No. 01 - 15 -00 394 - CR
In the Court of Appeals For the F irst District of Texas At Houston ♦ No. 1397723 In the 1 74th District Court

Of Harris County, Texas ♦ 

## HECTOR MARIO GONZALEZ Appellant V. 

## THE STATE OF TEXAS Appellee

♦ 

### STATE’S APPELLATE BRIEF ♦
D EVON A NDERSON

District Attorney Harris County, Texas J ESSICA A KINS

Assistant District Attorney Harris County, Texas State Bar Number: 24029415 akins_jessica@dao.hctx.net
A DAM B ROD RICK

Assistant District Attorney Harris County, Texas
H. C. C riminal Justice Center 1201 Franklin, Suite 600 Houston, Texas 77002 Telephone: 713.274.5826
ORAL ARGUMENT WAIVED ACCEPTED 01-15-00394-CR FIRST COURT OF APPEALS

HOUSTON, TEXAS 10/29/2015 6:26:13 PM CHRISTOPHER PRINE

CLERKSTATEMENT REGARDING ORAL ARGUMENT

Pursuant to T EX

. R. A PP

. P. 9.4(g) and T EX

. R. A PP

. P. 39.1 , the State waives oral argument . Appellant did not include a statement regarding oral argument in his appellate brief , nor did he include it on the front cover of his brief

.

IDENTIFICATION OF THE PARTIES

Pursuant to T EX

. R. A PP

. P. 38.2( a)(1)(A) , a complete list of the names of all interested parties is provided below.

Victim : Eloy Canales Counsel for the State:

Devon Anderson

 District Attorney of Harris County Jessica Akins

 Assistant District Attorney on appeal Adam Brodrick

 Assistant District Attorney at trial Appellant or criminal defendant:
Hector Mario Gonzalez Counsel for Appellant: Sidney Crowley

 Counsel on appeal R.P. “Skip” Cornelius

 Counsel at trial Trial Judge:
Honorable Ruben Guerrero

 Presiding Judge

iTABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT

................................ .......................... i
IDENTIFICATION OF THE PARTIES

................................ ................................ ................ i
INDEX OF AUTHORITIES

................................ ................................ ................................ ... iii
STATEMENT OF THE CASE

................................ ................................ ................................ . 1
STATEMENT OF FACTS

................................ ................................ ................................ ........ 1
SUMMARY OF THE ARGUMENT

................................ ................................ ..................... 3
REPLY TO APPELLANT’S SOLE ISSUE

................................ ................................ ............. 3 Appellant has not shown he was harmed by the trial court’s failure to admonish him on the range of punish ment prior to his guilty plea. CONCLUSION

................................ ................................ ................................ .......................... 7
CERTIFICATE OF SERVICE

................................ ................................ ................................ 8
CERTIFICATE OF COMPLIANCE

................................ ................................ ..................... 8

iiINDEX OF AUTHORITIES

CASES
Aguirre

– Mata v. State , 992 S.W.2d 495 (Tex. Crim. App. 1999)

................................ ................................ .......... 3 Manoy v. State, 7 S.W.3d 771 (Tex. App.

— Tyler 1999, no pet.)

................................ ................................ ................................ ............ 4, 6 McLaren v. State, 996 S.W.2d 404 (Tex. App.

— Beaumont 1999, pet. re f’d)

................................ ................................ ................................ ... 5 Rachuig v. State
, 972 S.W.2d 170 (Tex. App.

— Waco 1998, pet. ref’d)

................................ ................................ ................................ .......... 5 Raney v. State , 958 S.W.2d 867 (Tex. App.

— Waco 1997, pet. dism’d)

................................ ................................ ................................ ....... 4
STATUTES

T EX

. C ODE C RIM

. P ROC

. A NN

. art. 26.13(a)(1) (West 2013)

................................ ................................ ................................ 3

RULES

T EX

. R. A PP

. P. 38.2( a)(1)(A)

................................ ................................ ................................ ..... i T EX

. R. A PP

. P. 39.1

................................ ................................ ................................ ....................... i T EX

. R. A PP

. P . 44.2(b)

................................ ................................ ................................ ........... 4, 6 T EX

. R. A PP

. P. 9.4(g)

................................ ................................ ................................ .................. i

iiiTO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE Appellant was charged by indictment with the felony offense of aggravated robbery. ( CR 9 ). After a jury was impaneled , he p led guilty to the offense

. (CR
37 ; RR III 3 - 5 ). The jury found the enhancement paragraph true and sentenced appellant to 3 0 years confinement in the Institu tional Division of the Texas Department of Criminal Justice

. ( CR 46, 49 ).

       ♦

      

STATEMENT OF FACTS

On the aftern o on of August 11, 2013, the vic tim i n this case, Eloy Canales,
went to a local car wash . (RR IV 11 - 15 , 31 ). He parked his car and was utilizing
one of the sp ray n ozzles to clean out some containers when he saw a truck drive

up. (RR IV 14 - 15 ). Appellant jumped out of the tru ck and approached Eloy holding a shot gun. (RR IV 16
- 18 ; State ’ s Exhi bit Number 1 ). Appellant racked the shotgun and placed it on Eloy ’ s chest ; appellant instructed E l oy to give him his cell phones, wallet an d car keys, which he did. (RR IV 20
- 21 ). Appellant th rew his car keys in the street before fleeing the sce ne, enabling El o y to drive home and call the police. (RR IV 21
- 22).Officer R o hm met with E l oy and obtained the suspect and vehicle
des criptions from him. (RR IV 27
- 3 1). Based on t his information
, Officer M i tchell located appellant
, who initially evaded and fought him; Mitchell eventually apprehended appellant a nd he was identified by Eloy Canales. (RR IV 37 , 85 - 117 ;
State ’ s Exhi bit Number 1 )

. P o lice learned that appellant had committed two other si milar aggravated
robberies on this same day
, where he approached individuals at public p laces,
threatened them with a shotgun and d emanded their property

. (RR IV 42
- 51, 54 - 61, 69 - 79; State ’ s Exhi bit Number 1). These vict ims were able to identify appellant as the perpetrator. (RR IV 48, 61 ; State ’ s Exhibit Number 1 ). The stolen property of E loy Canales, as well as the other vic tims, was found inside appel l a nt ’ s truck. (RR IV 107 - 1 11 ). A shotgun and sho tgun shells were also located inside appel lant ’ s truck. (RR IV 116).
The State presented evidence of another extrane ous aggravated robbery, committed against Olga Rubalca v a. (RR V 3
- 1 4 ). She identified appellant in court as the perpetrator and testified he threate ned her family with a shotgun and took their property. (RR V 9 - 13). The State also presented evidence that appel lant was previously convicted of robbery, in the 180th District Court of Harris , on September 23, 2011, in Cause Number 1292654

. (RR IV 3 , 6 - 7 ; State ’ s Exhibit
Number s 51 & 55). Appellant testified that he did not commit this robbery, but

2admitted he p led guilty. (RR V 33 - 3 7 , 53 - 55 ; State ’ s Exhibit Number 51 ). Appellant also admitted he committed the three aggravated robberies on August 11, 2013, as well as other robberies, but he could not re call them all due to his drug use. (RR V 59 - 6 3 ).

       ♦

      

SUMMARY OF THE ARGUMENT Appellant has not shown he was harmed by the trial court ’ s failure to admonish him on the range of punishm ent prior to his guilty plea.

       ♦

      

REPLY TO APPELLANT’S SOLE ISSUE

In h is sole issue on appeal, appellant claims the trial court erred by failing to
admonish him on the full range of punishment prior to his guilty plea. There is no

i n dication in the record that verifies the trial court admonis hed appellant of the range of punishment as required by Article 26.13. See T EX

. C ODE C RIM

. P ROC

. A NN

.

art. 26.13 (a)(1) ( West 2013)

. A trial court’s error in failing to show on the record that it admonished a guilty
- pleading defendant on the range of punishment is non
- constitutional error, subject to the harm ana lysis under Rule 44.2(b)

. See Aguirre

– Mata v. State , 992 S.W.2d 495, 499 (Tex. Cr im

. App. 1999) (admonishments embodied in Article

326.13(a), Texas Code of Criminal Procedure, are not constitutionally required) ;
T EX

. R. A PP

. P . 44.2(b) (i f the error does not affect the appellant’s substantial rights, it must be disregarded ). In determining whether a failure to comply with statutory admonishm ent requirements affected appellant ’ s substantial rights, this Court should review the
entire record for informati on showing whether the plea was voluntary and uncoerced, as well as information revealing appellant ’ s knowledge and understanding of the charges against him and the consequences of his plea

. See
Manoy v. State, 7 S.W.3d 771, 776 (Tex. App.

— Tyler 1999, no pet.)

. To show harm,

a ppellant must prove the information contained in the admonishment would likely have affected his willingness to plead guilty. See Raney v. State , 958 S.W.2d

86 7, 874 (Tex. App.

— Waco 1997, pet. dism ’ d)

. At the time appellant indicated to the trial court he was going to plead guilty, defense counsel assured the trial court that he had talked with appellant about the puni shment phase at length and discussed the implication s of the

numerous extran eous off enses with appellant

. (RR II 3 - 5 ). Afterward, the parties proceeded with voir dire, and then appellant pled guilty to the jury. (RR II 4; RR

III 3 - 5).
A lthough the trial court did not admonish appellant on the range of punishment prior to his guilt y plea, this information was prevalent th rough out the

4record. D uring voir dire, the prosecutor for the State talked to the panel about the range of punishment in this particular case. (RR II 28
- 29). He explained the minimum punishment for aggravated robbery was five years and the maximum punishment was 99 years or life impris onment and asked each juror if they could consider the full range of punishment. (RR II 28
- 34 ). Defense counsel then expanded upon this subject during voir dire, reiterating that the range of punishment in this case was 5
- 99 years or life imprisonment, and depending on the circumstances, possibly 15 years to life imprisonment. (RR II 78).

Statement s by the prosecutor and defense counsel during voir dire , prior to
a defend ant ’ s guilt y plea, have been used to demonstrate a defendant had knowledge of the range of punishment in his case. See McLaren v. State, 996 S.W.2d 404, 406 (Tex. App.

— B eaumont 1999 , pet. ref ’ d) (trial court ’ s failure to admonish
defendant on the range of punishment did not affect his substantial rights where
the record of the voir dire examination affirmatively show ed defendant had
knowled ge of the applicable punishment range prior to the entry of his plea ) ; Rachuig v. State , 972 S.W.2d 170, 176 (Tex. App.

— Wac o 1998, pet. ref ’ d) (record indicated defendant had full knowledge of the applicable range of punishment where such was stated during v oir dire)

. I n closing argument, defense counsel urged the jury to fin d the enhancement allegat ion not true, which would triple the minimum of 5 years t o 15 years, based

5on appellant ’ s testimony that he did not commit th e robbery . (RR V 88 - 89). The State asked the jury for a sentence of life imprisonment, based on the number and severity of the robberies committed by appellant

. (RR V 91
- 97 ). T he range of punis hment was included in the court ’ s charge to the jury, which was read in the presence of a ppellant. (CR 39 - 40). See Mano y , 7 S.W.3d a t 776 ( e rror in trial court ’ s failure to admonish defendant of punishment range prior to accepting guilty plea
to first
- degree felony of aggravated robbery was harmless, where record showed
that defendant was info rmed of applicable punishment range before jury retired to consider its verdict, and defendant did not show that his willingness to plead guilty would have been affected had he been properly admonished )

. The jury found the prior enhancement true and sentenced appellant to 30 years imprisonment. (RR V 97 - 98 ). This sentence is on the lower end of his range
of punishment
, 15 - 99 years. T he evidence of appellant ’ s guilt on the charge d
offe nse , as well as the extra neous off enses , was strong. Appel lant has not show n the information regarding the range of punishment would have affected his willingness to plead guilty. Thus , the trial

court ’ s error is harmless. T EX

. R. A PP

. P . 44.2(b)

. Appellant’s sole issue should be
overruled.

       ♦

      

6CONCLUSION It is respectfully submitted that all things are regular and that the
conviction should be affirmed.

D EVON A NDERSON District Attorney Harris County, Texas

/s/ 

# Jessica Akins

J ESSICA A KINS Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 State Bar Number: 24029415 akins_jessica@dao.hctx.net

7CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing instrument has been sent to appellant’s attorney at the following address on October 29, 2015 : Sidney Crowley Attorney at Law 214 Morton Street Richmond, Texas 77 469 jcrowl@windstream.net

/s/ 

# Jessica Akins

J ESSICA A KINS Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 State Bar Number: 24029415 akins_jessica@dao.hctx.net

CERTIFICATE OF COMPLIANCE
Th is is to certif y that this computer
- generated doc ument has a word count of 18 6 7 words, based upon the representation provided by the word processing program that was used to create the document.

/s/ 

# Jessica Akins

J ESSICA A KINS Assistant District Attorney Harris County, Texas

8