                                                                           ACCEPTED
                                                                      03-14-00539-CR
                                                                             4701991
                                                            THIRD COURT OF APPEALS
                                                                       AUSTIN, TEXAS
                                                                 3/30/2015 8:00:58 PM
                                                                    JEFFREY D. KYLE
                                                                               CLERK
               NO. 03-14-00539-CR

                                                      FILED IN
                                               3rd COURT OF APPEALS
                     IN THE                        AUSTIN, TEXAS
                                               3/30/2015 8:00:58 PM
               COURT OF APPEALS                  JEFFREY D. KYLE
                                                       Clerk
FOR THE THIRD SUPREME JUDICIAL DISTRICT OF TEXAS
    __________________________________________

            DENNIS DWIGHT GALINDO,

                                  Appellant.

                       VS.

              THE STATE OF TEXAS,

                               Appellee.
   __________________________________________

        From the 340TH Judicial District Court
             Tom Green County, Texas
     Honorable Ben Woodward, Judge Presiding
   __________________________________________

                 BRIEF OF STATE
   __________________________________________

        ORAL ARGUMENT REQUESTED ONLY
          IF REQUESTED BY THE COURT

                             MEAGAN WHITE
                             Assistant District Attorney
                             51st Judicial District
                             124 W. Beauregard, Suite B
                             San Angelo, Texas 76903
                             (325) 659-6583
                             TSB #24060973
                             ATTORNEY FOR STATE
                                    TABLE OF CONTENTS
                                                                                                   PAGE

LIST OF AUTHORITIES ............................................................................. 2

STATEMENT OF THE CASE ..................................................................... 5

STATEMENT OF FACTS ........................................................................... 6

STATE’S COUNTERPOINT ONE ............................................................... 8

        SUMMARY OF THE ARGUMENT ..................................................... 8

        ARGUMENT AND AUTHORITIES ..................................................... 8

STATE’S COUNTERPOINT TWO ............................................................ 11

        SUMMARY OF THE ARGUMENT ................................................... 11

        ARGUMENT AND AUTHORITIES ................................................... 11

STATE’S COUNTERPOINT THREE......................................................... 15

        SUMMARY OF THE ARGUMENT ................................................... 15

        ARGUMENT AND AUTHORITIES ................................................... 15

PRAYER ................................................................................................... 19

CERTIFICATE OF COMPLIANCE ............................................................ 20

CERTIFICATE OF SERVICE .................................................................... 20
                                      LIST OF AUTHORITIES


Cases
Allen v. State, 249 S.W.3d 680 (Tex. App.—Austin 2008, no pet.) ...... 16, 17

Brooks v. State, 323 15 S.W.3d 893 (Tex. Crim. App. 2010) .................... 15

Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011) ............................. 15

Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007) .................. 16, 18

Ex Parte Kunkle, 852 S.W.2d 499 (Tex. Crim. App. 1993) ........................ 12
Jackson v. State, 877 S.W.2d 768 (Tex. Crim. App. 1994) ....................... 12
Jackson v. Virginia, 443 U.S. 307 (1979) .................................................. 16

Kemp v. State, 892 S.W.2d 112 (Tex. App.—Houston [1st Dist.] 1994, pet.
 ref’d) ................................................................................................ 12, 13

Lane v. State, 763 S.W.2d 785 (Tex. Crim. App. 1989) ............................ 17

Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009) .......................... 16
Matthews v. State, No. 03-13-00037-CR, 2014 Tex. App. LEXIS 13722, at
 *8 (Tex. App.—Austin Dec. 23, 2014)(mem. op., not designated for
 publication) ............................................................................................ 16

McMillon v. State, 505 S.W.2d 872 (Tex. Crim. App. 1974) ........................ 9

Moff v. State, 131 S.W.3d 485 (Tex. Crim. App. 2004); ............................ 16
Morales v. State, 293 S.W.3d 901 (Tex. App.—Texarkana 2009, pet. ref'd)
 .............................................................................................................. 17

Padilla v. State, 326 S.W.3d 195 (Tex. Crim. App. 2010) .......................... 16
Randolph v. State, 152 S.W.3d 764 (Tex. App.—Dallas 2004, no pet.) .... 18

Sexton v. State, 51 S.W.3d 604 (Tex. App., Tyler, 2000, pet. ref ’d.) .......... 9
State v. Bates, 889 S.W.2d 306 (Tex. Crim. App. 1994) ............................. 8

                                                        2
Stokes v. State, 277 S.W.3d 20 (Tex. Crim. App. 2009) ............................. 9

Strickland v. Washington, 466 U.S. 668 (1984)................................... 11, 12

Vinson v. State, 6 S.W.3d 704 (Tex. App., Waco 1999, no pet.) ................. 8
Wallace v. State, 106 S.W.3d 103 (Tex. Crim. App. 2003) ........................ 10

Statutes

Tex. Penal Code Ann. § 1.07 .................................................................... 17

Tex. Penal Code Ann. § 22.01 .................................................................. 17
Tex. Penal Code Ann. § 22.01(b)(2)(A) ..................................................... 17

Codes
Tex. Code Crim. Proc. Ann. art. 38.04 ...................................................... 16

Rules
Tex. R. App. P. 21.4 ................................................................................. 10

Tex. R. App. P. 21.8 ............................................................................... 8, 9




                                                   3
                          NO. 03-14-00539-CR

                                 IN THE

                          COURT OF APPEALS

      FOR THE THIRD SUPREME JUDICIAL DISTRICT OF TEXAS

           __________________________________________

                      DENNIS DWIGHT GALINDO,

                                              Appellant.

                                   VS.

                         THE STATE OF TEXAS,

                                              State.

           __________________________________________

                From the 340TH Judicial District Court
                       Tom Green County, Texas
              Honorable Ben Woodward, Judge Presiding

           __________________________________________

                         BRIEF OF STATE
           __________________________________________

TO THE HONORABLE COURT OF APPEALS FOR THE THIRD
SUPREME JUDICIAL DISTRICT OF TEXAS:

     COMES NOW, The State of Texas, in the above entitled and

numbered cause, and files this the BRIEF OF STATE and in support

thereof, the State would show this Honorable Court as follows:

                                     4
                        STATEMENT OF THE CASE

      Appellant was indicted for Assault Family Violence with a previous

conviction. (C.R. p. 6-7). Appellant filed Defendant’s Amended Election as

to Punishment on June 18, 2014. (C.R. p. 11). On June 18, 2014 the

Appellant completed a written waiver of jury. (C.R. p. 13).     On June 23,

2014 and the matter was tried before the court. (R.R. Vol. 3 p. 5). The

Judge found the Appellant guilty. (R.R. Vol. 4 p. 53). On June 24, 2014 after

punishment evidence was presented the Judge sentenced the defendant to

ten years confinement. (R.R. Vol. 4 p. 88).

      Appellant timely filed a Motion for New Trial and Motion in Arrest of

Judgment on June 30th, 2014, stating that the verdict was contrary to the

law and the evidence. (C.R. p. 20). The court held a hearing on Motion for

New Trial on August 4, 2014, with Defense Counsel Stephanie Goodman

present. The following notations on the docket were made: “Court will not

rule on Motion for New Trial at this time and will likely allow it to be

overruled as an operation of law.” (C.R. p. 38).          Defense Counsel

Stephanie Goodman filed Notice of Motion to Withdraw as Counsel on

August 19, 2014.     (C.R. p. 27). Appellant filed his Notice of Appeal on

August 29, 2014. (C.R. p. 29).



                                      5
                         STATEMENT OF FACTS

     On November 21, 2013, San Angelo police officer Cobey Bradshaw

was dispatched to 114 W. 24th St, San Angelo, Texas. (R.R. Vol. 3 p. 9).

Officer Bradshaw arrived at the residence and found a female and two

children. (R.R. Vol. 3 p. 9). The female was identified to be Dorothy Ortega,

the alleged victim. Officer Bradshaw observed that Dorothy was agitated

and the children appeared to be worried.      (R.R. Vol. 3 p. 10).    Officer

Bradshaw spoke with the children and Dorothy Ortega on scene. (R.R. Vol.

3 p. 10). Officer Bradshaw was unable to speak to the Appellant because

he was not there (R.R. Vol. 3 p. 12). Officer Bradshaw also took pictures of

Dorothy Ortega and the scene (R.R. Vol. 3 p. 14).

     Dorothy Ortega has a son with the Appellant named Dominique

Galindo (R.R. Vol. 3 p. 20). Dorothy Ortega testified during trial that she

dropped Dominique off at boxing practice earlier that day and believed that

the Appellant was going to pick up Dominique after practice. (R.R. Vol. 3 p.

21). She received a phone call asking that she pick up Dominique (R.R. Vol.

3 p. 21). After Dorothy Ortega arrived back at her residence she began

making food for Dominique (R.R. Vol. 3 p. 16).        Dominique called the

Appellant asking him to drop off money for a shirt (R.R. Vol. 3 p. 21). The

Appellant came into the house alone (R.R. Vol. 3 pp. 25-26). Dorothy Ortega

                                     6
and the Appellant began to argue about the Appellant’s failure to pick

Dominique up from boxing practice. (R.R. Vol. 3 p. 21). During the argument

Dorothy Ortega was in the kitchen by the stove, Dominique was seated at the

kitchen table approximately five feet away, and Dorothy’s daughter, Aliyah,

was in the living room. (R.R. Vol. 3 p. 22).

      Dorothy testified that Appellant struck her face with his hand (R.R. Vol.

3 p. 23). Aliyah testified that she saw the Appellant strike Dorothy. (R.R. Vol.

3 p. 42). After the Appellant struck Dorothy Ortega, he walked out the door

and the children followed him out of the door (R.R. Vol. 3 p. 23).

      The defense called Sean Sanchez as a witness and he testified that he

was in the house during an argument between the Appellant and Dorothy

Ortega (R.R. Vol. 3 p. 57). Sean Sanchez testified that the argument about

who should have picked Dominique up from boxing practice took place not in

November but in October. (R.R. Vol. 3 p. 58).         He testified that he saw

Dorothy swing at the Appellant and then he and the Appellant left. (R.R. Vol.

3 p. 59). Dorothy Ortega later testified that Sean Sanchez has never been to

her residence (R.R. Vol. 4 p. 18).

      The Appellant testified that he did not go to Dorothy’s residence on

November 21st . (R.R. Vol. 3 p. 88). He stated that he went to Dorothy’s

house in October 2013 and that she hit him but he never touched her. (R.R.

                                       7
Vol. 3 p. 90). On cross examination the Appellant admitted that he had

previous felony convictions including an assault, burglary of a habitation and

“a drug charge.” (R.R. Vol. 3 p. 99).       The Judge found the Appellant guilty.

(R.R. Vol. 4 p. 53).




                       STATE’S COUNTERPOINT ONE

            The Trial Court held a hearing on the Motion for New Trial on

August 4, 2014, and did not err in not setting a subsequent hearing.



                       SUMMARY OF THE ARGUMENT

      Appellant’s Motion for New Trial was denied by operation of law 75

days after sentencing.



                       ARGUMENT AND AUTHORITIES

      When a motion for new trial is filed, the trial court can grant or deny

the motion by written order or allow the motion to be denied by operation of

law after 75 days after sentencing. Tex. R. App. P. 21.8.; State v. Bates,

889 S.W.2d 306 (Tex. Crim. App. 1994); Vinson v. State, 6 S.W.3d 704

(Tex. App., Waco 1999, no pet.). A written order is necessary to prevent


                                        8
the overruling of a motion for new trial by operation of law; an oral

pronouncement, absent a written order, is insufficient. Tex. R. App. P. 21.8.

After 75 days, the motion is deemed to be denied and the trial court loses

jurisdiction to take any further action on the new trial motion. Sexton v.

State, 51 S.W.3d 604 (Tex. App., Tyler, 2000, pet. ref ’d.). Unlike the

notation on an unsigned proposed order, an entry on a docket sheet

indicating that a new trial motion was presented was found sufficient on the

theory that it was a far more reliable indicator of the trial judge’s decision

and business because it is likely that only the judge and those authorized to

act on his or her behalf have access to the docket sheets and can make

entries to them.   Stokes v. State, 277 S.W.3d 20, 25 (Tex. Crim. App.

2009)—(notation of presentment on docket sheet gives accurate account of

motion’s disposition without need for trial judge’s signature).

      A motion for new trial is left to the sound discretion of the trial court.

McMillon v. State, 505 S.W.2d 872, 874 (Tex. Crim. App. 1974).             The

court’s decision in denying a new trial will not be disturbed unless an abuse

of discretion is shown. Id..

      A trial court is not obligated to hold a hearing on a motion for new trial

if the motion is not verified or supported by affidavit. Wallace v. State, 106

S.W.3d 103, 108, 2003 Tex. Crim. App. LEXIS 95, 7-8 (Tex. Crim. App.

                                       9
2003). An amended motion for new trial may be filed any time within thirty

days after sentence has been imposed or suspended in open court if the

previously filed motion or amended motion has not been overruled. Tex. R.

App. P. 21.4. Under this provision, a motion for new trial may be amended

without leave of court, as long as it is done within the thirty day time limit.

Id..

       Appellant was sentenced on June 24, 2014. (R.R. Vol. 4 p. 88). The

Motion for New Trial was originally filed on June 30, 2014 (C.R. p. 20).

There was a hearing on Appellant’s motion for new trial on August 4, 2014

(C.R. p. 38). The docket entry states as follows: “Court will not rule on

Motion for New Trial at this time and will likely allow it to be overruled as an

operation of law.” Id. Appellant did not file a subsequent amended motion

for new trial. (C.R.). It is also not evident from the record that Appellant

requested an additional hearing. (C.R.). The trial court did not issue an

order granting the Motion for New Trial therefore the motion was overruled

by operation of law.    Consequently, Appellant’s Point of Error No. One

should be denied.




                                      10
                        STATE’S COUNTERPOINT TWO

      Appellant received effective assistance of counsel at trial.




                        SUMMARY OF THE ARGUMENT

      Appellant’s trial counsel was not ineffective for stipulating to Appellant’s

jurisdictional prior.




                        ARGUMENT AND AUTHORITIES

      As stated by the Supreme Court of the United States in Strickland v.

Washington, 466 U.S. 668, 688-89 (1984), to show ineffective assistance of

counsel, the defendant must first show a deficiency in trial counsel’s

performance and then show the deficient performance prejudiced the

defense to the extent that the defendant was deprived of a fair trial.

      Judicial scrutiny of counsel’s performance must be highly deferential,

and a fair assessment of attorney performance requires that every effort be

made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the

conduct from counsel’s perspective at the time. Strickland 466 U.S. at 688-



                                       11
89; Ex Parte Kunkle, 852 S.W.2d 499, 505 (Tex. Crim. App. 1993). A court

must indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance. Id. To show prejudice,

the defendant has the burden of proving that there is a reasonable

probability that, but for counsel’s errors, the result of the proceeding would

have been different. Strickland 466 U.S. at 688-89. The defendant must

also show harm sufficient to undermine confidence in the outcome of the

trial. Id..


       In determining whether counsel was ineffective at trial, the reviewing

court “must presume that counsel is better positioned than the appellate

court to judge the pragmatism of the particular case, and that he made all

significant decisions in the exercise of reasonable professional judgment.”

Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.—Houston [1st Dist.] 1994,

pet. ref’d), citing Jackson v. State, 877 S.W.2d 768 (Tex. Crim. App. 1994).

The Court went on to say “that only in a rare and egregious circumstance

would a record on direct appeal suffice to rebut the presumption of sound

trial strategy.” Kemp 892 S.W.2d at 115.


       Appellant filed a motion for new trial and a hearing was held on

Appellant’s motion for new trial. (C.R. p. 38). Appellant did not seek to


                                     12
explore and develop this ineffectiveness claim at a hearing on motion for new

trial. Appellant alleges that defense trial counsel was the former Assistant

District Attorney that had prosecuted him on the prior assault case. This is

not apparent from the record. (C.R.). State’s exhibit number 1, the judgment

in Cause no. 00-01319, does not indicate that defense counsel Stephanie

Goodman was the prosecutor. (R.R. Vol. 5 p. 7-8). In fact the face of the

judgment indicates the case was prosecuted by the County Attorney’s Office,

not the District Attorney’s Office. Id.


      The Court is left without the specifics of the trial strategy employed by

the defense in deciding to have Appellant plea true to the jurisdictional

enhancement. In determining whether counsel was ineffective at trial, the

reviewing court must presume that counsel made all significant decisions in

the exercise of reasonable professional judgment.       Kemp 892 S.W.2d at

115, citing Jackson, 877 S.W.2d 768. The instant case is not one of those

rare and egregious circumstances sufficient to rebut the presumption of

sound trial strategy.       The Appellant, while testifying during the guilt

innocence phase of trial stated that he had prior convictions for assault and

a “drug charge”. (R.R. Vol. 3 p. 99).          During the appellant’s direct

examination he also stated that he has pled guilty to assault family violence


                                          13
offenses before, but defendant did not plead guilty during guilt innocence

because he “didn’t do it this time.” (R.R. Vol. 3 p. 94).       This line of

questioning helped draw a distinction between his prior guilty pleas and this

case in which he had pled not guilty. The Appellant’s choice to stipulate to

the jurisdictional prior could have been trial strategy.


      Appellant has not met his burden of affirmatively proving that trial

counsel’s actions fell below an objective standard of reasonableness or that

the actions were unsound trial strategy. Furthermore, Appellant has not

met the burden of affirmatively proving prejudice to the Appellant due to

any error of trial counsel.


      Appellant had an opportunity to explore and develop his ineffectiveness

claim at the hearing on his Motion for New Trial but failed to do so.

Speculation is all there is in this case and that should not be enough to

declare the work of an attorney ineffective.


      For the foregoing reasons, the State respectfully requests this Court

overrule the Appellant’s Point of Error No. Two.




                                       14
                    STATE’S COUNTERPOINT THREE

      The evidence was factually or legally sufficient to convict Appellant.




                     SUMMARY OF THE ARGUMENT

      The evidence was sufficient to sustain a conviction for Assault

causing Bodily Injury to a family member enhanced with a prior assault

family violence conviction.



                     ARGUMENT AND AUTHORITIES

      Due process requires that the State prove, beyond a reasonable

doubt, every element of the crime charged. Byrd v. State, 336 S.W.3d 242,

246 (Tex. Crim. App. 2011). In Texas, evidence to support a verdict is

legally sufficient if viewed in a light most favorable to the verdict, the

evidence, and all reasonable inferences therefrom would allow a rational

trier of fact to find the essential elements of the crime beyond a reasonable

doubt. Brooks v. State, 323 15 S.W.3d 893, 912 (Tex. Crim. App. 2010).

The Court will review all the evidence in the light most favorable to the

verdict and assume that the trier of fact resolved conflicts in testimony,

weighed the evidence, and drew reasonable inferences in a manner that


                                      15
supports the verdict. Jackson v. Virginia, 443 U.S. 307, 318 (1979); Laster

v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Matthews v. State,

No. 03-13-00037-CR, 2014 Tex. App. LEXIS 13722, at *8,9 (Tex. App.—

Austin Dec. 23, 2014)(mem. op., not designated for publication).

      In determining the legal sufficiency of the evidence, the Court must

consider all the evidence in the record, whether direct or circumstantial,

properly or improperly admitted, or submitted by the prosecution or the

defense. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007); Moff v. State, 131 S.W.3d 485, 489-90 (Tex. Crim. App. 2004); Allen

v. State, 249 S.W.3d 680, 688-89 (Tex. App.—Austin 2008, no pet.).

      The trier of fact, as the exclusive judge of the facts, is entitled to

weigh and resolve conflicts in the evidence and draw reasonable

inferences therefrom. Clayton, 235 S.W.3d at 778; see Tex. Code Crim.

Proc. Ann. art. 38.04. Thus, when faced with a record of historical facts that

supports conflicting inferences, a reviewing court must presume that the

trier of fact resolved any such conflicts in favor of the verdict. Jackson v.

Virginia, 443 U.S. at 326; Padilla v. State, 326 S.W.3d 195, 200 (Tex. Crim.

App. 2010). Every fact does not need to point directly and independently to

the guilt of the appellant, as long as the cumulative force of all the

incriminating circumstances is sufficient to support the conviction. Allen 249

                                     16
S.W.3d at 689. The role of a court reviewing a sufficiency argument is not

that of a fact finder but rather as a due process safeguard, ensuring only

the rationality of the trier of fact's finding of the essential elements of the

offense beyond a reasonable doubt. Allen 249 S.W.3d at 688.

      Appellant was found guilty of the offense of felony assault causing

bodily injury to a family member enhanced with a prior assault family

violence. The elements of the offense of Assault family violence under Tex.

Penal Code Ann. § 22.01(b)(2)(A) are that Appellant intentionally,

knowingly or recklessly caused bodily injury to a family or household

member. Further under Tex. Penal Code Ann. § 22.01, to be punished as a

felony offense, the State had to show that Appellant had a prior conviction

for an offense under Tex. Penal Code Ann. § 22.01.

      Appellant limits his sufficiency argument to the element of bodily

injury. Bodily injury is defined in Tex. Penal Code Ann. § 1.07 as physical

pain, illness, or any impairment of physical condition. "This definition

appears to be purposefully broad and seems to encompass even relatively

minor physical contacts so long as they constitute more than mere

offensive touching." Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App.

1989); Morales v. State, 293 S.W.3d 901, 907 (Tex. App.—Texarkana

2009, pet. ref'd).   "A fact finder may infer that a victim actually felt or

                                      17
suffered physical pain because people of common intelligence understand

pain and some of the natural causes of it." Randolph v. State, 152 S.W.3d

764, 774 (Tex. App.—Dallas 2004, no pet.).


      Dorothy Ortega stated during her testimony that when the defendant

struck her that it hurt (R.R. Vol. 3 p. 31). Dorothy Ortega also stated that

she had a red mark on her face from where the defendant struck her (R.R.

Vol. 3 p.31). The trial court as trier of fact was the arbitrator of credibility

and weight given to the evidence. Clayton, 235 S.W.3d at 778; see Tex.

Code Crim. Proc. Ann. art. 38.04. The evidence presented to the trial court

was sufficient to sustain Appellant’s conviction for Assault causing bodily

injury to a family member enhanced with a prior assault family violence.




                                      18
                                PRAYER

     WHEREFORE, the State prays this Court overrule all issues

presented by Appellant and Affirm the Judgment of the trial court for the

reasons stated herein.

                                        Respectfully Submitted,
                                        ALLISON PALMER
                                        51ST DISTRICT ATTORNEY




                                        ___________________________
                                        MEAGAN WHITE
                                        Assistant District Attorney
                                        51ST & 119th Judicial District
                                        124 W. Beauregard, Suite B
                                        San Angelo, Texas 76903
                                        (325) 659-6583
                                        TSB# 24060973
                                        ATTORNEY FOR STATE




                                   19
                       CERTIFICATE OF COMPLIANCE


   Pursuant to Texas Rule of Appellate Procedure 9.4(i), I hereby certify,

based upon the computer program used to generate this brief, that this

brief contains 2,761 words, excluding words contained in those parts of the

brief that Rule 9.4(i) exempts from inclusion in the word count. I further

certify that this brief is in a conventional 14-point typeface.




                                            ___________________________
                                            MEAGAN WHITE
                                            Assistant District Attorney


                         CERTIFICATE OF SERVICE


        I hereby certify that a true and correct copy of the foregoing Brief of

State      was     electronically    served      on     TODD      L.   ALVEY

(tlalaw@sbcglobal.net), P. O. Box 1815, Pampa, Texas 79066, counsel for

Appellant on the 30th day of March 2015.




                                            ___________________________
                                            MEAGAN WHITE
                                            Assistant District Attorney

                                       20
