                                                                          PD-0740-15
                                                        COURT OF CRIMINAL APPEALS
                                                                         AUSTIN, TEXAS
                                                        Transmitted 7/17/2015 6:04:44 PM
                                                          Accepted 7/22/2015 2:45:10 PM
                                                                          ABEL ACOSTA
                                                                                  CLERK
                    CAUSE NO. PD-0740-15
         ____________________________________________

             IN THE COURT OF CRIMINAL APPEALS
                        AUSTIN, TEXAS
         ____________________________________________

                    THE STATE OF TEXAS

                     Respondent/ Appellant

                              v.

                        VANDA VIGIL

                      Petitioner/ Appellee
_____________________________________________________________

      FROM THE COUNTY COURT AT LAW NUMBER SEVEN
               TRIAL COURT NO. 20120C10835

     THE COURT OF APPEALS EIGHTH DISTRICT OF TEXAS
                     NO. 08-13-00273-CR
____________________________________________________________

     AMENDED PETITION FOR DISCRETIONARY REVIEW
_____________________________________________________________


                            WILLIAM W. NAVIDOMSKIS
                            Counsel for Petitioner,Vanda Vigil
                            701 St. Vrain
                            El Paso, Texas 79902
                            Tel: (915) 730-8644
  July 22, 2015             Fax: (915) 975-8028
                            SBN 24053384

                            defense@weslawyer.com
             IDENTITY OF JUDGE, PARTIES, AND COUNSEL

PETITIONER: Vanda Vigil, represented in Trial and on Appeal by:

William W. Navidomskis
711 Myrtle Street
El Paso, Texas 79901

RESPONDENT: The State of Texas represented Appeal by:

Jaime Esparza, District Attorney
Ronald Banerji, Assistant District Attorney
500 E. San Antonio
El Paso, Texas 79901

Trial Counsel:

Jaime Esparza, District Attorney
Alejandro Cuellar, Assistant District Attorney
Sarah Rogness, Assistant District Attorney
Patrick Sloan, Assistant District Attorney
500 E. San Antonio
El Paso, Texas 79901

TRIAL COURT: County Court at Law Number Seven, El Paso, Texas, the
Honorable Tom Spieczny, Presiding.




                                         i
                                        TABLE OF CONTENTS

IDENTITY OF JUDGE, PARTIES, AND COUNSEL..............................................i

TABLE OF CONTENTS.....................................................................................ii, iii

INDEX OF AUTHORITIES.................................................................................iv, v

STATEMENT REGARDING ORAL ARGUMENT.................................................1

STATEMENT OF THE CASE AND.........................................................................1

STATEMENT OF PROCEDURAL HISTORY........................................................1

GROUNDS PRESENTED.........................................................................................2

ARGUMENT..............................................................................................................3

1.       The court of appeals’ ruling that the evidence supporting a conviction is legally
         sufficient whenever the trier of fact believes the testimony of the victim alone
         conflicts with decisions of the United States Supreme Court..........................3

2.       By treating the legal sufficiency test of whether “any rational trier of fact could
         have found the essential elements of the offense beyond a reasonable doubt”
         as established whenever the victim’s testimony alone is believed by the trier
         of fact, the court of appeals has decided a case which conflicts with decisions
         of the United States Supreme Court and with decisions of this Court...........6

3.       The court of appeals’ decision to vacate the trial court’s order granting a new
         trial on legal insufficiency grounds when there were no eyewitnesses
         connecting Petitioner Vigil to the assault and the State confessed error on this
         point conflicts with applicable decisions of this Court ...................................9

4.       The court of appeals’ ruling that a reviewing court can “infer” that a defendant
         is a primary actor in an assault case involving multiple assailants without
         identifying the specific conduct the defendant engaged in conflicts with
         applicable decisions of this Court ..................................................................11

                                                          ii
5.       The court of appeals’ determination that the manner and means paragraphs
         alleged in a charging instrument which are descriptive of an essential element
         of the charged offense are mere surplusage conflicts with applicable decisions
         of this Court.......................................................................................................14

6.       The court of appeals departed from the Jackson v. Virginia legal sufficiency
         test by measuring the sufficiency of the evidence against a charge which was
         hypothetically incorrect because it failed to consider the manner and means
         allegations of the charging instrument ...........................................................16

7.       The court of appeals’ treatment of the manner and means paragraphs of a
         charging instrument as mere surplusage conflicts with decisions of the U.S.
         Supreme Court which require a charging instrument to provide a defendant
         with fair and adequate notice of the offense charged.......................................18

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

CERTIFICATE OF COMPLIANCE.........................................................................21

CERTIFICATE OF SERVICE..................................................................................21

APPENDIX................................................................................................................22




                                                             iii
                               INDEX OF AUTHORITIES


FEDERAL CASES                                                                       PAGES

Hamling v. United States, 418 U.S. 87, 117 (1974)................................................19

Jackson v. Virginia, 443 U.S. 307, 318-319 (1979)........................4, 5, 6, 7, 8, 9, 16

McKoy v. North Carolina, 494 U.S. 433, 449 (1990).............................................18

Schad v. Arizona, 501 U.S. 634 (1991) (plurality opinion)....................................18

STATE CASES

Adames v. State, 353 S.W.3d 854 (Tex. Crim. App. 2011).....................................17

Durham v. State, 16 S.W.2d 1092, 1095 (Tex. Crim. App. 1929)..........................13

Gomez v. State, No. 08-10-00276-CR, 2012 WL 390970 at *8)..........................7, 8

Hall v. State, 225 S.W.3d 524, 536 (Tex.Crim.App.2007).....................................15

Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim. App.2007).......................................7

Isassi v. State, 330 S.W.3d 633, at 638 (Tex.Crim. App. 2010)...............................5

Jefferson v. State, 189 S.W.3d 305 (Tex.Crim.App. 2006).....................................18

Lucio v. State, 351 S.W.3d 878, 894 (Tex.Crim.App. 2011)....................................6

Malik v. State, 956 S.W.2d 234 (Tex.Crim.App. 1997)....................................16, 17

McCuin v. State, 505 S.W.2d 827, 830 (Tex. Crim. App. 1974)............................13

Ransom v. State, 920 S.W.2d 288, 301-302(Tex. Crim. App. 1994)......................12


                                                iv
Saldano v. State, 70 S.W.3d 873, 884 (Tex.Crim.App. 2002)................................11

Sanchez v. State, 376 S.W.3d 767, 772 (2012).......................................................16

Schmidt v. State, 278 S.W.3d 353 (Tex.Crim.App. 2009)......................................15

Stuhler v. State, 218 S.W.3d 706 (Tex. Crim. App. 2007)......................................18

Williams v. State, 235 SW 3d 742 (Tex. Crim.App. 2007).......................................7




                                                  v
              STATEMENT REGARDING ORAL ARGUMENT

      Petitioner, Vanda Vigil, hereby waives oral argument.



                          STATEMENT OF THE CASE

      This petition concerns the decision of the court of appeals to vacate and set

aside a trial court’s order granting a new trial after the Petitioner, Vanda Vigil, was

convicted of the criminal offense of Class “A” assault. Vigil based her motion for

new trial in part on allegations that the evidence was legally insufficient to support

the verdict. After conducting a hearing on Petitioner’s motion for new trial and

hearing argument from both the State and Defense, the trial court granted Vanda

Vigil’s motion for new trial.



                STATEMENT OF PROCEDURAL HISTORY

1.    The court of appeals handed down its opinion on May 15, 2015.

2.    No motion for rehearing was filed.




                                       Page -1-
                 QUESTIONS PRESENTED FOR REVIEW

1.   Did the court of appeals err in holding that it is well-established rule or test of
     legal sufficiency that the victim’s testimony alone, if believed, is legally
     sufficient to support a conviction?

2.   Did the court of appeals err in treating the Jackson v. Virginia legal sufficiency
     test of whether “any rational trier of fact could have found the essential
     elements of the offense beyond a reasonable doubt” as established whenever
     the victim’s testimony is believed by trier of fact?

3.   Was it proper for the court of appeals to disregard the trial court’s order
     granting a new trial on legal insufficiency grounds when there were no
     eyewitnesses connecting Petitioner Vigil to the alleged assault, especially since
     the State confessed error on this point?

4.   Was it error for court of appeals to rule that a reviewing court can “infer” that
     a defendant was a primary actor in any assault involving multiple assailants
     without identifying the specific conduct which was engaged in by that
     defendant?

5.   Did the court of appeals err by treating the manner and means paragraphs
     alleged in the charging instrument as mere surplusage, when these allegations
     were descriptive of an essential element of the charged offense?

6.   Did the court of appeals depart from the Jackson v. Virginia legal sufficiency
     test by measuring the sufficiency of the evidence against a charge which was
     hypothetically incorrect because it failed to take into consideration the manner
     and means allegations of the charging instrument?

7.   Can a court of appeals treat the manner and means paragraphs set out in a
     charging instrument as mere surplusage when decisions of the U.S. Supreme
     Court which require a charging instrument provide a defendant with fair and
     adequate notice of the offense charged?




                                       Page -2-
                                     ARGUMENT

1.      The court of appeals’ ruling that the evidence supporting a conviction is
        legally sufficient whenever the trier of fact believes the testimony of the
        victim alone conflicts with decisions of the United States Supreme Court

        Petitioner, Vanda Vigil, was convicted after a jury trial for Class “A” assault.

The complaining witness, Elizabeth Jimenez, testified that she was attempting to exit

Coconut’s Bar when she was attacked from behind by Petitioner Vigil and Vigil’s

daughter, Alexis Gonzalez. RR 3, 10. Jimenez was asked by the prosecutor, “How

did they attack you?” (Id.), and replied:

     As I was leaving, I felt Alexis grabbing for my right breast, I guess, and she
     started hitting me on my head, and then Vanda got in and started pulling my
     hair and hitting me on the head. And that’s when I fell. RR 3,10.

When asked, “Did you fight back at all?”, Jimenez replied: “I – I wasn’t even able to.

I did not even see them attacking me.” Id. Jimenez testified that right after she fell to

the floor a bouncer separated her from her attackers. Jimenez’ cousin, Cecilia

Archuleta, was also present in Coconuts’ bar. Id. Like Jimenez, Archuleta failed to

link Vigil to the assault and commented that “It all happened so quick.” RR 3, 26-29.

        Stephanie Chavez, a defense witness, testified that she did not see Vigil pull

anyone’s hair, punch anyone, or engage in any violence. RR 3, 73. Petitioner Vigil

also took the stand. She testified that she had witnessed Jimenez instigate the matter

with her daughter, Alexis Gonzalez, by calling her daughter a “disgusting lesbian”

                                         Page -3-
and then pushing her daughter. RR 3, 81-82. Vigil indicated the pushing incident

between Jimenez and her daughter resulted in the two falling to the floor, at which

time a bouncer intervened and separated them. RR 3, 83. Vigil testified that the entire

incident “happened like seconds. It was literally seconds” and that she did not strike

or injure Jimenez in any way, but only approached “to go help [her] daughter get up,

try to separate her, or something.” RR 3, 83.

      On page 6 of its opinion, the court of appeals acknowledges Vigil’s contention

that the evidence was legally insufficient as to (1) the identity of Vigil as the

perpetrator of the Class “A” assault offense; and (2) the causation element of this

alleged offense. But on the next page of its opinion, it rejects Vigil’s contention that

the evidence was legally insufficient as to the identity element:

   We agree with Vigil that, from a direct evidence standpoint, the identity issue
   ultimately boils down to a he-said, she-said dispute turning on the testimony
   of a single witness: Jimenez. However, it is well-established that the victim’s
   testimony alone, if believed, is legally sufficient to support a conviction. See
   Gomez v. State, No. 08-10-00276-CR, 2012 WL 390970, at *8 (Tex.App.–El
   Paso Feb. 8, 2012, no pet.) (not designated for publication).

      This analysis conflicts with the analysis adopted by the Supreme Court in

Jackson v. Virginia, 443 U.S. 307, 318-319 (1979), wherein the following legal

sufficiency test was created: “Instead, the relevant question is whether, after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact



                                        Page -4-
could have found the essential elements of the crime beyond a reasonable doubt.” Id.,

at 319 (emph. added). Under Jackson, a reviewing court is not permitted to forego

review of the evidence for legal sufficiency merely because the trier of fact believed

the victim of a crime. A reviewing court is obligated to determine whether any

rational trier of fact could find all of the essential elements of the offense charged

beyond a reasonable doubt.

            The court of appeals asserts on page 7 of its opinion that it cannot act as

a “thirteenth juror” and cites to case law applicable to a factual sufficiency review.

(See Isassi v. State, 330 S.W.3d 633, at 638 (Tex.Crim. App. 2010). But this case

authority is inapplicable to Vigil’s case because Vigil has raised a legal sufficiency

challenge to her conviction -- not a factual sufficiency challenge. Under a legal

sufficiency analysis, the court of appeals should have found the evidence legally

insufficient because Jimenez readily admitted that she did not observe either Vigil

or the other alleged assailant strike her or injure her in any way. When asked if she

had fought back after being attacked from behind, Vigil testified, “I wasn’t even able

to. I did not even see them attacking me.” RR 3, 10.

      There is no basis for the court of appeals’ holding that if a victim’s testimony

is believed by the trier of fact, the legal sufficiency of evidence cannot be challenged.

Under Jackson v. Virginia, no such requirement is imposed. The only inquiry is

                                        Page -5-
whether any rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt.

2.      By treating the legal sufficiency test of whether “any rational trier of fact
        could have found the essential elements of the offense beyond a reasonable
        doubt” as established whenever the victim’s testimony alone is believed by
        the trier of fact, the court of appeals has decided a case which conflicts
        with decisions of the United States Supreme Court and with decisions of
        this Court


         On page 6 of its opinion the court of appeals set forth the following test for

determining whether the evidence was legally sufficient to support a conviction:

     In determining whether the evidence is legally sufficient to support a
     conviction, a reviewing court must consider all of the evidence in the light
     most favorable to the verdict and determine whether, based on that evidence
     and reasonable inferences therefrom, a rational fact finder could have found the
     essential elements of the crime beyond a reasonable doubt.


It then cited to Lucio v. State, 351 S.W.3d 878, 894 (Tex.Crim.App. 2011) and to

Jackson v. Virginia, 443 U.S. 307, 318-319 (1979) as authority for this legal

sufficiency test. But on the next page of its opinion, it substituted the following legal

sufficiency test for the Jackson legal sufficiency test in addressing Vigil’s legal

sufficiency challenge to the identity element of the assault offense charged:

“However, it is well-established that the victim’s testimony alone, if believed, is

legally sufficient to support a conviction.” As support for this version of the legal



                                         Page -6-
sufficiency test, the court of appeals cited to its unpublished decision in Gomez v.

State, No. 08-10-00276-CR, 2012 WL 390970 at *8).

    The U.S. Supreme Court held that the test of legal sufficiency is “whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, at 319 (1979). In Jackson, the Supreme

Court did not attach any significance to whether the eyewitness to an alleged offense

is the alleged victim or a mere observer. Nor did it attach any significance to whether

or not the trier of fact believed the alleged victim’s testimony. It did not attempt to

identify any type of evidence which was inherently credible or would withstand a

legal sufficiency challenge. Since Jackson was decided, the Supreme Court has not

once carved an exception to or otherwise modified the legal sufficiency test it created.

The test of legal sufficiency is and remains the same.

      The same is true of this Court’s analysis. Based on the Jackson test, it has

stated, "...we consider all of the evidence in the light most favorable to the verdict and

determine whether, based on that evidence and reasonable inferences therefrom, a

rational juror could have found the essential elements of the crime beyond a

reasonable doubt.” Williams v. State, 235 SW 3d 742 (Tex. Crim.App. 2007); Hooper

v. State, 214 S.W.3d 9, 13 (Tex.Crim. App.2007).

                                         Page -7-
     Although the court of appeals in this case purports to apply the legal sufficiency

test the Supreme Court created in Jackson v. Virginia, it actually created an entirely

different test. It notes that its earlier unpublished decision in Gomez v. State, supra,

held that a crime victim’s testimony alone, if believed, establishes that the evidence

legally sufficient to support a conviction. But the Gomez case, like this case, was

wrongly decided. The court of appeals’ erroneously held that its test (i.e. that the

victim’s testimony alone, if believed, is legally sufficient to support a conviction) is

the same as the Jackson legal sufficiency test (i.e. whether any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.).

But it is not.

     This point becomes evident when the two tests are applied to the facts of this

case. Under the Jackson v. Virginia test, Jimenez’ initial trial testimony that Vigil hit

her on the head and pulled her hair cannot be reconciled with Jimenez’ later

testimony that she did not observe who struck her from behind. The alleged victim’s

testimony would be legally insufficient under Jackson because no rational trier of

fact could find beyond a reasonable doubt that Vigil injured Jimenez. However,

Jimenez’ trial testimony would meet the court of appeals’ legal sufficiency test since

the only showing the State had to make to prove it case was that the jury believed

Jimenez’ testimony that Vigil attacked and hit her.

                                        Page -8-
          The flaw in the court of appeals’ legal sufficiency test is that it is based on

circular reasoning. Under its analysis, establishing that the defendant was convicted

would in turn establish that the trier of fact believed the victim’s testimony, which in

turn would establish that the evidence was legally sufficient. In contrast, the Jackson

v. Virginia legal sufficiency test is not based on circular reasoning, but on whether

any rational trier of fact could have found all of the elements of the offense beyond

a reasonable doubt. Nevertheless, the court of appeals’ attempts to meld its legal

sufficiency test with that of the Jackson test by stating that “it would be rational for

a jury to conclude Vigil assaulted Jimenez based on Jimenez’s testimony.” (See

Opinion, p. 9). This attempt fails, however, since there is no aspect of the Jackson

v. Virginia test which is based on whether the trier of fact believed the alleged victim

or for that matter, the testimony of any witness. This Court should therefore reject

the court of appeals’ determination that “...the victim’s testimony alone, if believed,

is legally sufficient to support a conviction....” as a misguided legal sufficiency test.

3.    The court of appeals’ decision to vacate the trial court’s order granting a
      new trial on legal insufficiency grounds when there were no eyewitnesses
      connecting Petitioner Vigil to the assault and the State confessed error on
      this point conflicts with applicable decisions of this Court


      The court of appeals rejected the trial court’s determination that the evidence

was legally insufficient without giving a reason.(See opinion, pp. 4-8). It ignored the

                                        Page -9-
difficulty the trial court faced in attempting to harmonize the initial testimony of

Jimenez, the complaining witness, with her later testimony. Although Jimenez

initially testified that Petitioner Vigil and her daughter Alexis had hit her on the head

from her backside and that Vigil had pulled her hair, during further questioning

Jimenez admitted that she did not see any of her attackers – her precise words being,

“I did not even see them attacking me.” RR 3, 10. This admission by Jimenez along

with the fact that she was the only witness to link Vigil to the alleged assault (a point

which the court of appeals concedes) tends to explain why the prosecutor confessed

error and told the trial court at the motion for new trial hearing that she did not

consider the evidence legally sufficient to support Vigil’s conviction of Class “A”

assault. The failure of Jimenez to identify a part of her body where she sustained

injury or suffered bodily pain also presented legal sufficiency issue.

      The court of appeals disregarded these deficiencies in the evidence, however.

In particular, it overlooked Jimenez’ testimony that she did not see her attackers while

she was being attacked from the rear. Instead, based on the assumption that the

prosecutor confessed error, it vacated the trial court’s order granting Vigil a new trial.

In doing so, it failed to consider the important admission by Jimenez that she did not

see any of her attackers during the attack. It also ignored the rule of this Court that

reviewing courts are to grant great weight to the representations of prosecutors in

                                        Page -10-
confessing error. Saldano v. State, 70 S.W.3d 873, 884 (Tex.Crim.App. 2002).

Further, the court of appeals disregarded the rule that

     appellate courts [are to] uphold the trial court's ruling on appeal absent an
     "abuse of discretion." That is to say, as long as the trial court's ruling was at
     least within the zone of reasonable disagreement, the appellate court will not
     intercede. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991).

Although Jimenez’ testimony that she did not see her attackers might not be a

concern to the court of appeals, it should have been a concern. Clearly, the trial

court acted within a reasonable zone of disagreement by finding Jimenez’

testimony of not having observed the persons who assaulted her dispositive of the

legal sufficiency issue –- especially since no other eyewitness identified Vigil as

participating in the assault.1          The court of appeals therefore improperly

disregarded the trial court’s ruling and also failed to give respect the State’s

decision to confess error on this legal sufficiency point.

4.      The court of appeals’ ruling that a reviewing court can “infer” that a
        defendant is a primary actor in an assault case involving multiple
        assailants without identifying the specific conduct the defendant
        engaged in conflicts with applicable decisions of this Court


        In the third point for review of her brief to the court of appeals, Petitioner

Vigil argued that the State failed to prove up its case because it had limited its

        1
       See page 7 of the Opinion, which states, “We agree with Vigil that, from a direct
evidence standpoint, the identity issue ... turn[s] on he testimony of a single witness: Jimenez.”

                                           Page -11-
prosecution theory to proving that Vigil was a primary actor, rather than a party

to the offense. However, the court of appeals rejected this argument by Vigil

based on the following reasoning:

   Vigil correctly notes that the State did not charge Vigil under law of the
   parties, and that as such, Vigil cannot be held criminally liable for injuries
   caused by Alexis Gonzalez. Even so, this is not fatal. Jimenez testified that
   both Vigil and Gonzalez attacked her. Assuming it believed her testimony, a
   reasonable jury could infer that because Jimenez said both women attacked her,
   and because she suffered injuries, at least some of the injuries could be
   attributed to Vigil.

      Under Texas law, the State was required to prove that the defendant was

either a primary actor or party to the Class “A” assault offense alleged. Ransom

v. State, 920 S.W.2d 288, 301-302(Tex. Crim. App. 1994). The court of appeals

agreed that Vigil could not be found guilty as a party to the offense. However, it

nonetheless concluded that Vigil was still guilty as a primary actor “because

Jimenez said both women attacked her, and because she suffered injuries, at least

some of the injuries could be attributed to Vigil.” In so ruling, the court of appeals

excused the State from having to prove how Vigil injured Jimenez.

    Vigil has been unable to find a single Texas case where a court has “inferred”

that a defendant, acting with one or more other persons, was found guilty as a

principal or primary actor without some evidence of how that defendant injured



                                      Page -12-
the victim of the alleged crime. In McCuin v. State, 505 S.W.2d 827, 830 (Tex.

Crim. App. 1974), this Court held that to determine whether appellant was a

primary actor or was a party to the offense, the trial court first had to remove from

consideration the acts and conduct of the non-defendant actor. Then, if the

evidence of the conduct of the defendant then on trial would be sufficient, in and

of itself, to sustain the conviction, no submission of the law of principals was

required. This carried forward the rule it had previously established in Durham v.

State, 16 S.W.2d 1092, 1095 (Tex. Crim. App. 1929) (holding "[w]hen the

evidence shows that the accused on trial was a principal actor in the commission

of the offense, no charge on principals would be necessary, although the proof

may also disclose that in doing the criminal act another took an equal part.").

        None of this caselaw has any continued validity if a defendant can be

labeled a primary actor in a multiple assailant case, without the State having to

specify what conduct that defendant engaged in, vis a vis the other defendant(s)

involved in the offense. Under the court of appeals’ analysis, there is no longer

any distinction between parties and primary actors or principals since the

causation element of a criminal offense can be inferred. Review should therefore

be granted to establish that a defendant’s “primary actor” status cannot be simply

“inferred” in a criminal case involving multiple assailants.

                                      Page -13-
5.      The court of appeals’ determination that the manner and means
        paragraphs alleged in a charging instrument which are descriptive of
        an essential element of the charged offense are mere surplusage
        conflicts with applicable decisions of this Court

        Elizabeth Jimenez, the complaining witness, was asked only one question

regarding whether she suffered pain. RR 3, 32. During her second redirect

examination, the prosecutor asked her: “When you were attacked, did you feel pain?”

Id. Jimenez’ response to this question was, “Yes, I did.” Id. Jimenez did not indicate

where she felt pain. Nor did she identify a particular blow from Vigil which caused

her to suffer pain. Id. Nevertheless, the court of appeals rejected her legal sufficiency

challenge to the “bodily injury” element of the assault offense charged by ruling:

     Jimenez testified that Vigil hit her head and pulled her hair, and that she felt
     pain during the attack. This testimony is sufficient to establish that Jimenez
     suffered bodily injury.


The court of appeals thus ignored Vigil’s argument that the evidence was legally

insufficient to prove any of the manner and means allegations of the information, i.e.

that Jimenez suffered pain when her hair was pulled (paragraph A); that Jimenez

sustained bodily injury after being thrown or pushed to the ground (paragraph C); or

that Jimenez sustained bodily injury by being hit on the head (paragraph D).2 The



        2
        Paragraph B of the information, which alleged that Vigil caused bodily injury to Jimenez
by grabbing or squeezing Jimenez’ breast, was abandoned by the State at the start of the trial.

                                           Page -14-
court of appeals instead held that Jimenez’ testimony that she felt pain during the

alleged attack was sufficient to prove the assault offense alleged, even though no

parties charge was submitted to the jury.

       In Schmidt v. State, 278 S.W.3d 353 (Tex.Crim.App. 2009), the Court of

Criminal Appeals cited to prior caselaw as establishing that where a fact alleged in

an indictment or information is descriptive of an essential element of the offense, that

fact is not mere surplusage and must be proven by the State as part of its burden of

proof. In Schmidt, the State argued that the "striking” allegation was not required to

be pled and is unnecessary surplusage that is "merely descriptive of an element but

not statutorily required." Id., at 359. The Court held, however, that “The State's

argument in this case that the non-statutory, manner and means allegation of ‘striking’

should not be considered a ‘fact required’ to establish the charged retaliation-by-

threat offense is contrary to our decision in [ Hall v. State, 225 S.W.3d 524, 536

(Tex.Crim.App.2007)]. In Hall, the Court of Criminal Appeals considered the non-

statutory, manner and means allegation of "shooting the individual with a gun" to be

a "fact required" to establish the charged murder offense. Id. Accordingly, the Court

of Criminal Appeals in Schmidt explained that facts which describe an element of an

offense must be proven up because these facts bear upon the defendant has been

given fair and adequate notice of the offense charged:

                                       Page -15-
     ...that appellant could have been convicted of this retaliation-by-threat
     offense under an indictment omitting the "to-wit: striking" allegation does
     not necessarily make this allegation unnecessary surplusage. We note that
     this Court's decision in Doyle v. State would support a holding that a
     defendant's timely motion to quash such an indictment would require the
     State to provide the "to-wit: striking" allegation for purpose of providing
     adequate notice. See Doyle v. State, 661 S.W.2d 726, 729-31
     (Tex.Cr.App. 1983)(defendant's timely motion to quash a
     "nonfundamentally defective" retaliation-by-threat indictment entitled the
     defendant to notice of "how and to whom the threat was made"). Id.

This Court should reject the court of appeals’ determination that the State need

only prove Vigil caused bodily injury and that it could ignore the manner and

means allegations of the information in its legal sufficiency analysis.

6.      The court of appeals departed from the Jackson v. Virginia legal
        sufficiency test by measuring the sufficiency of the evidence against a
        charge which was hypothetically incorrect because it failed to
        considering the manner and means allegations of the charging
        instrument


         The Court of Criminal Appeals in Malik v. State, 956 S.W.2d 234

(Tex.Crim.App. 1997) altered the legal sufficiency analysis previously applied in

Texas, which had been to compare the legal sufficiency of the evidence against the

actual charge given to the jury. See Sanchez v. State, 376 S.W.3d 767, 772 (2012).

In Malik, the Court of Criminal Appeals held that the legal sufficiency of the

evidence would be determined by comparing the evidence adduced at trial against


                                     Page -16-
a hypothetically correct charge. Id., at 230. In Adames v. State, 353 S.W.3d 854

(Tex. Crim. App. 2011), the Court rejected the argument that the Malik sufficiency

standard is a purely state law standard that is foreign to federal constitutional

norms and does not apply to a constitutional evidentiary-sufficiency review. Id.,

at 860. It noted that under Malik "such a charge would be one that accurately sets

out the law, is authorized by the indictment, does not unnecessarily increase the

State's burden of proof or unnecessarily restrict the State's theories of liability, and

adequately describes the particular offense for which the defendant was tried."

Malik, at 240.

       In Vigil’s case, the court of appeals did not base its analysis on the

allegations contained in the four manner-and-means paragraphs of the

charging instrument. It held that because Jimenez testified that both Vigil and

Gonzalez attacked her, “a reasonable jury could infer that Jimenez suffered

injuries, at least some of the injuries could be attributed to Vigil.” It thus relied

on a hypothetically incorrect charge analysis to affirm Vigil’s conviction. Vigil

has been unable to find a single decision from any federal court which has held

that legal sufficiency to be measured against a generic offense, which fails to take

into consideration the manner and means allegations of a charging instrument.

Review of this point is therefore warranted.

                                       Page -17-
7.    The court of appeals’ treatment of the manner and means paragraphs
      of a charging instrument as mere surplusage conflicts with decisions of
      the Supreme Court which require a charging instrument to provide a
      defendant with fair and adequate notice of the offense charged

       While the United States Supreme Court has determined that "there is no

general requirement that the jury reach agreement on the preliminary factual issues

which underlie the verdict" and that an indictment can allege different manner and

means of committing a crime without rendering the indictment duplicitous, it has

never dispensed with or treated manner and means allegations as mere surplusage.

Schad v. Arizona, 501 U.S. 634 (1991) (plurality opinion); McKoy v. North

Carolina, 494 U.S. 433, 449 (1990). The Supreme Court’s analysis in Schad is

consistent with this Court’s analysis in Jefferson v. State, 189 S.W.3d 305

(Tex.Crim.App. 2006) and Stuhler v. State, 218 S.W.3d 706 (Tex. Crim. App.

2007), which likewise recognizes that manner and means allegations in an

indictment are not mere surplusage. Thus, even where different jurors can agree

that the offense alleged was committed by different manner and means, neither

court has ever treated manner and means allegations in an indictment or

information as something which can be ignored altogether.

      The court of appeals went well beyond the Supreme Court’s analysis of the

“unanimity” issue presented in Schad v. Arizona, however. It treated the the


                                     Page -18-
manner and means allegations of the information in Vigil’s case as mere

surplusage in conducting its legal sufficiency analysis. It determined that the

evidence was legally sufficient to support Vigil’s conviction for assault so long

as the evidence proved Vigil had committed the assault offense alleged by any

means. The Supreme Court has held "[A]n indictment is sufficient if it, first,

contains the elements of the offense charged and fairly informs a defendant of the

charge against which he must defend, and second, enables him to plead an

acquittal or conviction in bar of future prosecutions for the same offense."

Hamling v. United States, 418 U.S. 87, 117 (1974).

        The court of appeals’ analysis thus dispenses with both requirements of

Hamling, supra, but most particularly the requirement that the charge fairly inform

the defendant of the offense charged. By holding that the State need only prove

a generic “assault” offense rather than the specific “assault” offense alleged in the

information – it dispensed with the fair and adequate notice requirement of

Hamling v. United States, 418 U.S. 87, 117 (1974). This Court should address

whether manner and means allegations of a charging instrument which describes

an offense element can be treated as mere surplusage when they provide notice of

the offense charged.




                                      Page -19-
                                    PRAYER

      WHEREFORE, premises considered, Appellant Vigil respectfully requests

the Court of Criminal Appeals to grant the amended petition for discretionary

review in this case and order the parties to brief each of the issues presented for

review.

                                                 Respectfully submitted,

                                                   /s/   William W. Navidomskis
                                                 WILLIAM W. NAVIDOMSKIS
                                                 Attorney for Appellant
                                                 701 N. St. Vrain
                                                 El Paso, Texas 79902
                                                 Tex. Bar No. 24053384
                                                 Tel. (915) 730-8644
                                                 Fax (915) 975-8028
                                                 defense@weslawyer.com




                                     Page -20-
          CERTIFICATE OF COMPLIANCE WITH RULE 9.4


       This amended petition for discretionary review complies with the type-
volume limitations of 9.4 and contains 4,373 words, excluding the parts of the
petition exempted by 9.4(1); and this petition for discretionary review complies
with the typeface requirements of 9.4(e) because this brief has been prepared in
a proportionally spaced typeface using Corel Word Perfect in Times New Roman,
14-point.


                                        /s/    William W. Navidomskis
                                               WILLIAM W. NAVIDOMSKIS




                       CERTIFICATE OF SERVICE


      This is to certify that on July 17, 2015, a true and correct copy of the
Amended Petition for Discretionary Review was delivered to District Attorney
Office: District Attorney Jaime Esparza, 500 E. San Antonio, El Paso, Texas
79901 in accordance with the Texas Rules of Civil Procedure.




                                        /s/    William W. Navidomskis
                                     WILLIAM W. NAVIDOMSKIS




                                   Page -21-
                            APPENDIX


1.   Opinion and Judgment


2.   Information




                             Page -22-
1.   Opinion and Judgment
                                              COURT OF APPEALS
                                           EIGHTH DISTRICT OF TEXAS
                                                EL PASO, TEXAS


                                                                  §
    THE STATE OF TEXAS,                                                                No. 08-13-00273-CR
                                                                  §
                                    Appellant,                                             Appeal from the
                                                                  §
    v.                                                                             County Court at Law No. 7
                                                                  §
    VANDA VIGIL,                                                                    of El Paso County, Texas
                                                                  §
                                    Appellee.                                           (TC# 20120C10835)
                                                                  §

                                                        OPINION

          The  State  appeals   the  trial  court’s   order granting Vanda Vigil a new trial following her

conviction on one count of misdemeanor assault. We reverse.

                                                      BACKGROUND
                                                       Factual History

          On   August   17,   2011,   Vigil,   her   daughter   Alexis   Gonzalez,   and   Alexis’   then-girlfriend

Stephanie Chavez were present at Coconuts Bar in Central El Paso. Elizabeth Jimenez1, the

complaining   witness   and   Alexis’   step-sister, testified at trial that she and her cousin Ceci

Archuleta   came   to   Coconuts   that   night   to   celebrate   Archuleta’s   twentieth   birthday.      As   they  

entered   the   bar,   Jimenez   saw   Vigil   and   Gonzalez.      Jimenez   stated   that   Archuleta’s   boyfriend,  


1
 Jimenez’s name  is  spelled  “Jimenez”  and  “Jiminez”  in  the  record,  because  the  actual  spelling  of  her  name  is  
unclear,  we  will  refer  to  her  as  “Jimenez.”
who was with the group, commented on the fact that Vigil and Gonzalez seemed to be staring at

them. A bartender turned Archuleta away for not having her identification and for not being

over age twenty-one, so she, her boyfriend, and Jimenez decided to leave.

         As they left the bar, the group passed in front of Vigil, Gonzalez, and Chavez. At this

point, the testimony diverges. Jimenez claimed that as she was trying to exit the bar, Vigil and

Gonzalez   stopped   her   and   attacked,   with   Vigil   pulling   Jimenez’s   hair.      Vigil   and   Chavez  

disputed  Jimenez’s  account  of  events.    Chavez  testified  that  Jimenez  approached  Gonzalez  and  

that the two exchanged words. According to Vigil,   Jimenez   called   Gonzalez   a   “disgusting  

lesbian.”    Jimenez  and  Gonzalez  began  to  fight  and  fell  to  the  floor.    Vigil  maintained  at  trial  that  

she left her chair to try and break up the fight, but that before she could reach Jimenez and

Gonzalez, a bouncer arrived and separated the women. Chavez also testified that she did not see

Vigil punch or hit Jimenez.

                                                   Procedural History

         Following trial, the jury found Vigil guilty of assault. The trial court sentenced Vigil to

ninety days in jail, suspended the sentence, placed her on probation for ninety days, and credited

her with time served. During the course of the sentencing hearing, the trial court remarked:

         I’m   in   a   very   difficult   situation.      If   this   case   would   have   been   tried   to   me,   I  
         believe I would have  found  you  not  guilty,  ma’am.
                   I found your testimony to be somewhat credible. I found the other side to
         be somewhat credible. I did have reasonable doubt.
                   But under our system, a jury makes those determinations. This jury did
         make that determination. And unless those jury verdicts are set aside, I need to
         respect and honor those determinations.

         Vigil subsequently moved for a new trial on actual innocence, legal insufficiency, and

interest of justice grounds. The trial court granted Vigil a new trial. The State appealed.

                                                      DISCUSSION



                                                                2
         In its sole appellate issue, the State contends that the trial court abused its discretion by

ordering a new trial and thereby substituting its judgment for that of the jury when legally

sufficient evidence underpinned Vigil’s  conviction.    Vigil  counters  that  the  evidence  was  legally  

insufficient to establish her identity as the assailant or any injury to the victim, and, alternatively,

that  the  trial  court’s  new  trial  order  is  justified  by  defects  in  the  indictment.

                                                         I.
                                                Confession of Error

         As a threshold matter, Vigil also maintains that the State confessed error during the new

trial   hearing   when   the   prosecutor   commented   that   she   did   not   personally   believe   Vigil’s   guilt  

could be established by proof beyond a reasonable doubt. As such, she is entitled to acquittal

and   the   State   should   be   “estopped”   from   further   proceedings.      Vigil   bases   her   claim   on   the  

following colloquy between the prosecutor and the trial court:

         THE COURT: [...] Okay. Let me hear from the State.

                                                .           .            .

         [PROSECUTOR]: Before this motion for a new trial was filed, even you and I
         had  a  conversation.  I  agree  with  you.  I  don’t  -- if I had been a juror, I would have
         thought there was reasonable doubt and would have found her not guilty as well.
                   That  said,  I  think  the  crux  here  is  that  I  wasn’t  a  juror.  The  six  who  were  
         chosen, after voir dire was conducted, were. And it was their job to weigh the
         facts, weigh the credibility of the witnesses and determine whether or not they
         saw reasonable doubt. So I just wanted to say -- I  don’t  know.  I  just  wanted  to  say  
         that . . . .

         THE COURT: Let me ask you a question which will be a difficult question for
         you, but I think it is a question I need answered.

         You are an officer of the court.

         [PROSECUTOR]: Right.

         THE COURT: Your oath as a district attorney is that you are to seek justice.

         [PROSECUTOR]: Right.

                                                            3
         THE COURT: Not to try to just get every notch under your belt and get every
         conviction, but to seek justice. So as someone who has taken that oath, what is
         your position with regard to this Motion?

         [PROSECUTOR]: Before -- I   think   that’s   actually   a   simple   question.   Before  
         every  trial,  even  if  I’m  second-chairing,  I  evaluate  whether  or  not  there’s  probable  
         cause  to  go  forward.  If  there’s  not,  it’s  easy  for  me  to  dismiss.  And  here  I  thought  
         there  was  definitely  probable  cause.  That’s  why  --

         THE COURT: No one is doubting your decision to go forward and present the
         case.

         [PROSECUTOR]: Right.

         THE COURT: The question I am asking is much more narrow, and it is: Right
         now, today, with the evidence that was presented and with the Motion that is
         before the Court, what is your position as someone who tried this case and heard
         all the evidence with regard to this Motion?

         [PROSECUTOR]: I argue that the verdict should stand --

         THE COURT: All right.

         [PROSECUTOR]: -- because  I  wasn’t  a  juror,  Your  Honor.

         THE COURT: All right.

         We   question   whether   the   prosecutor’s   comment   that   “if   [she]   had   been   a   juror,   [she]  

would   have   thought   there   was   reasonable   doubt   and   would   have   found   her   not   guilty   as   well”  

constituted   an   actual   confession   of   error.      Even   if   it   did,   the   State’s   confession of error is not

dispositive. We grant great weight to the representations of prosecutors in confessing error,

“[b]ut  such  a  confession  does  not  relieve  this  Court  of  the  performance  of  the  judicial  function.”    

Saldano v. State, 70 S.W.3d 873, 884 (Tex.Crim.App. 2002)(citing Young v. United States, 315

U.S. 257, 258-59, 62 S.Ct. 510, 511, 86  L.Ed.  832  (1942)).    “[O]ur  judicial  obligations  compel  

us   to   examine   independently   the   errors   confessed”   on   their   merits.      Id. at 884. Assuming

arguendo that the comment did constitute confession of error, that alone does not preclude our



                                                             4
review  of  the  trial  court’s  decision  or  automatically  entitle  Vigil  to  acquittal  by  estoppel.    To  the  

extent she argues otherwise, we overrule Issue Five. We must still review the alleged error.

Bearing these things in mind, we proceed.

                                                II.
                                         New Trial Order
                        New Trials: Standard of Review and Applicable Law

         We  review  the  trial  court’s  new  trial  ruling  for  abuse  of  discretion.    State v. Herndon, 215

S.W.3d 901, 906 (Tex.Crim.App. 2007).

         A trial   judge   “cannot   grant   a   new   trial   on   mere   sympathy,   an   inarticulate   hunch,   or  

simply  because  he  personally  believes  that  the  defendant  is  innocent  or  received  a  raw  deal.”    Id.

at 907 [Internal quotation marks omitted]. Instead, even where a defendant urges a new trial on

interest  of  justice  grounds,  “[a]  motion  for  a  new  trial,  whether  for  guilt  or  punishment,  requires  

a  valid  legal  claim.”    State v. Thomas, 428 S.W.3d 99, 107 (Tex.Crim.App.  2014).    “To  grant  a  

new trial for a non-legal or legally invalid reason   is   an   abuse   of   discretion.”      Herndon, 215

S.W.3d at 907 (contrasting Texas law with federal appellate precedent).

         The trial court must grant the defendant a new trial for any of the reasons articulated in

TEX.R.APP.P. 21.3,   including   “when   the   verdict is   contrary   to   the   law   and   the   evidence.”    

TEX.R.APP.P. 21.3(h). The trial court retains the discretionary power to grant a new trial for any

legal reason not listed in TEX.R.APP.P. 21.3.      While   “[t]he   defendant   need   not   establish  

reversible error as a matter of law before the trial court may exercise its discretion in granting a

motion for new trial[,] . . . trial courts do not have the discretion to grant a new trial unless the

defendant demonstrates that his first trial was seriously flawed and that the flaws adversely

affected   his   substantial   rights   to   a   fair   trial.”      Herndon, 215 S.W.3d at 909. The Court of

Criminal Appeals has declined to set bright-line rules for the appellate courts to use in assessing



                                                          5
the  trial  court’s  exercise  of  discretion,  but the  Court  has  suggested  that  “a  trial  court  would  not  

generally abuse its discretion in granting a motion for new trial if the defendant: (1) articulated a

valid legal claim in his motion for new trial; (2) produced evidence or pointed to evidence in the

trial record that substantiated his legal claim; and (3) showed prejudice to his substantial rights

under   the   standards   in   Rule   44.2   of   the   Texas   Rules   of   Appellate   Procedure.”      Herndon, 215

S.W.3d at 909.

                                                       A.
                                               Legal Insufficiency

         In  her  first  three  responses  to  the  State’s  appeal, Vigil argues we can uphold the new trial

grant because the State failed to prove beyond a reasonable doubt that (1) she was actually the

person that attacked Jimenez, (2) that Jimenez suffered bodily injury, or (3) that she and not a

third party caused  any  of  Jimenez’s  injuries.    We  disagree.2

         “In   determining   whether   the   evidence   is   legally   sufficient   to   support   a   conviction,   a  

reviewing court must consider all of the evidence in the light most favorable to the verdict and

determine whether, based on that evidence and reasonable inferences therefrom, a rational fact

finder  could  have  found  the  essential  elements  of  the  crime  beyond  a  reasonable  doubt.”    Lucio v.

State, 351 S.W.3d 878, 894 (Tex.Crim.App. 2011); see also Jackson v. Virginia, 443 U.S. 307,

318-19, 99 S.Ct. 2781, 2788-89, 61  L.Ed.2d  560  (1979).    “Our  role  on  legal  sufficiency  review  is  

not to usurp the jury and replace its verdict with our own; instead, we serve as a procedural

safeguard, ensuring that whatever verdict the jury rendered comports  with  due  process.”    Urias v.

State, No. 08–12–00090–CR, 2014 WL 1259397, at *2 (Tex.App.--El Paso Mar. 26, 2014, no

2
  We note that Vigil presented an actual innocence claim before the trial court. She does not address it in her brief.
As the State correctly points out in its brief, actual innocence claims require new evidence not originally presented
to the trial court that would have established innocence at trial. Ex parte Garcia, No. 08-11-00232-CR, 2013 WL
1182211, at *5-*6 (Tex.App.--El Paso Mar. 20, 2013, no pet.)(not designated for publication). Since Vigil did not
present new evidence in her motion, we considered her actual innocence claims as having merged with her legal
sufficiency claim and review the trial evidence under the legal sufficiency standard.

                                                          6
pet.)(not   designated   for   publication).      “Our   role   on   appeal   is   restricted   to   guarding   against   the  

rare occurrence when a factfinder does  not  act  rationally.”     [Internal quotation marks omitted].

Isassi v. State,   330   S.W.3d   633,   638   (Tex.Crim.App.   2010).      “We   do   not   overturn   a   verdict  

unless  it  is  irrational  or  unsupported  by  proof  beyond  a  reasonable  doubt.”    Smallwood v. State,

No. 08-12-00215-CR, 2014 WL 4269155, at *3 (Tex.App.--El Paso Aug. 29, 2014, pet.

ref’d)(not  designated  for  publication).

                                                             1.
                                                          Identity

         First, we turn to the issue of identity. Vigil argues that the testimony of both State

witnesses who identified her as the attacker is legally insufficient to uphold her conviction.

Specifically, Vigil maintains that Archuleta never actually saw Vigil touch or hit Jimenez, and

that   Jimenez’s   testimony   is   not   credible.      We   agree   with   Vigil   that,   from   a   direct   evidence  

standpoint, the identity issue ultimately boils down to a he-said, she-said dispute turning on the

testimony of a single witness: Jimenez.                   However, it is well-established   that   the   victim’s  

testimony alone, if believed, is legally sufficient to support a conviction. See Gomez v. State,

No. 08-10-00276-CR, 2012 WL 390970, at *8 (Tex.App.--El Paso Feb. 8, 2012, no pet.)(not

designated  for  publication).    Since  we  no  longer  possess  the  power  to  sit  as  the  “thirteenth  juror”  

and re-weigh the evidence on a factual sufficiency review in a criminal case, see Isassi, 330

S.W.3d at 638, and since it would be rational for a jury to conclude Vigil assaulted Jimenez

based   on   Jimenez’s   testimony,   we   cannot   overturn   the   jury’s   implicit   finding   on   the   issue   of  

identity for legal insufficiency.

                                                           2.
                                                      Bodily Injury

         Second, Vigil contends there is legally insufficient evidence to establish Jimenez suffered



                                                              7
bodily   injury.      Vigil   points   out   that   Jimenez’s   testimony   that   her   lip   and   knees   bled   after   the  

attack is belied by video and photographic evidence in the record.3 In a video statement given

after the fight, Jimenez appears composed and does not show any visible signs of injury to her

face. Likewise, pictures of her body, including her legs and knees, fail to show any blood or

visible injuries. Even so, visible evidence of physical injury is not necessary to sustain an assault

charge.      Bodily   injury   is   defined   as   “physical pain, illness, or any impairment of physical

condition[,]” [Emphasis added], TEX.PENAL CODE ANN. § 1.07(a)(8)(West Supp. 2014), and can

encompass   “even   relatively   minor   physical   contacts   so   long   as   they   constitute   more   than   mere  

offensive   touching.”      [Internal quotation marks omitted]. Wingfield v. State, 282 S.W.3d 102,

105 (Tex.App.--Fort Worth 2009, pet. ref’d).    Jimenez  testified  that  Vigil  hit  her  head  and  pulled  

her hair, and that she felt pain during the attack. This testimony is sufficient to establish that

Jimenez suffered bodily injury.

                                                            3.
                                                         Causation

         Finally, Vigil also maintains that even if identity and bodily injury were proven beyond a

reasonable  doubt,  the  State  failed  to  prove  that  Jimenez’s  injuries  were  caused  by  Vigil  and  not  

Alexis Gonzalez. Vigil correctly notes that the State did not charge Vigil under law of the

parties, and that as such, Vigil cannot be held criminally liable for injuries caused by Alexis

Gonzalez.

         Even so, this is not fatal. Jimenez testified that both Vigil and Gonzalez attacked her.

Assuming it believed her testimony, a reasonable jury could infer that because Jimenez said both

women attacked her, and because she suffered injuries, at least some of the injuries could be

attributed to Vigil. This point is without merit.

3
  We   may   review   “indisputable”   video   evidence   in   the   record   de novo. State v. Duran, 396 S.W.3d 563, 570-71
(Tex.Crim.App. 2013).

                                                               8
                                                     B.
                                              Indictment Defects

        Finally, Vigil raises two separate complaints about defects in the indictment. First, Vigil

complains   that   the   State’s   prosecuting   attorney   gave   a   materially   inaccurate   reading   of   the  

indictment  at  the  trial’s  inception  by  alleging  she  caused  Jimenez  bodily  injury  “by  pushing  or  

struggling Elizabeth  Jimenez  to  the  ground”  when  the  criminal  information  actually  alleged  that  

she  caused  bodily  injury  “by  pushing  or  throwing Elizabeth  Jimenez  to  the  ground[.]”    Second,  

Vigil argues that the State spelled Jimenez’s   surname   two   different   ways   in   the   information—

“Jimenez”  and  “Jiminez”— and that this constitute a fatal variance between the information and

what the State proved at trial.

        We note, and Vigil concedes, that she did not present either of these grounds to the trial

court in her motion for a new trial. However, Vigil maintains we can address these points

because they concern errors that touch on waiveable rights. See Turner v. State, 860 S.W.2d

147, 150-51 (Tex.App.--Austin 1993, pet. granted), rev’d   on   other   grounds, 897 S.W.2d 786

(Tex.Crim.App.  1995).    We  disagree.    In  reviewing  the  new  trial  grant,  “we  look  to  the  grounds  

pleaded by the movant in the motion and determine whether any of these grounds provide a basis

for   granting   the   new   trial.” State v. Fury, 186 S.W.3d 67, 73 (Tex.App.--Houston [1st Dist.]

2005,  pet.  ref’d).    Because  the  trial  court  has  no  power  to  order  a  new  trial  order  sua sponte, and

because these arguments were never presented to the trial court, they could not form the basis for

the new trial grant. See State v. Varkonyi, No. 08-06-00262-CR, 2008 WL 821580, at *3

(Tex.App.--El  Paso  Mar.  27,  2008,  pet.   dism’d)(not  designated   for  publication).    To  the  extent  

Vigil is attempting to raise these issues on cross-appeal, we note  that  a  defendant’s  cross-points

are  not  cognizable  on  State’s  appeal.    State v. Barron, No. 08-12-00245-CR, 2012 WL 5515678

(Tex.App.--El Paso Nov. 14, 2012, no pet.)(mem. op., not designated for publication)(dismissing

                                                         9
defendant’s  cross-appeal where State appealed new trial grant); cf. Sanchez v. State, No. 08-11-

00137-CR, 2014 WL 2810479 (Tex.App.--El  Paso  June  20,  2014,  pet.  ref’d)(not  designated  for  

publication)(separately   addressing  defendant’s  noticed  appeal   following  disposition   of  a   state’s  

appeal of a new trial grant); see also State v. Wilkins, No. 05-12-00154-CR, 2014 WL 465820, at

*7 (Tex.App.--Dallas Feb. 4, 2014,   pet.   ref’d)(not designated for publication)(court of appeals

had   no   jurisdiction   to   entertain   defendant’s   cross-appeal points on state’s appeal, even when

defendant properly noticed appeal, because the new trial order the State attacked reversed the

final judgment the defendant sought to attack).

        In sum, any defects in the indictment could not have formed the basis of the new trial

grant because Vigil never presented those grounds to the trial court, and her complaints about the

indictment as cross-points are not cognizable at this stage. Further discussion of these issues is

unnecessary to the resolution of this appeal. TEX.R.APP.P. 47.1.

                                             CONCLUSION

        Vigil failed to advance any meritorious legal claims in support of her motion for a new

trial. As such, the trial court abused its discretion in granting the new trial. Issue One is

sustained.    We  reverse  the  trial  court’s  order  granting the motion for new trial and reinstate the

trial  court’s  judgment  of  conviction.



May 15, 2015
                                                  YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)




                                                     10
                                       COURT OF APPEALS
                                    EIGHTH DISTRICT OF TEXAS
                                         EL PASO, TEXAS


                                                      §
 THE STATE OF TEXAS,                                                    No. 08-13-00273-CR
                                                      §
                              Appellant,                                   Appeal from the
                                                      §
 v.                                                                  County Court at Law No. 7
                                                      §
 VANDA VIGIL,                                                         of El Paso County, Texas
                                                      §
                              Appellee.                                 (TC# 20120C10835)
                                                      §

                                            JUDGMENT

        The Court has considered this cause on the record and concludes there was error in the

judgment. We therefore reverse the trial court’s   order   granting   the   motion   for   new   trial   and  

reinstate  the  trial  court’s  judgment  of  conviction,  in  accordance  with  our  opinion.    This decision

shall be certified below for observance.

        IT IS SO ORDERED THIS 15TH DAY OF MAY, 2015.


                                                   YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.
2.   Information
                                                                                           .···-··-



D.A. CONTROL #12-10345                PID:     1757605       NCIC: 13990001
                                                   INFORMATION                    JtJ%aa
OFFENSE: ASSAULT CAUSES BODILY IN.J

                                                 STATE OF TEXAS
                                                                              cer-J
                                                       vs.
                                                   VANDAVIGIL

D.O.B.: 07/10/68                                   ADDRESS:     210 WEST REDO RD 708
WARRANT: M12W7593                                               EL PASO, TX 79932
AGENCY: EL PASO POLICE

( ) CAPIAS REQUESTED

                    IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS

I,           t::..gz)bN   , ASSISTANT DISTRICT ATTORNEY IN AND FOR THE COUNTY OF EL PASO,
STATE OF TEXAS, PRESENT TO THE COUNTY COURT AT LAW NO.1 OF EL PASO COUNTY, TEXAS, IN AND FOR
SAID COUNTY, AT ITS JULY TERM, A.D. 2012, THAT ON OR ABOUT THE 17TH DAY OF AUGUST, 2012 AND
BEFORE THE FILING OF THIS INFORMATION IN SAID COUNTY OF EL PASO, STATE OF TEXAS, VANDA VIGIL,
HEREINAFTER REFERRED TO AS DEFENDANT,                                        .

PARAGRAPH A
DID THEN AND THERE INTENTIONALLY, KNOWINGLY OR RECKLESSLY CAUSE BODILY INJURY TO ELIZABETH
JIMENEZ BY PULLING ELIZABETH JIMINEZ'S HAIR WITH THE DEFENDANT'S HAND,

PARAGRAPH B
DID THEN AND THERE INTENTIONALLY, KNOWINGLY OR RECKLESSLY CAUSE BODILY INJURY TO ELIZABETH
JIMENEZ BY GRABBING OR SQUEEZING ELIZABETH JIMINEZ'S BREAST WITH THE DEFENDANT'S HAND,

PARAGRAPH C
DID THEN AND THERE INTENTIONALLY, KNOWINGLY OR RECKLESSLY CAUSE BODILYINJURY TO ELIZABETH
JIMENEZ BY PUSHING OR THROWING ELIZABETH JIMENEZ TO THE GROUND,

PARAGRAPH D
DID THEN AND THERE INTENTIONALLY, KNOWINGLYOR RECKLESSLY CAUSE BODILY INJURY TO ELIZABETH
JIMENEZ BY STRIKING ELIZABETH JIMENEZ ABOUT THE HEAD WITH THE DEFENDANT'S HAND,

      AGAINST THE PEACE AND DIGNITY OF THE STATE.


                                                                  ....   -
                                               ASSISTANT DISTRICT ATTORNEY
                                               FOR EL PASO COUNTY,
                                               STATE OF TEXAS

      FILED                    COURT AT              1 OF EL PASO COUNTY, TEXAS
      ON               "f.Q.     AT  /..3 .'            O'CLOCK,         y2
                                                                        M._




                                               EL PASO COUNTY, TEXAS
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