NO. 03-14-00539-CR

 

IN THE 

COURT OF APPEALS 

 FOR THE THIRD SUPREME JUDICIAL DISTRICT OF TEXAS 

__________________________________________

DENNIS DWIGHT GALINDO, 

 Appellant. 

VS.

THE STATE OF TEXAS, 

 Appellee. 

__________________________________________

From the 340TH Judicial District Court 

Tom Green County, Texas 

Honorable Ben Woodward, Judge Presiding 

__________________________________________

 BRIEF OF STATE 

__________________________________________

ORAL ARGUMENT REQUESTED ONLY 

IF REQUESTED BY THE COURT

 MEAGAN WHITE 

 Assistant District Attorney 

 51st Judicial District 

 124 W. Beauregard, Suite B 

 San Angelo, Texas 76903 

 (325) 659-6583

 TSB #24060973 

 ATTORNEY FOR STATE 

ACCEPTED

03-14-00539-CR

4701991

THIRD COURT OF APPEALS

AUSTIN, TEXAS

3/30/2015 8:00:58 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 3/30/2015 8:00:58 PM JEFFREY D. KYLE Clerk
TABLE OF CONTENTS

 PAGE

LIST OF AUTHORITIES .............................................................................2

STATEMENT OF THE CASE .....................................................................5

STATEMENT OF FACTS ...........................................................................6

STATE’S COUNTERPOINT ONE...............................................................8

SUMMARY OF THE ARGUMENT.....................................................8

ARGUMENT AND AUTHORITIES.....................................................8

STATE’S COUNTERPOINT TWO ............................................................11

SUMMARY OF THE ARGUMENT...................................................11

ARGUMENT AND AUTHORITIES...................................................11

STATE’S COUNTERPOINT THREE.........................................................15

SUMMARY OF THE ARGUMENT...................................................15

ARGUMENT AND AUTHORITIES...................................................15

PRAYER...................................................................................................19

CERTIFICATE OF COMPLIANCE............................................................20

CERTIFICATE OF SERVICE....................................................................20
2

LIST OF AUTHORITIES

Cases

Allen v. State, 249 S.W.3d 680 (Tex. App.—Austin 2008, no pet.)......16, 17

Brooks v. State, 323 15 S.W.3d 893 (Tex. Crim. App. 2010) ....................15

Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011).............................15

Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007) ..................16, 18

Ex Parte Kunkle, 852 S.W.2d 499 (Tex. Crim. App. 1993)........................12

Jackson v. State, 877 S.W.2d 768 (Tex. Crim. App. 1994) .......................12

Jackson v. Virginia, 443 U.S. 307 (1979)..................................................16

Kemp v. State, 892 S.W.2d 112 (Tex. App.—Houston [1st Dist.] 1994, pet. 

ref’d) ................................................................................................12, 13

Lane v. State, 763 S.W.2d 785 (Tex. Crim. App. 1989) ............................17

Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009) ..........................16

Matthews v. State, No. 03-13-00037-CR, 2014 Tex. App. LEXIS 13722, at 

*8 (Tex. App.—Austin Dec. 23, 2014)(mem. op., not designated for 

publication) ............................................................................................16

McMillon v. State, 505 S.W.2d 872 (Tex. Crim. App. 1974) ........................9

Moff v. State, 131 S.W.3d 485 (Tex. Crim. App. 2004); ............................16

Morales v. State, 293 S.W.3d 901 (Tex. App.—Texarkana 2009, pet. ref'd)

..............................................................................................................17

Padilla v. State, 326 S.W.3d 195 (Tex. Crim. App. 2010)..........................16

Randolph v. State, 152 S.W.3d 764 (Tex. App.—Dallas 2004, no pet.) ....18

Sexton v. State, 51 S.W.3d 604 (Tex. App., Tyler, 2000, pet. ref ’d.) ..........9

State v. Bates, 889 S.W.2d 306 (Tex. Crim. App. 1994) .............................8
3

Stokes v. State, 277 S.W.3d 20 (Tex. Crim. App. 2009) .............................9

Strickland v. Washington, 466 U.S. 668 (1984)...................................11, 12

Vinson v. State, 6 S.W.3d 704 (Tex. App., Waco 1999, no pet.).................8

Wallace v. State, 106 S.W.3d 103 (Tex. Crim. App. 2003)........................10

Statutes

Tex. Penal Code Ann. § 1.07....................................................................17

Tex. Penal Code Ann. § 22.01..................................................................17

Tex. Penal Code Ann. § 22.01(b)(2)(A).....................................................17

Codes

Tex. Code Crim. Proc. Ann. art. 38.04 ......................................................16

Rules

Tex. R. App. P. 21.4 .................................................................................10

Tex. R. App. P. 21.8 ...............................................................................8, 9
4

NO. 03-14-00539-CR

IN THE

COURT OF APPEALS

FOR THE THIRD SUPREME JUDICIAL DISTRICT OF TEXAS

__________________________________________

DENNIS DWIGHT GALINDO,

Appellant.

VS.

THE STATE OF TEXAS,

State.

__________________________________________

From the 340TH Judicial District Court 

 Tom Green County, Texas

Honorable Ben Woodward, Judge Presiding

__________________________________________

 BRIEF OF STATE

__________________________________________

TO THE HONORABLE COURT OF APPEALS FOR THE THIRD 

SUPREME JUDICIAL DISTRICT OF TEXAS:

COMES NOW, The State of Texas, in the above entitled and 

numbered cause, and files this the BRIEF OF STATE and in support 

thereof, the State would show this Honorable Court as follows:
5

STATEMENT OF THE CASE

Appellant was indicted for Assault Family Violence with a previous 

conviction. (C.R. p. 6-7). Appellant filed Defendant’s Amended Election as 

to Punishment on June 18, 2014. (C.R. p. 11). On June 18, 2014 the 

Appellant completed a written waiver of jury. (C.R. p. 13). On June 23, 

2014 and the matter was tried before the court. (R.R. Vol. 3 p. 5). The 

Judge found the Appellant guilty. (R.R. Vol. 4 p. 53). On June 24, 2014 after 

punishment evidence was presented the Judge sentenced the defendant to 

ten years confinement. (R.R. Vol. 4 p. 88).

Appellant timely filed a Motion for New Trial and Motion in Arrest of 

Judgment on June 30th, 2014, stating that the verdict was contrary to the 

law and the evidence. (C.R. p. 20). The court held a hearing on Motion for 

New Trial on August 4, 2014, with Defense Counsel Stephanie Goodman 

present. The following notations on the docket were made: “Court will not 

rule on Motion for New Trial at this time and will likely allow it to be 

overruled as an operation of law.” (C.R. p. 38). Defense Counsel 

Stephanie Goodman filed Notice of Motion to Withdraw as Counsel on 

August 19, 2014. (C.R. p. 27). Appellant filed his Notice of Appeal on 

August 29, 2014. (C.R. p. 29). 
6

STATEMENT OF FACTS

On November 21, 2013, San Angelo police officer Cobey Bradshaw 

was dispatched to 114 W. 24th St, San Angelo, Texas. (R.R. Vol. 3 p. 9). 

Officer Bradshaw arrived at the residence and found a female and two 

children. (R.R. Vol. 3 p. 9). The female was identified to be Dorothy Ortega, 

the alleged victim. Officer Bradshaw observed that Dorothy was agitated 

and the children appeared to be worried. (R.R. Vol. 3 p. 10). Officer 

Bradshaw spoke with the children and Dorothy Ortega on scene. (R.R. Vol. 

3 p. 10). Officer Bradshaw was unable to speak to the Appellant because 

he was not there (R.R. Vol. 3 p. 12). Officer Bradshaw also took pictures of 

Dorothy Ortega and the scene (R.R. Vol. 3 p. 14). 

Dorothy Ortega has a son with the Appellant named Dominique 

Galindo (R.R. Vol. 3 p. 20). Dorothy Ortega testified during trial that she 

dropped Dominique off at boxing practice earlier that day and believed that 

the Appellant was going to pick up Dominique after practice. (R.R. Vol. 3 p. 

21). She received a phone call asking that she pick up Dominique (R.R. Vol. 

3 p. 21). After Dorothy Ortega arrived back at her residence she began 

making food for Dominique (R.R. Vol. 3 p. 16). Dominique called the 

Appellant asking him to drop off money for a shirt (R.R. Vol. 3 p. 21). The 

Appellant came into the house alone (R.R. Vol. 3 pp. 25-26). Dorothy Ortega 
7

and the Appellant began to argue about the Appellant’s failure to pick 

Dominique up from boxing practice. (R.R. Vol. 3 p. 21). During the argument 

Dorothy Ortega was in the kitchen by the stove, Dominique was seated at the 

kitchen table approximately five feet away, and Dorothy’s daughter, Aliyah, 

was in the living room. (R.R. Vol. 3 p. 22). 

Dorothy testified that Appellant struck her face with his hand (R.R. Vol. 

3 p. 23). Aliyah testified that she saw the Appellant strike Dorothy. (R.R. Vol. 

3 p. 42). After the Appellant struck Dorothy Ortega, he walked out the door 

and the children followed him out of the door (R.R. Vol. 3 p. 23). 

The defense called Sean Sanchez as a witness and he testified that he 

was in the house during an argument between the Appellant and Dorothy 

Ortega (R.R. Vol. 3 p. 57). Sean Sanchez testified that the argument about 

who should have picked Dominique up from boxing practice took place not in 

November but in October. (R.R. Vol. 3 p. 58). He testified that he saw 

Dorothy swing at the Appellant and then he and the Appellant left. (R.R. Vol. 

3 p. 59). Dorothy Ortega later testified that Sean Sanchez has never been to 

her residence (R.R. Vol. 4 p. 18). 

The Appellant testified that he did not go to Dorothy’s residence on 

November 21st . (R.R. Vol. 3 p. 88). He stated that he went to Dorothy’s 

house in October 2013 and that she hit him but he never touched her. (R.R. 
8

Vol. 3 p. 90). On cross examination the Appellant admitted that he had 

previous felony convictions including an assault, burglary of a habitation and 

“a drug charge.” (R.R. Vol. 3 p. 99). The Judge found the Appellant guilty. 

(R.R. Vol. 4 p. 53). 

STATE’S COUNTERPOINT ONE

The Trial Court held a hearing on the Motion for New Trial on 

August 4, 2014, and did not err in not setting a subsequent hearing. 

SUMMARY OF THE ARGUMENT

Appellant’s Motion for New Trial was denied by operation of law 75 

days after sentencing.

ARGUMENT AND AUTHORITIES

When a motion for new trial is filed, the trial court can grant or deny 

the motion by written order or allow the motion to be denied by operation of 

law after 75 days after sentencing. Tex. R. App. P. 21.8.; State v. Bates, 

889 S.W.2d 306 (Tex. Crim. App. 1994); Vinson v. State, 6 S.W.3d 704 

(Tex. App., Waco 1999, no pet.). A written order is necessary to prevent 
9

the overruling of a motion for new trial by operation of law; an oral 

pronouncement, absent a written order, is insufficient. Tex. R. App. P. 21.8. 

After 75 days, the motion is deemed to be denied and the trial court loses 

jurisdiction to take any further action on the new trial motion. Sexton v. 

State, 51 S.W.3d 604 (Tex. App., Tyler, 2000, pet. ref ’d.). Unlike the 

notation on an unsigned proposed order, an entry on a docket sheet 

indicating that a new trial motion was presented was found sufficient on the 

theory that it was a far more reliable indicator of the trial judge’s decision

and business because it is likely that only the judge and those authorized to 

act on his or her behalf have access to the docket sheets and can make 

entries to them. Stokes v. State, 277 S.W.3d 20, 25 (Tex. Crim. App. 

2009)—(notation of presentment on docket sheet gives accurate account of 

motion’s disposition without need for trial judge’s signature).

A motion for new trial is left to the sound discretion of the trial court. 

McMillon v. State, 505 S.W.2d 872, 874 (Tex. Crim. App. 1974). The 

court’s decision in denying a new trial will not be disturbed unless an abuse 

of discretion is shown. Id.. 

A trial court is not obligated to hold a hearing on a motion for new trial

if the motion is not verified or supported by affidavit. Wallace v. State, 106 

S.W.3d 103, 108, 2003 Tex. Crim. App. LEXIS 95, 7-8 (Tex. Crim. App. 
10

2003). An amended motion for new trial may be filed any time within thirty 

days after sentence has been imposed or suspended in open court if the 

previously filed motion or amended motion has not been overruled. Tex. R.

App. P. 21.4. Under this provision, a motion for new trial may be amended 

without leave of court, as long as it is done within the thirty day time limit. 

Id..

Appellant was sentenced on June 24, 2014. (R.R. Vol. 4 p. 88). The 

Motion for New Trial was originally filed on June 30, 2014 (C.R. p. 20). 

There was a hearing on Appellant’s motion for new trial on August 4, 2014 

(C.R. p. 38). The docket entry states as follows: “Court will not rule on 

Motion for New Trial at this time and will likely allow it to be overruled as an 

operation of law.” Id. Appellant did not file a subsequent amended motion 

for new trial. (C.R.). It is also not evident from the record that Appellant 

requested an additional hearing. (C.R.). The trial court did not issue an 

order granting the Motion for New Trial therefore the motion was overruled 

by operation of law. Consequently, Appellant’s Point of Error No. One 

should be denied.
11

STATE’S COUNTERPOINT TWO

Appellant received effective assistance of counsel at trial. 

SUMMARY OF THE ARGUMENT

Appellant’s trial counsel was not ineffective for stipulating to Appellant’s 

jurisdictional prior.

ARGUMENT AND AUTHORITIES

As stated by the Supreme Court of the United States in Strickland v. 

Washington, 466 U.S. 668, 688-89 (1984), to show ineffective assistance of 

counsel, the defendant must first show a deficiency in trial counsel’s 

performance and then show the deficient performance prejudiced the 

defense to the extent that the defendant was deprived of a fair trial.

Judicial scrutiny of counsel’s performance must be highly deferential, 

and a fair assessment of attorney performance requires that every effort be 

made to eliminate the distorting effects of hindsight, to reconstruct the 

circumstances of counsel’s challenged conduct, and to evaluate the 

conduct from counsel’s perspective at the time. Strickland 466 U.S. at 688-
12

89; Ex Parte Kunkle, 852 S.W.2d 499, 505 (Tex. Crim. App. 1993). A court 

must indulge a strong presumption that counsel’s conduct falls within the 

wide range of reasonable professional assistance. Id. To show prejudice, 

the defendant has the burden of proving that there is a reasonable 

probability that, but for counsel’s errors, the result of the proceeding would 

have been different. Strickland 466 U.S. at 688-89. The defendant must 

also show harm sufficient to undermine confidence in the outcome of the 

trial. Id..

In determining whether counsel was ineffective at trial, the reviewing 

court “must presume that counsel is better positioned than the appellate 

court to judge the pragmatism of the particular case, and that he made all 

significant decisions in the exercise of reasonable professional judgment.” 

Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.—Houston [1st Dist.] 1994, 

pet. ref’d), citing Jackson v. State, 877 S.W.2d 768 (Tex. Crim. App. 1994). 

The Court went on to say “that only in a rare and egregious circumstance 

would a record on direct appeal suffice to rebut the presumption of sound 

trial strategy.” Kemp 892 S.W.2d at 115. 

Appellant filed a motion for new trial and a hearing was held on 

Appellant’s motion for new trial. (C.R. p. 38). Appellant did not seek to 
13

explore and develop this ineffectiveness claim at a hearing on motion for new 

trial. Appellant alleges that defense trial counsel was the former Assistant 

District Attorney that had prosecuted him on the prior assault case. This is 

not apparent from the record. (C.R.). State’s exhibit number 1, the judgment 

in Cause no. 00-01319, does not indicate that defense counsel Stephanie 

Goodman was the prosecutor. (R.R. Vol. 5 p. 7-8). In fact the face of the 

judgment indicates the case was prosecuted by the County Attorney’s Office, 

not the District Attorney’s Office. Id.

The Court is left without the specifics of the trial strategy employed by 

the defense in deciding to have Appellant plea true to the jurisdictional 

enhancement. In determining whether counsel was ineffective at trial, the 

reviewing court must presume that counsel made all significant decisions in 

the exercise of reasonable professional judgment. Kemp 892 S.W.2d at 

115, citing Jackson, 877 S.W.2d 768. The instant case is not one of those 

rare and egregious circumstances sufficient to rebut the presumption of 

sound trial strategy. The Appellant, while testifying during the guilt 

innocence phase of trial stated that he had prior convictions for assault and 

a “drug charge”. (R.R. Vol. 3 p. 99). During the appellant’s direct 

examination he also stated that he has pled guilty to assault family violence 
14

offenses before, but defendant did not plead guilty during guilt innocence 

because he “didn’t do it this time.” (R.R. Vol. 3 p. 94). This line of 

questioning helped draw a distinction between his prior guilty pleas and this 

case in which he had pled not guilty. The Appellant’s choice to stipulate to 

the jurisdictional prior could have been trial strategy. 

Appellant has not met his burden of affirmatively proving that trial 

counsel’s actions fell below an objective standard of reasonableness or that 

the actions were unsound trial strategy. Furthermore, Appellant has not 

met the burden of affirmatively proving prejudice to the Appellant due to 

any error of trial counsel.

Appellant had an opportunity to explore and develop his ineffectiveness 

claim at the hearing on his Motion for New Trial but failed to do so. 

Speculation is all there is in this case and that should not be enough to 

declare the work of an attorney ineffective. 

For the foregoing reasons, the State respectfully requests this Court 

overrule the Appellant’s Point of Error No. Two.
15

STATE’S COUNTERPOINT THREE

The evidence was factually or legally sufficient to convict Appellant.

SUMMARY OF THE ARGUMENT

The evidence was sufficient to sustain a conviction for Assault 

causing Bodily Injury to a family member enhanced with a prior assault 

family violence conviction. 

ARGUMENT AND AUTHORITIES

Due process requires that the State prove, beyond a reasonable 

doubt, every element of the crime charged. Byrd v. State, 336 S.W.3d 242, 

246 (Tex. Crim. App. 2011). In Texas, evidence to support a verdict is 

legally sufficient if viewed in a light most favorable to the verdict, the 

evidence, and all reasonable inferences therefrom would allow a rational 

trier of fact to find the essential elements of the crime beyond a reasonable 

doubt. Brooks v. State, 323 15 S.W.3d 893, 912 (Tex. Crim. App. 2010). 

The Court will review all the evidence in the light most favorable to the 

verdict and assume that the trier of fact resolved conflicts in testimony, 

weighed the evidence, and drew reasonable inferences in a manner that 
16

supports the verdict. Jackson v. Virginia, 443 U.S. 307, 318 (1979); Laster 

v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Matthews v. State, 

No. 03-13-00037-CR, 2014 Tex. App. LEXIS 13722, at *8,9 (Tex. App.—

Austin Dec. 23, 2014)(mem. op., not designated for publication). 

In determining the legal sufficiency of the evidence, the Court must 

consider all the evidence in the record, whether direct or circumstantial, 

properly or improperly admitted, or submitted by the prosecution or the 

defense. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 

2007); Moff v. State, 131 S.W.3d 485, 489-90 (Tex. Crim. App. 2004); Allen 

v. State, 249 S.W.3d 680, 688-89 (Tex. App.—Austin 2008, no pet.). 

The trier of fact, as the exclusive judge of the facts, is entitled to 

weigh and resolve conflicts in the evidence and draw reasonable 

inferences therefrom. Clayton, 235 S.W.3d at 778; see Tex. Code Crim. 

Proc. Ann. art. 38.04. Thus, when faced with a record of historical facts that 

supports conflicting inferences, a reviewing court must presume that the 

trier of fact resolved any such conflicts in favor of the verdict. Jackson v. 

Virginia, 443 U.S. at 326; Padilla v. State, 326 S.W.3d 195, 200 (Tex. Crim. 

App. 2010). Every fact does not need to point directly and independently to 

the guilt of the appellant, as long as the cumulative force of all the 

incriminating circumstances is sufficient to support the conviction. Allen 249 
17

S.W.3d at 689. The role of a court reviewing a sufficiency argument is not 

that of a fact finder but rather as a due process safeguard, ensuring only 

the rationality of the trier of fact's finding of the essential elements of the 

offense beyond a reasonable doubt. Allen 249 S.W.3d at 688. 

Appellant was found guilty of the offense of felony assault causing 

bodily injury to a family member enhanced with a prior assault family 

violence. The elements of the offense of Assault family violence under Tex. 

Penal Code Ann. § 22.01(b)(2)(A) are that Appellant intentionally, 

knowingly or recklessly caused bodily injury to a family or household 

member. Further under Tex. Penal Code Ann. § 22.01, to be punished as a 

felony offense, the State had to show that Appellant had a prior conviction 

for an offense under Tex. Penal Code Ann. § 22.01.

Appellant limits his sufficiency argument to the element of bodily 

injury. Bodily injury is defined in Tex. Penal Code Ann. § 1.07 as physical 

pain, illness, or any impairment of physical condition. "This definition 

appears to be purposefully broad and seems to encompass even relatively 

minor physical contacts so long as they constitute more than mere 

offensive touching." Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 

1989); Morales v. State, 293 S.W.3d 901, 907 (Tex. App.—Texarkana 

2009, pet. ref'd). "A fact finder may infer that a victim actually felt or 
18

suffered physical pain because people of common intelligence understand 

pain and some of the natural causes of it." Randolph v. State, 152 S.W.3d 

764, 774 (Tex. App.—Dallas 2004, no pet.). 

Dorothy Ortega stated during her testimony that when the defendant 

struck her that it hurt (R.R. Vol. 3 p. 31). Dorothy Ortega also stated that 

she had a red mark on her face from where the defendant struck her (R.R. 

Vol. 3 p.31). The trial court as trier of fact was the arbitrator of credibility 

and weight given to the evidence. Clayton, 235 S.W.3d at 778; see Tex. 

Code Crim. Proc. Ann. art. 38.04. The evidence presented to the trial court 

was sufficient to sustain Appellant’s conviction for Assault causing bodily 

injury to a family member enhanced with a prior assault family violence. 
19

PRAYER

WHEREFORE, the State prays this Court overrule all issues 

presented by Appellant and Affirm the Judgment of the trial court for the 

reasons stated herein.

Respectfully Submitted,

ALLISON PALMER

51ST DISTRICT ATTORNEY

___________________________

MEAGAN WHITE

Assistant District Attorney

51ST & 119th Judicial District

124 W. Beauregard, Suite B

San Angelo, Texas 76903

(325) 659-6583

TSB# 24060973

ATTORNEY FOR STATE
20

CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i), I hereby certify, 

based upon the computer program used to generate this brief, that this 

brief contains 2,761 words, excluding words contained in those parts of the 

brief that Rule 9.4(i) exempts from inclusion in the word count. I further 

certify that this brief is in a conventional 14-point typeface.

___________________________

MEAGAN WHITE

Assistant District Attorney

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Brief of 

State was electronically served on TODD L. ALVEY

(tlalaw@sbcglobal.net), P. O. Box 1815, Pampa, Texas 79066, counsel for 

Appellant on the 30th day of March 2015. 

___________________________

MEAGAN WHITE

Assistant District Attorney