         FILED IN
                                                                                               PD-.1039-14
                                                                             COURT OF CRIMINAL APPEALS
COURT OF CRIMINAL APPEALS
                                                                                              AUSTIN, TEXAS
       March 12,2015                                                       Transmitted 3/11/2015 3:54:30 PM
                                                                             Accepted 3/12/2015 9:11:00 AM
   ABEL ACOSTA. CLERK                                                                         ABEL ACOSTA
                                         NO. PD-1039-14                                             CLERK



                                                                                      ncte-    <xf a-


                         Jit th* C&ourt of (EnmtedAm»abirf®exa2S ^ <&*<"**~j^~

                                Jose Guadalupe Rodriguez Elizondo,
                                               Appellant


                                                    v.



                                            State of Texas,
                                                Appellee



                                 On Petition for Discretionary Review
                                    From Cause No. 13-12-00028-CR
                                  in the Thirteenth Court of Appeals,
                                   Reviewing Cause No. CR-3485-10-I
                        398th Judicial District Court of Hidalgo County, Texas
                             Hon. Linda R. Yanez Presiding by Assignment



               APPELLANT'S UNOPPOSED MOTION FOR LEAVE TO
                AMEND PETITION FOR DISCRETIONARY REVIEW


             TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:


                       Appellant, Jose Guadalupe Rodriguez Elizondo, respectfully requests

             leave to amend his petition for discretionary review to correct an error and

             respectfully shows:

                       On September 29, 2014, Appellant filed a petition for discretionary

             review.      On January 28, 2015, the Court granted Appellant's petition for
discretionary review and requested briefing on the merits on the second and

third grounds for review, relating to sufficiency of the evidence and jury

charge errors.

      While preparing Appellant's Brief on the Merits, the undersigned

counsel, for the first time, recognized an error in the court of appeals'

decision that was inadvertently carried forward in Appellant's petition for

discretionary review. Appellant requests leave to correct that error in the

petition. Appellant has conferred with counsel for the State of Texas, who

has indicated that the State is not opposed to the relief requested in this

motion.


      In the court of appeals below, Appellant raised five jury charge errors.

Specifically, one of the errors Appellant raised below was that the jury

charge erroneously instructed the jury that if it found that Appellant

provoked an altercation, it should find the defendant "guilty of murder."

Appellant's Brief at p. 45. In the statement of facts, Appellant informed the

court of appeals that this error was not objected to in the trial court.

Appellant's Brief at p. 20. Appellant argued in his brief that "[t]he jury

should have been instructed, however, that if it found provocation, it should

reject self-defense." Appellant's Brief at p. 45. Because of the unobjected-
to charge error, the undersigned counsel argued that Appellant suffered

egregious harm under the Almanza standard. Appellant's Brief at 42, 47.

      The Appellant's Brief was filed in the Thirteenth Court of Appeals on

October 12, 2012. The Thirteenth Court of Appeals issued its decision in the

case on January 16, 2014. In the court's opinion, the Thirteenth Court of

Appeals erroneously concluded that Appellant's trial counsel objected to the

jury charge and purported to quote the objection: "At-trial, Elizondo argued

that 'the jury should have been instructed, however, that if it found

provocation, it should reject self-defense.'" Elizondo v. State, No. 13-12-

00028-CR, 2014 WL 222834, at *9 (Tex. App.—Corpus Christi Jan. 16,

2014, pet. granted).

      The undersigned counsel prepared motions for rehearing and for

reconsideration en banc, but did not notice this error in the Thirteenth Court

of Appeals' opinion. The undersigned counsel likewise did not recognize

the error when preparing Appellant's Petition for Discretionary Review. As

a result, the Petition states: "Defense counsel did object to this error, but

again, while the court of appeals agreed that the instruction was erroneous,

the court found no harm. Elizondo, 2014 WL 222834, at *9."                The

undersigned counsel, relying on the court of appeals opinion and not
recognizing the error, inadvertently carried the error forward into the petition

for discretionary review.

       It was not until preparing the brief on the merits that the undersigned

counsel recognized that the court of appeals erred in determining that this

particular charge error was preserved by objection in the district court. As a

result, the error was repeated in the petition for discretionary review.

       While preservation of the error changes the degree of harm that must

be shown from the erroneous jury charge, the factors for analyzing that harm

are the same.1 And, "[njeither party bears the burden on appeal to prove

harm or harmlessness."2 Despite the error, the argument Appellant raises

will be essentially the same: whether under a standard of "some harm" or

"egregious harm," the court of appeals wholly failed to consider the

Almanza factors.          See Petition for Discretionary Review at 14 ("In

addressing these two charge errors, while paying lip service to the applicable




        1 Villarrealv. State, No. PD-0332-13, 2015 WL 458146, at *3 (Tex. Crim. App.
Feb. 4, 2015) (analyzing Almanza factors when reviewing for egregious harm); Vogel v.
State, No. PD-0873-13, 2014 WL 5394605, at *4 (Tex. Crim. App. Sept. 17, 2014)
(analyzing Almanza factors when reviewing -for "some harm"); Reeves v. State, 420
S.W.3d 812, 817 (Tex. Crim. App. 2013) (same); Bailey v. State, 867 S.W.2d 42, 43
(Tex. Crim. App. 1993) ("Rather, every charge error must be assessed in light of 'the
entire jury charge, the state of the evidence, including the contested issues and weight of
probative evidence, the arguments of counsel and any other relevant information revealed
by the record of the trial as a whole.'").
        2 Vogel, 2014 WL 5394605, at *4.
standard of review, the court of appeals did not engage in any analysis at

all.").

          However, the undersigned counsel believes that to comply with her

duty of candor to this Honorable tribunal, the error must be corrected in her

petition for discretionary review. The undersigned profusely apologizes for

the oversight. The undersigned counsel will address the proper standard of

review in Appellant's brief on the merits.

          For all the foregoing reasons, Appellant's undersigned counsel

respectfully apologizes for the error in Appellant's petition for discretionary

review and requests leave to amend the petition. A copy of the amended

petition is being filed concurrently with this motion.


                                        Respectfully submitted,

                                        /s/ Brandy Wingate Voss
                                        Brandy Wingate Voss
                                        State Bar No. 24037046
                                        Smith Law Group, P.C.
                                        820 E. Hackberry Ave.
                                        McAllen, TX 78501
                                        (956) 683-6330
                                        (956) 225-0406 (fax)
                                        brandy@appealsplus.com

                                        Counselfor Appellant
                   CERTIFICATE OF CONFERENCE


      I certify that on March 11, 2015,1 conferred with John Messinger and

Michael Morris, counsel for Appellee the State of Texas, who informed me

that the Appellee does not oppose the relief requested in this motion.

                                          /s/ Brandy Wingate Voss
                                          Brandy Wingate Voss


                      CERTIFICATE OF SERVICE

      I certify that on March 11, 2015, in compliance with Texas Rule of

Appellate Procedure 9.5,1 served this document on the following counsel of

record by electronic mail and/or by facsimile:

      Lisa C. McMinn
      John R. Messinger
      State Prosecuting Attorneys
      Office of State Prosecuting Attorney of Texas
      P. O. Box 13046
      Austin, Texas 78711-3046
      Fax:(512)463-5724

      Ted Hake
      Michael Morris
      Assistant District Attorney
      Appeals Section
      Office of Criminal District Attorney
      Hidalgo County, Texas
      100 N. Closner, Rm 303
      Edinburg, Texas 78539
      Fax: (956) 380-0407
      ted.hake@da.co.hidalgo.tx.us
      michael.moms@da.co.hidalgo.tx.us

                                          /s/ Brandy Wingate Voss
                                          Brandy Wingate Voss
