                                                                   ACCEPTED
                                                               01-15-00394-CR
                                                    FIRST COURT OF APPEALS
                                                            HOUSTON, TEXAS
                                                         10/29/2015 6:26:13 PM
      No. 01-15-00394-CR                                 CHRISTOPHER PRINE
                                                                        CLERK


               In the
         Court of Appeals
              For the                        FILED IN
                                      1st COURT OF APPEALS
      First District of Texas             HOUSTON, TEXAS
            At Houston                10/29/2015 6:26:13 PM
    ♦                       CHRISTOPHER A. PRINE
                                               Clerk
            No. 1397723
    In the 174th District Court
     Of Harris County, Texas
    ♦

HECTOR MARIO GONZALEZ
             Appellant
                V.
  THE STATE OF TEXAS
             Appellee
    ♦
  STATE’S APPELLATE BRIEF
    ♦

                           DEVON ANDERSON
                           District Attorney
                           Harris County, Texas

                           JESSICA AKINS
                           Assistant District Attorney
                           Harris County, Texas
                           State Bar Number: 24029415
                           akins_jessica@dao.hctx.net

                           ADAM BRODRICK
                           Assistant District Attorney
                           Harris County, Texas

                           H. C. Criminal Justice Center
                           1201 Franklin, Suite 600
                           Houston, Texas 77002
                           Telephone: 713.274.5826

  ORAL ARGUMENT WAIVED
                STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, the State waives

oral argument. Appellant did not include a statement regarding oral argument in

his appellate brief, nor did he include it on the front cover of his brief.


                       IDENTIFICATION OF THE PARTIES

      Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all

interested parties is provided below.

      Victim:

             Eloy Canales

      Counsel for the State:

             Devon Anderson  District Attorney of Harris County
             Jessica Akins  Assistant District Attorney on appeal
             Adam Brodrick  Assistant District Attorney at trial

      Appellant or criminal defendant:

             Hector Mario Gonzalez

      Counsel for Appellant:

             Sidney Crowley  Counsel on appeal
             R.P. “Skip” Cornelius  Counsel at trial

      Trial Judge:

             Honorable Ruben Guerrero  Presiding Judge




                                            i
                                              TABLE OF CONTENTS


STATEMENT REGARDING ORAL ARGUMENT .......................................................... i

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

INDEX OF AUTHORITIES ...................................................................................................iii

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

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

SUMMARY OF THE ARGUMENT ..................................................................................... 3

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

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

CONCLUSION .......................................................................................................................... 7

CERTIFICATE OF SERVICE ................................................................................................ 8

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




                                                                  ii
                                              INDEX OF AUTHORITIES

CASES

Aguirre–Mata v. State,
  992 S.W.2d 495 (Tex. Crim. App. 1999).......................................................................... 3
Manoy v. State,
 7 S.W.3d 771 (Tex. App.—
 Tyler 1999, no pet.) ............................................................................................................4, 6
McLaren v. State,
 996 S.W.2d 404 (Tex. App.—
 Beaumont 1999, pet. ref’d) ................................................................................................... 5
Rachuig v. State,
  972 S.W.2d 170 (Tex. App.—
  Waco 1998, pet. ref’d) .......................................................................................................... 5
Raney v. State,
  958 S.W.2d 867 (Tex. App.—
  Waco 1997, pet. dism’d) ....................................................................................................... 4

STATUTES

TEX. CODE CRIM. PROC. ANN.
  art. 26.13(a)(1) (West 2013) ................................................................................................ 3

RULES

TEX. R. APP. P. 38.2(a)(1)(A) ..................................................................................................... i
TEX. R. APP. P. 39.1 ....................................................................................................................... i
TEX. R. APP. P. 44.2(b)...........................................................................................................4, 6
TEX. R. APP. P. 9.4(g) .................................................................................................................. i




                                                                     iii
TO THE HONORABLE COURT OF APPEALS:


                          STATEMENT OF THE CASE

      Appellant was charged by indictment with the felony offense of aggravated

robbery. (CR 9). After a jury was impaneled, he pled guilty to the offense. (CR

37; RR III 3-5). The jury found the enhancement paragraph true and sentenced

appellant to 30 years confinement in the Institutional Division of the Texas

Department of Criminal Justice. (CR 46, 49).

                         ♦


                            STATEMENT OF FACTS

      On the afternoon of August 11, 2013, the victim in this case, Eloy Canales,

went to a local car wash. (RR IV 11-15, 31). He parked his car and was utilizing

one of the spray nozzles to clean out some containers when he saw a truck drive

up. (RR IV 14-15). Appellant jumped out of the truck and approached Eloy

holding a shotgun. (RR IV 16-18; State’s Exhibit Number 1). Appellant racked the

shotgun and placed it on Eloy’s chest; appellant instructed Eloy to give him his cell

phones, wallet and car keys, which he did. (RR IV 20-21). Appellant threw his car

keys in the street before fleeing the scene, enabling Eloy to drive home and call the

police. (RR IV 21-22).
      Officer Rohm met with Eloy and obtained the suspect and vehicle

descriptions from him. (RR IV 27-31). Based on this information, Officer Mitchell

located appellant, who initially evaded and fought him; Mitchell eventually

apprehended appellant and he was identified by Eloy Canales. (RR IV 37, 85-117;

State’s Exhibit Number 1).

      Police learned that appellant had committed two other similar aggravated

robberies on this same day, where he approached individuals at public places,

threatened them with a shotgun and demanded their property. (RR IV 42-51, 54-

61, 69-79; State’s Exhibit Number 1). These victims were able to identify appellant

as the perpetrator. (RR IV 48, 61; State’s Exhibit Number 1). The stolen property

of Eloy Canales, as well as the other victims, was found inside appellant’s truck.

(RR IV 107-111). A shotgun and shotgun shells were also located inside appellant’s

truck. (RR IV 116).

      The State presented evidence of another extraneous aggravated robbery,

committed against Olga Rubalcava. (RR V 3-14). She identified appellant in court

as the perpetrator and testified he threatened her family with a shotgun and took

their property. (RR V 9-13). The State also presented evidence that appellant was

previously convicted of robbery, in the 180th District Court of Harris, on

September 23, 2011, in Cause Number 1292654. (RR IV 3, 6-7; State’s Exhibit

Numbers 51 & 55). Appellant testified that he did not commit this robbery, but



                                        2
admitted he pled guilty.        (RR V 33-37, 53-55; State’s Exhibit Number 51).

Appellant also admitted he committed the three aggravated robberies on August

11, 2013, as well as other robberies, but he could not recall them all due to his drug

use. (RR V 59-63).

                        ♦


                       SUMMARY OF THE ARGUMENT

      Appellant has not shown he was harmed by the trial court’s failure to

admonish him on the range of punishment prior to his guilty plea.

                        ♦


                     REPLY TO APPELLANT’S SOLE ISSUE

      In his sole issue on appeal, appellant claims the trial court erred by failing to

admonish him on the full range of punishment prior to his guilty plea. There is no

indication in the record that verifies the trial court admonished appellant of the

range of punishment as required by Article 26.13. See TEX. CODE CRIM. PROC. ANN.

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

      A trial court’s error in failing to show on the record that it admonished a

guilty-pleading defendant on the range of punishment is non-constitutional error,

subject to the harm analysis under Rule 44.2(b). See Aguirre–Mata v. State, 992

S.W.2d 495, 499 (Tex. Crim. App. 1999) (admonishments embodied in Article


                                          3
26.13(a), Texas Code of Criminal Procedure, are not constitutionally required);

TEX. R. APP. P. 44.2(b) (if the error does not affect the appellant’s substantial

rights, it must be disregarded).

       In determining whether a failure to comply with statutory admonishment

requirements affected appellant’s substantial rights, this Court should review the

entire record for information showing whether the plea was voluntary and

uncoerced, as well as information revealing appellant’s knowledge and

understanding of the charges against him and the consequences of his plea. See

Manoy v. State, 7 S.W.3d 771, 776 (Tex. App.—Tyler 1999, no pet.). To show harm,

appellant must prove the information contained in the admonishment would

likely have affected his willingness to plead guilty. See Raney v. State, 958 S.W.2d

867, 874 (Tex. App.—Waco 1997, pet. dism’d).

       At the time appellant indicated to the trial court he was going to plead

guilty, defense counsel assured the trial court that he had talked with appellant

about the punishment phase at length and discussed the implications of the

numerous extraneous offenses with appellant. (RR II 3-5). Afterward, the parties

proceeded with voir dire, and then appellant pled guilty to the jury. (RR II 4; RR

III 3-5).

       Although the trial court did not admonish appellant on the range of

punishment prior to his guilty plea, this information was prevalent throughout the


                                         4
record. During voir dire, the prosecutor for the State talked to the panel about the

range of punishment in this particular case. (RR II 28-29). He explained the

minimum punishment for aggravated robbery was five years and the maximum

punishment was 99 years or life imprisonment and asked each juror if they could

consider the full range of punishment. (RR II 28-34). Defense counsel then

expanded upon this subject during voir dire, reiterating that the range of

punishment in this case was 5-99 years or life imprisonment, and depending on

the circumstances, possibly 15 years to life imprisonment. (RR II 78).

      Statements by the prosecutor and defense counsel during voir dire, prior to

a defendant’s guilty plea, have been used to demonstrate a defendant had

knowledge of the range of punishment in his case. See McLaren v. State, 996 S.W.2d

404, 406 (Tex. App.—Beaumont 1999, pet. ref’d) (trial court’s failure to admonish

defendant on the range of punishment did not affect his substantial rights where

the record of the voir dire examination affirmatively showed defendant had

knowledge of the applicable punishment range prior to the entry of his plea);

Rachuig v. State, 972 S.W.2d 170, 176 (Tex. App.—Waco 1998, pet. ref’d) (record

indicated defendant had full knowledge of the applicable range of punishment

where such was stated during voir dire).

      In closing argument, defense counsel urged the jury to find the enhancement

allegation not true, which would triple the minimum of 5 years to 15 years, based



                                           5
on appellant’s testimony that he did not commit the robbery. (RR V 88-89). The

State asked the jury for a sentence of life imprisonment, based on the number and

severity of the robberies committed by appellant. (RR V 91-97). The range of

punishment was included in the court’s charge to the jury, which was read in the

presence of appellant. (CR 39-40). See Manoy, 7 S.W.3d at 776 (error in trial court’s

failure to admonish defendant of punishment range prior to accepting guilty plea

to first-degree felony of aggravated robbery was harmless, where record showed

that defendant was informed of applicable punishment range before jury retired to

consider its verdict, and defendant did not show that his willingness to plead

guilty would have been affected had he been properly admonished).

      The jury found the prior enhancement true and sentenced appellant to 30

years imprisonment. (RR V 97-98). This sentence is on the lower end of his range

of punishment, 15-99 years. The evidence of appellant’s guilt on the charged

offense, as well as the extraneous offenses, was strong.

      Appellant has not shown the information regarding the range of

punishment would have affected his willingness to plead guilty. Thus, the trial

court’s error is harmless. TEX. R. APP. P. 44.2(b). Appellant’s sole issue should be

overruled.

                       ♦




                                          6
                                 CONCLUSION

      It is respectfully submitted that all things are regular and that the

conviction should be affirmed.

                                              DEVON ANDERSON
                                              District Attorney
                                              Harris County, Texas



                                              /s/   Jessica Akins
                                              JESSICA AKINS
                                              Assistant District Attorney
                                              Harris County, Texas
                                              1201 Franklin, Suite 600
                                              Houston, Texas 77002
                                              State Bar Number: 24029415
                                              akins_jessica@dao.hctx.net




                                     7
                          CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing instrument has been sent to

appellant’s attorney at the following address on October 29, 2015:

      Sidney Crowley
      Attorney at Law
      214 Morton Street
      Richmond, Texas 77469
      jcrowl@windstream.net



                                                   /s/   Jessica Akins
                                                   JESSICA AKINS
                                                   Assistant District Attorney
                                                   Harris County, Texas
                                                   1201 Franklin, Suite 600
                                                   Houston, Texas 77002
                                                   State Bar Number: 24029415
                                                   akins_jessica@dao.hctx.net




                      CERTIFICATE OF COMPLIANCE

      This is to certify that this computer-generated document has a word count
of 1867 words, based upon the representation provided by the word processing
program that was used to create the document.



                                                   /s/   Jessica Akins
                                                   JESSICA AKINS
                                                   Assistant District Attorney
                                                   Harris County, Texas

                                         8
