                                                                                        PD-1039-14
                                                                       COURT OF CRIMINAL APPEALS
                                                                                        AUSTIN, TEXAS
March 12, 2015                                                       Transmitted 3/11/2015 3:54:30 PM
                                                                       Accepted 3/12/2015 9:11:00 AM
                                                                                         ABEL ACOSTA
                                   NO. PD-1039-14                                                CLERK




                   In the Court of Criminal Appeals of Texas


                          JOSE GUADALUPE RODRIGUEZ ELIZONDO,
                                      APPELLANT

                                              V.

                                      STATE OF TEXAS,
                                         APPELLEE


                           ON PETITION FOR DISCRETIONARY REVIEW
                               FROM CAUSE NO. 13-12-00028-CR
                            IN THE THIRTEENTH COURT OF APPEALS,
                             REVIEWING CAUSE NO. CR-3485-10-I
                     TH
                  398 JUDICIAL DISTRICT COURT OF HIDALGO COUNTY, TEXAS
                        HON. LINDA R. YAÑEZ PRESIDING BY ASSIGNMENT


         APPELLANT’S UNOPPOSED MOTION FOR LEAVE TO
          AMEND PETITION FOR DISCRETIONARY REVIEW

      TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

                 Appellant, Jose Guadalupe Rodriguez Elizondo, respectfully requests

      leave to amend his petition for discretionary review to correct an error and

      respectfully shows:

                 On September 29, 2014, Appellant filed a petition for discretionary

      review. On January 28, 2015, the Court granted Appellant’s petition for
discretionary review and requested briefing on the merits on the second and

third grounds for review, relating to sufficiency of the evidence and jury

charge errors.

       While preparing Appellant’s Brief on the Merits, the undersigned

counsel, for the first time, recognized an error in the court of appeals’

decision that was inadvertently carried forward in Appellant’s petition for

discretionary review. Appellant requests leave to correct that error in the

petition. Appellant has conferred with counsel for the State of Texas, who

has indicated that the State is not opposed to the relief requested in this

motion.

       In the court of appeals below, Appellant raised five jury charge errors.

Specifically, one of the errors Appellant raised below was that the jury

charge erroneously instructed the jury that if it found that Appellant

provoked an altercation, it should find the defendant “guilty of murder.”

Appellant’s Brief at p. 45. In the statement of facts, Appellant informed the

court of appeals that this error was not objected to in the trial court.

Appellant’s Brief at p. 20. Appellant argued in his brief that “[t]he jury

should have been instructed, however, that if it found provocation, it should

reject self-defense.” Appellant’s Brief at p. 45. Because of the unobjected-




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to charge error, the undersigned counsel argued that Appellant suffered

egregious harm under the Almanza standard. Appellant’s Brief at 42, 47.

       The Appellant’s Brief was filed in the Thirteenth Court of Appeals on

October 12, 2012. The Thirteenth Court of Appeals issued its decision in the

case on January 16, 2014. In the court’s opinion, the Thirteenth Court of

Appeals erroneously concluded that Appellant’s trial counsel objected to the

jury charge and purported to quote the objection: “At trial, Elizondo argued

that ‘the jury should have been instructed, however, that if it found

provocation, it should reject self-defense.’” Elizondo v. State, No. 13-12-

00028-CR, 2014 WL 222834, at *9 (Tex. App.—Corpus Christi Jan. 16,

2014, pet. granted).

       The undersigned counsel prepared motions for rehearing and for

reconsideration en banc, but did not notice this error in the Thirteenth Court

of Appeals’ opinion. The undersigned counsel likewise did not recognize

the error when preparing Appellant’s Petition for Discretionary Review. As

a result, the Petition states: “Defense counsel did object to this error, but

again, while the court of appeals agreed that the instruction was erroneous,

the court found no harm. Elizondo, 2014 WL 222834, at *9.”                The

undersigned counsel, relying on the court of appeals opinion and not




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recognizing the error, inadvertently carried the error forward into the petition

for discretionary review.

                  It was not until preparing the brief on the merits that the undersigned

counsel recognized that the court of appeals erred in determining that this

particular charge error was preserved by objection in the district court. As a

result, the error was repeated in the petition for discretionary review.

                  While preservation of the error changes the degree of harm that must

be shown from the erroneous jury charge, the factors for analyzing that harm

are the same.1 And, “[n]either party bears the burden on appeal to prove

harm or harmlessness.”2 Despite the error, the argument Appellant raises

will be essentially the same: whether under a standard of “some harm” or

“egregious harm,” the court of appeals wholly failed to consider the

Almanza factors.                                             See Petition for Discretionary Review at 14 (“In

addressing these two charge errors, while paying lip service to the applicable




	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
                                                      1
                                                                 Villarreal v. State, No. PD-0332-13, 2015 WL 458146, at *3 (Tex. Crim. App.
Feb. 4, 2015) (analyzing Almanza factors when reviewing for egregious harm); Vogel v.
State, No. PD-0873-13, 2014 WL 5394605, at *4 (Tex. Crim. App. Sept. 17, 2014)
(analyzing Almanza factors when reviewing for “some harm”); Reeves v. State, 420
S.W.3d 812, 817 (Tex. Crim. App. 2013) (same); Bailey v. State, 867 S.W.2d 42, 43
(Tex. Crim. App. 1993) (“Rather, every charge error must be assessed in light of ‘the
entire jury charge, the state of the evidence, including the contested issues and weight of
probative evidence, the arguments of counsel and any other relevant information revealed
by the record of the trial as a whole.’”).
                                                      2
                                                                 Vogel, 2014 WL 5394605, at *4.

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standard of review, the court of appeals did not engage in any analysis at

all.”).

          However, the undersigned counsel believes that to comply with her

duty of candor to this Honorable tribunal, the error must be corrected in her

petition for discretionary review. The undersigned profusely apologizes for

the oversight. The undersigned counsel will address the proper standard of

review in Appellant’s brief on the merits.

          For all the foregoing reasons, Appellant’s undersigned counsel

respectfully apologizes for the error in Appellant’s petition for discretionary

review and requests leave to amend the petition. A copy of the amended

petition is being filed concurrently with this motion.


                                        Respectfully submitted,

                                        /s/ Brandy Wingate Voss
                                        Brandy Wingate Voss
                                        State Bar No. 24037046
                                        SMITH LAW GROUP, P.C.
                                        820 E. Hackberry Ave.
                                        McAllen, TX 78501
                                        (956) 683-6330
                                        (956) 225-0406 (fax)
                                        brandy@appealsplus.com

                                        Counsel for Appellant




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                   CERTIFICATE OF CONFERENCE

       I certify that on March 11, 2015, I conferred with John Messinger and

Michael Morris, counsel for Appellee the State of Texas, who informed me

that the Appellee does not oppose the relief requested in this motion.

                                              /s/ Brandy Wingate Voss
                                              Brandy Wingate Voss


                      CERTIFICATE OF SERVICE
       I certify that on March 11, 2015, in compliance with Texas Rule of

Appellate Procedure 9.5, I served this document on the following counsel of

record by electronic mail and/or by facsimile:

       Lisa C. McMinn
       John R. Messinger
       State Prosecuting Attorneys
       Office of State Prosecuting Attorney of Texas
       P. O. Box 13046
       Austin, Texas 78711-3046
       Fax: (512) 463-5724

       Ted Hake
       Michael Morris
       Assistant District Attorney
       Appeals Section
       Office of Criminal District Attorney
       Hidalgo County, Texas
       100 N. Closner, Rm 303
       Edinburg, Texas 78539
       Fax: (956) 380-0407
       ted.hake@da.co.hidalgo.tx.us
       michael.morris@da.co.hidalgo.tx.us

                                              /s/ Brandy Wingate Voss
                                              Brandy Wingate Voss


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