                                                                             ACCEPTED
                                                                         04-16-00317-CR
                                                             FOURTH COURT OF APPEALS
                                                                  SAN ANTONIO, TEXAS
                                                                   10/5/2016 11:43:43 AM
                                                                          KEITH HOTTLE
                                                                                  CLERK

                   NO. 04-16-00317-CR

            IN THE COURT OF APPEALS FOR THE
                FOURTH DISTRICT OF TEXAS
                  SAN ANTONIO, TEXAS
            ______________________________

                      ART PATRICK,
                       Appellant

                            v.

                  THE STATE OF TEXAS,
                       Appellee
            ______________________________

      ON APPEAL FROM THE COUNTY COURT AT LAW
            NO. 7 OF BEXAR COUNTY, TEXAS
                CAUSE NUMBER 511123
          ______________________________

                  BRIEF FOR THE STATE
            ______________________________

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

               JENNIFER ROSSMEIER BROWN
            Assistant Criminal District Attorney
                    Bexar County, Texas
                    Paul Elizondo Tower
                    101 W. Nueva Street
                 San Antonio, Texas 78205
Phone: (210) 335-1546; Email: jennifer.rossmeier@bexar.org
                   State Bar No. 24079247

             Attorneys for the State of Texas

         ORAL ARGUMENT NOT REQUESTED
                     IDENTITY OF THE PARTIES AND COUNSEL

Pursuant to Tex. R. App. P. 38.2(a), the appellee supplements the appellant’s list of
parties as follows:

APPELLATE STATE’S ATTORNEY:            Jennifer Rossmeier Brown
                                       State Bar No. 24079247
                                       Assistant Criminal District Attorney
                                       Paul Elizondo Tower
                                       101 W. Nueva Street
                                       San Antonio, Texas 78205
                                       (210) 335-1546
                                       Email: jennifer.rossmeier@bexar.org




                                                                                   ii
                                              TABLE OF CONTENTS

IDENTITY OF THE PARTIES AND COUNSEL .................................................................. ii
TABLE OF CONTENTS ................................................................................................ iii
TABLE OF AUTHORITIES ............................................................................................ iv
BRIEF FOR THE STATE .................................................................................................1
STATEMENT OF THE CASE ...........................................................................................1
STATEMENT OF THE FACTS ..........................................................................................2
SUMMARY OF THE ARGUMENT ....................................................................................3
ARGUMENT .................................................................................................................5
   First Point of Error...............................................................................................5
      Relevant Facts .....................................................................................................5
      Standard of Review .............................................................................................6
      Applicable Law and Application of Law to the Present Record .........................6
   Second Point of Error...........................................................................................8
      Relevant Facts .....................................................................................................8
      Standard of Review ...........................................................................................10
      Applicable Law..................................................................................................10
      Application of Law to the Present Record ........................................................12
   Third Point of Error ...........................................................................................23
      Standard of Review ...........................................................................................23
      Applicable Law and Application of Law to the Present Record .......................23
PRAYER .....................................................................................................................25
CERTIFICATE OF SERVICE AND COMPLIANCE ............................................................26




                                                                                                                           iii
                                             TABLE OF AUTHORITIES

CASES
Allen v. State, No. 14-13-01030-CR, 2015 Tex. App. LEXIS 8144, at *1 (Tex.
App.—Houston [14th Dist.] August 4, 2015, no pet.).............................................11

Burt v. State, 445 S.W.3d 752 (Tex. Crim. App. 2014) ..........................................24

Cartwright v. State, 605 S.W.2d 287 (Tex. Crim. App. 1980) ................................23

Casey v. State, 215 S.W.3d 870 (Tex. Crim. App. 2007) ........................................12

Castorena v. State, 486 S.W.3d 630 (Tex. App.—San Antonio 2016, no pet.) ..........
  ....................................................................................................................... 6, 7, 8

Crawford v. State, 646 S.W.2d 936 (Tex. Crim. App. 1983) ....................................7

DeLeon v. State, 466 S.W.2d 573 (Tex. Crim. App. 1971) .....................................24

Ex parte Miller, 330 S.W.3d 610 (Tex. Crim. App. 2009)............................... 11, 12

Kitchens v. State, 823 S.W.2d 256 (Tex. Crim. App. 1991)......................................7

Lemos v. State, 27 S.W.3d 42 (Tex. App.—San Antonio 2000, pet. ref’d) ............23

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) .............................23

Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) ........................................12

Mozon v. State, 991 S.W.2d 841 (Tex. Crim. App. 1999).......................................11

Rodriguez v. State, No. 04-12-00859-CR, 2013 Tex. App. LEXIS 14876, at *1
(Tex. App.—San Antonio December 11, 2013, no pet.) (mem. op., not designated
for publication) .................................................................................................. 12, 13

Romero v. State, 800 S.W.2d 539 (Tex. Crim. App. 1990) .....................................10

Smith v. State, 309 S.W.3d 10 (Tex. Crim. App. 2010) ............................................6

Tate v. State, 981 S.W.2d 189 (Tex. Crim. App. 1998) ..........................................11

Torres v. State, 71 S.W.3d 758 (Tex. Crim. App. 2002) .................................. 10, 11

                                                                                                                              iv
Vasquez v. State, 665 S.W.2d 484 (Tex. Cr. App. 1984) ..........................................7

Walters v. State, 247 S.W.3d 204 (Tex. Crim. App. 2007) .....................................12

RULES
Tex. R. App. P. 38.2(a) ............................................................................................. ii

STATUTES
Tex. Code Crim. Proc. art. 10(a) (West 2015).........................................................23

Tex. Code Crim. Proc. art. 21.15 (West 2015) ..........................................................6




                                                                                                                      v
                                NO. 04-16-00317-CR

ART PATRICK,                            §      IN THE FOURTH DISTRICT
                    APPELLANT           §
                                        §
             VS.                        §      COURT OF APPEALS
                                        §
THE STATE OF TEXAS,                     §
                APPELLEE                §      SAN ANTONIO, TEXAS

                               BRIEF FOR THE STATE

To the Honorable Fourth Court:

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

County, Texas, and files this brief for the State.

                              STATEMENT OF THE CASE

     On February 18, 2016 the State filed an information against Art Patrick

(“Appellant”) charging him with the offense of assault bodily injury to a family or

household member. (1 CR at 9) On April 15, 2016, Appellant filed a Motion to

Quash Information for Failure to Adequately Allege Recklessness. (1 CR at 25) On

April 20, 2016, the State filed a Motion to Amend Information. (1 CR at 34) After

a brief hearing, the trial court granted the State’s motion to amend on April 21,

2016. (1 CR at 37-38 and 2 RR at 11-12) The State filed its amended information

on May 2, 2016. (1 CR at 43)

     Prior to beginning trial, Appellant objected to the amended information,

arguing it failed to adequately describe the acts which the State alleged were


                                                                                 1
reckless and the Court denied Appellant’s motion. (3 RR at 4 and 7)1 The parties

proceeded to trial and a jury found Appellant guilty of assault-bodily injury to a

family or household member as alleged in the State’s information. (1 CR at 63 and

3 RR at 7 and 5 RR at 54) The trial court placed Appellant on community

supervision with various conditions, including medical restitution. (1 CR at 66 and

5 RR at 58-59) Appellant timely filed his notice of appeal and appeals from his

conviction. (1 CR at 69)

                                STATEMENT OF THE FACTS

         Although the State does not endorse Appellant’s “Statement of Facts,” the

State does not put forth its own factual assertions. See Tex. R. App. P.

38.2(a)(1)(B). To avoid repetition, the State will supply supplemental pertinent

facts supported with record references within its response to Appellant’s points of

error.




1
  Before the hearing began, Appellant stated he was “ready for trial subject to a hearing on the
Motion to Quash the Amended Information,” however, no motion by that name is contained in
the clerk’s record. (3 RR at 4)
                                                                                              2
                          SUMMARY OF THE ARGUMENT

      Appellant alleges three points of error on appeal. In Appellant’s first point of

error, he argues that the State’s information failed to detail which acts it intended

to rely upon to constitute recklessness, and as such, the trial court erred in denying

his Motion to Quash Information for Failure to Adequately Allege Recklessness.

Because the State pled intentional and knowing mental states in addition to

recklessness, the State was not required to plead specific acts of recklessness in its

information. Thus, the trial court did not err in denying Appellant’s motion to

quash and Appellant’s first point of error should be overruled.

      In his second point of error, Appellant contends that the trial court erred in

excluding evidence regarding a prior incident where the complainant allegedly

assaulted Appellant. Appellant argues that the evidence was admissible to support

his theory of self-defense. While this communicated character evidence was

admissible at trial, any error stemming from the trial court’s exclusion of the

complained-of evidence is harmless and does not warrant reversal on appeal. In the

instant case, overwhelming evidence established that Appellant struck the

complainant out of anger and not out of self-defense. Further, even without the

admission of the character evidence, the jury heard sufficient evidence regarding

Appellant’s self-defense claim and were charged on self-defense at trial. Because

any error resulting from the trial court’s exclusion of the evidence did not affect


                                                                                    3
Appellant’s substantial rights, Appellant’s second point of error should be

overruled.

      In Appellant’s third point of error, he argues that the trial court erred in its

implicit denial of his objection to the order of restitution at sentencing. Appellant

contends the trial court erred in ordering restitution to be determined by the

probation department and asserts he was entitled to a restitution hearing. Because

the trial court is not permitted to delegate its authority regarding the imposition of

conditions of community supervision, the State agrees that the cause should be

remanded to the trial court for a restitution hearing.




                                                                                    4
                                       ARGUMENT

First Point of Error

       Appellant argues that the trial court erred when it overruled his motion to

quash, because the State’s information did not set out the acts relied upon to

constitute recklessness. In support of his argument, Appellant relies on Article

21.15 of the Texas Code of Criminal Procedure, arguing that it requires additional

language in the State’s charging instrument where recklessness is alleged.

       In this case, the trial court did not err in denying Appellant’s motion to

quash because the State alleged three different culpable mental states, and as such,

Article 21.15’s requirement was not applicable to its information. Appellant’s first

point of error should be overruled.

Relevant Facts

       The State’s initial information in the instant case charged that Appellant

intentionally, knowingly, and recklessly caused bodily injury to D.W., 2 the

complainant, by striking the complainant with the hand of the defendant. (1 CR at

9) On May 2, 2016, the State filed an amended information which alleged that

Appellant intentionally, knowingly, and recklessly caused bodily injury to D.W. by

striking the complainant with the hand of the defendant and pulling the

complainant with the hand of the defendant. (1 CR at 43)

2
  Because the complainant is under eighteen years of age, the State will refer to him by his
initials.
                                                                                          5
Standard of Review

      On appeal, the trial court’s order regarding a motion to quash a charging

document is reviewed de novo because the sufficiency of a charging instrument is

a question of law. Smith v. State, 309 S.W.3d 10, 14 (Tex. Crim. App. 2010).

Applicable Law and Application of Law to the Present Record

      Appellant contends the trial court erred in denying his Motion to Quash

Information for Failure to Adequately Allege Recklessness. Specifically, Appellant

argues that pursuant to Article 21.15 of the Texas Code of Criminal Procedure, the

State was required to allege “the acts relied upon to constitute recklessness” in its

information. (Appellant’s Brief at 16); Tex. Code Crim. Proc. art. 21.15 (West

2015).

      Appellant argues that the amended information stated that Appellant

recklessly caused bodily injury to the complainant, D.W., thus necessitating the

State to specify the acts of recklessness. (Appellant’s Brief at 17) While the State’s

information does allege a reckless mental state, Appellant fails to acknowledge that

the State pled two additional mental states in the information. The amended

information charged that Appellant “did then and there intentionally, knowingly,

and recklessly cause bodily injury to another.” (1 CR at 45) (emphasis added)

      As such, Castorena v. State is controlling. 486 S.W.3d 630 (Tex. App.—San

Antonio 2016, no pet.). In its opinion in Castorena, this Court acknowledged that


                                                                                    6
the holding of the Court of Criminal Appeals is clear—“an indictment that alleges

a defendant acted recklessly is not insufficient if it fails to allege the act or acts

relied upon to constitute recklessness if the indictment also alleges the defendant

acted intentionally and/or knowingly.” Castorena, 486 S.W.3d at 635 (citing

Crawford v. State, 646 S.W.2d 936, 937 (Tex. Crim. App. 1983)).

      Appellant argues that this Court’s decision in Castorena is distinguishable

from the instant case because of a statement the State made during jury selection

and language included in the jury charge. The prosecutor’s statement and the

complained-of language in the jury charge have nothing to do with specifying the

acts constituting recklessness in the charging document. Instead, Appellant’s

contentions concern what is a well settled part of the law—that the State is

permitted to charge in the conjunctive and prove in the disjunctive. See Kitchens v.

State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991) (citing Vasquez v. State, 665

S.W.2d 484, 466-467 (Tex. Cr. App. 1984)). Thus, neither of Appellant’s

arguments for distinguishing Castorena demonstrate any difference between the

facts in Castorena and the instant case.

      Because here, as in Castorena, “the State, in addition to alleging [Appellant]

acted recklessly, alleged [he] acted intentionally or knowingly, it was not required

under Article 21.15 to allege the act or acts relied upon to constitute recklessness.”




                                                                                    7
Id. at 635 (internal citations omitted). As such, the trial court properly denied

Appellant’s motion to quash and its judgment should be affirmed.

Second Point of Error

      At trial, Appellant attempted to offer evidence of an incident that occurred a

few months prior to the incident giving rise to the State’s case. In his second point

of error, Appellant challenges the trial court’s decision to exclude that evidence,

arguing that the court erred in not allowing the evidence because it was admissible

to show the reasonableness of Appellant’s self-defensive state of mind.

(Appellant’s Brief at 22)

      While the trial court may have erred in excluding the evidence at trial, any

error did not affect Appellant’s substantial rights, and as such, does not warrant

reversal. Because sufficient evidence established Appellant struck the complainant

out of anger and not self-defense and further, Appellant was still able to advance

evidence of his self-defense claim at trial, any error resulting from the trial court’s

exclusion of the evidence was harmless.

Relevant Facts

      Appellant wanted to introduce evidence regarding an incident that happened

between Appellant and D.W. in September 2015 at trial. When the trial court

denied his request to introduce the evidence, Appellant made a bill of exceptions.

Essentially, Appellant’s bill of exceptions testimony established the following.


                                                                                     8
       Appellant testified that his wife and D.W.’s mother, Schernette Patrick

(“Shawn”) had confronted D.W. about something and D.W. began balling up his

fists. (6 RR at 5) Appellant thought D.W. might hit Shawn, so he stepped in

between them and D.W. punched him in the mouth. (6 RR at 6) Appellant called

police, who arrested D.W., and he was held for three weeks before his release. 3 (6

RR at 6-7) Appellant characterized Appellant’s manner during the September 2015

incident as different from his manner during the February 2016 incident. Appellant

stated, “[i]t was different as he, you know, clinched his fists up, bring his arms up

demonstrating like he’s fixing to punch and drew back and before that point.” (6

RR at 8)

       The police report established that on September 26, 2015, officers from the

San Antonio Police Department (“SAPD”) were dispatched to 3039 Reforma

Drive. (7 RR at 81-82) Appellant told officers that Shawn had confronted him

about smoking and D.W. began acting in a threatening manner. (7 RR at 82)

Appellant said that, based on what he saw, he thought D.W. might strike Shawn, so

he stepped in between them and grabbed D.W. in an attempt to restrain him. (7 RR

at 82) While Appellant was holding D.W., D.W. punched him on the face and

lower lip. (7 RR at 82) Appellant sustained injuries from the punch and officers



3
 It is not clear from the record whether D.W. was ever formally charged with or convicted of
any conduct relative to this incident.
                                                                                               9
observed blood coming from his lower lip and mouth. (7 RR at 82) D.W. was

taken to Youth Services and later transported to Juvenile Detention. (7 RR at 82)

Standard of Review

      A trial court’s decision to admit or exclude evidence is reviewed under an

abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App.

2002). This Court may not reverse a trial court’s ruling unless “it falls outside the

zone of reasonable disagreement.” Id. If a trial court's decision is correct under any

theory of law, the decision should not be disturbed even if the trial court gave the

wrong reason for its ruling. See Romero v. State, 800 S.W.2d 539, 543-44 (Tex.

Crim. App. 1990).

Applicable Law

      Admissibility of Character Evidence

      Generally, character evidence is inadmissible at trial, but when a defendant

has been charged with an assaultive offense, he is permitted to introduce evidence

regarding the victim’s character at trial. Tex. R. Evid. 404(a) and 404(a)(2)(A);

Martinez v. State, 17 S.W.3d 677, 687 (Tex. Crim. App. 2000); Torres, 71 S.W.3d

at 760. A defendant, however, is not permitted to introduce evidence of either a

victim’s violent character or specific instances of violent conduct to prove “that on

a particular occasion the person acted in accordance with the character or trait.”

Tex. R. Evid. 404(a) and (b).


                                                                                    10
      The rules of evidence allow for the introduction of evidence of a victim’s

specific acts of violence under two theories. Ex parte Miller, 330 S.W.3d 610, 618

(Tex. Crim. App. 2009). The first theory, where the evidence is offered to clarify

who was the “first aggressor,” examines the victim’s conduct. Allen v. State, No.

14-13-01030-CR, 2015 Tex. App. LEXIS 8144, at *76 (Tex. App.—Houston [14th

Dist.] August 4, 2015, no pet.) (McCally, J., concurring). Under the second theory,

the evidence is offered to demonstrate the reasonableness of the defendant’s fear of

the victim and focuses on the defendant’s state of mind. Id. Under either theory,

however, specific, violent acts of misconduct are only admissible to the extent they

are relevant for any purpose other than character conformity. Tex. R. Evid. 404(b);

Torres, 71 S.W.3d at 760; Tate v. State, 981 S.W.2d 189, 193 (Tex. Crim. App.

1998).

      Under the second theory, a defendant may offer evidence of specific prior

instances of violence by the victim to demonstrate the reasonableness of his claim

of apprehension of danger from the victim. Torres, 71 S.W.3d at 760, n.4 (citing

Mozon v. State, 991 S.W.2d 841, 846 (Tex. Crim. App. 1999)). When evidence is

offered for this purpose, Rule 404 is not invoked because “the defendant is not

trying to prove that the victim actually is violent; rather, he is proving his own self-

defensive state of mind and the reasonableness of that state of mind.” Miller, 330




                                                                                     11
S.W.3d at 618-19. This so-called “communicated character evidence,” requires the

defendant to establish that he was aware of the victim’s violent character. Id.

      Harm Analysis

      The erroneous exclusion of evidence is generally nonconstitutional error and

subject to analysis under Rule of Appellate Procedure 44.2(b). Walters v. State,

247 S.W.3d 204, 219 (Tex. Crim. App. 2007). Nonconstitutional error which does

not affect a defendant’s substantial rights is disregarded. Casey v. State, 215

S.W.3d 870, 885 (Tex. Crim. App. 2007). A conviction will not be reversed for

nonconstitutional error if the appellate court, after examining the record as a

whole, has fair assurance that the error did not have a substantial and injurious

effect or influence in determining the jury’s verdict. Id. In making a determination

regarding harmless error, the presence of overwhelming evidence supporting the

conviction can be a factor in a court’s evaluation of error under Rule 44.2(b).

Rodriguez v. State, No. 04-12-00859-CR, 2013 Tex. App. LEXIS 14876, at *6-7

(Tex. App.—San Antonio December 11, 2013, no pet.) (mem. op., not designated

for publication) (citing Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim. App.

2002)).

Application of Law to the Present Record

      At trial, Appellant sought to introduce evidence of the September 2015

incident to prove the reasonableness of his own defensive state of mind. (3 RR at


                                                                                  12
24-25, 30, 32 4 RR at 151, and 6 RR at 9-10) The State objected to the evidence

and the trial court excluded same at trial. (3 RR at 29 and 6 RR at 10-12). The

basis for the trial court’s ruling is unclear from the record. At first, it appears the

trial court’s ruling was predicated on the fact that the event occurred when D.W.

was a juvenile. (4 RR at 8-10) The court later indicated, however, its ruling was

based on the remoteness of the incident and Texas Rule of Evidence 404’s

prohibition against character evidence introduced to show conformity. (6 RR at 11-

12)

      The State acknowledges that the evidence in question constituted

communicated character evidence and was admissible for the limited purpose of

establishing the reasonableness of Appellant’s self-defensive state of mind. While

the court erred in excluding the evidence at trial, any error was harmless for two

reasons. First, much of the evidence at trial established Appellant struck D.W. out

of anger and not self-defense. Second, there was sufficient evidence adduced at

trial regarding Appellant’s claim of self-defense; thus, Appellant was not harmed

by the exclusion of the evidence regarding the prior incident.

      Evidence That Appellant Acted out of Anger and not Self-Defense

      Here, as in Rodriguez v. State, the evidence at trial demonstrated not that

Appellant acted in self-defense but that he struck D.W. out of anger because D.W.

disrespected him. 2013 Tex. App. LEXIS 14876 at *1. As such, the trial court’s


                                                                                    13
error in excluding the complained-of evidence did not affect Appellant’s

substantial rights.

      Evidence proving Appellant’s motivation behind striking D.W. came from

three sources—his own testimony, statements he made at the scene, and messages

he sent to his wife, Shawn, after the incident.

      Appellant’s Testimony

      Appellant testified at trial. Appellant said that on February 11, 2016, he

stayed in his bedroom most of the morning. (4 RR at 144) At about 1:30 p.m.,

Appellant said he smelled cigarette smoke when he went to use the restroom and

knew D.W. was smoking outside the front door. (4 RR at 144) The evidence at trial

established that Appellant had previously asked D.W. not to smoke on the porch.

(5 RR at 4-5 and 7 RR at 20) Appellant admitted that he became upset when he

smelled cigarette smoke, so he decided that when D.W. came into the house, he

would confront him about it. (4 RR at 147 and 5 RR at 7-8)

      Eventually, Appellant heard the door close and he walked upstairs to

confront D.W. (4 RR at 147and 5 RR at 4) Appellant admitted that he walked up

the stairs to get closer to D.W. before confronting him. (5 RR at 11) Appellant

asked D.W. “[w]hy are you still doing the same thing I asked you not to do?” (5

RR at 4) Appellant also asked D.W. “[a]re you listening? Did you really listen to

what I asked you yesterday, and you did it again?” as he approached him. (5 RR at


                                                                              14
4-5) D.W. told Appellant he did not have to listen to him and Appellant asked

D.W. to leave. (4 RR at 149 and 5 RR at 5)

         On cross examination, Appellant admitted that D.W. had disrespected him

and it made him angry. (5 RR at 13) Appellant stated that his left hand “just

reacted” to D.W.’s behavior. (4 RR at 150 and 5 RR at 5) Appellant struck D.W. so

hard that D.W. was knocked unconscious. (5 RR at 5) Appellant testified that once

he struck D.W., he stepped to the side and D.W. fell down the stairs. (5 RR at 5

and 11) Appellant said he made no attempt to break D.W.’s fall or otherwise

prevent him from falling down the stairs. (5 RR at 15) When officers arrived,

Appellant told them that D.W. had disrespected him and said he had to “pour a cup

of water to wake his ass up.” (4 RR at 97, 5 RR at 13-14, and State’s Exhibit 23-

Part 001 4:55-5:02)

         Appellant’s Statements at the Scene

         At the scene, Appellant explained to the officers from the San Antonio

Police Department (“SAPD”) that he—

         Asked [unintelligible] several times to quit smokin’ in front of my doorway.
         Done it yesterday. Done it today. He wanna sit up here and act like he don’t
         listen to what I’m sayin’ and I’m the parent, I’m the one up in this house, me
         and my wife and he don’t wanna listen. I had to put it on his ass
         [unintelligible]. He wanna act hard. I showed him hard. So, if y’all gonna
         arrest me for doing that, y’all may well go on and arrest me. ‘Cause I done
         told him several times to quit smoking sittin’ right here. (State’s Exhibit 21-
         Part 002 at 1:37-2:08) 4.

4
    All time stamps correspond to the videos’ time stamps when played in Windows Media Player.
                                                                                            15
      After this initial statement, the officer asked D.W. what he was smoking and

the parties had the following exchange:

      Officer: What you smokin’ man?
      D.W.: [unintelligible]
      Appellant: I asked you several times like a couple days…
      Shawn: Really!
      Appellant: …ago. Yeah really!
      D.W: I didn’t even do nothin’!
      Appellant: What did you do when I asked you yesterday?
      Shawn: [unintelligible] I want to press charges. If he did this to…
      Appellant: Press charges. I don’t care!
      Shawn: my son…
      Appellant: You damn right ‘cause I asked you not to smoke right here!
      (State’s Exhibit 21- Part 002 at 2:09-2:28)

      Appellant further explained D.W. was—

      smokin’ a cigarette right there on my staircase and I’m smellin’ it as I’m
      comin’ up the steps…. Now I asked him yesterday. He did it again
      yesterday…Yeah, he lives here… but he don’t wanna listen… He don’t
      wanna listen. Point blank… I asked him to smoke just right here in the
      driveway… Now, he don’t wanna listen? Go ahead, take me in. (State’s
      Exhibit 21- Part 002 at 4:52-5:14 and State’s Exhibit 23- Part 001 at 1:53-
      2:14) (emphasis added)

      Appellant was clearly upset regarding the cigarette smoke as he again told

officers that he “asked [D.W.] several times to quit smokin’ in front of the stairs

‘cause the smoke comes right in the house… I don’t like smellin’ cigarette smoke.

(State’s Exhibit 23- Part 001 at 4:14-4:23) Appellant even told the 911 operator

that he had repeatedly asked D.W. not to smoke in front of the doorway. (State’s

Exhibit 7 at 0:12-0:17)


                                                                                16
      Appellant also told officers that D.W. wanted to “act grown,” that Shawn let

him do “what the [expletive] he wants,” including smoke marijuana, and that D.W.

had no life. (State’s Exhibit 21- Part 002 at 6:03-6:17) Appellant explained that

D.W. wanted to “[d]o what he want, he think he grown I did…Told his ass

yesterday, he did it. Sittin’ right there. Then he did it again today. Act like he don’t

wanna hear me?” (State’s Exhibit 21- Part 002 at 6:18-6:30) Appellant reiterated

“just let ‘em do what the hell they wanna do…what’s wrong with him now.

(State’s Exhibit 23-Part 001 at 4:31-4:37)

      Shortly before he was placed in the back of SAPD Officer Cuellar’s patrol

car, Appellant told officers that “he the only one in the house I have to deal with

hard because he don’t wanna listen. All the rest of ‘em listen. I ain’t gotta do all

that.” (4 RR at 97 and State’s Exhibit 23- Part 001 at 6:28-6:38) Appellant

concluded by saying he was not “gonna have [D.W.] keep disrespecting me in my

damn house.” (State’s Exhibit 23- Part 001 at 6:52)

      Messages Sent to Shawn

      The State introduced messages between Appellant and Shawn after the

incident. (7 RR at 20 and 22) In these messages, Appellant says, “Come get your

son ask not to smoke in front door an he done a again (sic).” (7 RR at 20) After

Shawn responded, “Ok,” Appellant told her that the police and ambulances were

on the way to the home. (7 RR at 20) When Shawn asked Appellant what he had


                                                                                     17
done, Appellant stated, “[s]ee it for yourself” and “[s]ee you when I get out jail

later (sic).” (7 RR at 22)

      Thus, the record is clear that Appellant did not like when D.W. smoked in

front of the house, that smoking had been a continuing source of conflict, and that

Appellant had asked D.W. not to smoke in front of the home the day before the

incident occurred. Appellant admitted he became upset when he smelled cigarette

smoke on February 11, 2016 and said that he waited for D.W. to finish smoking so

that he could confront him.

      Appellant’s testified that when he heard D.W. come inside, he got physically

close to him and then repeatedly asked D.W. why he had disobeyed him. When

D.W. disrespected Appellant by responding that he did not have to listen to him, a

physical confrontation ensued. Appellant said that his left hand “just reacted,”

causing him to knock D.W. unconscious and fall down the stairs. Appellant

testified he did not attempt to stop D.W. from falling down the stairs.

      Appellant’s anger is apparent in State’s Exhibit 21 when he begins yelling at

D.W. in front of the officers. Even Appellant concedes in his brief that the “two

police COBAN recordings… captured [Appellant] at a time of extreme agitation.”

(Appellant’s Brief at 24) Appellant’s own statements to officers at the scene

corroborated that he had struck D.W. out of anger and not self-defense. Appellant

repeatedly told the officers that D.W. did not want to listen to him and he was


                                                                                18
allowed to do whatever he wanted. Appellant also commented that he was not

going to continue to let D.W. disrespect him in his own house.

      Aside from reiterating that D.W. had disobeyed and disrespected him,

Appellant made additional statements that indicated he was teaching Appellant a

lesson rather than acting in self-defense. Appellant said that D.W. wanted to act

hard, so he “showed him hard.” Appellant said that D.W. was in the “only one in

the house” he had to “deal with hard” because he did not want to listen to

Appellant.

      Appellant’s statements to Shawn did not mention that he feared for any

physical danger from D.W. and only mentioned that D.W. had smoked outside of

the home again. Appellant’s statement that he would see Shawn when he got out of

jail also demonstrated that he knew he had done something wrong rather than acted

in self-defense. Appellant even mentioned that D.W. had disobeyed him by

smoking in front of the house on the 911 call.

      Here, the evidence at trial established that Appellant had struck D.W. out of

anger, rather than out of concern for or a threat of physical harm. Given the

overwhelming evidence that Appellant struck D.W. out of anger and not self-

defense, any error resulting from the trial court’s exclusion of the complained-of

evidence did not have a substantial or injurious effect or influence on the jury’s

verdict. See Rodriguez, 2013 Tex. App. LEXIS 14876 at *7 and *10 (concluding


                                                                                19
that “[t]he nature of the testimony supports the conclusion that Rodriguez slapped

Mireles not out of fear of bodily harm, but rather out of anger” and holding that the

trial court’s exclusion of the evidence was harmless error). Appellant’s second

point of error should be overruled.

         Evidence Establishing Self-Defense

         Appellant advanced a self-defense claim at trial. Though the trial court did

not permit Appellant to introduce evidence regarding the September 2015 incident,

Appellant introduced sufficient evidence to support his self-defense claim at trial.

Because Appellant put forth enough evidence of his self-defense claim at trial, the

trial court’s error in excluding evidence of the September 2015 incident was

harmless.

         The evidence supporting Appellant’s self-defense claim came from his

testimony and from statements he made to the 911 operator and officers at the

scene.

         Appellant’s Testimony

         Appellant said that D.W. got upset when he asked him to leave. (5 RR at 5)

Appellant stated that when he started getting closer to D.W., D.W. “actually

got…real aggressive with me to where he balled up his fists and started coming




                                                                                  20
towards me.” (4 RR at 150) Appellant testified that D.W. raised his arms as if to

punch him and drew back. (4 RR at 150-51)5

       When asked what Appellant thought was going to happen, Appellant

responded, “I felt like I was being hit – going to get hit, so I reacted before he did.”

(4 RR at 150) Later, Appellant testified that D.W. did actually swing at him. (5 RR

at 5) Appellant stated numerous times that D.W. “started to punch and my left

hand react.” (4 RR at 150 and 5 RR at 5) When Appellant saw that D.W. was

bleeding, he poured a cup of water on his face to rouse him. (5 RR at 5-6)

Appellant then called paramedics. (5 RR at 6)

       Appellant’s Statements

       Appellant also told officers that D.W. “pumped up to him and he said he

swung, he ducked, and I hit him.” (4 RR at 97-98) Appellant summarized the

incident, saying “he bucked up on me and I told him you, you, you got somethin’

coming. He swung, he ducked, I hit… Yep, he caught the wall… Yeah, one

blow… I had to pour water on his ass to wake him up. (State’s Exhibit 23- Part 001

4:40-5:02) During the 911 call, Appellant stated that he had a “young man that

tried to do some harm to” him. (State’s Exhibit 7 at 0:06-0:12)

       Appellant alleges that introduction of the September 2015 evidence was

necessary because the jury only received little “hints” regarding Appellant’s self-

5
 During the bill of exceptions, Appellant testified that D.W.’s behavior during this confrontation
differed from his behavior during the September 2015 incident. (6 RR at 8)
                                                                                               21
defense claim during the State’s case, so that he had to develop his justification

defense in his testimony. (Appellant’s Brief at 20) Appellant further argues that

without the evidence regarding the September 2015 incident, his actions “must

have appeared completely unjustified to the jury,” however, sufficient evidence of

justification was introduced at trial. (Appellant’s Brief at 23)

       The jury heard testimony that before Appellant struck D.W., D.W. began

coming toward him aggressively and balled up his fists. Appellant testified that,

from his perspective, D.W. appeared as if he was going to strike him, so he reacted

by striking him first. Jurors also heard Appellant’s statements to officers at the

scene that D.W. had “bucked up to him” and that D.W. had swung at Appellant.

Appellant received a jury charge regarding self-defense and Appellant’s counsel

argued same at closing. (5 RR at 22, 28, and 39-42)6

       Thus, there was sufficient evidence before the jury which would have

allowed them to consider Appellant’s self-defense claim. Because Appellant was

still permitted to advance his self-defense claim at trial even without the proffered

evidence, any error resulting from the trial court’s exclusion of same was harmless.

Appellant’s second point of error should be overruled.



6
  After hearing all of the evidence at trial, the jury was free to believe that Appellant did not act
in self-defense and, instead, struck D.W. out of anger. In light of all of the evidence adduced at
trial, the jury was in the best position to determine whether Appellant acted out of anger or
whether Appellant was acting in self-defense on February 11, 2016 and their finding should not
be disturbed on appeal.
                                                                                                  22
Third Point of Error

       In his third point of error, Appellant contends the trial court erred when it

implicitly overruled his objection to the trial court’s order that restitution be

determined by the probation department. Appellant argues he was entitled to a

restitution hearing before the court.

       A trial court is not permitted to delegate its authority to impose conditions of

community supervision. As such, the trial court abused its discretion by ordering

restitution without ordering an amount or designating a payee of same. The State

agrees that the proper remedy is to remand this cause for a restitution hearing

before the trial court.

Standard of Review

      On appeal, challenges to restitution orders are reviewed under an abuse of

discretion standard. Lemos v. State, 27 S.W.3d 42, 45 (Tex. App.—San Antonio

2000, pet. ref’d) (citing Cartwright v. State, 605 S.W.2d 287, 288-89 (Tex. Crim.

App. 1980)). A trial court abuses its discretion when it acts in an arbitrary or

unreasonable manner. Id. (citing Montgomery v. State, 810 S.W.2d 372, 380 (Tex.

Crim. App. 1990)).

Applicable Law and Application of Law to the Present Record

      The authority to impose conditions of probation on a defendant rests solely

with the trial court and cannot be delegated to the probation department or anyone


                                                                                    23
else. Tex. Code Crim. Proc. art. 10(a) (West 2015); DeLeon v. State, 466 S.W.2d

573, 574 (Tex. Crim. App. 1971). The State acknowledges that because the trial

court is not permitted to delegate its authority to impose conditions of probation, it

abused its discretion when it ordered “medical restitution, if any,” as a condition of

Appellant’s probation without determining the amount or recipients of same.

      As such, the State agrees with Appellant’s contention that the proper remedy

is to remand the case to the trial court for a restitution hearing in order to determine

the proper amount of restitution. See Burt v. State, 445 S.W.3d 752, 761 (Tex.

Crim. App. 2014) (holding that “it is appropriate to remand a case for a restitution

hearing when it is clear during the sentencing hearing that restitution will be

ordered, but the amount or recipients of restitution are not orally pronounced.”).




                                                                                     24
                                     PRAYER

      WHEREFORE, PREMISES CONSIDERED, the State of Texas submits that

the judgment of the trial court should, in all things, be AFFIRMED and that this

Court should remand the cause for a determination on restitution.

                                            Respectfully submitted,

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

                                            /s/ Jennifer Rossmeier Brown
                                            ______________________________
                                            Jennifer Rossmeier Brown
                                            Assistant Criminal District Attorney
                                            Bexar County, Texas
                                            Paul Elizondo Tower
                                            101 W. Nueva Street
                                             San Antonio, Texas 78205
                                            Phone: (210) 335-1546
                                            Email: jennifer.rossmeier@bexar.org
                                            State Bar No. 24079247

                                            Attorneys for the State




                                                                              25
                   CERTIFICATE OF SERVICE AND COMPLIANCE

      I, Jennifer Rossmeier Brown, hereby certify that the total number of words

in appellee’s brief is 6,169. I also certify that a true and correct copy of the above

and foregoing brief was served on the attorney of record on the 5th day of October,

2016 in the manner described below:

 Via E-Mail
 Michael D. Robbins
 101 W. Nueva St., Suite 370
 San Antonio, Texas 78205
 mrobbins@bexar.org



                                               /s/ Jennifer Rossmeier Brown
                                               ____________________________
                                               Jennifer Rossmeier Brown
                                               Assistant Criminal District Attorney




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