                                                                                  ACCEPTED
                                                                             07-14-00265-cr
                                                                SEVENTH COURT OF APPEALS
                                                                         AMARILLO, TEXAS
                                                                        2/9/2015 8:50:25 AM
                                                                           Vivian Long, Clerk


                     NO. 07-14-00265-CR

            IN THE COURT OF APPEALS FOR THE           FILED IN
                SEVENTH DISTRICT OF TEXAS      7th COURT OF APPEALS
                                                 AMARILLO, TEXAS
                      AMARILLO, TEXAS
                                               2/9/2015 8:50:25 AM
                ______________________________
                                                        VIVIAN LONG
                                                           CLERK

                    CHRISTINA ROCHA,
                         Appellant

                             v.

                   THE STATE OF TEXAS,
                         Appellee

               ______________________________

           ON APPEAL FROM COUNTY COURT NO. 2
                  BEXAR COUNTY, TEXAS
                     CAUSE NO. 240655
               ______________________________

                   BRIEF FOR THE STATE
               ______________________________


                                  NICHOLAS “NICO” LAHOOD
                                  Criminal District Attorney
                                  Bexar County, Texas

                                  STEPHANIE A. LEWIS
                                  Assistant Criminal District Attorney
                                  Bexar County, Texas
ORAL ARGUMENT WAIVED              Paul Elizondo Tower
                                  101 W. Nueva St., Ste. 526
                                  San Antonio, Texas 78205
                                  Phone: (210) 335-2110
                                  Stephanie.Paulissen@bexar.org
                                  State Bar No. 24086675

                                  Attorneys for the State of Texas
                      IDENTITY OF PARTIES AND COUNSEL

Pursuant to Tex. R. App. P. 38.1(a), the parties to the suit are as follows:

APPELLANT                                  Christina Rocha

TRIAL JUDGE                                The Honorable Raymond Angelini
                                           187th District Court

TRIAL PROSECUTORS                          Daryl Harris
                                           State Bar No. 24046028
                                           Daniel Rodriguez
                                           State Bar No. 24051261
                                           Assistant Criminal District Attorneys
                                           101 W. Nueva St.
                                           San Antonio, Texas 78205

TRIAL DEFENSE ATTORNEYS                    Michael A. Baird
                                           State Bar No. 24078178
                                           Shawn Sareen
                                           State Bar No. 24079274
                                           1203 Buena Vista St.
                                           San Antonio, Texas 78207

APPELLATE STATE’S                          Stephanie A. Lewis
ATTORNEY                                   State Bar No. 24086675
                                           Assistant Criminal District Attorney
                                           Paul Elizondo Tower
                                           101 W. Nueva St., Ste. 526
                                           San Antonio, Texas 78205
                                           (210) 335-2110
                                           Stephanie.Paulissen@bexar.org

APPELLATE DEFENSE                          Richard Langlois
ATTORNEY
                                           State Bar No. 11922500
                                           217 Arden Grove
                                           San Antonio, Texas 78215
                                           (210) 215-0341




	                                            ii	  
                                                TABLE OF CONTENTS
                                                                                                                             Page(s)

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

Table of Contents ........................................................................................................... iii

Index of Authorities ........................................................................................................ iv

Brief for the State ........................................................................................................... 1

Statement of Facts .......................................................................................................... 1

Summary of the Argument ............................................................................................. 4

Argument ........................................................................................................................ 5

       I. State’s Response to Appellant’s Sole Point of Error
       Appellant’s sole point of error that the trial court improperly instructed the jury on
       Texas Rule of Evidence 615 should be overruled because the trial court did not abuse
       its discretion, and this alleged error was harmless.. ................................................... 5

               Argument & Authorities ................................................................................... 5

Prayer .............................................................................................................................. 10

Attorneys for the State .................................................................................................... 10

Certificate of Service ...................................................................................................... 11




	                                                                 iii	  
                                          INDEX OF AUTHORITIES
Cases

Brooks v. State, 323 S.W.3d 893, 904 (Tex. Crim. App. 2010). ................................ 8

Delgado v. State, 235 S.W.3d 244 (Tex. Crim. App. 2007)....................................... 7

Hay v. State, 472 S.W.2d 157 (Tex. Crim. App. 1971).............................................. 6

Heiselbetz v. State, 906 S.W.2d 500 (Tex. Crim. App. 1995).................................... 8

Holmes v. State, 248 S.W.3d 194 (Tex. Crim. App. 2008). ....................................... 6

Jones v. State, No. 03-03-00067-CR, 2003 Tex. App. LEXIS 10329 *1

                     (Tex. App.—Austin Dec. 11, 2003, pet. ref’d)................................... 8

Rodriguez v. State, 90 S.W.3d 340 (Tex. App.—El Paso 2001, pet. ref’d). .............. 6

Stuhler v. State, 218 S.W.3d 706 (Tex. Crim. App. 2007)......................................... 7

Torres v. State, 71 S.W.3d 758 (Tex. Crim. App. 2002)............................................ 6-7

White v. State, 492 S.W.2d 281 (Tex. Crim. App. 1973). .......................................... 6

Statutes

Tex. Code Crim. Proc. Ann. art. 36.13 (West 2013).................................................. 6

Tex. Code Crim. Proc. Ann. art. 38.04 (West 2013).................................................. 7

Tex. Code Crim. Proc. Ann. art. 38.05 (West 2013).................................................. 6

Tex. Penal Code Ann. § 22.02 (West 2013)............................................................... 1

Rules

Tex. R. App. P. 38.1(a). ............................................................................................. ii

Tex. R. App. P. 33.1. ................................................................................................. 6

Tex. R. App. P. 44.2(a)............................................................................................... 7



	                                                            iv	  
                                  No. 04-10-00809-CR


CHRISTINA ROCHA,                           §         COURT OF APPEALS
            Appellant                      §
                                           §
              VS.                          §         SEVENTH JUDICIAL DISTRICT
                                           §
THE STATE OF TEXAS,                        §
             Appellee                      §         AMARILLO, TEXAS


                               BRIEF FOR THE STATE

To the Honorable Seventh Court:

       Now comes, Nicholas “Nico” LaHood, Criminal District Attorney of Bexar

County, Texas, and files this brief for the State. Appellant, Christina Rocha, was charged

by Indictment with Aggravated Assault with a Deadly Weapon, pursuant to Section 22.02

of the Texas Penal Code (CR at 6). After hearing all the evidence, the jury found

Appellant guilty, and she was sentenced to five (5) years of confinement in the Institution

Division of the Texas Department of Criminal Justice (CR at 101–02). Appellant timely

filed notice of appeal on the 18th day of June, 2014 (CR at 108).

                               STATEMENT OF FACTS

       On October 19, 2012, Nancy Rodriguez, hereinafter called Complainant, was

driving around San Antonio trying to find her husband, Jaime Rodriguez (3 RR at 32–

33). Complainant and her husband had planned to meet, so she went to pick him up at

work (3 RR at 32–33). After she realized that her husband was not at work, she drove to

the home of his mistress, Appellant Christina Rocha (3 RR at 33). When Complainant

arrived, Appellant came out of her home, and the two women began to argue (3 RR at 66,

	                                           1	  
107, 141). That argument escalated into a physical fight (3 RR at 66, 107, 141). Mr.

Rodriguez came out and separated the two women, and Complainant walked towards her

car (3 RR at 67, 108, 142). Appellant went inside, returned with a four-and-a-quarter-inch

serrated kitchen knife in her hand, and approached Complainant (3 RR at 25, 109, 143).

As Appellant got closer, Complainant put her hands up in a defensive position, and

Appellant stabbed Complainant on the upper left side of her body (3 RR at 70, 109, 144).

Complainant staggered back towards her car and collapsed, and Appellant walked back

inside her house as witnesses ran to Complainant’s aid (3 RR at 72, 110, 144).

       In Appellant’s case-in-chief, one of her neighbors, Lillian Sifuentes, testified that

Complainant pulled up to Appellant’s house, got out of her car, and began screaming

threats at Appellant (3 RR at 159–60). After the fight, Ms. Sifuentes stated that Appellant

went back inside her house, and Complainant ran towards the house and started banging

on the door, continuing to threaten Appellant’s life (3 RR at 162). She also testified that

Complainant opened the door to Appellant’s home (3 RR at 165). At that point, Ms.

Sifuentes stated that she went inside her own home, so she did not see Appellant stab

Complainant (3 RR at 166–67).

       According to Ms. Sifuentes, she gave a written statement to Appellant’s first

attorney, Al Acevedo (3 RR at 197). When the court and trial attorneys learned this

information, the court instructed Appellant’s trial attorney, Michael Baird, to find that

statement and tender it to the State’s attorneys (3 RR at 198). When the trial resumed the

following day, Mr. Baird advised the court that he was unable to locate Ms. Sifuentes’

statement (4 RR at 21). The State moved to strike Ms. Sifuentes’ testimony pursuant to


	                                            2	  
Texas Rule of Evidence 615 (4 RR at 20). Instead of striking the testimony, the court

decided to orally instruct the jury on what the law is, and that the defense attorneys do not

have Ms. Sifuentes’ statement to produce to the State (4 RR at 21). When the court and

the attorneys discussed this course of action, defense counsel replied, “No problem with

that, Judge” (4 RR at 21). Specifically, the court instructed the jury:

         “Ladies and Gentlemen, a situation has occurred concerning the last witness. The
         last witness testified that she made a written statement. Anytime a witness makes a
         written statement or report, the other side has to turn it over to them; as you noted
         what the prosecution did to the Defense. The Defense attorneys have said that
         there is no written statement. You’re to take that into consideration concerning this
         last witness’ testimony (4 RR at 23).”

Appellant now argues to this Court that the this oral instruction constitutes reversible

error.




	                                             3	  
                            SUMMARY OF THE ARGUMENT

Response to Appellant’s Sole Point of Error:

       Appellant’s sole point of error that the trial court improperly instructed the jury on
       Texas Rule of Evidence 615 should be overruled because the trial court did not abuse
       its discretion, and this alleged error was harmless.




	                                             4	  
                                        ARGUMENT

        I. STATE’S RESPONSE TO APPELLANT’S SOLE POINT OF ERROR:

       Appellant’s sole point of error that the trial court improperly instructed the
       jury on Texas Rule of Evidence 615 should be overruled because the trial court
       did not abuse its discretion, and this alleged error was harmless.

         In Appellant’s sole point of error, he argues that the trial court improperly

instructed the jury regarding Lillian Sifuentes’ testimony. This point of error is without

merit.

                                 Argument and Authorities

i. Failure to Preserve Error

         Appellant argues that the trial court abused its discretion when it orally instructed

the jury that it may consider the absence of Lillian Sifuentes’ statement. However,

Appellant waived her right to complain about this instruction on appeal when her defense

counsel agreed to the instruction.

         When Ms. Sifuentes stated on the witness stand that she gave a written statement

to Appellant’s first defense attorney, the trial court adjourned and ordered Appellant’s

attorney at that time, Mr. Michael Baird, to find the statement. Mr. Baird returned to

court the next morning and advised that he could not locate any statement by Ms.

Sifuentes (4 RR at 21). The court decided to advise the jury that Texas Rule of Evidence

615 exists, and that they could take that into consideration (4 RR at 22–23). In response

to the court’s idea to give the instruction, Mr. Baird said, “[t]hat would be perfectly fine”

(4 RR at 23).




	                                              5	  
       A timely objection is required to preserve alleged errors made by the trial court.

Tex. R. App. P. 33.1 (West 2013); Holmes v. State, 248 S.W.3d 194, 200 (Tex. Crim.

App. 2008). Because Mr. Baird did not object to the court’s oral instruction, Appellant

cannot complain about the instruction on appeal.

ii. No Abuse of Discretion

       Even if Appellant had preserved this issue for appellate review, the trial judge did

not abuse his discretion in giving the jury this instruction. When reviewing a trial judge's

decision to admit or exclude evidence, an appellate court must determine whether the

judge's decision was an abuse of discretion. Torres v. State, 71 S.W.3d 758, 760 (Tex.

Crim. App. 2002). Unless the decision was outside the “zone of reasonable

disagreement,” an appellate court should uphold the ruling. Id.

       A trial court has the discretion to give the jury oral instructions to remedy unique

issues that may arise. See White v. State, 492 S.W.2d 281 (Tex. Crim. App. 1973); Hay v.

State, 472 S.W.2d 157 (Tex. Crim. App. 1971); Rodriguez v. State, 90 S.W.3d 340, 370–

72 (Tex. App.—El Paso 2001, pet. ref’d). In handling such issues, the trial court shall not

discuss or comment on the weight of the evidence or its bearing in the case. Tex. Code

Crim. Proc. Ann. art. 38.05 (West 2013).

       In this case, the court determined that the best course of action would be to apprise

the jury of the law requiring written witness statements to be tendered to opposing

counsel prior to cross-examination. It is within the court’s authority to instruct the jury on

the existence of applicable law. See Tex. Code Crim. Proc. Ann. art. 36.13 (West 2013).




	                                            6	  
Therefore, the trial judge did not abuse his discretion in this case. See Torres, 71 S.W.3d

at 760.

iii. Any Error is Harmless

          If this Court finds that the trial judge erred in instructing the jury regarding the

existence of Texas Rule of Evidence 615(e), such error was harmless. Because the

alleged error in the present case is not of federal constitutional origin, it must be

subjected to a harm analysis. Tex. R. App. P. 44.2(a) (West 2013). Appellant did not

object to the trial court’s instruction, so any alleged error is reversible only if the error

was so egregiously harmful under the circumstances as to have denied Appellant a fair

and impartial trial. Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007).

          Charge error is egregiously harmful if it affects the very basis of the case, deprives

the defendant of a valuable right, or vitally affects a defensive theory. Stuhler v. State,

218 S.W.3d 706, 719 (Tex. Crim. App. 2007). To determine if charge error was

egregiously harmful, appellate courts examine the record as a whole, including the

charge, the contested issues, the weight of the probative evidence, and the arguments of

counsel. Id.

          Appellant argues that the court’s instruction discredited her defense, permitting the

jurors to disregard Lillian Sifuentes’ testimony if they found that she was not credible.

(Appellant’s Br. 19). It is well settled that jurors are the sole judges of facts, and of the

weight to be given testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (West 2013).

Resolution of conflicts in the evidence is within the exclusive province of the jury, and

the jury may choose to believe all, some, or none of the testimony or evidence presented.


	                                                7	  
Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995). Therefore, with or

without the court’s instruction, the jurors were permitted to believe or disbelieve Ms.

Sifuentes’ testimony, and the appellate court cannot sit as a thirteenth juror and judge the

credibility of witnesses. See id.; Brooks v. State, 323 S.W.3d 893, 904 (Tex. Crim. App.

2010).

         The Third Court of Appeals has addressed the issue of oral instructions in Jones v.

State, No. 03-03-00067-CR, 2003 Tex. App. LEXIS 10329 *1 (Tex. App.—Austin Dec.

11, 2003, pet. ref’d). In Jones, the jurors sent out a note to the court during deliberations

stating that the presiding juror had reservations about the verdict. Id. at *20. After a

bench conference, the court and the attorneys agreed that the court should orally instruct

the jury that the verdict must be unanimous. Id. at *21. The defendant complained on

appeal that the oral instruction caused egregious harm. Id. at *20. The Third Court of

Appeals determined that the court’s oral instruction was harmless because it was not a

comment on the evidence, and it echoed the instruction in the jury charge that a verdict

must be unanimous. Id. at *25.

         In the present case, after an examination of the record as a whole, this Court will

find that any alleged error in giving this instruction was harmless. During trial, the State

presented overwhelming evidence of guilt. The State called three lay witnesses who

consistently testified that Appellant and Complainant got into an altercation, Appellant

went inside her house while Complainant walked back towards her car, then Appellant

returned with a knife and stabbed Complainant (3 RR at 70, 109, 144). Lillian Sifuentes

testified for the defense that Complainant was banging on Appellant’s front door while


	                                             8	  
screaming threats at Appellant (3 RR at 162–65). However, on cross-examination, the

prosecutor pointed out that there were various obstructions that would have blocked

Sifuentes’ view of Appellant’s recessed front door (3 RR at 179).

       In addition, Ms. Sifuentes’ testimony was the only evidence that raised the issue of

self-defense. A self-defense instruction was included in the jury charge, and the jury was

free to believe Ms. Sifuentes’ version of events. The jurors chose, however, to believe the

several other lay witnesses who testified that Complainant was trying to leave the

property when Appellant stabbed her. The trial court’s oral instruction, given in the

context of the rest of the evidence, did not vitally affect Appellant’s self-defense theory.

Therefore, it did not result in an unfair trial, and was not harmful error.

                                      CONCLUSION

       Appellant did not preserve this error for appellate review. Even so, the trial court

did not abuse its discretion by giving the jury this oral instruction, and any alleged error

was harmless. Therefore Appellant’s sole point of error should be overruled.




	                                            9	  
                                       PRAYER

       WHEREFORE, PREMISES CONSIDERED, the State of Texas submits that the

judgment of the trial court should, in all things, be AFFIRMED.


                                                    Respectfully submitted,

                                                    Nicholas “Nico” LaHood
                                                    Criminal District Attorney
                                                    Bexar County, Texas




                                                    /s/ Stephanie A. Lewis______
                                                    Stephanie A. Lewis
                                                    Assistant Criminal District Attorney
                                                    Bexar County, Texas
                                                    Paul Elizondo Tower
                                                    101 W. Nueva St., Ste. 526
                                                    San Antonio, Texas
                                                    Phone: (210) 335-2110
                                                    Stephanie.Paulissen@bexar.org
                                                    State Bar No. 24086675

                                                    Attorney for the State




	                                         10	  
                            CERTIFICATE OF SERVICE

       I, Stephanie A. Lewis, Assistant Criminal District Attorney, hereby certify that a

true and correct copy of the above and foregoing brief has been sent by electronic mail to

Appellant’s attorney of record, Richard Langlois, on this 9th day of February, 2015.




                         CERTIFICATE OF COMPLIANCE

I, Stephanie A. Lewis, certify that the State’s brief is approximately 2,700 words.




                                                     _________________________________

                                                     Stephanie A. Lewis
                                                     Assistant Criminal District Attorney




Richard Langlois
217 Arden Grove
San Antonio, Texas 78215

Attorney for Appellant




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