                                                                        ACCEPTED
                                                                     05-15-00368-cr
                                                         FIFTH COURT OF APPEALS
                                                                    DALLAS, TEXAS
                                                                7/2/2015 6:25:34 PM
                                                                         LISA MATZ
                                                                             CLERK

       CAUSE NO. 05-15-00368-CR

              IN THE                               FILED IN
                                            5th COURT OF APPEALS
         COURT OF APPEALS                       DALLAS, TEXAS
      FIFTH DISTRICT OF TEXAS               7/2/2015 6:25:34 PM
             AT DALLAS                            LISA MATZ
                                                    Clerk

***************************************

     DARLING FRANCISCO CRUZ,
                  Appellant

                     v.

         THE STATE OF TEXAS

***************************************

   On Appeal from Criminal District Court
           Dallas County, Texas
    Trial Court Cause No. F14-15503-H

***************************************

          BRIEF OF APPELLANT

***************************************

                          Lawrence B. Mitchell
                          SBN 14217500
                          P.O. Box 797632
                          Dallas, Texas 75379
                          Tel. No.: 214.870.3440
                          E-mail: judge.mitchell@gmail.com

                          ATTORNEY FOR APPELLANT
            IDENTITY OF ATTORNEYS AND PARTIES

      This case is an appeal from criminal conviction in Dallas County, Texas.

The attorneys and parties of record are:

      (1) James Jamison, trial attorney for appellant: 529 West 12th Street, Dallas,

Texas 75208

      (2) The State at trial: ADA Jay Worley, 133 N. Riverfront Blvd., Dallas,

Texas 75207.

      (3) On appeal, Appellant Francisco Darling Cruz by and through his

attorney of record: Lawrence B. Mitchell, P.O. Box 797632, Dallas, Texas, 75379.

      (4) On appeal the State of Texas, by and through Susan Hawk, Criminal

District Attorney of Dallas County, Texas or her designated representative, Frank

Crowley Courts Building, 133 North Riverfront Blvd., Dallas, Texas 75207.




                                           i
                                     TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL.............................................................i

TABLE OF CONTENTS...........................................................................................ii

INDEX OF AUTHORITIES....................................................................................iii

STATEMENT OF THE CASE..................................................................................2

ISSUE PRESENTED.................................................................................................2

                  THE COURT OF APPEALS SHOULD REFORM AND
                  MODIFY THE JUDGMENT OF THE DISTRICT COURT
                  DELETING THE DEADLY WEAPON FINDING


STATEMENT OF FACTS........................................................................................3

SUMMARY OF THE ARGUMENT........................................................................4

ARGUMENT.............................................................................................................5

PRAYER FOR RELIEF.............................................................................................7

CERTIFICATE OF WORD-COUNT COMPLIANCE.............................................8

CERTIFICATE OF SERVICE..................................................................................8




                                                          ii
                                 INDEX OF AUTHORITIES

                                                   CASES:

Drichas v. State, 175 S.W.3d 795 (Tex. Crim. App. 2005)......................................6

Ex parte Hopson, 688 S.W.2d 545 (Tex. Crim. App. 1985)....................................6

Medina v. State, 962 S.W.2d 83 (Tex. App. - Houston [1st Dist.]1997)...................6

Narron v. State, 835 S.W.2d 642 (Tex. Crim. App.1992)........................................6

Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).........6

Turner v. State, 664 S.W.2d 86 (Tex. Crim. App.1983)...........................................6

Williams v. State, 970 S.W.2d 566 (Tex. Crim. App. 1998).....................................6

                                                STATUTES:

                                          TEXAS PENAL CODE:

TEX. PENAL CODE §29.03 (a) (2).............................................................................2

                                TEXAS GOVERNMENT CODE:

TEX. GOV’T CODE ANN. §508.145 (d) (1)...............................................................6

                   TEXAS RULES OF APPELLATE PROCEDURE:

TEX. R. APP. PROC. 9.4 (i) (1)...................................................................................8

TEX. R. APP. PROC. 9.4 (i) (3)...................................................................................8

TEX. R. APP. P. 43.2 (b)...........................................................................................6



                                                        iii
                          CAUSE NO. 05-15-00368-CR

                                     IN THE

                             COURT OF APPEALS

                         FIFTH DISTRICT OF TEXAS

                                    AT DALLAS

                 ***************************************

                        FRANCISCO DARLING CRUZ,

                                    Appellant

                                         v.

                            THE STATE OF TEXAS

                 ***************************************

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      COMES NOW FRANCISCO DARLING CRUZ, Appellant herein, and

respectfully submits this his brief on appeal from his conviction for the offense of

Robbery. Judgment was rendered in Criminal District Court, Dallas, County, Texas,

Judge Robert Burns III presiding.




                                         1
                      STATEMENT OF THE CASE

      Appellant was indicted for the first degree felony offense of Aggravated

Robbery in violation of the provisions of TEX. PENAL CODE §29.03 (a) (2). [CR: 12].

In the indictment it was alleged that the offense was committed on November 10,

2013 against the person and property of Rodrigo Soto. The indictment also alleged

that appellant used and exhibited a deadly weapon, to wit: a firearm, during the

commission of the offense. Appellant was convicted for the included offense of

Robbery.




                            ISSUE PRESENTED

            THE COURT OF APPEALS SHOULD REFORM AND
            MODIFY THE JUDGMENT OF THE DISTRICT COURT
            DELETING THE DEADLY WEAPON FINDING




                                         2
                         STATEMENT OF FACTS

      The Aggravated Robbery indictment returned against appellant alleged the use

and exhibition of a deadly weapon, to wit: a firearm. [CR: 12]. However, prior to the

entry of his plea of “Guilty,” the district court noted that the State had filed a

“Motion to Reduce the Offense Charged” to the included offense of Robbery,

striking the deadly weapon allegation. [CR: 61; RR2: 4]. Appellant entered his guilty

plea to the offense of Robbery. [RR2: 6].

      The plea agreement entered into between appellant and the State reflected that

he was pleading guilty to the offense of Robbery. [CR: 57]. Appellant’s judicial

confession was admitted into evidence and it reflected that the deadly weapon

allegation had been struck. [CR: 56]. Appellant was found guilty of the offense of

Robbery without a deadly weapon finding being entered. [CR: 11 & 65; RR3: 32].

However the judgment erroneously reflects that the district court entered a deadly

weapon finding. [CR: 65].




                                            3
                   SUMMARY OF THE ARGUMENT

      Appellant was indicted for the offense of Aggravated Robbery which included

an allegation that he used and exhibited a deadly weapon. However, appellant pled

guilty to the included offense of Robbery without proof that a deadly weapon was

used or exhibited. The judgement erroneously reflects that a deadly weapon was used

during the commission of the offense. The judgement should be reformed to delete

the deadly weapon finding.




                                         4
                    ARGUMENT AND AUTHORITIES

             THE COURT OF APPEALS SHOULD REFORM AND
             MODIFY THE JUDGMENT OF THE DISTRICT COURT
             DELETING THE DEADLY WEAPON FINDING

      Appellant and the State reached a plea bargain agreement that he would plead

guilty to the included offense of Robbery, a second degree felony offense. [CR: 57;

61]. Appellant’s judicial confession conspicuously has the deadly weapon language

stricken. [CR: 56]. The district court acknowledged that appellant was pleading guilty

to the offense of Robbery. [RR2: 6]. At the conclusion of the trial, the district court

did not make a deadly weapon finding. [RR3: 32]. Since the State’s proof (appellant’s

confession) did not establish the use or exhibition of a deadly weapon and it was

clearly the intent of all the parties that no deadly weapon finding be entered, the

judgment erroneously reflects a deadly weapon finding.

      In Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971),

the Supreme Court wrote that where a plea bargain agreement is entered into, it must

be enforced either by specific performance or else the defendant must be allowed to

withdraw his plea. In the instant cause it is clear that the plea bargain agreement

entered between the parties and accepted by the district court provided that there

would be no affirmative finding of a deadly weapon, an important issue for appellant

since the entry of such a finding would adversely affect his parole eligibility. See

                                          5
TEX. GOV’T CODE ANN. §508.145 (d) (1).

      The Court of appeals has statutory authority to reform the judgment herein.

See TEX. R. APP. P. 43.2 (b). The right to seek reformation of a judgment by deleting

an improper entry of a deadly weapon finding has been universally recognized by the

reviewing courts. Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005)

Williams v. State, 970 S.W.2d 566, 566 (Tex. Crim. App. 1998); Narron v. State, 835

S.W.2d 642, 644 (Tex. Crim. App.1992); Ex parte Hopson, 688 S.W.2d 545, 548

(Tex. Crim. App. 1985); Turner v. State, 664 S.W.2d 86, 90 (Tex. Crim. App.1983);

Medina v. State, 962 S.W.2d 83, 88 (Tex. App. - Houston [1st Dist.]1997).

      In the instant cause appellant entered into a plea bargain agreement that he

would be convicted of the included offense of Robbery with no entry of a finding that

a deadly weapon was used or exhibited during the commission of the offense. The

plea bargain agreement should be enforced. Based upon the record in this cause, this

Honorable Court should order that the judgement be reformed deleting the deadly

weapon finding.




                                          6
                          PRAYER FOR RELIEF

      WHEREFORE, FOR THE FOREGOING REASONS, Appellant prays that

this Honorable Court order reformation of the judgement deleting the deadly weapon

finding.

                                     Respectfully submitted,



                                     /S/ Lawrence B. Mitchell
                                     LAWRENCE B. MITCHELL
                                     SBN 14217500
                                     P.O. Box 797632
                                     Dallas, Texas 75379
                                     Tel. No.: 214.870.3440
                                     E-mail: judge.mitchell@gmail.com

                                     ATTORNEY FOR APPELLANT




                                        7
             CERTIFICATE OF WORD-COUNT COMPLIANCE

       The undersigned attorney hereby certifies, in compliance with TEX. R. APP.

PROC. 9.4 (i) (3) that this document contains 862 words, including all contents except

for the sections of the brief permitted to be excluded by TEX. R. APP. PROC. 9.4 (i)

(1).

                                              /s/ Lawrence B. Mitchell
                                              LAWRENCE B. MITCHELL


                         CERTIFICATE OF SERVICE

       The undersigned attorney hereby certifies that a true and correct copoy of the

foregoing brief is being served on the attorney for the Sate of Texas, Lori Ordiway

by e-mail at lori.ordiway@dallascounty.org on this the 2nd day of July, 2015.


                                              /s/ Lawrence B. Mitchell
                                              LAWRENCE B. MITCHELL




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