                                                                                          ACCEPTED
                                                                                      13-14-00145-CR
                                                                      THIRTEENTH COURT OF APPEALS
                                                                             CORPUS CHRISTI, TEXAS
                                                                                 5/19/2015 5:37:08 PM
                                                                                    DORIAN RAMIREZ
                                                                                               CLERK

                                 No. 13-14-00145-CR

                                                         RECEIVED IN
                                                   13th COURT OF APPEALS
                            IN THE COURT OF APPEALS
                                                CORPUS CHRISTI/EDINBURG, TEXAS
                  FOR    THE THIRTEENTH DISTRICT OF5/19/2015
                                                      TEXAS5:37:08 PM
                           CORPUS CHRISTI - EDINBURGDORIAN E. RAMIREZ
                                                           Clerk

        FILED
                           MATTHEW JOHN CASANOVA,
IN THE 13TH COURT OF APPEALS
        CORPUS CHRISTI

         05/19/15                                  APPELLANT,
DORIAN E. RAMIREZ, CLERK
                                         v.
BY cholloway

                               THE STATE OF TEXAS,

                                                   APPELLEE.


                   On Appeal from Cause No. 13-10-27587-A in the
                    24th District Court of Victoria County, Texas
                   Hon. Juergen “Skipper” Koetter, Judge Presiding


                               BRIEF OF APPELLANT


                                              Arnold Hayden
                                              State Bar No. 24065390
                                              The Law Office of Arnold Hayden
                                              P.O. Box 4967
                                              Victoria, Texas 77903
                                              Tel: (361) 573-4393
                                              Fax: (361) 573-4394

                                              ATTORNEY FOR APPELLANT

                                              May 19, 2015

                          ORAL ARGUMENT REQUESTED
                 IDENTITY OF PARTIES AND COUNSEL

      Appellant submits the names and addresses of all interested parties and

attorneys:

Parties

      MATTHEW JOHN CASANOVA
      Inmate No. 01917808
      Eastham Unit, TDCJ
      2665 Prison Rd. #1
      Lovelady, TX 75851

      THE STATE OF TEXAS
      c/o MR. STEPHEN TYLER
      Victoria County Criminal District Attorney
      205 N. Bridge St., Ste. 301
      Victoria, TX 77901

Attorneys

      ARNOLD HAYDEN
      Attorney for Appellant
      P.O. Box 4967
      Victoria, Texas 77903

      STEPHEN TYLER
      Attorney for Appellee
      Victoria County Criminal District Attorney
      205 N. Bridge St., Ste. 301
      Victoria, TX 77901




                                         i
                                         TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................................................ i
TABLE OF CONTENTS .......................................................................................... ii
LIST OF AUTHORITIES........................................................................................ iv
STATEMENT OF THE CASE ............................................................................... vii
ISSUES PRESENTED........................................................................................... viii
STATEMENT OF FACTS ........................................................................................2
SUMMARY OF THE ARGUMENT ........................................................................6
ARGUMENT .............................................................................................................9
  I.     This Court should hold that Appellant’s constitutional right to due
         process was violated because the trial court failed to submit an element
         of the offense to the jury and that this error is reversible ................................ 9
         A.       Under Apprendi, due process requires that any factor that
                  enhances the maximum sentence of an offense, other than prior
                  conviction enhancements, to be submitted to a jury as an element
                  of the offense ......................................................................................... 9
         B.       The trial court violated due process under Apprendi when it made
                  its own finding that the two alleged assaults occurred within one
                  year, instead of submitting this element to the jury ............................ 11
         C.       Appellant was harmed by the trial court’s error because his
                  punishment exceeded the maximum sentence for a non-enhanced
                  offense of misdemeanor assault .......................................................... 13
  II. This Court should hold that the trial court’s failure to sufficiently
      instruct the jury on the lesser-included offenses of misdemeanor assault
      constitutes reversible error............................................................................. 15
         A.       While the procedures regarding special jury instructions are
                  defined by statute, the preservation of error for special
                  instructions either by objection or the submission of instructions
                  by written request ................................................................................ 15

                                                            ii
                  1.        Error was preserved by Appellant’s objection to the
                            omission of the lesser-included offenses in the State’s
                            proposed jury charge ............................................................... 18
                  2.        Estoppel prevents the State from asserting that the lesser-
                            included charge was not required or that error was not
                            preserved because no charge conference was held on the
                            amended charge prepared by the State’s attorneys ................. 18
         B.       The trial court erred by failing to sufficiently charge the jury with
                  the lesser-included offenses of misdemeanor assault ......................... 20
                  1.        The jury instructions are not sufficient to inform the jury
                            of the applicable laws regarding the lesser-included
                            offenses ................................................................................... 23
                  2.        The verdict form cannot cure the defects in the jury
                            instructions regarding lesser-included offenses while
                            simultaneously maintaining compliance with Apprendi......... 24
         C.       Appellant was harmed by the trial court’s error because the
                  sentence exceeded the maximum of the lesser-included offense........ 26
PRAYER ..................................................................................................................27
CERTIFICATION OF COMPLIANCE ..................................................................28
CERTIFICATE OF SERVICE ................................................................................28




                                                            iii
                                   LIST OF AUTHORITIES

Cases

Almanza v. State,
  686 S.W.2d 157 (Tex. Crim. App. 1985) .............................................................15

Apprendi v. United States,
 530 U.S. 466, 120 S.Ct. 2348 (2000) ........................................................... passim

Barrios v. State,
 283 S.W.3d 348 (Tex. Crim. App. 2009) ...................................................... 22, 23

Benevides v. State,
  763 S.W.2d 587 (Tex. App.—Corpus Christi 1988) ............................................22

Bowen v. State,
 374 S.W.3d 427 (Tex. Crim. App. 2012) ...................................................... 14, 26

Boyett v. State,
 692 S.W.2d 512 (Tex. Crim. App. 1985) .............................................................21

Bridges v. State,
  389 S.W.3d 508 (Tex. App.—Houston[14th Dist.] 2012) ...................................26

Chase v. State,
 448 S.W.3d 6 (Tex. Crim. App. 2014) .................................................................17

Jones v. United States,
  526 U.S. 227, 119 S. Ct. 1215 (1999) ..................................................................10

Lankston v. State,
  827 S.W.2d 907 (Tex. Crim. App. 1992) .............................................................17

                                                    iv
Martinez v. State,
 225 S.W.3d 550 (Tex. Crim. App. 2007) .............................................................25

McIntosh v. State,
 297 S.W.3d 536 (Tex. App.—Houston[1st Dist.] 2009)......................................23

Middleton v. State,
 125 S.W.3d 450 (Tex. Crim. App. 2003) .............................................................15

Ngo v. State,
 175 S.W.3d 738 (Tex. Crim. App. 2005) .............................................................15

Rodriguez v. State,
 758 S.W.2d 787 (Tex. Crim. App. 1988) .................................................. 9, 13, 15

Statutes

Tex. C. Crim. Proc. art. 36.14 ..................................................................................16

Tex. C. Crim. Proc. art. 36.15 ........................................................................... 16, 17

Tex. Penal Code § 12.21 ..........................................................................................13

Tex. Penal Code § 12.34 ..........................................................................................13

Tex. Penal Code § 22.01 ................................................................................... 11, 14

Tex. Penal Code § 25.11 ..........................................................................................11




                                                         v
Rules

Tex. R. App. Proc. 44.2 ...........................................................................................13

Treatises

43 Tex. Prac., Crim. Prac. & Proc. § 43:47 (3d ed.) ................................................21




                                                         vi
                         STATEMENT OF THE CASE


      Appellant was charged with committing the offenses of Aggravated Assault,

Continuous Family Violence, and Aggravated Sexual Assault. (I C.R. at 6.) At

trial, the State abandoned the allegations of Aggravated Assault and Sexual Assault,

proceeding only on the allegation that Appellant committed the offense of

Continuous Family Violence. (III R.R. at 8.) The jury found by its verdict that

Appellant twice committed the offense of Assault against a Family Member, once

on April 4 and once on July 6, as alleged in the indictment. (I C.R. at 39.) Upon

this verdict, the trial court pronounced a conviction for the offense of Continuous

Family Violence and the trial proceeded to punishment.    (IV R.R. at 76; V R.R. at

8.)   After finding that Appellant was a habitual offender based upon two prior

convictions, the jury assessed punishment at twenty-five (25) years confinement in

the Institutional Division of the Texas Department of Criminal Justice.   (I C.R. at

47, 52.)




                                        vii
                             ISSUES PRESENTED


1.   Under the Fourteenth Amendment, whether a trial court’s judgment finding

     Appellant guilty of the felony offense of continuous family violence under

     Tex. Penal Code § 25.11 violated Appellant’s constitutional right to due

     process when the jury returned a verdict that found that Appellant committed

     two offenses of misdemeanor assault, but the verdict form did not require the

     jury to find beyond a reasonable doubt the element of whether the assaults

     occurred within a duration of twelve (12) months or less, as required for

     enhancement to a felony under Section 25.11.


2.   Under Texas law, whether the trial court erred in failing to sufficiently charge

     the jury with the lesser-included offenses of misdemeanor assault, when

     Appellant objected to the State’s omission of the lesser-included offense in a

     proposed jury charge prepared by the State, the trial court found that a lesser-

     included instruction was necessary, the State failed to include sufficient

     language in the charge for the lesser-included offenses, and the charge was

     presented to the jury without a charge conference on the amended charge,

     constructively denying Appellant’s request for the lesser-included charge.




                                        viii
                               No. 13-14-00145-CR


                       IN THE COURT OF APPEALS
                FOR THE THIRTEENTH DISTRICT OF TEXAS
                      CORPUS CHRISTI - EDINBURG

                        MATTHEW JOHN CASANOVA,
                                                   APPELLANT,
                                         v.

                            THE STATE OF TEXAS,
                                                   APPELLEE.

                On Appeal from Cause No. 13-10-27587-A in the
                 24th District Court of Victoria County, Texas
                Hon. Juergen “Skipper” Koetter, Judge Presiding

                             BRIEF OF APPELLANT


TO THE HONORABLE COURT OF APPEALS:

      Appellant, MATTHEW JOHN CASANOVA, respectfully submits this brief

in appeal of the sentence imposed in the trial court of confinement for twenty-five

(25) years in the Institutional Division of the Texas Department of Criminal Justice

following a conviction for the offense of Continuous Family Violence. This is an

appeal from the 24th Judicial District Court of Victoria County, Texas, the

Honorable Juergen “Skipper” Koetter, Judge Presiding, in District Court Cause

Number 13-10-27587-A in which Appellant, MATTHEW JOHN CASANOVA,

was the Defendant and the State of Texas was the Plaintiff.
                           STATEMENT OF FACTS

       Appellant, Matthew Casanova, met his wife, Naomi Casanova, at church in

Flagstaff, Arizona. (III R.R. at 124.)   Appellant began attending Naomi’s church

after being invited by Naomi’s mother, who knew Appellant through work. (III

R.R. at 125.) After noticing each other at church, the two began communicating

on Facebook. (III R.R. at 125.) The pair soon began dating. (III R.R. at 126.)

       When Appellant proposed after only a handful of dates, Naomi agreed

immediately. (III R.R. at 126.) Naomi wasn’t worried that her relationship with

Appellant was moving too fast.      (III R.R. at 126.)   She and Appellant talked

constantly every day.     (III R.R. at 126.)     Naomi described Appellant as a

gentleman who treated her the way she thought she should be treated. (III R.R. at

126.) To her, this was the type of relationship she had always wanted. (III R.R.

at 126.)

       The couple was so excited to be married that they went to the courthouse the

very next day, December 20, 2012, and were married by a judge. (III R.R. at 127-

28.)   After the wedding, Appellant moved in with Naomi.          (III R.R. at 127.)

Naomi was living at a friend’s house, paying the friend rent and helping out with the

bills. (III R.R. at 127.) Naomi was working as a maid and Appellant also worked

in maintenance. (III R.R. 127-28.)

       Appellant and Naomi only lived at the friend’s house for a few weeks. (III
                                        2
R.R. at 128.) During this time, Naomi quit her job and stopped paying rent and

helping out with the bills. (III R.R. at 127.) Two weeks into the marriage, Naomi

got into an argument with Appellant because she wanted to meet up with a friend

from out of town.     (III R.R. at 129-30.)    Appellant was suspicious that the

relationship between Naomi and this friend was more than merely platonic, and after

a heated argument, Naomi decided to stay home. (III R.R. at 130.)

      Not long after this initial argument, Naomi and Appellant are out at a bar,

watching a band whose members Naomi was personally acquainted with. (III R.R.

at 130.) Prior to going the bar, the couple had been drinking at home with another

couple, their roommate’s daughter and son-in-law. (III R.R. at 130.) At the bar,

the two couples meet up with more of Naomi’s friends. (III R.R. at 131.) Naomi

and Appellant get into an argument at the bar, and the two couples leave the bar to

go back to the house. (III R.R. at 131-33.) The argument from the bar continued

back at home until interrupted by Naomi’s roommate, who told Naomi that she

didn’t want the couple to live at the house anymore. (III R.R. at 133-34.)

      About a week later, Naomi and Appellant moved out of the friend’s house into

Naomi’s sister’s house in Gilbert, Arizona, where they stayed for approximately two

months. (III R.R. at 135.) After several more arguments, Appellant left Naomi

in Arizona in March of 2013.      (III R.R. at 136.)    Appellant moved back to

Victoria, Texas, to live with his brother, Felix Salinas, and sister-in-law, Erica
                                        3
Salinas. (III R.R. at 136-37.)

      Several days after Appellant moves to Texas, Appellant and Naomi begin

communicating again. (III R.R. at 137-38.) Near the beginning of April, 2013,

Naomi drove from her sister’s house in Gilbert, Arizona, to Victoria, Texas, and

moved with Appellant at his brother Felix’s house, located at 108 Scarborough. (III

R.R. at 139.)

      It became apparent quickly that the couple’s problems had followed them to

Texas when, on April 4, 2013, officers from the Victoria Police Department

responded to a call involving a disturbance at the HEB Plus grocery store in Victoria.

(III R.R. at 49.) At the store, the officers encountered Naomi, who claimed that

Appellant had struck her in the parking lot. (III R.R. at 52.)   Appellant was not at

the store when the police arrived because an employee had asked Appellant to leave.

(III R.R. at 160.) After taking Naomi’s statement, officers went to the house at 108

Scarborough and arrested Appellant for assault causing bodily injury to a family

member. (III R.R. at 64-65.)

      After spending a few days away, Naomi continued to live at the brother’s

house on Scarborough while Appellant was in jail. (III R.R. at 164.) Appellant

and Naomi wrote letters and talked on the phone while he was incarcerated. (III

R.R. at 165-66.)    After about a month, Appellant was released on bond with

conditions that he have no contact with Naomi.      (III R.R. at 166, 209.) Naomi
                                        4
was notified of these bond conditions, but choose to ignore them. (III R.R. at 173,

209.)    A few days after Appellant gets out of jail, Naomi goes to the district

attorney’s office and fills out an affidavit of non-prosecution, stating that she wanted

the charges against her husband dropped. (III R.R. at 173.)

        While Appellant was in jail, Naomi had sexual intercourse with another man,

named Simon Brisenio. (III R.R. at 168.) Simon was friends with Appellant’s

brother, Felix, and knew Appellant. (III R.R. at 168.) Simon would visit Felix

and hang out at the house often. (III R.R. at 168-69.) On one of these nights,

while Appellant was in jail, Naomi confided in him about her marriage. (III R.R.

at 169.) Naomi then went over to Simon’s house and was unfaithful to Appellant.

(III R.R. at 169.)

        In July of 2013, Naomi and Appellant got into a lengthy argument over

Naomi’s wedding ring, which she claimed to have lost. (III R.R. at 87.) Felix and

Erica Salinas observed them arguing late at night about the ring, and continuing to

argue the next day.   (III R.R. at 87.) The following evening, Naomi asked Erica

Salinas to take her to stay with a friend for the night. (III R.R. at 89.) While in

the car, Naomi told Erica that she and Appellant had argued all day and that

Appellant had hit her, showing her bruises that were purported to be caused by

Appellant. (III R.R. at 90.) Emily called the police to report the incident (III R.R.

at 91), which led to an indictment for continuous family violence (I C.R. at 6).
                                          5
                       SUMMARY OF THE ARGUMENT

       Under Apprendi v. New Jersey, a defendant’s constitutional right to due

process is violated when any factor that increases the maximum punishment of an

offense, other than a prior conviction, is not submitted to the jury as an element of

the offense. Appellant was charged with the offense of continuous family violence,

which enhances the misdemeanor offense of assault family violence to a felony when

a person commits two or more assaults causing bodily injury to a family member

within a period of time that is twelve (12) months or less in duration, increasing the

maximum punishment from one (1) year confinement in the county jail to ten (10)

years confinement in prison.

      While the jury in the instant case was charged with finding whether or not

Appellant committed the offense of continuous family violence, the verdict form

only asked the jury to convict or acquit Appellant of the two underlying assaults that

were found in the indictment, without giving the jury a manner to indicate whether

or not it found beyond a reasonable doubt that the two underlying assaults occurred

within a period of twelve (12) months or less. Because Apprendi requires that the

within-twelve-months element be presented to the jury, and Appellant received a

sentence of twenty-five (25) years, which extends beyond the maximum one (1) year

sentence for misdemeanor assault family violence, this Court should remand this

cause to the trial court with orders that Appellant’s conviction be reformed to reflect
                                            6
a misdemeanor assault causing bodily injury to a family member and for a new

hearing on punishment. Otherwise, this Court should reverse and remand for a new

trial.

         Even if this Court were to find that Appellant’s right to due process were not

violated under Apprendi, this Court should find that the trial court committed

reversible error by failing to include sufficient instructions charging the lesser-

included offenses of misdemeanor assault in its charge to the jury. At the charge

conference, Appellant objected to the omission of the lesser-included offense of

misdemeanor assault in State’s proposed charge. While the trial court instructed

the State that the lesser-included offense was necessary, immediately preceding the

charge conference in the record, a charge was read that did not instruct the jury on

how to proceed in deciding between the greater offense and the lesser-included

offenses and did not contain an application paragraph for the lesser-included

offenses. Given this sequence of events in the record, this Court should find that

Appellant preserved error on the issue of a lesser-included offense, and that the trial

court’s reliance upon the State to present an amended charge estops the State from

claiming that error was not preserved on the amended charge or that the lesser-

included charge was not required based upon the evidence at trial.

         Texas law requires that a jury receive written instructions distinctly setting for

the law of the case. The Texas Court of Appeals has, over time, approved two
                                     7
models of charging lesser-included offenses, the traditional “stair-step” model from

Boyett v. State and a more modern version “charge-as-a-whole” model from Barrios

v. State. Both models are legally sufficient and both models require the use of a

charging paragraph for the lesser-included offense. Because the jury charge in the

instant case does not conform to either Boyett or Barrios, this Court should find that

the trial court erred when it submitted a charge to the jury that did not contain

sufficient language for the lesser-included offense of misdemeanor assault.

      Because this issue was preserved by Appellant’s objection at the charge

conference, Appellant only need to show “some harm” to avoid a finding that the

error was harmless. Here, Appellant was sentenced to twenty-five (25) years, when

the maximum sentence for the lesser-included offense was one (1) year.             As

previously stated, this Court should remand this cause to the trial court with orders

that Appellant’s conviction be reformed to reflect a misdemeanor assault causing

bodily injury to a family member and for a new hearing on punishment. Otherwise,

this Court should reverse and remand for a new trial.




                                          8
                                   ARGUMENT

   I. This Court should hold that Appellant’s constitutional right to due
      process was violated because the trial court failed to submit an element
      of the offense to the jury and that this error is reversible

      For cases involving constitutional error in a jury charge, error need not be

preserved at trial, and the harm analysis are to be decided by the standards set forth

in the Rules of Appellate Procedure for constitutional error.     Rodriguez v. State,

758 S.W.2d 787, 788 (Tex. Crim. App. 1988).          This standard requires reversal

“unless the court determines beyond a reasonable doubt that the error did not

contribute to the conviction or punishment.” Tex. R. App. Proc. 44.2(a).

      A.     Under Apprendi, due process requires that any factor that enhances the
             maximum sentence of an offense, other than prior conviction
             enhancements, to be submitted to a jury as an element of the offense

      The trial court violated Appellant’s constitutional right to due process when it

failed to submit to the jury the issue of whether the two offenses of assault family

violence, of which the jury found Appellant guilty, occurred within one year of each

other. Under Apprendi, any issue that raises the maximum sentence of an offense,

other than a sentencing enhancement based upon a prior conviction, is an element of

the offense and must be submitted to the jury and proven beyond a reasonable doubt.

Apprendi v. United States, 530 U.S. 466, 476, 120 S.Ct. 2348, 147 L. Ed. 2d 435

(2000). Failure to submit such an element to the jury was found by the Apprendi

court to violate a defendant’s Fourteenth Amendment right to due process by way of
                                          9
the Due Process Clause of the Fifth Amendment and the notice and jury trial

guarantees of the Sixth Amendment. Id. (citing Jones v. United States, 526 U.S.

227, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999)).

      In Apprendi, the United States Supreme Court considered a case involving a

hate crime enhancement. Apprendi, 530 U.S. at 470. The defendant was charged

with firing shots into the home of an African-American family in his neighborhood.

Id. at 469.   The defendant pled guilty to offenses that each carried a range of

punishment of five (5) to ten (10) years confinement, but did not allege in the

indictment that the offenses were hate crimes. Id. At a hearing on punishment

before the court, the prosecution sought to enhance the punishment of the offenses

by use of a hate crime enhancement.      Id. at 470. As authorized by New Jersey

law, the trial court found under a preponderance standard that the defendant had

committed a hate crime and sentenced the defendant to twelve (12) years

confinement, two (2) years above the maximum sentence without the enhancement.

Id. at 471. The Apprendi court held that it is unconstitutional for criminal sentences

to be enhanced above the limits provided by statute unless the element constituting

the enhancement is submitted to the jury and proven beyond a reasonable doubt.

Id. at 490.




                                         10
      B.    The trial court violated due process under Apprendi when it made its
            own finding that the two alleged assaults occurred within one year,
            instead of submitting this element to the jury

      The instant case is similar to the Apprendi because Appellant was convicted

of the offense of continuous family violence, which is an enhanced offense. The

offense of assault causing bodily injury is a Class A misdemeanor.      Tex. Penal

Code § 22.01(a)(1) & (b). A person commits a third third-degree felony when a

person commits two or more acts constituting offenses under Section 22.01(a)(1)

against a family member during a period of twelve (12) months or less in duration.

Tex. Penal Code § 25.11(a).     Like the enhancement statute in Apprendi, which

enhanced punishment for offenses that were considered hate crimes, Section

25.11(a) enhances punishment of offense as assault causing bodily injury involving

family violence when two offenses are committed within a year.            Compare

Apprendi, 530 U.S. at 469-470, with Tex. Penal Code §§ 22.01(b)(1) & 25.11(a) .

      Unlike the state of New Jersey in Apprendi, the Texas legislature was more

careful not to violate due process from the get-go by drafting the continuous family

violence enhancement as a new offense under Chapter 25 of the Penal Code. This

drafting decision removes any ambiguity in whether the legislature intended the

conduct required to enhance a misdemeanor assault to the felony of continuous

family violence to be in the indictment, submitted to the jury, and proven beyond a

reasonable doubt. See Tex. Penal Code § 25.11(a) (describing the conduct as an
                                        11
offense instead of an enhancement); Apprendi, 530 U.S. at 491-92 (rejecting the

State’s argument that the hate crime enhancement was a sentencing factor rather than

an element of an enhanced offense).

       However, while the Texas legislature did its part to avoid Apprendi challenges

in the drafting of Section 25.11(a), a trial court will still violate due process if it fails

to submit all elements of the enhanced offense to the jury when drafting the charge.

An examination of the charge of the court will reveal that while the application

paragraph of the charge correctly lays out the elements of Section 25.11, (I C.R. at

34), the verdict form only required the jury to making findings on whether or not

Appellant twice committed the offense of assault family violence (I C.R. at 39).

Nowhere on the verdict form does the jury make a finding that these two offenses of

assault family violence occurred within a period that is twelve (12) months or less

in duration. (See I C.R. at 39.)

       Because the jury form does not indicate that the jury made a finding that the

underlying offenses occurred within the time period required as an element of

Section 25.11(a), it must be inferred that the trial court made this finding in place of

the jury when it adjudged Appellant guilty of the greater offense continuous family

violence under Section 25.11(a). (I C.R. at 53.) Under Apprendi, because this

finding enhanced the maximum punishment from one (1) year confinement in the

county jail to ten (10) years confinement in prison, the trial court violated
                                     12
Appellant’s right to due process under the Fourteenth Amendment when it failed to

submit an essential element of the offense—whether the two offenses occurred

within a period of twelve (12) months or less in duration—to the jury.             See

Apprendi, 530 U.S. at 490; Tex. Penal Code §§ 12.21, 12.34 (punishment range for

Class A misdemeanors third degree felonies, respectively).

      C.    Appellant was harmed by the trial court’s error because his punishment
            exceeded the maximum sentence for a non-enhanced offense of
            misdemeanor assault

      Claims of constitutional error in a jury charge do not need to be raised at trial

to preserve error on appeal.   Rodriguez, 758 S.W.2d at 788. Any harm must be

analyzed under the appellate standard for constitutional error, requiring that “the

court of appeals must reverse a judgment of conviction or punishment unless the

court determines beyond a reasonable doubt that the error did not contribute to the

conviction or punishment.” Tex. R. App. Proc. 44.2; see Rodriguez, 758 S.W.2d

at 788 (discussing the application of statutory standards of review under prior

version of Rule 44.2).

      In the instant case, there is no question that Appellant was harmed by the trial

court’s error because the erroneous conviction for a third-degree felony led to the

jury being charged with a punishment range that exceeded the punishment allowed

for the underlying Class A misdemeanor, the maximum of which is one year

confinement in the county jail. Tex. Penal Code § 12.21. Instead, Appellant was
                                         13
sentenced to twenty-five (25) years based upon a conviction for a third degree

offense enhanced once more as a habitual offender under Section 12.42(d), which

raised the maximum punishment to confinement for Life or ninety-nine (99) years,

with a minimum sentence of twenty-five (25) years.

      Because Appellant was harmed by the error in the jury charge, the most

appropriate remedy is for this Court to order this cause be remanded to the trial court

for a reformation of Appellant’s conviction to reflect the lesser-included

misdemeanor offense of assault causing bodily injury against a family member under

Tex. Penal Code § 22.01(a)(1) and to proceed immediately to a hearing on

punishment. See Bowen v. State, 374 S.W.3d 427, 431-42 (Tex. Crim. App. 2012)

(reversing prior holding that barred the reformation of felony conviction for assault

family violence to a misdemeanor when the lesser-included offense was not

submitted to the jury). If this relief is found to be unavailable, this Court should

reverse and remand for a new trial.




                                          14
II.   This Court should hold that the trial court’s failure to sufficiently instruct
      the jury on the lesser-included offenses of misdemeanor assault
      constitutes reversible error

      Non-constituional claims of jury-charge error are reviewed by this Court

using the procedure set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.

App. 1985) (regarding non-constitutional error), but see Rodriguez, 758 S.W.2d at

788 (superseding Almanza on the issues of error preservation and harm analysis in

cases involving constitutional error). First, this Court should decide whether there

was error in the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005);

Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). If the charge

contains non-constitutional error and appellant objected to the error at trial, reversal

is required if there is “some harm.” Almanza, 686 S.W.2d at 171 (defining error

that “is calculated to injure the rights of the defendant” as “some harm”). If the

non-constitutional error was not objected to, it must be “fundamental” to require

reversal, meaning that the error is so egregious that it denied the defendant his right

to a fair and impartial trial. Id.

      A.     While the procedures regarding special jury instructions are defined by
             statute, the preservation of error for special instructions either by
             objection or the submission of instructions by written request

      The requirements for a jury charge are defined by statute in the Code of

Criminal Procedure. Article 36.14 sets forth the requirements for the charge, and

requires that the jury receive a “written charge distinctly setting forth the law
                                          15
applicable to the case; not expressing any opinion as to the weight of the evidence,

not summing up the testimony, discussing the facts or using any argument in his

charge calculated to arouse the sympathy or excite the passions of the jury.”        Tex.

C. Crim. Proc. art. 36.14. Article 38.14 requires that any objection to the charge

be made either in writing or “dictated to the court reporter in the presence of the

court and the state's counsel, before the reading of the court's charge to the jury.”

Id. “Said objections may embody errors claimed to have been committed in the

charge, as well as errors claimed to have been committed by omissions therefrom or

in failing to charge upon issues arising from the facts, and in no event shall it be

necessary for the defendant or his counsel to present special requested charges to

preserve or maintain any error assigned to the charge, as herein provided.” Id. .

      Article 36.15 sets forth the procedure for which a party may request special

charges to be added to the trial court’s charge which the “trial court shall give or

refuse.”   Tex. C. Crim. Proc. art. 36.15.        “The defendant may, by a special

requested instruction, call the trial court's attention to error in the charge, as well as

omissions therefrom, and no other exception or objection to the court's charge shall

be necessary to preserve any error reflected by any special requested instruction

which the trial court refuses.” Id. “When the defendant has leveled objections to

the charge or has requested instructions or both, and the court thereafter modifies his

charge and rewrites the same and in so doing does not respond to objections or
                                      16
requested charges, or any of them, then the objections or requested charges shall not

be deemed to have been waived by the party making or requesting the same, but

shall be deemed to continue to have been urged by the party making or requesting

the same unless the contrary is shown by the record; no exception by the defendant

to the action of the court shall be necessary or required in order to preserve for review

the error claimed in the charge.” Id.

      The Court of Criminal Appeals recently addressed the methods of preserving

error in the jury charge, noting that while Article 36.14 required objections to the

charge and Article 36.15 required submitting proposed instructions, error may be

preserved using either method under both articles. Chase v. State, 448 S.W.3d 6,

12-13 (Tex. Crim. App. 2014). The Chase court reasoned that either method of

stating an objection or stating a proposed instruction were sufficient to “satisfy the

basic principle of error preservation that a party is required to ‘let the trial judge

know what he wants, why he thinks himself entitled to it, and to do so clearly enough

for the judge to understand him at a time when the trial court is in a proper position

to do something about it.’”    Id. at 12 (quoting Lankston v. State, 827 S.W.2d 907,

909 (Tex. Crim. App. 1992)).




                                           17
             1.    Error was preserved by Appellant’s objection to the omission of
                   the lesser-included offenses in the State’s proposed jury charge

      At trial, Appellant raised the issue of a lesser-included offense of

misdemeanor assault for the offense of continuous family violence during a jury

charge conference. At the charge conference, a proposed charge prepared by the

State was presented for objections.   (IV R.R. at 34.) Appellant objected that the

proposed charge did not include the lesser-included offense of misdemeanor assault.

(IV R.R. at 35-37.) This objection preserved error for appeal on whether the jury

charge properly instructed the jury on the issue of a lesser-included offense.

             2.    Estoppel prevents the State from asserting that the lesser-
                   included charge was not required or that error was not preserved
                   because no charge conference was held on the amended charge
                   prepared by the State’s attorneys

      The record indicates that the State’s attorney had prepared the jury charge, as

is quite common in this judicial district.    (IV R.R. at 35.) The proposed charge

that raised the lesser-included objection was not entered into the record. The State

argued against the lesser-included offenses but was instructed by the trial court that

the lesser-included offenses were necessary based upon the evidence at trial.     (IV

R.R. at 40-41.) The record does not indicate that the amended charge read to the

jury and entered in the record was ever presented to Appellant for objections, as

required by law. The only reasonable conclusion from this sequence of events is

that the trial court knew that failing to charge the lesser-included offenses would be
                                         18
error and it was relying on the State’s counsel to cure the error. The implication of

this reliance by the trial court on the State to amend the charge correctly is that the

State is estopped from arguing either that the lesser-included offense was not

warranted or that Appellant failed to preserve error on this issue, triggering a more

burdensome standard for harm analysis than the “some harm” standard when error

is preserved.

      If the State did not wish to be estopped from arguing that error was not

preserved by Appellant during the charge conference, the State should have at the

very least urged a second charge conference prior to submitting the new charge to

the trial court to be read to the jury. Because a subsequent charge conference did

not occur, the only reasonable interpretation from the record is that Appellant was

entitled to a lesser-included charge on the offense of misdemeanor assault as

indicated by the trial court, Appellant raised the issue by objecting to the State’s

original charge, and any failure by the State to amend the charge with sufficient

instructions for the lesser-included offense would result in the constructive

overruling of Appellant’s objection to the charge by the trial court. Therefore, if

this Court finds error in the charge, the only harm analysis that should be applied is

whether the error in the charge resulted in “some harm” to Appellant.

      Rather than arguing against our own position, Appellant will reserve any

further argument for why Appellant was entitled to a charge on the lesser-included
                                      19
offense and why this error was preserved for after the State responds to this argument

in its brief. However, if this Court wishes Appellant to brief these specific issues

more immediately, Appellant will gladly amend its brief upon request. Appellant

would also welcome the opportunity respond to this issue, or any other issue, in

person if this Court were to grant Appellant’s request for oral argument.

      B.     The trial court erred by failing to sufficiently charge the jury with the
             lesser-included offenses of misdemeanor assault

      Having established that Appellant was entitled to a lesser-included charge for

the offense of misdemeanor assault and that this issue was preserved by Appellant’s

objection, this Court should consider whether the charge that was presented to the

jury was sufficient to instruct the jury on the lesser-included offense. A review of

the jury charge will show that the trial court’s charge to the jury did not include any

instructions on how the jury could find Appellant guilty of a lesser-included offense

of misdemeanor assault after acquitting or being unable to agree that Appellant

committed the offense of continuous family violence.            (See I C.R. 32-39.)

Instead, the jury was given general instructions to the offense of continuous family

violence, including an application paragraph (I C.R. at 34), and then asked on the

verdict form to indicate whether or not Appellant was guilty of two misdemeanor

assaults (I C.R. at 39).

      To determine whether this charge was sufficient, this Court should compare

                                          20
the trial court’s charge to a model charge for lesser-included offenses. The Court

of Criminal Appeals first addressed a model charge for lesser-included offenses in

Boyett v. State, 692 S.W.2d 512 (Tex. Crim. App. 1985). The Boyett model first

requires that the jury be instructed on the law of all available offenses.     Id. at 515-

16.   Next, the model requires that a model charge should explicitly instruct the

jurors that “if they did not believe, or if they had reasonable doubt of appellant's guilt

of the greater offense, they should acquit appellant and proceed to consider whether

appellant was guilty of the lesser included offense.”            Id. at 516.    In cases

involving multiple lesser-included offenses, this instruction is intended to be

repeated for each lesser-included offense, cascading recursively after the application

paragraph of each lesser-included offense until the lowest lesser-inclusive charge is

reached, a trait that led to the instruction being referred to as the “stair-step” charge.

43 Tex. Prac., Crim. Prac. & Proc. § 43:47 (3d ed.). After this “stair-step” sequence

repeats for each lesser-included offense and the application paragraph for the last

lesser-included offense is charged, the final step of the model charge is to instruct

the jury that “if it has a reasonable doubt as to whether a defendant is guilty of any

offense defined in the charge, it will find the defendant not guilty.” Boyett, 692

S.W.2d at 516.

      There has been litigation over whether a “benefit of the doubt” instruction is

also required in addition to the “stair-step” charge.         After Boyett, this Court
                                       21
examined the issue of a “benefit of the doubt” instruction in Benevides v. State, 763

S.W.2d 587 (Tex. App.—Corpus Christi 1988, pet. ref’d). A “benefit of the doubt”

instruction states that “if the evidence leaves a reasonable doubt of the grade or

degree of the offense, such doubt should be resolved in favor of the defendant.” Id.

at 589. The Benavides court examined a charge that it summarized as follows:

      In the first paragraph of part four of the present charge, the court
      instructs the jury first to consider whether it finds beyond a reasonable
      doubt that the appellant is guilty of aggravated robbery. Paragraph two
      instructs the jury that, if it does not so find, it should acquit the appellant
      of aggravated robbery and proceed to consider whether he is guilty of
      robbery. In paragraph three the court instructs the jury to consider
      whether it finds beyond a reasonable doubt that the appellant is guilty
      of robbery. And paragraph five instructs the jury that, if it does not so
      find, it should acquit the appellant of robbery.

Id. The charge in Benavides did not contain a “benefit of the doubt” instruction,

leading to a claim on appeal that the instruction was insufficient.              Id.    The

Benavides court held that even though no “benefit of the doubt” instruction was

included, the instructions on the lesser-included offense was sufficient.       Id.

      More recently, the Court of Criminal Appeals took up the “benefit of the

doubt” instruction when it examined the issue of whether the inclusion of such

instruction was error in Barrios v. State, 283 S.W.3d 348 (Tex. Crim. App. 2009).

While finding no error in including the “benefit of the doubt” instruction, the Court

revisited Boyett and its model language on lesser-included offenses. Id. at 351-52.

Barrios instructs that the revised best-practice is to include language that instructs
                                         22
the jury that they may read the charge as a whole, and replace the model language

found in Boyett instructing “you will acquit . . . and next consider,” with the language

“or if you are unable to agree, you will next consider.”      Id. at 353. The subtlety

in this change reflects a move away from a unanimous “acquittal first” stair-step

model to a non-unanimous “charge read as a whole” model, while still holding both

methods as sufficient.

             1.     The jury instructions are not sufficient to inform the jury of the
                    applicable laws regarding the lesser-included offenses

      Whether a trial court chooses the traditional Boyett or more modern Barrios

language, what is clear is that at least some language is required in order for the jury

to understand the law of lesser-included offenses as it applies to a case at trial.   See

Tex. C. Crim. Proc. art. 34.14 (requiring “written charge distinctly setting forth the

law applicable to the case”). The charge in the instant case contains neither the

“stair-step” charge from Boyett nor the modern “charge read as a whole” instructions

from Barrios. (See I C.R. 32-39.) In fact, the charge in this case does not even

contain application paragraphs for the lesser included offenses, which in and of itself

is also improper.     See McIntosh v. State, 297 S.W.3d 536, 544 (Tex. App.—

Houston[1st Dist.] 2009, pet. ref’d) (applying the application paragraph

requirements of 36.14 to lesser-included offenses). Because the jury charge does

not contain any of the necessary language required to charge the jury with the lesser-

                                           23
included offense of assault causing bodily injury under Section 22.01(a)(1), this

Court should hold that the trial court abused its discretion by constructively denying

Appellant’s objection to the State’s omission of the lesser-included offense, even

though the trial court found that Appellant was entitled to the instruction based upon

the evidence.

             2.     The verdict form cannot cure the defects in the jury instructions
                    regarding lesser-included offenses while simultaneously
                    maintaining compliance with Apprendi

      Appellant anticipates an argument by the State that either the verdict form

alone was sufficient to charge the jury with the lesser-included offense or that the

verdict form precluded any harm from possible error in the charge because the jury

still could have chosen to indicate guilt for only one offense of misdemeanor assault.

However, Appellant has tried and failed to formulate any possible interpretation of

the verdict form that would both survive reversal under Apprendi while also properly

instructing the jury as to the lesser-included offenses. The primary concern with

any such interpretation is that, under a hypothetically-correct jury charge for lesser-

included assaults in a case of continuous family violence, a verdict form would allow

for the jury to find that Appellant twice committed the offense of misdemeanor

assault but reasonable doubt existed or a lack of unanimity prevented a finding that

the two assault offenses occurred within a twelve-month period.            Under that

scenario, a jury could return a verdict that found Appellant guilty of both alleged
                                          24
instances of lesser-included assault causing bodily injury against a family member

but acquit Appellant of the greater offense of continuous family violence. Based

upon a hypothetically-correct jury charge, the verdict form in the instant case would

have therefore required the trial court to adjudge Appellant guilt of a single count of

misdemeanor assault under Section 22.01(a)(1). See Martinez v. State, 225 S.W.3d

550, 554-55 (Tex. Crim. App. 2007) (holding that a defendant cannot be convicted

of more offenses than counts in the indictment, which in the instant case would

require a single conviction even though the jury found guilt for two lesser-included

misdemeanors).

      Appellant asserts that it is logically impossible interpret the verdict form in a

manner that allows for the trial court to adjudge Appellant guilt of the greater

offense—without violating Apprendi—that does not feed the argument that the trial

court harmed Appellant by failing to sufficiently charge the lesser-included offenses.

This logic, when viewed alongside with the total and complete omission of any

language instructing jury on how to consider any lesser-included offenses, would

necessitate this Court to find either reversible error under the present issue or a find

reversible error under the preceding issue. Put bluntly, by neglecting to sufficiently

heed the trial court’s wishes to charge the jury with both the greater offense and the

lesser-included offenses, the State must pick its poison on appeal.


                                          25
      C.     Appellant was harmed by the trial court’s error because the sentence
             exceeded the maximum of the lesser-included offense

      Much like the harm analysis of the first issue, the “poison” that results from

preserved non-constitutional error in a jury charge is almost always fatal to a trial

court’s verdict on appeal. In cases involving lesser-included offenses, harm “exists

when the penalty imposed for the charged offense exceeds the potential penalty for

the lesser included offense.” Bridges v. State, 389 S.W.3d 508, 512 (Tex. App.—

Houston[14th Dist.] 2012).      As such, this Court should find harm because

Appellant was sentenced to a term that exceeds the maximum sentence for the lesser-

included offense of assault.

      As argued above, this Court should therefore remand this matter to the trial

court, ordering that Appellant’s conviction be reformed to a misdemeanor assault

causing bodily injury to a family member and that a new hearing be conducted on

punishment. See Bowen v. State, 374 S.W.3d at 431-42 (reversing prior holding

that barred the reformation of felony conviction for assault family violence to a

misdemeanor when the lesser-included offense was not submitted to the jury).

Alternative, this Court should reverse and remand for a new trial.




                                         26
                                     PRAYER

      For these reasons, Appellant prays that this Court overturns Appellant’s

conviction for continuous family violence, and remand this cause to the trial court

for a reformation of the judgment to reflect a conviction for the offense of assault

causing bodily injury to a family member and a new hearing on punishment.

Alternatively, Appellant prays that this Court reverse and remand for a new trial.



                                       Respectfully submitted,


                                       /S/Arnold Hayden
                                       Arnold Hayden
                                       State Bar No. 24065390
                                       The Law Office of Arnold Hayden
                                       P.O. Box 4967
                                       Victoria, Texas 77903
                                       Tel: (361) 573-4393
                                       Fax: (361) 573-4394

                                       ATTORNEY FOR APPELLANT
                                       May 19, 2015




                                         27
                       CERTIFICATION OF COMPLIANCE

      Pursuant to Tex. R. App. P. 9.4, I hereby certify that this brief contains 6,213

words. This is a computer-generated document created in Microsoft Word, using 14-

point typeface for all text, except for footnotes which are in 12-point typeface. In

making this certificate of compliance, I am relying on the word count provided by

the software used to prepare the document.


                                       /S/Arnold Hayden
                                       Arnold Hayden
                                       Attorney for Appellant


                         CERTIFICATE OF SERVICE

      This is to certify that a true copy of the foregoing document was served upon

the Honorable Stephen Tyler, Criminal District Attorney of Victoria County, 205 N.

Bridge St., Ste. 301, Victoria, TX 77901, and upon the Appellant, MATTHEW

JOHN CASANOVA, on this 19th day of May, 2015, pursuant to the Texas Rules of

Appellate Procedure.



                                       /S/Arnold Hayden
                                       Arnold Hayden
                                       Attorney for Appellant




                                         28
