                                                                                ACCEPTED
                                                                            04-15-00236-CR
                                                                FOURTH COURT OF APPEALS
                                                                     SAN ANTONIO, TEXAS
                                                                       8/12/2015 1:04:54 PM
                                                                             KEITH HOTTLE
                                                                                     CLERK

                       No. 04-15-00236-CR

                            IN THE                         FILED IN
                                                    4th COURT OF APPEALS
                                                     SAN ANTONIO, TEXAS
                   FOURTH COURT OF APPEALS          08/12/2015 1:04:54 PM
                                                        KEITH E. HOTTLE
                           OF TEXAS                          Clerk


                    AT SAN ANTONIO, TEXAS


                   SABRINA NICOLE ANGEL,
                          Appellant

                               v.

                     THE STATE OF TEXAS,
                           Appellee


                 TRIAL CAUSE NO. 436068
          APPEAL FROM COUNTY COURT NO. 13 OF
                 BEXAR COUNTY, TEXAS
      HONORABLE CRYSTAL CHANDLER, JUDGE PRESIDING


                     APPELLANT’S BRIEF


                             RICHARD B. DULANY, JR.
                             Assistant Public Defender
                             Bexar County Public Defender’s Office
                             101 W. Nueva St., Suite 370
                             San Antonio, Texas 78205
ORAL ARGUMENT IS             (210) 335-0701
NOT REQUESTED                FAX (210) 335-0707
                             richard.dulany@bexar.org
                             Texas Bar No. 06196400

                             ATTORNEY FOR APPELLANT
                         Identity of Parties and Counsel

Pursuant to TEX.R.APP.P. 38.1(a), the parties are as follows:

Sabrina Nicole Angel was the Defendant and is the Appellant.

The State of Texas, by and through the Bexar County District Attorney’s Office,
prosecuted this case and is the Appellee.

For the State:
At trial:
             Nicole Meyer
             Amanda Henarie Vasquez
             Assistant District Attorneys
             Bexar County District Attorney’s Office
             Paul Elizondo Tower
             101 W. Nueva St., Fourth Floor
             San Antonio, TX 78205

On appeal: Nicholas A. LaHood/Appellate Section
           Bexar County District Attorney’s Office
           Paul Elizondo Tower
           101 W. Nueva St., Suite 710
           San Antonio, TX 78205

For the Appellant:
At trial:
            Theresa A. Connolly
            Texas Bar No. 00790014
            Attorney at Law
            106 S. St. Mary’s, Suite 260
            San Antonio, TX 78205

On appeal: Richard B. Dulany, Jr.
           Texas Bar No. 06196400
           Assistant Public Defender
           Bexar County Public Defender’s Office
           101 W. Nueva St., Suite 370
           San Antonio, TX 78205



                                         ii
The Trial Court:
Hon. Crystal Chandler, Judge Presiding
County Court at Law No. 13
Cadena-Reeves Justice Center
300 Dolorosa Street, Third Floor
San Antonio, TX 78205




                                     iii
Table of Contents

Identity of Parties and Counsel ....................................................................................ii

Table of Contents .........................................................................................................iv

Index of Authorities .....................................................................................................v

A Note on Record References......................................................................................vi

Certificate of Compliance with Word Limit ................................................................ vi

Statement of the Case...................................................................................................1

Statement Regarding Oral Argument .......................................................................... 2

First Issue for Review (Presented) ............................................................................... 3

        The trial court orally pronounced that the $1,000 fine would be "fully
        probated," so the judgment must be modified reflect that the fine was
        probated and was not "ordered executed." .................................................. 3
Statement of Facts ........................................................................................................4

Summary of the Argument...........................................................................................8

Argument......................................................................................................................9

         First Issue for Review (Restated) ................................................................... 9

Conclusion and Prayer for Relief................................................................................. 11

Certificate Of Service...................................................................................................11




                                                             iv
                                               Index of Authorities

Cases
Burt v. State, 445 S.W.3d 752, 757 (Tex. Crim. App. 2014) .............................................. 9

Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003)..................................... 9

Statutes
TEX. PENAL CODE ANN. § 22.01(a) & (b) (West 2015) ...................................................... 1

TEX. PENAL CODE ANN. § 31.03(e)(4)(A) (West 2011) ...................................................... 1

Rules
TEX. R. APP. P. 9.10(a)(3).................................................................................................... 4

TEX.R.APP.P. 9.4(i)(1)........................................................................................................ vi

TEX.R.APP.P. 9.4(i)(2)(B) .................................................................................................. vi




                                                               v
                           A Note on Record References

      The reporter’s record in this case consists of five volumes. Volume 1 is the

Master Index. Volume 5 is the Exhibit Index. References to the reporter’s record

will be: ([Volume Number] RR at ___ ).

      The clerk’s record consists of a single volume. Thus, a reference to the

clerk’s record will be: (CR at ___ ).

                   Certificate of Compliance with Word Limit

      Pursuant to TEX.R.APP.P. 9.4(i)(1) & (i)(2)(B), the total word count is 2,190.




                                         vi
TO THE COURT OF APPEALS FOR THE FOURTH COURT OF APPEALS
DISTRICT OF TEXAS:

         This brief is filed on behalf of Appellant, Sabrina Nicole Angel, by Richard

B. Dulany, Jr., an Assistant Public Defender with the Appellate Unit of the Bexar

County Public Defender’s Office. This is an appeal from a jury trial upon

Appellant’s plea of “not guilty” to the charged offense.

                                   Statement of the Case

         Appellant, Sabrina Nicole Angel, was charged by information with assault

causing bodily injury, a Class A misdemeanor.1 (CR at 8). The offense was alleged

to have been committed in Bexar County, Texas, on or about June 19, 2013. (CR at

8). A jury found Appellant guilty of the charged offense and she was placed on

community supervision for one year, to begin on March 27, 2015. (CR at 38-39,

41). The trial court accurately certified that Appellant has the right of appeal. (CR

at 40). Appellant was found to be indigent, and the Bexar County Public

Defender’s Office was appointed to represent her on appeal. (CR at 47). Trial

counsel timely filed a notice of appeal on Appellant’s behalf (CR at 43), and this

appeal follows.




1
    See TEX. PENAL CODE ANN. § 22.01(a)(1) & (b) (West 2015).


                                               1
                      Statement Regarding Oral Argument

      The issue raised in this appeal may be determined from the record and cited

authority alone. For that reason, undersigned counsel does not request oral

argument, but will present oral argument if it is requested by the State.




                                          2
                 First Issue Presented for Review (Presented)

The trial court orally pronounced that the $1,000 fine would be "fully
probated," so the judgment must be modified reflect that the fine was
probated and was not "ordered executed."




                                      3
                                    Statement of Facts

       The voir dire proceedings are not summarized because they are not relevant

to this appeal. The jury was sworn. (2 RR at 85). Trial on the merits began on

March 26, 2015. (3 RR at 1). Appellant pleaded not guilty to the charged offense.

(3 RR at 13). The facts of the case are summarized only briefly because the issue

presented for review concerns only the written judgment.

       Felipe Arevalo and Appellant are the biological parents of two children:

V.A., a three year old girl, and E.A., a five-month old boy. 2 (3 RR at 20). On June

19, 2013, Arevalo and his then-girlfriend, Violet Lazarin,3 were keeping V.A. and

E.A. for Appellant while she was at work. (3 RR at 21). Arevalo drove to his

immigration lawyer’s office that day. Violet, V.A. and E.A. were in the vehicle

with him. (3 RR at 24). Appellant and her friend or aunt, named “Laura,” were

already there, waiting in the lawyer’s parking area. (3 RR at 24). Appellant saw

Violet holding the baby boy, E.A., so Appellant started “hitting” Violet. (3 RR at

28). Arevalo claimed that he saw Appellant hit Violet on the ear and face. (3 RR at

28-29). Arevalo then ran around the vehicle and grabbed Appellant in “kind of like

a bear hug.” (3 RR at 29). He told her to “chill,” but she was “all mad.” (3 RR at

29). He moved Appellant away from Violet. (3 RR at 30). Arevalo heard Laura say


2
 Initials are used in place of the names of the minor children. TEX. R. APP. P. 9.10(a)(3).
3
 Arevalo had already married and divorced Violet by the time this case went to trial. He called
Violet “my ex-wife” while testifying. (3 RR at 21-23).


                                              4
to Appellant, “we have the kids, let’s just leave.” (3 RR at 30). He let go of

Appellant, but she started hitting Violet again. (3 RR at 31). Arevalo grabbed

Appellant again, and this time she bit his arm and hit his face. (3 RR at 31-32). He

let Appellant go and she left with Laura and her children. Arevalo then called the

police. (3 RR at 32). Photographs of Arevalo’s injuries were admitted without

objection as State’s Exhibits 1-4. (3 RR at 33).

      Violet Lazarin testified that she was dating Arevalo on June 19, 2013. (3

RR at 82). Violet said Appellant is Arevalo’s “first baby mom.” (3 RR at 82). She

had never met Appellant until the day of the alleged assault. (3 RR at 105). Violet

and Arevalo drove with the two children, V.A. and E.A., to the lawyer’s office to

discuss child custody. (3 RR at 84). Violet believed that Arevalo was supposed to

give the children to Appellant that day. (3 RR at 84). As Violet was getting E.A.

out of the car seat, she saw that Appellant was “having a discussion” with Arevalo.

Violet said Appellant then saw her and “went towards” her to get E.A. (3 RR at

85). Appellant hit Violet because Violet wouldn’t give E.A. to her. (3 RR at 86).

Violet said, “…all [Appellant] was doing was trying to get her kids that day.” (3

RR at 87). Violet finally released E.A. to Appellant, but Appellant kept hitting her

anyway. (3 RR at 87). Appellant stopped hitting Violet when Arevalo restrained

her the second time. (3 RR at 88). Violet never saw Appellant “do anything




                                          5
physical to” Arevalo. (3 RR at 88). Photographs of Violet’s injuries were admitted

without objection as State’s Exhibits 5-8. (3 RR at 90).

      The State rested. (4 RR at 12).

      Sabrina Nicole Angel, the Appellant, testified that she worked late the night

before the alleged assault and asked Arevalo to watch the children. (4 RR at 17).

Arevalo did not have scheduled visitation with the children that day. (4 RR at 44).

Arevalo called Appellant on the morning of the alleged assault and told her he was

not going to give the children back to her. (4 RR at 19). Arevalo said he was going

to his lawyer’s office. (4 RR at 20). Appellant knew where the lawyer’s office was,

so she had her aunt Laura take her there. (4 RR at 21).

      Appellant saw Arevalo in the lawyer’s parking lot, and saw a “random girl”

holding her son, E.A. (4 RR at 22). Appellant twice asked the girl (Violet) to “give

me my son.” Violet said, “no,” so Appellant grabbed E.A. from her arms and gave

him to Laura. (4 RR at 22-23). Appellant did not strike Violet before taking E.A.

from her. (4 RR at 26). But she saw Violet swing at her, so she grabbed Violet’s

hair and punched her with “a closed fist.” (4 RR at 27). While Appellant was

fighting with Violet, she said Arevalo came up to her and “slams his hands into my

mouth, he busts my lip.” (4 RR at 28). He then put her in a “chokehold” and

dragged her to the back of the truck. (4 RR at 28). She did not fight him back.




                                          6
      Appellant said she did not bite Arevalo. (4 RR at 38). She slapped Arevalo

first, before he hit her mouth. (4 RR at 39). She did it because she thought he was

trying to take her kids away. (4 RR at 40). On cross-examination, Appellant agreed

that she slapped Arevalo “out of pure anger” and not in defense of anyone. (4 RR

at 43). Appellant did not call the police or take photos of the injuries that Arevalo

caused to her. (4 RR at 43).

      Both parties rested and closed. (4 RR at 51). Defense counsel affirmatively

stated that she had “no objections” to the jury instructions in this cause. (4 RR at

65). The trial court instructed the jury on the defenses of self-defense and defense

of another person. (CR at 17-29).

      The jury found Appellant guilty of the charged offense. (4 RR at 106). The

trial court determined punishment. (4 RR at 109). Appellant admitted that she hit

Arevalo. (4 RR at 110). She lost her job because she could not take time off for the

trial. (4 RR at 111). The trial court orally pronounced the sentence to include two

years of probation and a fully probated $1,000 fine. (4 RR at 113-114). This appeal

follows.




                                           7
                           Summary of the Argument

First Issue for Review (Summarized):

      The judgment must be reformed to reflect the trial court’s oral

pronouncement that the $1,000 fine imposed is “fully probated.”




                                         8
                            Argument and Authorities

                        First Issue for Review (Restated)

             The trial court orally pronounced that the $1,000 fine
             would be "fully probated," so the judgment must be
             modified reflect that the fine was probated and was
             not "ordered executed."

      The trial court orally pronounced the fine as part of the sentence: “I assess a

$1,000 fine, that fine will be fully probated.” (4 RR at 112). But the judgment

states that the fine is “ordered executed.”4 (CR at 38). The judgment also states that

Appellant owes a total of $1,357.00, because the $1,000 fine is erroneously

included in the total amount of the costs. (CR at 39).

      “A written judgment is simply the ‘declaration and embodiment’ of that

pronouncement. Therefore, when there is a conflict between the oral

pronouncement and the written judgment, the oral pronouncement controls.” Burt

v. State, 445 S.W.3d 752, 757 (Tex. Crim. App. 2014)(citations omitted). For that

reason, the judgment must be amended to show that the fine was orally assessed to

be “fully probated,” and not as part of Appellant’s sentence to be executed

immediately. Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App.

2003)(“The solution in those cases in which the oral pronouncement and the


4
  The judgment recites: “THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED
THAT THE IMPOSITION OF SENTENCE (EXCEPT THAT PORTION THEREOF
PERTAINING TO A FINE OF $1,000.00 AND COSTS OF PROSECUTION $357.00, WHICH
IS HEREBY ORDERED EXECUTED) IS SUSPENDED.” (CR at 38).


                                          9
written judgment conflict is to reform the written judgment to conform to the

sentence that was orally pronounced”).




                                         10
                         Conclusion and Prayer for Relief

      WHEREFORE, PREMISES CONSIDERED, Appellant prays that his

conviction be reversed for a new trial if her conviction in cause number 436067 is

reversed, prays that the judgment be modified to reflect that the fine imposed is

fully probated, and prays for all other relief to which she is entitled.


                                         Respectfully submitted,

                                         /s/ Richard B. Dulany, Jr.
                                         ____________________________
                                         RICHARD B. DULANY, JR.
                                         Texas Bar No. 06196400
                                         Assistant Public Defender
                                         Bexar County Public Defender’s Office
                                         101 W. Nueva St., Suite 370
                                         San Antonio, Texas 78205
                                         (210) 335-0701
                                         FAX (210) 335-0707
                                         richard.dulany@bexar.org

                                         ATTORNEY FOR APPELLANT

                                Certificate of Service

      I hereby certify that a true and correct copy of the foregoing Appellant’s

Brief has been delivered electronically to the Bexar County District Attorney’s

Office, Appellate Division, Paul Elizondo Tower, 101 W. Nueva St., Suite 710,

San Antonio, Texas 78205, on August 12, 2015.

                                         /s/ Richard B. Dulany, Jr.
                                         ____________________________________
                                         RICHARD B. DULANY, JR.

                                           11
