offense under this chapter, Chapter 19, or

Section 20.03, 20.04, or 21.11 against a person whose relationship to or

association with the defendant is described by Section 71.0021(b),

71.003, or 71.005, Family Code; and

(3) the offense is committed by intentionally, knowingly, or recklessly

impeding the normal breathing or circulation of the blood of the person

by applying pressure to the person ’ s throat or neck or by blocking the

person ’ s nose or mouth.

T EX

. P ENAL C ODE A NN

. § 22.01 (a), (b

- 1) ( e mphasis added).

The second relevant provision

, found in Texas Code of Criminal Procedure Article

36

. 01

, regard s when prior

- conviction allegations may be read at trial:

(a) A jury being impaneled in any criminal action, except as provided by

Subsection (b) of this article, the cause shall proceed in the following order:

1. The indictment or information shall be read to the jury by the attorney

prosecuting. When prior convictions are alleged for purposes of

enhancement only and are not jurisdictional, that portion of the indictment

or information reciting such convictions shall not be read until the hearing

on punishment is held as provided in Article 37.07.

T EX

. C ODE C RIM

. P ROC

. A NN

. art. 36

. 01 (a)(1). Notably, the a rticle 36

. 01(a)(1) preclusion

rule only applies to allegations of prior convictions which are used for punishment

enhancement purposes; it does not apply to prior

- conviction allegations which are

“jurisdictional

. ” Oliva v. State

, 548 S.W.3d 518, 529 (Tex. Crim. App. 2018).

Several appellate courts have determined that prior conviction allegatio ns for

family violence under § 22.01 are jurisdictional and “ must be included in a hypothetically

correct charge and proven beyond a reasonable doubt.” Reyes v. State

, 314 S.W.3d 74,9 81 (Tex. App.

— San Antonio 2010, no pet.); see also Walker v. State

, No. 02

- 19

- 00309

-

CR, 2020 WL 7063298, at *2 (Tex. App.

— Fort Worth Dec. 3, 2020, no pet.) (mem. op.,

not designated for publication) (noting that “almost all of the fourteen Texas intermediate

appellate courts have concluded that proof of a prior assault conviction is an element of

the offense of felony assault

– family violence”) ; Garcia v. State

, No. 13

- 15

- 00508

- CR,

2016 WL 4040201, at *2 (Tex. App.

— Corpus Christi

– Edinburg July 28, 2016, pet. ref ’ d)

(mem. op., not designated for publication) (setting forth the elements required for the

State to prove a second

- degree assault family violence offense, which includes proving

a prior conviction for assault causing family violence); Zavala v. State

, No. 03

– 05

– 00051

–

CR, 2007 WL 135979, at *1 (Tex. App.

— Austin Jan. 22, 2007, no pet.) (mem. op., not

designated for publication) (same). More recently, the Texas Court of Criminal Appeals

concluded similarly in its analysis of “ the aggravating facts contained in Section

22.01(b)(2) of the Texas Penal Code ,” a statutory provision which proscribe s for

alternative ways “to elevate simple bodily assault from a Class A misdemeanor to a third

degree felony” assault

. See Holoman v. State , 620 S.W.3d 141, 14 3 (Tex. Crim. App.

2021) ; see T EX

. P ENAL C ODE A NN

. § 22.01(b)(2)

. The court held that “ t he prior

- assault

- on

a

- family

- member

- conviction [in § 22.01(b)(2) (A)]

. . . establishes an element of an

aggravated crime and not, alternatively, a punishment enhancement.” Holoman , 620

S.W.3d at 146

– 47

. Thus, it must be proven at the guilt phase of trial. Id.

As such

, a proper jury charge here is one which would instruct the jury to find Veliz

guilty of second

- degree assault family violence if the State proved beyond a reasonable

doubt that : (1) Veliz intentionally, knowingly, or recklessly cause d bodily injury to10 Martinez; (2) Martinez was a person “whose relationship to or association with [ Veliz ] is

described by Section 71.0021(b), 71.003, or 71.005, [of the] Family Code”; (3) Veliz

committed the offense by “intentionally, knowingly, or recklessly impeding the normal

breathing or circulation of the blood of [Martinez] by applying pressure to [ Martinez ’ s ]

throat or neck or by blocking [ Martinez ’ s ] nose or mouth”; and (4) Veliz was previously

convicted of an offense involving family violence. See T EX

. P ENAL C ODE A NN

.

§ 22.01(a)(1), (b

- 1) ; see also Garcia , 2016 WL 4040201, at *2

.

T he jury charge submitted here followed the statutory language near ly verbatim

and was not erroneous in its inclusion of the allegation of Veliz ’ s prior conviction

— a

requisite jurisdictional element of a second

- degree assault family violence offense. See

T EX

. P ENAL C ODE A NN . § 22.01(a)(1), (b

- 1); Cortez , 469 S.W.3d at 598 ; see also Holom an

,

620 S.W.3d at 146

– 47

. Therefore

, the trial court did not err in its submission

. See

Gonzalez

, 610 S.W.3d at 27 ; Cortez , 469 S.W.3d at 598

. We overrule Veliz ’ s third issue.

III

. C ONCLUSION

We affirm the trial court ’ s judgment.

CLARISSA SILVA

Justice

Do not publish.

T EX

. R. A PP

. P. 47.2 ( b ).

Delivered and filed on the

7th day of October, 202 1

.