                                                                                      PD-0372-15
                                                                    COURT OF CRIMINAL APPEALS
                                                                                     AUSTIN, TEXAS
                                                                    Transmitted 10/2/2015 2:06:32 PM
Otober 2, 2015
                                                                      Accepted 10/2/2015 2:18:45 PM
                                                                                      ABEL ACOSTA
                                NO. PD-0372-15                                                CLERK

                  IN THE COURT OF CRIMINAL APPEALS
                              OF TEXAS


                                LUIS SANCHEZ,
                                   Appellant

                                        V.

                              STATE OF TEXAS,
                                  Appellee

                      On Petition for Discretionary Review
                        from the 11th Court of Appeals
                              No. 11-12-00279-CR

                 On appeal from the 161st Judicial District Court
                             of Ector County, Texas
                      Trial Court Cause Number B-37,135

                        STATE’S APPELLATE BRIEF


                                     Michael Bloch
                                     Assistant District Attorney
                                     Ector County District Attorney’s Office

                                     Ector County Courthouse
                                     300 N. Grant, Room 305
                                     Odessa, Texas 79761
                                     (432) 498-4230 Phone
                                     (432) 498-4293 Fax
                                     michael.bloch@ectorcountytx.gov
                                     Attorney for the State


                                        1
                  Identity of Parties and Counsel


ATTORNEYS FOR THE STATE:

At trial: Dusty Gallivan, Assistant District Attorney
On appeal: Michael Bloch, Assistant District Attorney

Ector County Courthouse
300 N. Grant, Room 305
Odessa, Texas 79761

ATTORNEY FOR THE APPELLANT AT TRIAL:

William R. Bowden, Jr.
221 W. 4th St.
Odessa, Texas 79761

ATTORNEY FOR THE APPELLANT ON DIRECT APPEAL AND ON
PDR:

M. Michele Greene
2833 Wildwood
Odessa, Texas 79761

TRIAL COURT:

Hon. John W. Smith
161st District Court of Ector County
300 N. Grant, Room 316
Odessa, Texas 79761




                                  2
                                               Table of Contents



Identity of Parties and Counsel ................................................................................. 2

Index of Authorities ................................................................................................... 4

Statement of the Case................................................................................................. 7

Statement Regarding Oral Argument ........................................................................ 7

Procedural History ..................................................................................................... 7

Issues Presented ........................................................................................................ 8

Statement of Facts ..................................................................................................... 8

Summary of the Argument...................................................................................... 10

Argument

                  I.        Could the trial court have rationally concluded that
                            Appellant and the victim, Rachael Price, were never married
                            and that the assault occurred between individuals who
                            merely “have had” a dating relationship ................................... 11
                  II.       Did the 11th Court of Appeals err when it determined that
                            Appellant could be convicted of assaulting his former spouse
                            based solely on their past dating relationship under Tex. Pen.
                            Code § 22.01 (b) (2) and Tex. Fam. Code § 71.0021 (b)?........13

Conclusion and Prayer ...........................................................................................19

Certificate of Service ............................................................................................... 20

Certificate of Compliance ........................................................................................ 20



                                                            3
                                            Index of Authorities

CASES

Baird v. State,
398 S.W.3d 220, 229 (Tex. Crim. App. 2013) ........................................................ 15

Bays v. State,
396 S.W.3d 580, 585 (Tex. Crim. App. 2013) ........................................................ 15

Bingham v. State,
913 S.W.2d 208, 209 (Tex. Crim. App. 1995) ........................................................ 14

Halton v. State,
2015 Tex. App. LEXIS 6769 (Tex. App. Dallas July 1, 2015, no pet.) .................. 17

Hill v. State,
No. 01-10-00926-CR, 2012 Tex. App. LEXIS 2225, 2012 WL 983338 (Tex.
App.—Houston [1st Dist.] Mar. 22, 2012, no pet.) ................................................. 17

Preston v. State,
2015 Tex. App. LEXIS 7240 (Tex. App. Dallas July 14, 2015, no pet.) ................ 17

Sanchez v. State,
460 S.W.3d 675 (Tex. App. – Eastland 2015, pet. granted) ........7, 13, 14, 15, 17, 18

Stanul v. State,
870 S.W.2d 329, 334 (Tex. App.--Austin 1994, pet. ref'd) ..................................... 16

State v. Hardy,
963 S.W.2d 516, 520 (Tex. Crim. App. 1997) ........................................................ 14

Tovar v. State,
949 S.W.2d 370, 373 (Tex. App. San Antonio 1997) aff’d 978 S.W.2d 584 (Tex.
Crim. App. 1998) ..................................................................................................... 16




                                                           4
White v. State,
No. 05-09-00112-CR, 2010 Tex. App. LEXIS 5985, 2010 WL 2951748 (Tex.
App.—Dallas July 29, 2010, pet. ref'd) ................................................................... 17

STATUTES

Tex. Fam. Code § 2.401 (a) (2) ................................................................................ 12

Tex. Fam. Code § 71.0021 (b) .............................................. 8, 10, 11, 13, 15, 16, 18

Tex. Gov’t Code § 311.023...................................................................................... 15

Tex. Pen. Code § 22.01 (b) (2).................................................................8, 10, 13, 15

Tex. Pen. Code § 22.01 (b) (2) (B) ..............................................................11, 16, 18




                                                        5
                              NO. PD-0372-15

                IN THE COURT OF CRIMINAL APPEALS
                            OF TEXAS


                              LUIS SANCHEZ,
                                 Appellant

                                      V.

                            STATE OF TEXAS,
                                Appellee

                    On Petition for Discretionary Review
                      from the 11th Court of Appeals
                            No. 11-12-00279-CR

               On appeal from the 161st Judicial District Court
                           of Ector County, Texas
                    Trial Court Cause Number B-37,135

                       STATE’S APPELLATE BRIEF


TO THE HONORABLE JUDGES OF SAID COURT:

      COMES NOW, Appellee, the STATE OF TEXAS, by and through its

District Attorney, R.N. (Bobby) Bland and Assistant District Attorney Michael

Bloch and presents for receipt its Appellate Brief in the above-styled and

numbered cause of action.




                                      6
                               Statement of the Case

      On March 22, 2010, Luis Sanchez, hereinafter Appellant, was indicted for

the third degree felony offense of assault-family violence; the indictment alleged

that Appellant knowingly or recklessly impeded the normal breathing or

circulation of the blood of victim Rachel Price, with whom he has or has had a

dating relationship, by applying pressure to Price’s throat or neck. CR 5.

Immediately prior to trial, Appellant pled not guilty. 4 RR 8. Appellant waived

his right to a jury trial, and the case was tried before the bench on September 6,

2012. 4 RR 6-138. The trial court found Appellant guilty, and sentenced him to

six years incarceration in the TDCJ – Institutional Division. Id. at 138; 5 RR 10.

                      Statement Regarding Oral Argument

      This Court noted that oral argument would not be permitted in this case.

                                Procedural History

      Appellant filed a brief on direct appeal with the 11th Court of Appeals on

August 22, 2013. The Court of Appeals affirmed Appellant’s conviction. See

Sanchez v. State, 460 S.W.3d 675 (Tex. App. – Eastland 2015, pet. granted).

Appellant filed his petition for discretionary review on April 21, 2015. This Court

granted Appellant’s petition for discretionary review on July 1, 2015. Appellant

filed his brief in this PDR on August 18, 2015.


                                          7
                                  Issues Presented

   1. Could the trial court have rationally concluded that Appellant and the victim,

      Rachael Price, were never married and that the assault occurred between

      individuals who merely “have had” a dating relationship?

   2. Did the 11th Court of Appeals err when it determined that Appellant could be

      convicted of assaulting his former spouse based solely on their past dating

      relationship under Tex. Pen. Code § 22.01 (b) (2) and Tex. Fam. Code §

      71.0021 (b)?

                                 Statement of Facts

      Only the facts relevant to Appellant’s claims will be discussed here. During

the trial, Price testified that her and Appellant had been in a relationship for about

two and a half years, beginning in June of 2006 and ending in December of 2009.

5 RR 19. On cross-examination, Appellant brought up the issue as to whether they

were in fact married. Id. at 47. Price initially stated that they were “common law”

and later divorced. Id. She acknowledged DX 1, which was a divorce petition

filed on her behalf. However, the following exchange also occurred:

      Q:     Isn’t it true, Ms. Price, that you were married with this man from 2006

on?

      A:     No.


                                           8
      Q:     Correct?

      A:     No.

      Q:     Okay. When did you marry him?

      A:     We never.

      Q:     I am not talking about a formal marriage, I am talking about when did

you consider yourself married?

      A:     I never did.

      Q:     You never did?

      A:     No.

Id. at 48. She went on to testify that while she did seek a divorce from Appellant

and filed a pleading alleging that they were common law married, she did so only

because she was advised to do so by her legal aid attorney, who cited the length of

time Price and Appellant lived together and the fact that they filed one or more

joint tax returns. Id. at 49, 67.

      Price further testified on redirect that

      Q: Defendant’s Exhibit No. 1 the petition for divorce that you filed?

      A: Yes.

      Q:     Or that was filed on your behalf?

      A:     Yes.


                                           9
      Q:    Did you use an attorney to file this for you?

      A:    Yes.

      Q:    Prior to this event when you sought legal help, did you consider

yourself married to [Appellant]?

      A:    No.

5 RR 67.

                            Summary of the Argument

      The trial court could have rationally concluded that Price and Appellant

were never married because Price never agreed to marry Appellant and did not

consider herself married to Appellant. Given Price’s testimony, the trial court as

finder of fact could reasonably conclude that the elements of common law

marriage were never met in that relationship, divorce petition notwithstanding.

Hence, Price and Appellant were merely in a dating relationship as the indictment

alleged, and the State proved that element at trial.

      The Court of Appeals correctly found that Appellant could be convicted of

assaulting his former spouse based solely on their past dating relationship under

Tex. Pen. Code § 22.01 (b) (2) and Tex. Fam. Code § 71.0021 (b). Ordinarily,

language is the best indicator of legislative intent and if the meaning should have

been plain to the legislators who voted for it, reviewing courts should give effect to


                                          10
the plain meaning of the language. The relevant language in this case is not

ambiguous and does not lead to an absurd result. Based upon the clear wording of

§71.0021 and Penal Code § 22.01 (b) (2) (B), the legislature intended to punish as

third degree felony family violence one who impedes breathing or circulation of a

victim with whom the perpetrator had a dating relationship, no matter how long

ago that relationship was. The State alleged in its indictment that Appellant caused

bodily injury to Price, “a person with whom the Defendant has or has had a dating

relationship, as described by 71.0021 (b), Family [C]ode” CR 5. The Sanchez

majority correctly found that there was no fatal variance.



                                     Argument

             I.    Could the trial court have rationally concluded that
                   Appellant and the victim, Rachael Price, were never
                   married and that the assault occurred between individuals
                   who merely “have had” a dating relationship?


   In the indictment, the State alleged that Appellant caused bodily injury to Price,

“a person with whom the Defendant has or has had a dating relationship, as

described by Section 71.0021(b), Family code…” Appellant contends he is

entitled to an acquittal from this Court because Appellant and Price were not

merely in a dating relationship, but were instead common law spouses. The State


                                         11
contends that the evidence adduced at trial did not necessarily show that they were

in fact married. The State made this argument in its brief on direct appeal, but the

Court of Appeals’ opinion ruled that “[a]s a result of the intervening divorce

proceedings, the evidence conclusively negates the possibility that the alleged

assault occurred between individuals who ‘have’ a dating relationship.” The State

would respectfully request this Court visit the issue.

   During her testimony, Price indicated that she and Appellant were “formerly in

a relationship” and had a child together. 4 RR 18-19. The relationship began in

June 2006 and ended December 2009. Id. at 19. As previously noted, while

acknowledging the common-law divorce petition filed on her behalf by legal aid,

Price never considered herself married to Appellant. Id. at 48. She testified that

while she did seek a divorce from Appellant and filed a pleading alleging that they

were common law married, she did so only because she was advised to do so by

her legal aid attorney, who cited the length of time Price and Appellant lived

together and the fact that they filed one or more joint tax returns. Id. at 49, 67.

Price did not consider herself married to Appellant prior to seeking that legal

assistance. Id. at 67. Tex. Fam. Code § 2.401 (a) (2) provides that a man and

woman are “common-law” married if the man and woman agreed to be married

and after the agreement they lived together in this state as husband and wife and


                                          12
there represented to others that they were married. Given Price’s testimony, the

trial court as finder of fact could reasonably conclude that Price never agreed to

marry Appellant, and hence the elements of common law marriage were never met

in that relationship, divorce petition notwithstanding. The trial court could have

rationally concluded that Price and Appellant’s were merely in a dating

relationship, which was well-supported by the evidence. See 4 RR 18-19; 67.



             II.   Did the 11th Court of Appeals err when it determined that
                   Appellant could be convicted of assaulting his former
                   spouse based solely on their past dating relationship under
                   Tex. Pen. Code § 22.01 (b) (2) and Tex. Fam. Code §
                   71.0021 (b)?


      As this Court is aware, Appellant contends that the majority opinion in

Sanchez erred when it found that the evidence showed that the assault occurred

between Appellant and Price and constituted a third degree felony under Penal

Code § 22.01 (b) (2) because Appellant and Price “have had” a previous dating

relationship as that term appears in Tex. Fam. Code § 71.0021 (b). The majority

opinion notes that while there was a marriage that occurred, there was no fatal

variance between the indictment and the proof at trial because there was a dating

relationship between Appellant and Price in the past. Sanchez, 460 S.W.3d at 680.

Appellant contends that the intervening marriage causes there to be a fatal variance

                                         13
between the indictment and the proof raised at trial because a marriage and dating

relationship are two separate and distinct categories. Further, Appellant points out

the dissenting opinion’s statement that [the majority’s interpretation of “have had”

a dating relationship]:

      would mean that it would not matter when a dating relationship
      existed, even decades prior, and would give no regard to intervening
      circumstances, so long as the relationship ended at some indefinite
      time prior to the time of an assault for which the State charges a
      person. The words that the legislature actually used do not indicate to
      me that the legislature intended that result.


Sanchez, 460 S.W.3d at 683. Appellant characterizes such conclusion as absurd

and contends that such conclusion was clearly not the intent of the Texas

Legislature. Appellant’s brief at 15.

      Ordinarily, language is the best indicator of legislative intent and if the

meaning should have been plain to the legislators who voted for it, reviewing

courts should give effect to the plain meaning of the language. Bingham v. State,

913 S.W.2d 208, 209 (Tex. Crim. App. 1995). This Court should "presume that

every word in a statute has been used for a purpose and that each word, phrase, and

sentence should be given effect if reasonably possible." State v. Hardy, 963 S.W.2d

516, 520 (Tex. Crim. App. 1997). If, on the other hand, the meaning of the literal

text of a statute is ambiguous or would cause an absurd result, considering extra-


                                          14
textual factors to discern the Legislature's intent in enacting the statute may be

appropriate. Bays v. State, 396 S.W.3d 580, 585 (Tex. Crim. App. 2013).

      As for ambiguity, it exists when a statute may be understood by reasonably

well-informed persons to have two or more different meanings. Bays, 396 S.W.3d

at 585; see also Baird v. State, 398 S.W.3d 220, 229 (Tex. Crim. App. 2013)

(statute is ambiguous when the language it employs is "reasonably susceptible to

more than one understanding"). In construing ambiguous statutes, relevant factors

that this Court may consider include the legislative history behind the statute and

the consequences of a particular construction. See Bays, 396 S.W.3d at 585; Tex.

Gov’t Code § 311.023. Both Appellant and the Sanchez dissent express the belief

that the majority’s opinion is not in line with legislative intent. With regard to the

statute in issue, there is nothing ambiguous about it. Tex. Fam. Code § 71.0021 (b)

states that “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.” [emphasis supplied]. Clearly, the plain meaning of the statute

is that a defendant may be convicted of family violence under Tex. Pen. Code §

22.01 (b) (2) if at any point during or prior to the offense the defendant and the

victim had a dating relationship. There is nothing ambiguous about that.




                                          15
       Reviewing courts will not give effect to a statute's plain meaning, however,

if to do so would reap absurd results. See Stanul v. State, 870 S.W.2d 329,

334 (Tex. App.--Austin 1994, pet. ref'd). In this case, Appellant contends that the

plain meaning of the statute is absurd because the majority’s interpretation of “has

had” a dating relationship would mean that 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. Does this

make the clear wording of Penal Code § 22.01 (b) (2) (B) and Tex. Fam. Code §

71.0021 (b) absurd? That the result of a statute may seem harsh does not make the

result absurd. Tovar v. State, 949 S.W.2d 370, 373 (Tex. App. San Antonio 1997)

aff’d 978 S.W.2d 584 (Tex. Crim. App. 1998). Based upon the clear wording in

the statute, the legislature obviously intended to punish under Penal Code §22.01

(b) (2) (B) family violence involving a victim with whom the perpetrator had a

dating relationship, no matter how long ago that relationship was. That may be

harsh, but by no means absurd. And, had the legislature intended for a prosecution

to be barred because of a certain elapse of time between the end of the dating

relationship and the subsequent assault, it could have certainly put such a provision

in the statute. It did not.




                                          16
      In support of their decision, the Sanchez majority cited to two unpublished

opinions from sister Courts: White v. State, No. 05-09-00112-CR, 2010 Tex. App.

LEXIS 5985, 2010 WL 2951748 (Tex. App.—Dallas July 29, 2010, pet. ref'd) and

Hill v. State, No. 01-10-00926-CR, 2012 Tex. App. LEXIS 2225, 2012 WL

983338 (Tex. App.—Houston [1st Dist.] Mar. 22, 2012, no pet.). Sanchez, 460

S.W.3d at 680. These holdings provide that the “have had” element of § 71.0021

(b) eliminates the requirement of an ongoing dating relationship at the time of the

alleged assault. Id.

      Two more recent Court of Appeals opinions further support that position.

See Preston v. State, 2015 Tex. App. LEXIS 7240 (Tex. App. Dallas July 14, 2015,

no pet.)(mem op. not designated for publication), (“A past continuing relationship

of an intimate nature is sufficient to qualify as a ‘dating relationship’”); Halton v.

State, 2015 Tex. App. LEXIS 6769 (Tex. App. Dallas July 1, 2015, no pet.)(mem.

op. not designated for publication). (“[T]he family code definition of dating

relationship encompasses both a contemporaneous and a past dating relationship”).

      White, Hill, Preston and Halton all stand for the proposition that a dating

relationship need not be ongoing at the time of the family violence assault. The

past dating relationship in this case falls within the provisions of the statute that

increase this assault to a third-degree felony. Based upon the clear wording of


                                           17
Family Code §71.0021 and Penal Code § 22.01 (b) (2) (B), the legislature intended

to punish as third degree felony family violence one who impedes breathing or

circulation of a victim with whom the perpetrator had a dating relationship, no

matter how long ago that relationship was. The Sanchez dissent’s claim that “have

had” a past dating relationship means that the relationship must have ended

recently is, with all due respect, unworkable. Sanchez, 460 S.W.3d at 683. How

recently would the relationship have to have ended? A week? A month? A year?

The statute doesn’t say, so how would we know? Indeed, had the legislature

intended for there to be a cut-off time the statute would have said so. The State

alleged in its indictment that Appellant caused bodily injury to Price, “a person

with whom the Defendant has or has had a dating relationship, as described by

71.0021 (b), Family [C]ode” CR 5. The Sanchez majority correctly found that

there was no variance.

      Appellant’s point of error should be overruled.




                                         18
                             Conclusion and Prayer

      The State of Texas prays this Court overrule Appellant’s point of error and

affirm Appellant’s conviction.

                                      Respectfully Submitted,

                                      R.N. (Bobby) Bland
                                      Ector County District Attorney

                                 BY: /s/ Michael Bloch
                                     Michael Bloch
                                     Assistant District Attorney
                                     SBN 24009906

                                      Ector County District Attorney’s Office
                                      Ector County Courthouse
                                      300 N. Grant, Room 305
                                      Odessa, Texas 79761
                                      (432) 498-4230 Phone
                                      (432) 498-4293 Fax
                                      michael.bloch@ectorcountytx.gov




                                        19
                         CERTIFICATE OF SERVICE

      Pursuant to Rule 9.5 of the Texas Rules of Appellate Procedure, I certify that

on this 2nd day of October, 2015, a copy of the foregoing State’s Appellate Brief

was served via efile to counsel for Appellant:

      M. Michele Greene
      2833 Wildwood
      Odessa, Texas 79761




                                       /s/ Michael Bloch
                                       Michael Bloch
                                       Assistant District Attorney


                      CERTIFICATE OF COMPLIANCE

      I certify that the foregoing brief consists of 3,368 words and is typed in 14-

point Times New Roman font.

                                       /s/ Michael Bloch
                                       Michael Bloch
                                       Assistant District Attorney




                                         20
