                                                                                      ACCEPTED
                                                                                  02-17-00225-CR
                                                                       SECOND COURT OF APPEALS
                                                                             FORT WORTH, TEXAS
                                                                               12/20/2017 2:07 PM
                                                                                   DEBRA SPISAK
                                                                                           CLERK

                          No. 02-17-00225-CR
                 ____________________________________
                                                            FILED IN
                                                     2nd COURT OF APPEALS
                  IN THE COURT OF APPEALS FOR THE FORT WORTH, TEXAS
                      SECOND DISTRICT OF TEXAS       12/20/2017 2:07:34 PM
                 ____________________________________ DEBRA SPISAK
                                                              Clerk

                      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
                   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

                                           ii
      Tarrant County Criminal
      District Attorney’s Office
      401 W. Belknap
      Fort Worth, TX 76196



      /s/ Colin T. McLaughlin
      Colin T. McLaughlin




iii
                                        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



                                                           iv
CERTIFICATE OF COMPLIANCE .......................................................................12




                                                 v
                                    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




                                                        vi
                            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]”




                                       vii
                          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.




                                          1
                               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.




                                         2
                            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.

                                          3
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.




                                          4
                        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.




                                            5
                                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

                                          6
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.


                                           7
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.


                                           8
      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.

                                         9
                                      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




                                         10
                         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




                                        11
                    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




                                       12
