                                   NO. 07-11-00253-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                         AT AMARILLO

                                          PANEL A

                                         MAY 16, 2012


                           ALFREDO ANZALDUA, APPELLANT

                                              v.

                           THE STATE OF TEXAS, APPELLEE


             FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

          NO. 2010-427,388; HONORABLE BRADLEY S. UNDERWOOD, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                MEMORANDUM OPINION

      Appellant, Alfredo Anzaldua, was convicted of assault,1 a third degree felony,2

and sentenced to serve 10 years in the Institutional Division of the Texas Department of

Criminal Justice (ID-TDCJ). In six issues, appellant contends that: 1) the evidence was

insufficient to prove that the assault did not constitute defensive measures taken to

protect appellant; 2) the trial court committed reversible error by not requiring the State

to defeat a claim of self-defense; 3) appellant suffered egregious harm because the


      1
          See TEX. PENAL CODE ANN. § 22.01(a)(1) (West 2011).
      2
          See id. § 22.01(b)(2) (West.
court’s charge did not require proof that the alleged assault did not consist of defensive

measures taken to protect oneself; 4) the trial court erred by not granting appellant the

proper jail time credit; and 5) the trial court erred by requiring appellant to pay attorney’s

fees for his court-appointed attorney. As modified, we will affirm the judgment entered

by the trial court.


                           Factual and Procedural Background


       On April 15, 2010, the Lubbock Police Department (LPD) dispatch office received

a 911 call regarding an on-going assault. The first 911 call came from a cell phone

which was identified as belonging to the victim, Kristal Santiago. Within a matter of

minutes, the dispatch office received a second 911 call from Santiago’s mother, Maria

Garcia, regarding the same assault. The recordings of both 911 calls were played for

the jury.


       Garcia testified that when she arrived at the scene, The Villa Motel, she observed

Santiago’s feet hanging out of the driver’s side door of Santiago’s car. Further, she saw

appellant choking Santiago. Santiago called out for her mother but did not appear to

have any breath.


       As a result of the 911 calls, the LPD dispatched Officer Rosa Cox to the scene.

When Cox arrived, she initially observed a woman, later identified as Garcia, screaming

and yelling at someone in a car. Cox observed Santiago’s feet sticking out of the

driver’s side door, and appellant behind Santiago with his arm under her throat and

seemingly pulling back on Santiago. Cox observed that Santiago’s face was covered in

“snot,” she was sweating profusely, and her eyes appeared to be “big, bubbly, and red.”


                                              2
Further, Cox heard Santiago “do like a gargle, gasping for air type noise.” Cox was able

to eventually get appellant to release Santiago. Appellant was then taken into custody.

Santiago told Cox that appellant was hitting her and choking her. Cox then released

Santiago to the medical personnel who had arrived on the scene.


        At trial, Santiago testified that she and appellant had been dating and living

together prior to the incident. However, she denied that appellant had been choking her

on the occasion in question. On that evening in question, Santiago and appellant had

been engaged in a loud argument regarding appellant’s apparent lack of fidelity.

Santiago testified that, she went back to the motel and, when appellant approached the

car, she locked herself in. Appellant went to the back of the car and removed a plastic

sheet that was being utilized as a rear window, and crawled into the car. Santiago

testified that when appellant came through the back of the car toward the front seat, she

struck him. Santiago contended that, although appellant struck her a number of times,

he never choked her. As a result of her testimony, the State was allowed to confront

her with a number of telephone conversations she had with appellant while he was in

jail.   In these conversations, Santiago continually referred to appellant’s attempt to

choke her.


        At the conclusion of the testimony, the trial court prepared the court’s charge.

The charge presented to trial counsel did not contain a self-defense charge and none

was requested, neither did appellant object to the failure of the charge to contain an

instruction on self-defense.   The jury subsequently convicted appellant and, after a

punishment hearing conducted by the trial court, he was sentenced to 10 years

confinement in the ID-TDCJ.

                                            3
       Appellant has presented six issues on appeal. His first three issues deal with the

overall subject of self-defense. The first of these issues contends that the State failed to

prove a statutory element in its case, that the assault in question did not consist of

defensive measures taken to protect oneself. The second issue deals with self-defense

under the Texas Penal Code and the insufficiency of the State’s evidence to disprove

self-defense. The third issue contends that, because the court’s charge did not include

a charge regarding defensive measures taken to protect oneself, appellant has suffered

egregious harm. The fourth issue contends appellant did not receive the proper jail time

credit pronounced orally by the trial court. The last two issues deal with appointed

attorney’s fees. We will affirm the judgment of the trial court as hereinafter modified.


                               Sufficiency of the Evidence


Standard of Review


       In assessing the sufficiency of the evidence, we review all the evidence in the

light most favorable to the verdict to determine whether any rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Brooks v. State,

323 S.W.3d 893, 912 (Tex.Crim.App. 2010). “[O]nly that evidence which is sufficient in

character, weight, and amount to justify a fact finder in concluding that every element of

the offense has been proven beyond a reasonable doubt is adequate to support a

conviction.” Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful

that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no

higher standard of appellate review than the standard mandated by Jackson.”                Id.



                                             4
(Cochran, J., concurring).    When reviewing all of the evidence under the Jackson

standard of review, the ultimate question is whether the jury’s finding of guilt was a

rational finding.   See id. at 906, 907 n.26 (discussing Judge Cochran’s dissenting

opinion in Watson v. State, 204 S.W.3d 404, 448–50 (Tex.Crim.App. 2006), as outlining

the proper application of a single evidentiary standard of review). “[T]he reviewing court

is required to defer to the jury’s credibility and weight determinations because the jury is

the sole judge of the witnesses’ credibility and the weight to be given their testimony.”

Id. at 899.


       The sufficiency standard set forth in Jackson is measured against a

hypothetically correct jury charge.      See Malik v. State, 953 S.W.2d 234, 240

(Tex.Crim.App. 1997).     Such a charge is one that accurately sets forth 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. Id. The “‘law’ as ‘authorized by

the indictment’ must be the statutory elements” of the offense charged “as modified by

the charging instrument.” Curry v. State, 30 S.W.3d 394, 404 (Tex.Crim.App. 2000).


Analysis of Appellant’s First Issue Regarding Sufficiency of the Evidence


       Appellant was charged with assault of a person with whom he had a dating

relationship. The elements of this offense are:


              1) Appellant;

              2) intentionally, knowingly, or recklessly;

              3) caused bodily injury;


                                             5
                    4) to Kristal Santiago;

                    5) a person with whom appellant had a dating relationship;

                    6) by intentionally, knowingly, or recklessly impeding the

                       normal breathing or circulation of the blood of Kristal

                       Santiago;

                    7) by applying pressure to the throat or neck of Kristal

                       Santiago.


See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(2).3


          The Penal Code does not contain a definition of dating relationship. Rather,

section 22.01(b)(2) refers to section 71.0021(b) of the Texas Family Code. This section

of the Family Code defines dating relationship as:


                    For purposes of this title, “dating relationship” means a
                    relationship between individuals who have or have had a
                    continuing relationship of a romantic or intimate nature.


See TEX. FAM. CODE ANN. § 71.0021(b) (West Supp. 2011). The section goes on to

describe the considerations relevant to the determination whether a dating relationship

exists.       Id.   No one has denied that the appellant and Santiago were in a dating

relationship.


          Appellant’s first issue is based upon the contention that section 22.01(b)(2)’s

reference to section 71.0021(b) of the Texas Family Code to define dating relationship

must be read to also include the requirement that the State negate defensive measures

          3
         Further reference to the Texas Penal Code will be by reference to “§ ___,” or
“section ___.”

                                                 6
taken to protect oneself that is found in section 71.0021(a) of the Family Code. See

TEX. FAM. CODE ANN. § 71.0021(a). According to appellant’s theory, since the Penal

Code provision looks to the Texas Family Code to provide the definition of dating

relationship, the entire provision referred to must be included in the offense of assault.

We disagree with appellant’s contention.


       The question before us is one of statutory construction of section 22.01(b)(2).

When the legislature enacted the section at issue, did it intend to import all of section

71.0021 into section 22.01(b)(2)? In making this determination, we are instructed to

focus on the literal text to determine the objective meaning of that text at the time of its

enactment. See Spence v. State, 325 S.W.3d 646, 650 (Tex.Crim.App. 2010). In doing

so, we read the statute in question in context and construe it according to the rules of

grammar and common usage.              See Tapps v. State, 294 S.W.3d 175, 177

(Tex.Crim.App. 2009). Further, we presume the legislature meant what it said. See

Hardy v. State, 281 S.W.3d 414, 422 (Tex.Crim.App. 2009).


       Section 22.01(b) states,


              An offense under Subsection (a)(1) is a Class A
              misdemeanor, except that the offense is a felony of the third
              degree if the offense is committed against:

              (2) a person whose relationship to or association with the
              defendant is described by Section 71.0021(b), . . . Family
              Code;

§ 22.01(b). The statute makes no reference to section 71.0021(a). We cannot assume

that such an omission was a mistake on the part of the legislature. See Hardy, 281

S.W.3d at 422. The plain meaning of the statute is that the offense of assault, as


                                             7
defined in section 22.01(a)(1), is a class A misdemeanor unless it is directed at a class

of individuals described in section 22.01(b). One of those classes is that described by

section 71.0021(b) of the Family Code. “Describe” is defined as “to represent or give an

account of in words.” WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY 343 (1987). The

proper grammatical use of “described” in the penal statute is to direct the reader to the

location where those protected persons are described. It is only for the purpose of this

definition that the legislature included the reference to section 71.0021(b) of the Family

Code.


        When we place the phrase at issue within the context of what the Penal Code

section was attempting to do, which is to define those against whom an assault would

be a third degree felony, the plain meaning of the statute is clear. It is definitional only,

and to include more goes against the plain meaning of the words used. See Tapps, 294

S.W.3d at 177. Accordingly, we find that the penal statute at issue did not import

subsection (a) of section 71.0021 into the elements of the offense charged against

appellant. Inasmuch as appellant’s first issue is premised on the contention that the

defensive measures portion of section 71.0021(a) of the Texas Family Code is an

element of the offense the State had to prove, and we have found otherwise, we will

overrule appellant’s first issue.


Analysis of Appellant’s Second Issue Regarding Sufficiency of the Evidence


        By his second issue, appellant contends that, even if we find that section

71.0021(a) of the Texas Family Code was not an element of the offense, the State

failed to disprove self-defense. Essentially, appellant now argues that the evidence


                                             8
raised self-defense, as embodied in section 9.31(a) of the Penal Code. See § 9.31(a)

(West 2011).


      Although appellant did not testify, Santiago testified that she initially struck

appellant as he came toward her from the rear of the vehicle, and that she subsequently

pinned him against the seat with her full body weight to prevent him from striking her. In

response to a question from the State’s attorney, Santiago stated appellant did tell her

to get off of him because he could not breathe. Appellant never requested a charge on

self-defense and did not object to the court’s charge that did not contain a charge on

self-defense.      Appellant’s primary defensive theory presented, through medical

personnel and records, was that he did not choke Santiago. During final arguments,

appellant’s trial counsel argued that the State had failed to prove that appellant had

intentionally, knowingly, or recklessly impeded the normal breathing or circulation of the

blood of Santiago.


      Section 9.31(a) of the Penal Code provides, in relevant part:


                (a) Except as provided in Subsection (b), a person is justified
                    in using force against another when and to the degree
                    the actor reasonably believes the force is immediately
                    necessary to protect the actor against the other’s use or
                    attempted use of unlawful force.

See id. The initial question we face is whether the evidence raises the issue of self-

defense. We are mindful that evidence from any source may raise the defensive issue

of self-defense. See Mendoza v. State, 88 S.W.3d 236, 239 (Tex.Crim.App. 2002).

Further, appellant is entitled to such a charge regardless of whether the evidence is

weak, contradicted, or otherwise impeached. See Ferrel v. State, 55 S.W.3d 586, 591


                                              9
(Tex.Crim.App. 2001). However, if the evidence, viewed in the light most favorable to

the appellant, does not establish self-defense, appellant is not entitled to any instruction.

See id. Finally, a defensive instruction is appropriate when the appellant’s evidence

admits the elements of the offense but interposes justification to excuse the otherwise

criminal conduct. See Shaw v. State, 243 S.W.3d 647, 659 (Tex.Crim.App. 2007).


       When the law regarding self-defense is applied to the facts of this case, it

becomes apparent that appellant denied committing the offense. Simply put, appellant

contended throughout that he did not do what was alleged.            Accordingly, appellant

cannot now avail himself of the defense of self-defense after the fact of the trial. To

hold otherwise would be to place the trial court in the untenable position of having to

second guess the defensive strategy of appellant and his trial counsel. See Posey v.

State, 966 S.W.2d 57, 63 (Tex.Crim.App. 1998). For these reasons, self-defense was

not before the jury and the State did not have any burden of persuasion regarding the

matter. Accordingly, appellant’s second issue is overruled.


                                   Alleged Charge Error


       Appellant’s third issue contends that he suffered egregious harm due to the trial

court’s failure to require proof that the alleged assault did not consist of defensive

measures taken to protect oneself. This is simply a restatement of appellant’s first issue

in the context of charge error.     We have already held that the language regarding

defensive measures taken to protect oneself in section 71.0021(a) of the Texas Family

Code is not an element of the offense.         Accordingly, we do not need to address

appellant’s contention. Appellant’s third issue is overruled.


                                             10
                                     Jail Time Credit


       Appellant’s fourth issue contends that appellant did not receive all appropriate jail

time credit. Appellant contends that he has been denied credit for seven days from

January 12 through January 18, 2011. When pronouncing sentence on appellant, the

trial court made the following statement:


              You’re remanded to jail until the Sheriff can carry out the
              directions of this sentence. You’re to receive credit for all
              applicable jail time, which apparently is from the date of the
              offense to today. He was arrested that day?


Appellant’s trial counsel answered the question, “I assume so, Your Honor.” However,

the judgment reflects that appellant is due credit for jail time from April 15, 2010 to

January 11, 2011, and from January 19, 2011 until present date. Thus, appellant’s

issue before this Court is the missing seven days.


       Appellant is correct in his proposition that, when the oral pronouncement of

sentence varies from the written judgment, the oral pronouncement of sentence

controls.   Coffey v. State, 979 S.W.2d 326, 328 (Tex.Crim.App. 1998).            The real

question here is, was the phrase “which apparently is from the date of the offense to

today” part of the pronouncement of sentence. This is not as certain as appellant would

have us believe, especially as that phrase was followed with a question to trial counsel

regarding the date of appellant’s arrest. Trial counsel’s answer makes this uncertainty

more apparent: “I assume so, Your Honor.” This was simply a colloquy between trial

counsel and the trial court in an effort to ascertain the appropriate jail time credit. The

operative portion of the oral pronouncement is, “You’re to receive credit for all


                                            11
applicable jail time.” Appellant does not contend that he was incarcerated during the

period of January 12 through January 18, 2011.         Accordingly, we find no variance

between the oral pronouncement of appellant’s sentence and the written judgment.

Appellant’s fourth issue is overruled.


                                Appointed Attorney’s Fees


       The State has conceded that there is no evidence to support ordering appellant

to repay the appointed attorney’s fees as ordered in the judgment. Accordingly, the

judgment is modified to strike the order for payment of $629.50 in attorney’s fees.

Having ordered the attorney’s fees portion of the judgment modified, appellant’s sixth

issue is moot.


                                         Conclusion


       Having ordered the judgment to be modified and having overruled appellant’s

other issues, we affirm the trial court’s judgment as reformed.




                                                       Mackey K. Hancock
                                                            Justice

Do not publish.




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