                                                               ACCEPTED
                                                         13-15-000223-CR
                                          THIRTEENTH COURT OF APPEALS
                                                 CORPUS CHRISTI, TEXAS
                                                   10/30/2015 11:13:51 AM
                                                         Dorian E. Ramirez
                                                                    CLERK

         No. 13-15-00223-CR

                ****              FILED IN
                          13th COURT OF APPEALS
                       CORPUS CHRISTI/EDINBURG, TEXAS
   IN THE COURT OF APPEALS10/30/2015 11:13:51 AM
 THIRTEENTH DISTRICT OF TEXAS
                            DORIAN E. RAMIREZ
                                   Clerk
CORPUS CHRISTI-EDINBURG, TEXAS

                 ***

           LEE SANCHEZ,
            APPELLANT

                 V.

      THE STATE OF TEXAS,
           APPELLEE

                ****

      BRIEF OF APPELLANT

     Jacqueline Del Llano Chapa
       State Bar No. 05652480
            P.O. Box 81437
   Corpus Christi, Texas 78468-1437
      Telephone: (361) 653-2269
      Telecopier: (361) 881-8999
    Email: jchapa1@grandecom.net
       Attorney for Appellant
              Lee Sanchez


                ORAL ARGUMENT REQUESTED



                  .
                     IDENTITY OF PARTIES COUNSEL

Appellant’s Attorney
     Jacqueline Del Llano Chapa
     State Bar No. 05652480
     P.O. Box 81437
     Corpus Christi, Texas 78468
     Telephone: (361) 653-2269
     Facsimile: (361) 881-8999

Trial Attorney
      Mr. Eric Perkins
      State Bar No. 15785060
      2818 S. Port
      Corpus Christi, Texas 78405
      Telephone:(361) 853-2120

Appellant:
     Mr. Lee Sanchez
     Texas Department of Criminal Justice

Appellee’s Trial Attorney

      Ms. Jennifer Paige Dorsey
      Assistant District Attorney
      State Bar No. 24036494

      Mr. Chris Morrell
      State Bar No. 24077383
      Assistant District Attorney
      Nueces County Courthouse
      901 Leopard, Room 206
      Corpus Christi, Texas 78401
      Telephone:( 361) 888-0410
      Facsimile: (361) 888-0700



                                     i.
                            TABLE OF CONTENTS

Identity of the Parties and Counsel             i

Table of Contents                               ii

Index of Authorities                            iii

Brief of Appellee                               1

Statement of the Case                           2

Issues Presented                                3

Statement of the Facts                          3

Summary of Argument                             5

Argument and Authorities                        6

Prayer                                          11

Certificate of Service                          12

Certificate of Compliance                       12




                                      ii.
                          INDEX OF AUTHORITIES

Aldrich v. State, 296 S.W. 3d, 225, 260
      (Tex.App.-Fort Worth, 2009, disc. review ref’d)             9

Barfield v. State, 63 S.W. 3d 446, 448 (Tex.Crim.App. 2001)       7

Hollen v State, 117 S.W. 3d, 798, 802 (Tex.Crim.App. 2003)        7

Johnson v. State, 286 S.W. 3d, 346,348-349 (Tex Crim.App. 2009)   8,10

McIntire v. State, 698 S.W. 2d 652, 659 (Tex.Crim.App. 1985)      11

Sults v. State, 23 S.W. 3d, 198, 206
       (Tex. Crim. App.-Houston, [14th Dist.] 2000)               11

Tamez v. State 11 S.W. 3d 198, 201 (Tex.Crim.App. 2000)           6

Taylor v. State, 442 S.W. 3d 747, 751
      (Tex. App.- Amarillo, 2014, review ref’d)                   7

Warren v. State, 693 S.W.2d 414, 415 (Tex.Crim.App. 1985)         6,7

Article 36.01 CCP                                                 6

Article 42.03 CCP                                                 6,8,9




                                       iii.
                              NO. 13-15-00223-CR

                                       ***

                        IN THE COURT OF APPEALS
                      THIRTEENTH DISTRICT OF TEXAS
                     CORPUS CHRISI-EDINBURG, TEXAS

                                     ***
                                LEE SANCHEZ,
                                 APPELLANT,

                                        v.

                             THE STATE OF TEXAS
                                  APPELLEE
                                     ***

                 APPEAL FROM THE 28TH DISTRICT COURT
                       NUECES COUNTY, TEXAS

                                       ***

                             BRIEF OF APPELLANT

      TO THE HONORABLE JUSTICES OF THE THIRTEENTH COURT OF
      APPEALS:

      Appellant, Lee Sanchez, respectfully presents this Brief of Appellant.

Appellant will be referred to by name or as Appellant. Appellee will be referred to

as the State or Appellee. As will be discussed, this Court should overturn the

conviction of Lee Sanchez.



                                        1.
                          STATEMENT OF THE CASE

      Appellant was charged by indictment of two counts of assault. Count I

charged that appellant intentionally, knowingly or recklessly caused bodily injury

to Christina Aparicio, a member of defendant’s family or a member of the

defendant’s household, or a person with whom the defendant has or has had a

dating relationship as described in the Texas Family Code, by intentionally,

knowingly or recklessly impeding the normal breathing or circulation of the blood

of said victim by applying pressure to the throat and or blocking the nose or mouth

of the victim. Count II charged that appellant intentionally, knowingly or

recklessly caused bodily injury to the victim, a member of the defendant’s family

or a member of the defendant’s household, or a person with whom the defendant

has or has had a dating relationship as described in the Texas Family Code by

striking said victim with defendant’s hand. Each count of the indictment alleged

the defendant had been previously convicted of family violence assault.

      Counsel for the State and the defendant stipulated to the prior criminal

convictions of the defendant, which were jurisdictional elements of the offense,

before the trial court. The stipulation was read to the trial judge before the reading

of the indictment. The jurisdictional elements of the indictment for Counts I and

II were not read to the jury; the stipulation of the parties was not read to the jury,

                                           2.
nor did the jury charge contain the jurisdictional element for the jury to consider in

deliberations.

      Appellant was found not guilty of Count I and was found guilty of Count II.

      Appellant elected the trial court judge to assess punishment, which was

assessed at ten (10) years in the Texas Department of Corrections.

                              ISSUES PRESENTED

      No evidence was presented to the jury as the fact finder in the guilt-

innocence phase of the trial as to the prior conviction which elevates the assault to

a third-degree felony, nor was there a finding of true by the jury as to the prior

conviction. Without evidence to substantiate the enhanced assault, the charged

offense is a misdemeanor.

      The trial court erred in allowing the victim to make a statement to the Court

prior to the Court pronouncing sentence.

      The trial court erred in denying appellant a mistrial due to a juror having

overheard the victim and a third person speak about outside evidence that was not

presented in the case.

                            STATEMENT OF FACTS

      Counsel for the State and the defendant entered into a stipulation

concerning the prior jurisdictional offenses alleged in the indictment, which

                                           3.
stipulation was recited to the trial court judge before the jury entered the

courtroom. (R.R. Vol. 3, pp. 5-7). Counsel for the State read the indictment to the

jury, which reading did not include the jurisdictional elements of the prior

convictions of the defendant. (R.R. Vol. 3, pp. 16-17). The stipulation was never

read or recited to the jury. There was no written stipulation of the parties prepared

and none was offered into evidence before the jury.

      Christina Aparicio, the complaining witness, testified that she and appellant

had a dating relationship, and began living together. (R.R. Vol. 3, pp. 23-24). Ms.

Aparicio further testified she and appellant were arguing throughout the day via

text messages and phone calls. (R.R. Vol. 3 pg. 25). The complaining witness

testified that later that night appellant walked up to her while she was in bed and

pressed his knuckles into her temple for about five or six seconds, which caused

her pain. (R.R. Vol. 3 pg. 29). Appellant left the room and later that same evening

returned to the room. (R.R. Vol. 3 pg. 32). The two proceeded to argue.

Appellant, according to the complaining witness, grabbed her with one hand and

was choking her at the throat, further stating that she could not breath and was

light headed. (R.R. Vol. 3 pg. 34).

       The jury found the defendant not guilty of Count 1, the assault by choking.

The jury found the defendant guilty of Count 2 felony assault. There was no

                                          4.
evidence presented to the jury to find the defendant guilty of a prior conviction

giving the district court jurisdiction.

                        SUMMARY OF THE ARGUMENT

      Appellant was indicted for an assault that is a third-degree felony by way of

a prior conviction of the same offense. This is an offense that requires proof that

the appellant had previously been convicted of assault on a family member. The

indictment was read to the jury at the beginning of the guilt-innocence phase and

the defendant entered a plea of Not Guilty. However, the jurisdictional paragraph

alleging the prior assault that elevates the indicted assault to a third-degree felony

was not read to the jury nor was a plea entered by appellant to the jurisdictional

element being the prior assault. Additionally, the prior conviction was not in the

jury charge for the jury to consider. Without evidence necessary to make a finding

of a prior conviction, the assault which appellant was found guilty of is a

misdemeanor and not a felony. Appellant elected to go to the Court for

punishment. After testimony was taken the trial court allowed the victim to speak

to the court and the statement by the victim was not cross-examined by appellant’s

trial counsel. After the victim’s statement the court pronounced sentence.

Appellant was sentenced to ten years in the Texas Department of Corrections.



                                          5.
                        ARGUMENT AND AUTHORITIES

        Appellant was charged with a third degree felony assault. This is an offense

that requires evidence be offered to the trier of fact that the appellant had

previously been convicted of assault on a family member. The prior conviction of

assault is jurisdictional because the State must indict and prove at least one prior

family assault to elevate the misdemeanor assault to a felony offense. Texas Penal

Code 22.01 (b)(2)(A). The Code of Criminal Procedure Article 36.01(a)(1) states

that the indictment shall be read to the jury. The purpose of reading the indictment

is not only to inform the defendant of the charge(s) against him, but also to inform

the jury of the precise terms of the particular charge against the accused. Warren v

State, 693 S.W.2d 414, 415 (Tex.Crim.App. 1985); Tamez v State 11 S.W. 3d 198,

201 (Tex.Crim.App. 2000). The statute allows for an exception to reading a

portion of the indictment; when prior convictions are alleged for enhancement

purposes only, then that portion should not be read to the jury. Article 36.01(a)(1)

Texas Code of Criminal Procedure. However, in the present case the prior

convictions were jurisdictional and were not alleged for enhancement purposes

only.

        When no plea is entered to allegations in an indictment, in this case a plea to

jurisdictional elements of the alleged offense, there is no issue joined for which to

                                           6.
try. Warren v. State at p. 415. The case before this court deals with an offense that

requires proof of a prior conviction of the same offense. In the instant case the

prior conviction was not read to the jury at the beginning of the trial, therefore no

plea was made to the prior conviction. Appellant stipulated to the prior

conviction, and the stipulation was provided to the trial court judge prior to trial,

but never presented to the jury at any time during the course of the guilt-innocense

phase of trial. A stipulation by the accused has evidentiary value as other

evidence. Taylor v State, 442 S.W. 3d 747, 751 (Tex. App.- Amarillo, 2014,

review ref’d). However, the trial court judge was not the fact finder; the appellant

was tried by a jury.

      A stipulation of evidence must come before the jury to be effective. Hollen

v State, 117 S.W. 3d, 798, 802 (Tex.Crim.App. 2003). Hollen involved a felony

DWI, the court indicating “that the jury should be informed of the stipulation, as

the two prior convictions are elements of the offense that must be proven to the

factfinder-in this case to the jury-to establish the offense of felony DWI.” Id. See

also Barfield v. State, 63 S.W. 3d 446, 448 (Tex.Crim.App. 2001)(previous

convictions are jurisdictional elements of the offense which must be proved to

obtain a conviction of felony DWI). The case before this court, similarly, involves

prior convictions as elements of the offense, however the prior convictions were

                                          7.
not proven to the jury as the factfinder in this case.

      While the defendant’s counsel stated on the record before the trial judge that

he stipulated to the prior convictions, such stipulation was never presented to the

jury or offered in evidence. (R.R. Vol 3, p. 5-6).

      After the jury returned a verdict of guilty to count 2 of the indictment, the

court proceeded to punishment. Appellant argues the trial court judge wrongfully

permitted the complaining witness to give a statement to the court prior to the

imposition of punishment and sentencing. The Code of Criminal Procedure

Article 42.03 Sec.1(b) states that a victim is allowed to make a statement to the

court on their views about the offense, the defendant and the effect of the offense

on the victim. The court reporter may not transcribe the statement. Article

42.03further dictates in subsection (b)(3) that the statement must be made after

sentencing. Id., emphasis added. Case law examining this statute pertaining to

victim statements state such statements can be made only after sentencing “in

order to alleviate any risk that the statement might affect the partiality of the fact

finder at the punishment phase.” Johnson v. State, 286 S.W. 3d, 346,348-349 (Tex

Crim.App. 2009). The Johnson court went on to recognize the “purpose of article

42.03section 1(b) is to protect the trial judge from any implicit or explicit

accusations that he could be or would be influenced by the victim-allocution

                                           8.
statement. It is the appearance of possible influence, as much as the possible fact

of influence, that the statute guards against. Id. at p. 351. It has also been

determined a defendant’s substantial rights are affected when the trial court

commits error in admitting statements before assessment of punishment and

sentencing in violation of article 42.03, section 1(b). Aldrich v. State, 296 S.W.

3d, 225, 260 (Tex.App.-Fort Worth, 2009, disc. review ref’d).

      Here, the Court asked the victim is she would like to make a statement

before the court pronounced sentence. (R.R Vol. 4, p. 66). The victim spoke about

being physically and internally permanently scarred. (R.R Vol 4, pg 67). The

victim stated that had he just her just as hard but in a different place, she could

have died. (R.R Vol 4, pg 67). The victim made a plea for the women in the future

that appellant will come into contact with. (R.R Vol 4, pg 68). Appellant’s

counsel did not request to cross examine the victim as to the statement that was

made. The statement was made in violation of Article 42.03, section 1(b), Texas

Code of Criminal Procedure.

      Appellant was not rest assured that the sentence that he received was based

only on the evidence presented. Rather, in this case, because the victim was

allowed to make a statement as to her injuries, how the incident affected her, what

could have happened to her and the plea to help not only her but other women he

                                          9.
may come in contact with in the future, there was a clear “ risk that the statement

might affect the partiality of the fact finder at the punishment phase.” See Johnson

v. State at pp. 348-349. Immediately following the victim statement, Appellant

was sentenced by the court to the maximum amount of time for this offense, 10

years in Texas Department of Corrections for this third degree felony.(R.R. Vol. 4,

p. 68). There was no medical evidence of injuries. The victim impact statement

could have easily influenced the Court sentencing the appellant to the maximum

ten years in the Texas Department of Corrections in violation of the Code of

Criminal Procedure.

      Appellant further complains the trial court erred in denying appellant the

request for mistrial when a juror overheard the victim and a third person speak

about evidence that was not presented in the case. Specifically, a juror, which

turned out to be the presiding juror in the case, informed the court and counsel she

heard the complaining witness “discussing the part of the case where she had gone

to the ER and also the part where the defendant’s attorney was questioning her on

that, and her friend said, ‘Well why didn’t you tell them to bring up another

witness’” The juror then made assumptions about the outside evidence that she

received. (R.R. Vol. 3 p. 106).

       When a juror converses with an unauthorized person about the case,

                                         10.
“[h]arm to the accused is presumed.” Sults v. State, 23 S.W. 3d, 198, 206 (Tex.

Crim. App.-Houston, [14th Dist.] 2000). emphasis in original. Additionally, when

a witness makes a remark to a juror about the appellant’s case, the exchange does

not have to be a full discussion of the specifics of the case before harm results.

See McIntire v. State, 698 S.W. 2d 652, 659 (Tex.Crim.App. 1985).

                                     PRAYER

      Appellant, Lee Sanchez, respectfully requests this Court overturn

Appellant’s conviction, dismiss the case and award such other and further relief to

which he is justly entitled.



                                               Respectfully Submitted,

                                               Jacqueline Del Llano Chapa
                                               Attorney at Law
                                               P.O. Box 81437
                                               Corpus Christi, Texas 78468
                                               Telephone: 361-653-2269
                                               Facsimile: 361-881-8999

                                               By: /s/Jacqueline Del Llano Chapa
                                                  Jacqueline Del Lano Chapa
                                                  State Bar No. 05652480
                                                  Attorney for Appellant




                                         11.
                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of Appellant’s Brief has been
served in accordance with the Texas Rules of Appellate Procedure, via facsimile
and or e-service to all counsel of record on this 30th day of October, 2015:

                              Mr. Doug Norman
                    Nueces County District Attorney’s Office
                          901 Leopard Street, Room
                         Corpus Christi, Texas 78401


                                              /s/Jacqueline Del Llano Chapa
                                             Jacqueline Del Llano Chapa
                                             Attorney for Appellant
                                             Lee Sanchez



                      CERTIFICATE OF COMPLIANCE

      I hereby certify that the undersigned counsel is in compliance with the
Texas Rules of Appellate Procedure and that the number of words in this brief is
2,808, exclusive of items listed in Rule 9.4(i)(1).


                                              /s/Jacqueline Del Llano Chapa
                                             Jacqueline Del Llano Chapa




                                             12.
