                                                                            ACCEPTED
                                                                        04-15-00204-CR
                                                            FOURTH COURT OF APPEALS
                                                                 SAN ANTONIO, TEXAS
                                                                   9/28/2015 4:56:05 PM
                                                                         KEITH HOTTLE
                                                                                 CLERK

                       NO. 04-15-00204-CR

             IN THE FOURTH COURT OF APPEALS             FILED IN
                                                 4th COURT OF APPEALS
                      SAN ANTONIO, TEXAS          SAN ANTONIO, TEXAS
                                                 09/28/15 4:56:05 PM
                                                   KEITH E. HOTTLE
                                                         Clerk


ROBERT RODRIGUEZ,
                        Appellant
VS.


THE STATE OF TEXAS,
                        Appellee




                      APPELLANT’S BRIEF




                                      SUSAN SCHOON
ORAL ARGUMENT                         Schoon Law Firm, P.C.
NOT REQUESTED                         200 N. Seguin Avenue
                                      New Braunfels, Texas 78130
                                      PH: (830) 627-0044
                                      FAX: (830) 620-5657
                                      State Bar No. 24046803
                                      susan@sehoonlawfirm.com
                                      Attorney for Appellant
                   IDENTITY OF PARTIES AND COUNSEL



Appellant:                      Robert Rodriguez

Attorney for Appellant:         Susan Schoon
(on appeal)

Attorney for Appellant:         Richard Tim Molina
(at trial)

Attorneys for State:            Keith Hemieke, Assistant District Attorney
                                Jacqueline Phillips, Assistant District
                                Attorney

Trial Court:                   Honorable Michael McCormick
                               Visiting Judge
                               274th Judicial District
                          TABLE OF CONTENTS

IDENTITY OF PARTIES                                       i

iNDEX OF AUTHORITIES                                 iii

STATEMENT OF THE CASE                                 1

IS SUE PRESENTED                                     2

STATEMENT OF FACTS                                   3

SUMMARY OF ARGUMENT                                   5

ARGUMENT AND AUTHORITIES:

I.   The Trial Court Erred in Denying Appellant’s
     Requested Instruction on Mistake of Fact        6
     A.   The Court’s Charge                         9
     B.   Denial of the Requested Instruction
          on Mistake Of Fact Was Error               7
     C.   Harm                                       9

PRAYER                                              13

CERTIFICATE OF COMPLIANCE                           14

CERTIFICATE OF SERVICE                              14




                                     II.
                         INDEX OF AUTHORITIES

 CASES                                           PAGES
Aimanza v. State,
686 S.W.3d 157 (Tex.Crirn.App. 1985)                          9

Arline v. State,
721 S.W.2d 348 (Tex. Grim. App. 1986)                     9, 10

Barrios v. State,
283 S.W.3d 348 (Tex. Grim. App. 2009)                         9

Barron v. State,
353 S.W.3d 879 (Tex. Grim. App. 2011)                         9

Louis v. State,
393 S.W.3d 246 (Tex. Grim. App. 2012)           7, 8, 9, 10, 13

Muniz v. State,
851 S.W.2d 238 (Tex. Grim. App. 1993)                         7

Ngo v. State,
175 S.W.3d 738 (Tex. Crim. App. 2005)                        7

Thompson v. State,
236 S.W.3d 787 (Tex.Crim.App. 2007)                     6, 7, 9

STATUTES AND RULES
TEX.PENAL CODE Art. 8.02                              passim
TEX.PENAL CODE Art. 6.04                                     8




                                       111.
 TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:


       COMES NOW ROBERT RODRIGUEZ, Appellant in this cause, by and

through his attorney of record, Susan Schoon, and pursuant to the provisions of

Tex.R.App.Pro. 38, et seq., files this brief on appeal.


                          STATEMENT OF THE CASE

       Robert Rodriguez, Appellant was indicted in Cause Number 13-0797-CR-A

for aggravated assault/serious bodily injury (Count I) and aggravated robbery

(Count II). (CR3) Immediately prior to trial, the State abandoned Count I and

elected to proceed to trial on the aggravated robbery alone (RR, Vol. 2, p. 6)

      The jury acquitted Appellant of aggravated robbery, but found him guilty of

the lesser-included offense of aggravated assault/serious bodily injury. (CR 79)

The jury sentenced Appellant to twelve years imprisonment, and a $10,000 fine.

(CR 79) Notice of Appeal and a Motion for New Trial were filed on March 16,

2015. (CR 75-76) The clerk’s record was filed on May 15, 2015 and the reporter’s

record was filed on June 22, 2015.




                                                                                   I
                          ISSUES PRESENTED


I.   The trial court erred in denying Appellant’s requested instruction on
     Mistake of Fact




                                                                             2
                             STATEMENT OF FACTS

       On March 3, 2013 at approximately 1:00 A.M., Omar Avila, a D.J. was

 packing up and leaving his job at Club Azul, a bar in Seguin, Texas. (RR, Vol. 3,

 p. 15) As he was getting into his car, he was approached by two men who asked

 him for a ride. (RR, Vol. 3, p. 16) He refused and quickly got into his car, locking

the doors. As he was leaving the parking lot, the two men pounded on the

windows of his car, and he took off quickly to get away from them. (RR, Vol. 3, p.

 18)

       Minutes later, as the bar was closing, Maricella Plaud-Acosta and her

husband Francisco Plaud-Acosta were leaving the bar and were accosted by the

same two men. (RR, Vol. 3, p. 124-25) The men demanded a ride, and both

Maricella and Francisco refused. Id. Maricella got into the driver’s side of the car,

and Francisco walked to the passenger side. As Francisco was attempting to get

into the car, one of the men, Anthony Rodriguez, Appellant’s brother, grabbed

Francisco by a chain he was wearing around his neck. (RR, Vol. 3, pp. 125-26) He

pulled him out of the car and the men began to struggle. At some point, Appellant

approached from behind and became involved in the altercation. (RR, Vol. 3, p.

127, 140, 200) During the struggle, Francisco sustained a fractured tibia plateau’,

which is the bottom part of the knee. (RR, Vol. 3, p. 166) Meanwhile, Maricella

had run back to the bar and pounded on the door. When the employees of the bar


                                                                                      3
emerged, Anthony Rodriguez and Appellant began walking away. (RR, Vol. 3, p.

128, 199) The police were called and subsequently found the men hiding behind a

nearby convenience store. (RR, Vol. 3, p. 58, 77-78) The men were returned to the

scene, identified by the witnesses and thereafter arrested. (RR, Vol. 3, p. 59, 201)




                                                                                       4
                          SUMMARY OF ARGUMENT

      Robert Rodriguez, Appellant in this cause, complains on appeal that that trial

court erred in denying his requested jury instruction on the defense of mistake of

fact as contained in Texas Penal Code §8.02. Because Appellant’s request was

denied, he was effectively prevented from presenting his only viable defense to the

charge of aggravated assault, and was therefore harmed.




                                                                                     5
                 ARGUMENT AND AUTHORITIES

 The Trial Court Erred In Denying Appellant’s Requested Instruction
 On Mistake Of Fact

A.     The Court’s Charge

       Over Appellant’s objection, the trial court instructed the jury on the

law of “transferred intent.” (RR, Vol. 4, p. 9) The instruction was as

follows:

             The State’s accusation is that the defendant intentionally or
             knowingly caused serious bodily injury to Francisco Plaud
             Acosta.

             “Transferred intent” means a person is criminally
             responsible for causing a result if the only difference between
             what actually occurred and what the person desired,
             contemplated or risked is, one, a different offense was
             committed; or, two, a different person or property was injured,
             harmed, or otherwise affected.

             This means that a person is criminally responsible for causing
             serious bodily injury to a person although the person did not
             intend or contemplate that the bodily injury be “serious” as long
             as the person intended or had knowledge that his conduct
             would cause any bodily injury to the person.
                                                           (CR 55)

      Afier the court overruled his objection to this language, and citing

Thompson v. State, 236 S.W.3d 787 (Tex.Crim.App. 2007), Appellant then

requested a charge on mistake-of-fact. The trial court denied his request.

(RR, Vol.4, p. 10-il)


                                                                                6
B.    Denial of the Requested Instruction on Mistake of Fact Was Error

               In reviewing a jury charge, the court must first determine if

      error occurred. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App.

      2005). If error is found, the court then determines whether sufficient

     harm resulted from the error to require reversal. See Ngo, 175 S.W.3d

     at 743.

            A defendant is entitled to a defensive instruction if the issue is

     raised by the evidence, whether the particular evidence is “strong,

     weak, unimpeached, contradicted, or unbelievable.” Louis v. State,

     393 S.W.3d 246, 271 (Tex. Crim. App. 2012), citing Muniz v. State,

     851 S.W.2d 238, 254 (Tex. Crim. App. 1993). The mistake-of-fact

     defense found in Texas Penal Code §8.02 states, “It is a defense to

     prosecution that the actor through mistake formed a reasonable belief

     about a matter of fact if his mistaken belief negated the kind of

     culpability required for commission of the offense.”

           When Appellant requested the defensive instruction of mistake-

     of-fact, he directed the trial court to the Court of Criminal Appeals

     holding in Thompson v. State, 236 S.W.3d 787 (Tex.Crim.App. 2007).

     In Thompson, the defendant had seriously injured a child by beating

     him with a free branch, purportedly as a form of discipline for


                                                                                 7
 behavior in a bible study class. Id. at 90. The court charged the jury

 on the law of “transferred intent,” as contained in Texas Penal Code

 §6.04 (b)(1), thereby authorizing the jury to find the defendant guilty

 of the first degree, rather than third degree offense of injury to a child,

“if he merely intended to cause bodily injury, so long as he actually

caused serious bodily injury.” Id. at 790 (emphasis in original). On

appeal, Thompson argued that it was improper to elevate the third

degree offense in this manner. The Court held that §6.04(b)(1) allows

for the transfer of a culpable mental state between offenses contained

in the same statute and also between greater and lesser offenses. Id. at

800. Important to the instant appeal, the Court fUrther held:

       Where 6.04(b)(1) permits the transfer of a culpable mental
       state, mistake of fact may be raised as a defense. The mistake
       must be reasonable for it to constitute a circumstance that
       exculpates the defendant of the offense charged, and of course,
       the defendant would still be guilty of any lesser included
       offense that would be applicable if the facts were as the
       defendant believed. Id.

       In Louis v. State, a similar case involving transferred intent, the

Court agreed with the court of appeals that it was error to deny

Appellant’s requested mistake-of-fact instruction. Louis, 393 S.W.3d

at 254. “The transferred intent doctrine could be used to transfer intent

from the bodily injury offense to the serious bodily injury offense, but


                                                                          8
      the mistake-of-fact defense would prevent such a transfer if the

      defendant had a reasonable, but mistaken belief that he was inflicting

      only bodily injury.” Id. at 253.

               In the instant case, as with Thompson and Louis, the transferred

     intent doctrine was used to transfer the intent from the bodily injury

     offense (assault) to the serious bodily injury offense (aggravated

     assault). The inclusion of a transferred intent instruction entitled

     Appellant to urge the mistake-of-fact defense—that he had a

     reasonable, but mistaken belief that he was only inflicting bodily

     injury.

               There was evidence in the record sufficient to support the

     submission of this defense, as detailed below.

C.   HARM

            Because Appellant objected to the omission of the mistake of

     fact defense in the court’s charge, en-or was preserved. See Barrios v.

     State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). Therefore,

     Appellant is entitled to a new trial if the en-or is not harmless, but

     “calculated to injure the rights of the defendant.” Id. (quoting Aimanza

     v. State, 686 S.W.3d 157, 171 (Tex.Crim.App. 1985); Barron v. State,

     353 S.W.3d 879, 883 (Tex. Crim. App. 201 1)(quotingArline v. State,


                                                                              9
 721 S.W.2d 348, 351 (Tex. Crim. App. 1986) (“[T]he presence of any

harm, regardless of degree, which results from preserved charging

error, is sufficient to require a reversal of the conviction.”)).

       In reviewing for harm, the appellate court considers all of the

evidence, the entire jury charge, and the parties’ arguments. Louis,

393 S.W.3d at 271, 272.

       In applying the “some harm” standard in Louis v. State, the

Court of Criminal Appeals explained that “failure to instruct the jury

on the defense of mistake of fact was an impediment to [Louis’s]

ability to present his defense that he did not have the requisite mens

rea to be found guilty and to argue that defense to the jury.?? Further,

the “[flack of the requested instruction effectively prevented [Louis]

from presenting his defense.   .   .   .“   Id. at 271-73.

       In the case at bar, appellant’s intent regarding the injury

inflicted was not even contested—both sides agreed that Appellant

intended to cause bodily injury, not serious bodily injury. Therefore

the state relied on the transfer of that intent to prove its case, as argued

by the prosecutor during closing:

             [Appellant’s lawyer] talked to you about transferred
             intent. I guess he doesn’t like the ~aw because it’s so bad
             for his client. It’s bad for his client because his client
             intended to cause Mr. Flaud-Acosta              injury   and ended up

                                                                                 10
              causing hi in serious bodily injury and he’s responsible for
              that. When we talked about this in voir dire, if a purse
              snatcher causes someone to fall to the ground and they
              get paralyzed by hitting their neck on a curb, they’re
              responsible for serious bodily injury. People are
              responsible for their actions. Robert Rodriguez is
              responsible for his actions that night.
                                                (RR, Vol. 4, p. 55)

       The state’s theory of the case was that Appellant and his

brother, Anthony were attempting to steal the victim’s car when the

assault occurred. The evidence was clear that Appellant’s brother

started the altercation with Mr. Plaud-Acosta, and that Appellant

joined in the fight to help his brother. The defense argued that there

was insufficient evidence of the attempted theft of the car, and that the

altercation was essentially a “bar fight,” that began when Mr. Plaud

Acosta refused to give the men, who were extremely intoxicated, a

ride home from the bar. (RR, Vol. 4, pp. 38-39, 46) The defense

essentially conceded the assault, but contested whether the evidence

was sufficient to prove serious bodily injury. Without the mistake of

fact defense available to him, there was little more to argue.

      The jury agreed that the evidence of attempted theft of the

vehicle was insufficient, and found Appellant not guilty of the

aggravated robbery. Between the lesser-included offenses of assault

and aggravated assault, and with no mistake of fact defense available

                                                                         11
 to them, the verdict came down to whether or not the jury believed

 Appellant caused serious bodily injury, regardless of his intent.

       During closing, Appellant’s attorney argued:

              And all we ask though is that you limit your
              debate on aggravated robbery and that you see it for what
              it is. It’s overcharged. It’s been as a result of a snowball
              effect gone astray. It’s charged as a first degree felony
              when really the debate should be whether or not this was
              an aggravated assault causing serious bodily injury, a bar
              fight type situation or a fight, as the doctor put it, in the
              parking lot that resulted in what you determine to be
              either a major or minor injury; or whether it was an
              assault.
                                                 (RR, Vol. 4, pp. 49-50)

       There was no evidence in the record to support Appellant

having the intent to cause serious bodily injury—in fact, just the

opposite. No weapons were used, and the injury was unusual for a

“bar fight.” The doctor who testified classified it as a “high impact

injury,” typically seen in car accidents, or falls from significant

heights. (RR, Vol. 4, p. 172). He testified that it is also seen in

football and rugby players, when “a very fast and athletic linebacker

could hit your knee when it was planted.” (RR, Vol. 4 p. 173-74).

      Appellant was attempting to assist his brother in a fight, and

certainly by hitting or kicking, or pushing the victim down, he

intended to cause bodily injury, and it would not have been


                                                                        12
       unreasonable for him to be mistaken about the type of injury his

       actions would cause. However, because the trial court declined to

      instruct the jury on the defense of mistake of fact, Appellant was

      denied the ability to present his defense that he did not have the

      requisite mens rea to be found guilty and to argue that defense to the

      jury. Therefore, he was harmed by this error. See Louis v. State, 393

      S.W.3d at 271-73).



                              PRAYER

      Appellant, Robert Rodriguez prays that this Court reverse his

conviction and remand for a new trial.



                                Respectfully Submitted:




                               SUSAN SCHOON
                               Schoon Law Firm, P.C.
                               200 N. Seguin Avenue
                               New Braunfels, TX 78130
                               State Bar No. 24046803
                               PH: (830) 627-0044
                               FAX: (830) 620-5657
                               susan@schoonlawfirm.com
                               Attorney for Appellant



                                                                           13
                       CERTIFICATE OF COMPLIANCE

According to Microsoft Word’s word count tool, this document contains 2312
words.



                          CERTIFICATE OF SERVICE

I hereby certify that a true and conect copy of Appellant’s Brief was delivered to
the District Attorney of Guadalupe County, Texas on this the 28th day of
September, 2015 by fax to

                                       SUSAN SCHOON




                                                                                     14
