                                                                       PD-0372-15
                                                      COURT OF CRIMINAL APPEALS
                                                                      AUSTIN, TEXAS
                                                    Transmitted 8/17/2015 10:05:32 PM
                                                       Accepted 8/18/2015 8:09:55 AM
 August 18, 2015                                                       ABEL ACOSTA
                            NO. PD-0372-15                                     CLERK

                               IN THE

           COURT OF CRIMINAL APPEALS
                              OF TEXAS
                            AUSTIN, TEXAS

                         LUIS SANCHEZ
                             APPELLANT,

                                  V.

                         STATE OF TEXAS
                              APPELLEE

        APPELLANT’S BRIEF ON PETITION
          FOR DISCRETIONARY REVIEW
                       On review from the
          ELEVENTH COURT OF APPEALS , EASTLAND, TEXAS
                    CASE NO. 11-13-00099-CR



M. Michele Greene
State Bar No.00789966
2833 Wildwood Ave.
Odessa, Texas 79761
Tel: (432) 238-1255
Email: mmg@michelegreenelaw.com

Attorney for Appellant

                   ORAL ARGUM ENT WAS NOT GRANTED
                                 NO. PD-0372-15

                                     IN THE

            COURT OF CRIMINAL APPEALS
                                  OF TEXAS
                                AUSTIN, TEXAS

                        GARY JAY MCCOY
                                  APPELLANT,

                                        V.

                        STATE OF TEXAS
                                   APPELLEE

    APPELLANT’S BRIEF ON PETITION FOR
         DISCRETIONARY REVIEW
                        On review from the
           ELEVENTH COURT OF APPEALS , EASTLAND, TEXAS
                     CASE NO. 11-13-000099-CR


TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL
APPEALS OF TEXAS:

      NOW COMES Luis Sanchez, Appellant in this cause, by and through his court-

appointed appellate counsel, M. Michele Greene, and files this brief on petition for

discretionary review.
                  IDENTITY OF PARTIES AND COUNSEL

       The following is a complete list of all parties, as well as the names, addresses,

and emails (if known), of all counsel.

Defendant/Appellant:                                  Luis Sanchez

Complainant/Appellee/:                                State of Texas

Appellant’s Counsel:
     at Trial:                                        William R. Bowden, Jr.
                                                      221 W. 4th Street
                                                      Odessa, Texas 79761

Appellant’s Counsel
     on Appeal:                                       M. Michele Greene
                                                      2833 Wildwood Ave.
                                                      Odessa, Texas 79761
                                                      mmg@michelegreenelaw.com

Appellee’s Counsel
     at Trial:1                                       Dusty Gallivan
                                                      Deputy District Attorney
                                                      300 N. Grant Ave., Rm. 305
                                                      Odessa, Texas 79761

Appellee’s Counsel
     on Appeal:                                       Michael Bloch
                                                      Assistant District Attorney
                                                      300 N. Grant Ave. Rm. 305
                                                      Odessa, Texas 79761
                                                      MICHAEL.BLOCH@ectorcountytx.gov.

       1
        The Reporter’ s Record reflects that a “Mr. Conner” was asking questions and making
objections on behalf of the State during the bench trial; however, this individual is not otherwise
specifically identified in any volume of the Reporter’s Record. (RR 4:79-83,91).

                                                 ii
Trial Court:             The Honorable John W. Smith, 161ST
                         District Court, Ector County, Texas

Appellate Court:         Justices Jim R. Wright, Mike Wilson,
                         and John M. Bailey, Court of Appeals,
                         Eleventh District of Texas.




                   iii
                             RECORD REFERENCES

       The Clerk’s Record contains only one volume; therefore, references in this

brief to the Clerk’s Record are by volume and page number, indicated as “CR 1:__.”

The Clerk’s Record contains the pleadings, orders, and correspondence filed with (or

sent to) the trial court and clerk that are pertinent to this appeal.

       This appeal also includes two Supplemental Clerk’s Records.                         Each

Supplemental Clerk’s Record contains only one volume.                      References to the

Supplemental Clerk’s Record dated December 11, 2012, in this brief are by volume

and page number, indicated as “SCR 1:__.” References to the Supplemental Clerk’s

Record dated August 19, 2013, in this brief are also by volume and page number,

indicated as “2SCR 1:__.”

       The Reporter’s Record contains six volumes; therefore, references to the

Reporter’s Record in this brief are by volume and page number, indicated as “RR

__:__.” The Reporter’s Record includes the transcripts of the arraignment hearing

held on April 5, 2010,2 and the pretrial hearing held on June 8, 2011. The Reporter’s

Record also includes transcripts of the bench trial held on September 6, 2012, and the

post-judgment hearing held on October 2, 2012.

       2
        Volume 2 of the Reporter’s Record reflects that the arraignment hearing in this cause
was held on September 6, 2012; however, this date reflects a typographical error, as the
arraignment hearing was actually held on April 5, 2010. (SCR 1:15).

                                               iv
      This appeal also includes a Supplemental Reporter’s Record.              Such

Supplemental Reporter’s Record contains only one volume; therefore, references in

this brief to the Supplemental Reporter’s Record are by volume and page number,

indicated as “SRR 1:__.” The Supplemental Reporter’s Record includes the mental

competency hearing held on December 10, 2012.

      Furthermore, the Reporter’s Record includes all of the parties’ exhibits

submitted to the trial court and admitted into evidence during the bench trial. All

such exhibits are contained in Volumes 4 and 5 of the Reporter’s Record. References

to the parties’ exhibits are indicated as “RR __:SX#__” or “RR __:DX#__.”



                           PARTY REFERENCES

      Appellant Luis Sanchez shall be referred to as “Sanchez.” The State of Texas,

Appellee, shall be referred to as “the State.” The Eleventh Court of Appeals shall be

referred to as “the Appellate Court.”




                                         v
                                      TABLE OF CONTENTS
                                                                                                                PAGE

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

RECORD REFERENCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

PARTY REFERENCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x

STATEMENT OF PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . x

ISSUES FOR WHICH REVIEW WAS GRANTED . . . . . . . . . . . . . . . . . . . . . . xi

STATEMENT OF FACTS RELATIVE TO GRANTED ISSUES . . . . . . . . . . . . 1

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

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

         M        Third-Degree Felony: Assault Family Violence . . . . . . . . . . . . . . . . 4
         M        Distinct Classes of Individuals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
         M        Membership in multiple Classes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
         M        The State’s Indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
         M        The Trial Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
         M        The Fatal Variance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
         M        The Majority Justices’ Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
         M        Inapplicable Case Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
         M        The Dissenting Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
         M        Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16




                                                           vi
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18




                                              vii
                                    INDEX OF AUTHORITIES

CASES
Cada v. State, 334 S.W.3d 766 (Tex. Crim. App. 2011) . . . . . . . . . . . . . . . . . 7,10

Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) . . . . . . . . . . . . . . . . . . 10

Hill v. State, No. 01-10-00926-CR, 2012 TEX. APP. LEXIS 2225
       (Tex. App.–Houston [1st Dist.], March 22, 2012, no pet.)
       (mem. op.) (not designated for publication) . . . . . . . . . . . . . . . . . . . . . . . . 12

Johnson v. State, 409 S.W.3d 738 (Tex. App.–Houston [1st Dist.] 2013,
     no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Sanchez v. State, 460 S.W.3d 675 (Tex. App.–Eastland,
     March 5, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x,2,11,13-15

White v. State, No. 05-09-00112-CR, 2010 TEX. APP. LEXIS 5985
      (Tex. App. Dallas, July 29, 2010, pet ref’d) (mem. op.)
      (not designated for publication) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

STATUTES
TEX. FAM. CODE ANN. § 2.001 et seq. (LEXIS 2015) . . . . . . . . . . . . . . . . . . . . . . 14

TEX. FAM. CODE ANN. § 71.0021(a) (LEXIS 2015) . . . . . . . . . . . . . . . . . . . . . . . . 11

TEX. FAM. CODE ANN. § 71.0021(b) (LEXIS 2015) . . . . . . . . . . . . . . . . . . . . . . . . 5

TEX. FAM. CODE ANN. §§ 71.0021(b)(1-3) (LEXIS 2015) . . . . . . . . . . . . . . . . . . . 5

TEX. FAM. CODE ANN. § 71.003 (LEXIS 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . 6,8

TEX. FAM. CODE ANN. § 71.005 (LEXIS 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . 6,9

TEX. FAM. CODE ANN. §§ 71.0021(b), 71.003, and 71.005 (LEXIS 2015) . . . . . . . 5




                                                           viii
TEX. GOV’T CODE ANN. § 311.021(3) (LEXIS 2015) . . . . . . . . . . . . . . . . . . . . . . 15

TEX. GOV’T CODE ANN. § 573.024(a)(1) (LEXIS 2015) . . . . . . . . . . . . . . . . . . . . . 6

TEX. PEN. CODE ANN. § 22.01(a)(1) (LEXIS 2015) . . . . . . . . . . . . . . . . . . . . . . . . . 4

TEX. PEN. CODE ANN. § 22.01(b) (LEXIS 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

TEX. PEN. CODE ANN. §§ 22.01(b)(2), 22.01(b)(2)(B) (LEXIS 2015) . . . . . . . . . . . 5




                                                ix
                         STATEMENT OF THE CASE

         Sanchez was indicted for assault family violence–a third degree

felony–pursuant to TEX. PEN. CODE ANN. §§ 22.01(a)(1), (b)(2)(B) and TEX. FAM.

CODE § 71.0021(b). Sanchez pleaded not guilty to this charge. (RR 4:7-8). A bench

trial was held on September 6, 2012. (RR 4:1). At the conclusion of the bench trial,

the trial court found Sanchez guilty of the indicted charge. (CR 1:57-58; RR 4:138).

The trial court sentenced Sanchez to six years imprisonment in the Institutional

division of the Texas Department of Criminal justice pursuant to TEX. PEN. CODE §

12.14.     (CR 1:57-58; RR 5:10). Sanchez timely filed his notice of appeal. (CR

1:59).

                STATEMENT OF THE PROCEDURAL HISTORY

         In a published opinion, the majority of the Appellate Court affirmed Sanchez’

conviction. Sanchez v. State, 460 S.W.3d 675, 681 (Tex. App.–Eastland, March 5,

2015). Chief Justice Jim. R. Wright entered a dissenting and concurring opinion. Id.

Sanchez did not file a Motion for Rehearing with the Appellate Court. Rather,

Sanchez filed a petition for discretionary review with this Court on April 21, 2015.

On or about July 1, 2015, the Court granted his petition for discretionary review.




                                           x
          ISSUES FOR WHICH REVIEW WAS GRANTED

Issue No. 1:

      A resolution is necessary of the disagreement amongst the justices of the
      Appellate court as to whether a defendant can be convicted of assaulting
      his spouse based solely on their past dating relationship under TEX. PEN.
      CODE ANN. § 22.01(b)(2) and TEX. FAM. CODE § 71.0021(b).

Issue No. 2:

      An n important question of state law is presented that has not been, but
      should be, settled by this Court as to whether a defendant can be
      convicted of assaulting his spouse based solely on their past dating
      relationship under TEX. PEN. CODE ANN. § 22.01(b)(2) and TEX. FAM.
      CODE § 71.0021(b).




                                      xi
  STATEMENT OF FACTS RELATIVE TO GRANTED ISSUES

      During the bench trial, Rachael Sanchez a/k/a Rachael Price, (“Price”), alleged

that on December 18, 2009, Sanchez physically assaulted her. (RR 4:21-24). Price

also testified that on the date of the alleged assault, she and Sanchez were involved

in a dating relationship. (RR 4:18-19). Specifically, Price testified on direct

examination that she and Sanchez were in a dating relationship for two and a half

years. (RR 4:18-19). She testified their dating relationship began in June of 2006

and ended in December of 2009. (RR 4:19).

      On cross-examination, however, Price admitted that she was not simply in a

dating relationship with Sanchez during that time period, but that she had actually

entered into a common law marriage with him. (RR 4:47). Price immediately

recanted her testimony and asserted that she never considered herself married to

Sanchez, even though Price acknowledged she had lived with Sanchez and they had

filed joint tax returns together. (RR 4:48-49).

      Price also denied that she had ever filed a divorce petition alleging she was

married to Sanchez. (RR 4:49). When confronted with an Original Petition for

Divorce she had filed on June 22, 2010, Price finally admitted she had filed a divorce

proceeding seeking a divorce from Sanchez and alleging she had entered into a

common law marriage with Sanchez in August of 2006. (RR 4:50-51). A copy of

                                          1
this divorce petition was introduced into evidence during the bench trial. (RR

4:DX#1). Price further admitted she had been judicially awarded a divorce from

Sanchez a few months after filing the divorce petition. (RR 4:47,51).

      Although she had just testified that she had not only filed for divorce from

Sanchez, but had actually been awarded a divorce from Sanchez, Price continued to

assert on re-direct examination that she did not consider herself married to Sanchez

prior to filing for a divorce from him. (RR 4:67). In direct contrast to her testimony,

Price’s father testified at the bench trial there was no question that Price had entered

into a common law marriage with Sanchez in August of 2006 and that Price had

gotten a divorce from Sanchez after the alleged assault had occurred. (RR 4:115-

16,123).

      Based on 1) Price’s own admissions at trial, 2) her father’s unequivocal

testimony, and 3) the introduction into evidence of the file-stamped copy of Price’s

June 22, 2010 Original Petition for Divorce, the evidence at trial conclusively

established Price and Sanchez were actually married on the date the assault allegedly

occurred—i.e. December 18, 2009. In this regard, all three justices of the Appellate

Court agreed the evidence introduced at trial conclusively established that Price and

Sanchez were actually married on December 18, 2009. Sanchez, 460 S.W.3d at 677,

684. Thus, the question before this court is not whether Sanchez and Price were

                                           2
actually married. Rather, the dispute to be settled by this Court revolves around the

specific language included in the indictment upon which Sanchez’s third-degree

felony, family-violence assault conviction was based.

                    SUMMARY OF THE ARGUMENT

      The State failed to plead alternative elements under TEX. PEN. CODE §

22.01(b)(2) in this case. As a result, the State limited its case against Sanchez to

proving he and Price were involved in a “dating relationship” as defined in TEX.

FAM. CODE § 71.0021(b). At trial, the evidence conclusively established Sanchez and

Price were actually married and not simply dating when the assault occurred.

      The majority justices mistakenly concluded that because Sanchez and Price had

dated approximately three and a half years prior to the assault and before they got

married, the State met its burden of proof under § 71.0021(b).          A marriage

relationship under the TEXAS FAMILY CODE is separate and distinct from a dating

relationship. A marriage relationship is therefore not subsumed in the definition of

a dating relationship found in § 71.0021(b).

      The majority justices’ conclusion to the contrary was therefore erroneous.

Because there was a fatal variance between the indictment and the State’s proof in

this case, Sanchez’s conviction of the third-degree felony offense of assault family

violence should not be affirmed on appeal.

                                         3
                                        ARGUMENT

Issues for Review Restated:

Issue No. 1:                  A resolution is necessary of the disagreement
                              amongst the justices of the Appellate court as to
                              whether a defendant can be convicted of assaulting
                              his spouse based solely on their past dating
                              relationship under TEX. PEN. CODE ANN. §
                              22.01(b)(2) and TEX. FAM. CODE § 71.0021(b).

Issue No. 2:                   An n important question of state law is presented
                               that has not been, but should be, settled by this
                               Court as to whether a defendant can be convicted of
                               assaulting his spouse based solely on their past
                               dating relationship under TEX. PEN. CODE ANN. §
                               22.01(b)(2) and TEX. FAM. CODE § 71.0021(b).3

M      Third-Degree Felony: Assault Family Violence.

       A person commits an assault if he intentionally, knowingly, or recklessly

causes bodily injury to another, including the person’s spouse. TEX. PEN. CODE

ANN. § 22.01(a)(1) (LEXIS 2015). Such offense is generally a Class A misdemeanor.

TEX. PEN. CODE ANN. § 22.01(b) (LEXIS 2015).

       However, the offense is elevated to a third degree felony when the assault (1)

is committed against a person who falls within one of the classes of individuals

defined in TEX. FAM. CODE § 71.0021(b) (dating relationship), TEX. FAM. CODE §



       3
         As both issues involve the same facts, case law, and statutory statutory authority, they
will be addressed together.

                                                 4
71.003 (family) and TEX. FAM. CODE § 71.005 (household); and (2) is committed by

strangulation or suffocation. TEX. PEN. CODE ANN. §§ 22.01(b)(2), 22.01(b)(2)(B)

(LEXIS 2015); TEX. FAM . CODE ANN. §§ 71.0021(b), 71.003, and 71.005 (LEXIS

2015).

M     Distinct Classes of Individuals.

      The TEXAS FAMILY CODE clearly defines these separate and distinct classes of

individuals. For example, § 71.0021(b) of the TEXAS FAMILY CODE defines a “dating

relationship” as a “relationship between individuals who have or have had a

continuing relationship of a romantic or intimate nature.” TEX. FAM. CODE ANN. §

71.0021(b) (LEXIS 2015). Factors to consider in determining the existence of a dating

relationship are:

      (1)    the length of the relationship;
      (2)    the nature of the relationship; and
      (3)    the frequency and type of interaction between the persons
             involved in the relationship.

TEX. FAM. CODE ANN. §§ 71.0021(b)(1-3) (LEXIS 2015).

      Section 71.003 of the TEXAS FAMILY CODE defines “family” to include the

following:

      (1)    individuals related by consanguinity or affinity;
      (2)    individuals who are former spouses of each other;
      (3)    individuals who are the parents of the same child without regard
             to marriage; and

                                         5
      (4)    foster children and foster parents, without regard to whether those
             individuals reside together.

TEX. FAM. CODE ANN. § 71.003 (LEXIS 2015).

      Two individuals are related to each other by “affinity” if they are “married to

each other.” TEX. GOV’T CODE ANN. § 573.024(a)(1) (LEXIS 2015). Accordingly,

a person’s spouse is statutorily included in the definition of “family” under § 71.003.

In contrast, the term “family” as defined in § 71.003 does not necessarily include an

individual with whom the actor is in a “dating relationship.” Johnson v. State, 409

S.W.3d 738, 742 (Tex. App.–Houston [1st Dist.] 2013, no pet.).

      Section 71.005 of the TEXAS FAMILY CODE defines “household” as “a unit

composed of persons living together in the same dwelling, without regard to whether

they are related to each other.” TEX. FAM. CODE ANN. § 71.005 (LEXIS 2015).

M     Membership in Multiple Classes.

      Conceivably, a victim of an assault might be a member of more than one of the

classes described in § 22.01(b)(2). For example, an assault victim who is a

defendant’s spouse would be (1) related to the defendant by affinity (§ 71.003-

family); and could possibly be (2) the parent of the defendant’s child (§ 71.003-

family); and/or (3) living in the defendant’s household (§ 71.005–household).




                                          6
       On the other hand, an assault victim who is a defendant’s girlfriend would be

(1) an individual having a dating relationship with the defendant (§ 71.0021(b)-dating

relationship); and could possibly be (2) the parent of the defendant’s child (§ 71.003-

family); and/or (3) living in the defendant’s household (§ 71.005–household).

       When there is overlap or uncertainty concerning the membership of an

individual in a particular class, the State may plead alternatives in the indictment.

Cada v. State, 334 S.W.3d 766, 772 (Tex. Crim. App. 2011) (where overlap or

uncertainty concerning status or service of particular person within protected general

class, State may plead alternatives in indictment).

       If, however, the State elects to plead only one specific element from a penal

offense that contains alternatives for that element, the sufficiency of the evidence is

measured by the element that was actually pleaded and not by any other statutory

alternative element. Id. at 774. For example, if the State alleges in an indictment that

the victim of an assault belongs to only one particular class, the State is limited at trial

to proving the victim was a member of that particular class. Accordingly, a

defendant’s third-degree felony conviction for assault family violence cannot be

upheld by evidence that the victim was a member of a different class of individuals.




                                             7
M     The State’s Indictment.

      The indictment in the case at bar was filed on March 22, 2010, (the

“Indictment”), and included the following language:

      . . . LUIS SANCHEZ, hereafter styled the Defendant, heretofore on or
      about the 18th day of December, 2009, did then and there intentionally,
      knowingly, or recklessly cause bodily injury to Rachel Price, a person
      with whom the Defendant has or has had a dating relationship, as
      described by Section 71.0021(b), Family code, by intentionally,
      knowingly or recklessly impeding the normal breathing or circulation of
      the blood of the said Rachel Price by applying pressure to the throat or
      neck of the said Rachel Price . . .

(CR 1:5). Undisputedly, the State alleged in the Indictment that Price was a

member of only one class described in § 22.01(b)(2)---a victim involved in a dating

relationship with the defendant as defined in § 71.0021(b). (Id.).

M     The Trial Evidence.

      The evidence at trial established Price was a member of several different

classes under § 22.01(b)(2). For example, as Sanchez’s spouse, she was related to

him by affinity and was thus a member of his family under § 71.003. See TEX.

FAM. CODE ANN. § 71.003 (LEXIS 2015).

      Additionally, Price testified she and Sanchez had a daughter during their

marriage. (RR 4:20). Consequently, Price was also member of Sanchez’s family

under § 71.003 because they were the parents of the same child. Id.


                                        8
      Finally, Price testified that she was living with Sanchez on the date the

alleged assault occurred. (RR 4:47,51). As such, Price was a member of Sanchez’s

household under § 71.005. See TEX. FAM. CODE ANN. § 71.005 (LEXIS 2015).

      Yet, the State failed to plead any alternatives under § 71.003 or § 71.005 in

the Indictment. The State also never amended the Indictment to include any

alternative classes of individuals under § 71.003 or § 71.005. As a result, the State

proceeded to trial based solely on the single allegation that Sanchez and Price were

involved in a “dating relationship.” (RR 4:7). Because of the failure to plead any

alternatives in the Indictment, the State limited its case against Sanchez to proving

he had committed an assault against Price, a person with whom he “has or had” a

“dating relationship.”

M     The Fatal Variance.

      The State failed to meet its burden of proof in this regard. Instead of proving

a continuing or past dating relationship between Price and Sanchez, the State

actually proved at trial that Price was Sanchez’s spouse---not a girlfriend–who was

living with him at the time the assault occurred. The State, therefore, proved Price

was a member of Sanchez’s family and Sanchez’s household, but the State did not

prove Price and Sanchez were involved in a “dating relationship.” Accordingly,

there was a fatal variance between the Indictment and the State’s evidence at trial.

                                         9
      A “variance” occurs when there is a discrepancy between the allegations in

the charging instrument and the proof at trial. Gollihar v. State, 46 S.W.3d 243,

246 (Tex. Crim. App. 2001). “In a variance situation, the State has proven the

defendant guilty of a crime, but has proven its commission in a manner that varies

from the allegations in the charging instrument.” Id. A variance claim is treated

as an insufficiency of the evidence issue on appeal. Id. at 247. A fatal variance

renders a conviction void, and the only remedy is to render an acquittal. Cada, 334

S.W.3d at 776 (reversing judgment of court of appeals and rendering acquittal

where there was material variance between indictment and proof adduced at trial).

      In this case, the State failed to prove Price was a member of the class alleged

in the Indictment---that Price was an individual involved in a “dating relationship”

with Sanchez. This element was a distinct statutory element of the third-degree

felony offense for which Sanchez was being prosecuted. Consequently, the State

was required to prove the statutory element it had chosen to allege, and not one of

the other alternative statutory elements it had failed to allege. See Id. As a result

of the State’s lack of evidence as to this element, a fatal variance occurred. Sanchez

was therefore entitled to an acquittal as to the third-degree felony charge of assault

family violence.




                                         10
M        The Majority Justices’ Error.

         The majority of the Appellate Court, however, held otherwise. Rather than

acknowledging this fatal variance, the majority justices conducted a strained reading

of § 71.0021(b) that ran counter to 1) the express statutory language, 2) the Texas

Legislature’s purpose in enacting the current version of § 22.01, and 3) common

sense.

         Focusing on the words “have had,” as included in § 71.0021(b), the majority

justices concluded that because Sanchez and Price “had a dating relationship in the

past, such a relationship falls within the provisions of the statute that increase this

assault to a third-degree felony.” Sanchez, 460 S.W.3d at 680. To reach this

conclusion, the majority justices simply disregarded the different classes of assault

victims as defined by § 71.0021(b), § 71.003, and § 71.005.

         Likewise, to sustain Sanchez’s third-degree felony conviction, the majority

justices read § 71.0021(b) in a vacuum and ignored the statutory language found in

§ 71.0021(a) which specifically distinguishes “a dating relationship” from a

“marriage.” See TEX. FAM. CODE ANN. § 71.0021(a) (LEXIS 2015).

M        Inapplicable Case Law.

         Finally, to support their ruling, the majority justices relied upon unpublished

memorandum opinions from sister appellate courts. Specifically, the majority

                                            11
justices relied upon White v. State, No. 05-09-00112-CR, 2010 TEX. APP. LEXIS

5985 (Tex. App. Dallas, July 29, 2010, pet ref’d) (mem. op.) (not designated for

publication); and Hill v. State, No. 01-10-00926-CR, 2012 TEX. APP. LEXIS 2225

(Tex. App.–Houston [1st Dist.], March 22, 2012, no pet.) (mem. op.) (not designated

for publication).

      Neither White nor Hill involved defendants who were married to the victims

at the time of the assaults. In fact, the assault victims in White and Hill were never

married to the defendants at any point in time. Likewise, neither White nor Hill

involved the issue of a fatal variance. Rather, both White and Hill involved

questions as to whether the defendants had been romantically involved with the

assault victims during the thirty to sixty days prior to the assaults. White, 2010

TEX. APP. LEXIS 5985, at *1; Hill, 2012 TEX. APP. LEXIS 2225, at *5.

      Neither White nor Hill held that a defendant could be convicted of a third-

degree felony for assaulting his spouse based on their past dating relationship under

§ 22.01(b)(2) and § 71.0021(b). More importantly, there appears to be no Texas

case law----notwithstanding the case at bar-----in which an appellate court has held

that a defendant can be convicted of assaulting his spouse–or for that matter his

former spouse—under § 22.01(b)(2) and § 71.0021(b).




                                         12
M     The Dissenting Opinion.

      Recognizing the deficiencies in the majority justices’ analysis, as well as the

lack of case law to support their decision, Chief Justice Jim “R” Wright entered a

well-reasoned dissenting and concurring opinion in this case. Sanchez, 460 S.W.3d

at 681-85. Chief Justice Wright determined that based on the language included in

§ 71.0021, the Texas Legislature intended “marriage” and a “dating relationship”

to be two separate and distinguishable relationships. Id. at 682. He further

concluded that based on the specific language of § 71.0021, the terms “dating

relationship” and “marriage” were mutually exclusive as used in the statute. Id.

      Chief Justice Wright also determined that as a result of the specific verb

tenses utilized in § 71.0021(b), the Texas Legislature intended the phrase “have had

a dating relationship” to mean “the dating relationship must have recently ended.”

Id. at 683. Thus, even if § 71.0021(b) was applicable to a defendant’s spouse, Chief

Justice Wright found that “as a matter of law,” a dating period occurring

approximately three and half years prior to the assault did “not fit within the concept

of ‘recently.’” Id.

      Finally, Chief Justice Wright also noted that the State could have plead

alternative classes in the Indictment. Id. at 684. Chief Justice Wright pointed out

that the State chose not do so in this case; therefore, the State “limited itself to the

                                          13
‘dating relationship’ provision” of § 22.01(b)(2). Id. Chief Justice Wright then

correctly found the State had alleged a single narrow element for which there was

no supporting evidence. Id. at 685. Because there was a fatal variance between the

indictment and the proof, Chief Justice Wright properly concluded Sanchez’s

conviction for the third-degree felony of assault family violence could not be

affirmed on appeal. Id.

M     Conclusion.

      The Texas Legislature has gone to great lengths to identify and distinguish

the marriage relationship. See TEX. FAM. CODE ANN. § 2.001 et seq. (LEXIS 2015).

By defining the separate classes of assault victims in § 71.0021(b), § 71.003, and

§ 71.005, the Texas Legislature clearly intended to distinguish between a dating

relationship and a marriage relationship. If the majority justices’ interpretation is

upheld, all language found in these statutes pertaining to marriage would be

superfluous because the marriage relationship will be subsumed in the definition of

“dating relationship” found in § 71.0021(b).

      In fact, the distinguishment of the marriage relationship in § 71.0021(b), §

71.003, and § 71.005 would become unnecessary as all marriages would be subject

to the incredibly broad definition of a “dating relationship.” For example, if the

majority justices’ reasoning is correct, a defendant who has been married for thirty

                                         14
years can be convicted of a third-degree felony for assaulting his spouse under §

22.01(b)(2) and § 71.0021(b) based on their past dating relationship which occurred

thirty-one years ago.

      Recognizing this irrational conclusion, Chief Justice Wright noted in his

dissent that under the majority justices’ holding, it would not matter when a dating

relationship existed, “even decades prior,” just so long as the relationship ended at

some indefinite time prior to the time of the assault being prosecuted. Sanchez, 460

S.W.2d 683. This absurd conclusion was clearly not the intent of the Texas

Legislature in enacting § 22.01(b)(2) and § 71.0021(b).

      When § 71.0021(b), § 71.003, and § 71.005 are read together, it becomes

clear that a defendant’s spouse falls within the protected class of family and/or

household, and not within the purview of a “dating relationship.” Such common

sense interpretation is the just and reasonable result intended by the Texas

Legislature. See TEX. GOV’T CODE ANN. § 311.021(3) (LEXIS 2015) (in enacting

a statute, it is presumed that a just and reasonable result is intended).

      In this case, the State simply failed to err on the side of caution and include

alternative elements in the Indictment. As a result, the State limited its case against

Sanchez. When the evidence was presented at trial, the State could not meet its

narrow burden of proof.

                                          15
      As such, this Court should not adopt the majority justices’ strained

interpretation of § 71.0021(b) simply to side-step the fatal variance clearly apparent

on the Record of this case. To do so would set a poor precedent in future cases.

This Court should therefore reverse the Appellate Court’s ruling sustaining

Sanchez’s conviction of the third-degree felony of assault family violence as a

matter of law.

                            PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, Appellant Luis Sanchez

respectfully prays that this Court 1) reverse the Appellate Court’s majority ruling

affirming Sanchez’s third-degree felony conviction for assault family violence, 2)

affirm Sanchez’s conviction for simple assault, and 3) remand this case for a new trial

solely as to punishment. Additionally, Sanchez prays that this Court grant him such

other and further relief to which he may be entitled.




                                          16
                                              Respectfully submitted,


                                              M. MICHELE GREENE
                                              Attorney at Law
                                              2833 Wildwood Ave.
                                              Odessa, Texas 79761
                                              Tel: (432) 238-1255
                                              Email: mmg@michelegreenelaw.com

                                       By:    /s/ M. Michele Greene
                                              M. Michele Greene
                                              State Bar No.00789966

                                              Appellate Counsel for Appellant
                                              Luis Sanchez




                   CERTIFICATE OF COMPLIANCE

       In accordance with Rules 9.4(e) and (i) of the TEXAS RULES OF APPELLATE
PROCEDURE, the undersigned attorney of record certifies that the Brief on Petition for
Discretionary Review contains 14-point typeface for the body of the brief, 12-point
typeface for footnotes in the brief, and contains 3435 words, excluding those words
identified as not being counted in Rule 9.4(i)(1) and was prepared on Word Perfect
Version 9.

                                              /s/ M. Michele Greene
                                              M. Michele Greene




                                         17
                      CERTIFICATE OF SERVICE

      I certify that a copy of the Appellant’s Brief on Petition for Discretionary
Review was served electronically on this the 17h day of August, 2015, to the
following party and that the electronic transmission was reported as complete:

Michael Bloch
Ector County District Attorney’s Office
Ector County Courthouse
300 N. Grant Ave. Rm. 305
Odessa, Texas 79761
MICHAEL.BLOCH@ectorcountytx.gov.

Attorney for the State of Texas, Appellee


                                            /s/ M. Michele Greene
                                            M. Michele Greene




                                       18
