                                                                                                         ACCEPTED
                                                                                                     01-15-00363-CR
                                                                                          FIRST COURT OF APPEALS
                                                                                                  HOUSTON, TEXAS
                                                                                               12/18/2015 3:03:50 PM
                                                                                               CHRISTOPHER PRINE
                                                                                                              CLERK
                            01-15-00363-CR
                CASE NO. 03-15-00177-CR, (TC# D-1-DC-14-201210)

                                                                                FILED IN
                        RUBEN MUNOZ VS. STATE OF TEXAS                   1st COURT OF APPEALS
                                                                             HOUSTON, TEXAS
                                                                         12/18/2015 3:03:50 PM
                            An Appeal following a trial from             CHRISTOPHER A. PRINE
                      The 147th District Court, Travis County, Texas              Clerk
                                No. D-1-DC-14-201210
                       Styled the State of Texas vs. Ruben Munoz

                                                                                FILED IN
                             REQUEST TO ABATE APPEAL                     1st COURT OF APPEALS
                                                                             HOUSTON, TEXAS
                                                                         12/18/2015 3:03:50 PM
                                                                         CHRISTOPHER A. PRINE
                                                                                  Clerk
To The Honorable Clerk of Said Court:


        Now comes Counsel on Appeal for Ruben Munoz, Appellant in the above styled
cause, and makes this his Request to Abate Appeal, and for good cause would show:



                                              I.

        Appellant was charged by indictment with two counts of homicide, count 1 was
murder, and count 2 was involuntary manslaughter. After a jury was seated on March 10,
2015, Appellant pled “not guilty” to count 1, and “guilty” to count 2. Upon a trial on the
merits of count 1, the Appellant was acquitted on March 10, 2015. A written
guilt/innocence verdict form on count 2 was not submitted to the jury. Nevertheless, the
trial court then began a sentencing hearing on count 2. In the court’s charge on
punishment, the jury was not provided a written form to make a finding of “true” as to the
punishment enhancement, nor did the jury make a deadly weapon finding (in fact the jury
found the deadly weapon special issue was “Not True” with respect to count 1).1
However, at the conclusion of that hearing, the Appellant was sentenced to 27 years in
the Texas Department of Corrections, with a deadly weapon finding, on March 11, 2015.
At no time did the jury enter a written finding of “guilt” as to count 2, a written finding of
“true” to the enhancement paragraph, or a written finding of “true” with respect to deadly
weapon to count 2.




1
 Appellant concedes that when asked, Appellant entered a plea of “true” to the
punishment enhancement allegation.
                                              II.


        After the trial, counsel on appeal timely brought these deficiencies to the trial
court’s attention in connection with a Supplemental Motion for New Sentencing Hearing
dated May 20, 2015. The trial court amended the court’s 3/12/15 judgment to change
both the stated “Plea to 1st Enhancement Paragraph” and the stated “Finding to 1st
Enhancement Paragraph” from “N/A” to “True,” (which amended judgment Nunc Pro
Tunc was filed on 5/22/15) and then the motion was overruled as a matter of law on or
about May 26, 2015.


                                             III.


        Appellant respectfully requests this Court to permanently abate this appeal, as
lacking in jurisdiction. There is no written verdict by the jury of count 2. “A "verdict" is
a written declaration by a jury of its decision of the issue submitted to it in the case.” Tx.
CCP. Art. 37.01. The Appellant, though he entered his plea to the jury, was not found
“guilty” or “not guilty” (of count 2) by the jury, yet was sentenced on count 2 by the jury,
in contravention of Tx. CCP Art. 37.07, Sec. 2 (a):


               “In all criminal cases, other than misdemeanor cases of which the justice
       court or municipal court has jurisdiction, which are tried before a jury on a plea of
       not guilty, the judge shall, before argument begins, first submit to the jury the
       issue of guilt or innocence of the defendant of the offense or offenses charged,
       without authorizing the jury to pass upon the punishment to be imposed.”


The trial court’s instructions did not order the jury to find the Appellant either “guilty” or
“not guilty” with respect to count 2, in contravention of Tx. CCP. 37.07 Sec. 1 ( c ):


       “If the charging instrument contains more than one count or if two or more
       offenses are consolidated for trial pursuant to Chapter 3 of the Penal Code, the
       jury shall be instructed to return a finding of guilty or not guilty in a separate
       verdict as to each count and offense submitted to them.”


        Furthermore, the trial court did not obtain a special issues finding on the issue of
deadly weapon with respect to count 2 from the jury. “When there are special pleas on
which a jury is to find they must say in their verdict that the allegations in such pleas are
true or untrue.” Tx. CCP 37.07 Sec. 1 (a). Nevertheless, the court entered a deadly
weapon finding in its judgment. In addition, the trial court did not obtain a finding of fact
on the (non-jurisdictional) punishment enhancement issue from the jury on count 2.2




                                     REQUEST FOR RELIEF


        Given the lack of a written verdict of “guilt” by the jury on count 2, and given the
failure of the jury to answer the special issue of enhancement with respect to count 2, and
given the failure of the jury to answer “true” to the special issue of “deadly weapon” with
respect to count 2, and then the subsequent sentencing of Appellant to a punishment -
enhanced range, and the nunc pro tunc entry by the trial court of a finding of deadly
weapon; Appellant requests that this Court permanently abate this appeal for lack of
jurisdiction and order the trial court to conduct further proceedings in accordance with
the law and its ruling, and other such relief as may be warranted by the law and the facts
of this case.

                                              Respectfully Submitted,

                                              _____/s/ Drew Phipps______
                                              Drew Phipps
                                              Attorney for Appellant
                                              7421 Burnet Rd. #288
                                              Austin, Texas 78757
                                              (512) 476-3111
                                              Bar # 15963050


                              CERTIFICATE OF SERVICE

      I, Drew Phipps, Attorney for Appellant, do certify that on this the 7h day of
December, 2015, a true and correct copy of the foregoing Appellant’s Request to Abate
Appeal was delivered by email to the Travis County District Attorney’s Office,
Blackwell-Thurman Criminal Justice Center, Austin, Texas 78701.


                                              ___/s/ Drew Phipps______
                                              Drew Phipps

       2
          The Appellant did have actual knowledge of the State’s intent to enhance and
did not object to the form of the jury instructions and verdict which included the
enhanced punishment range. In the punishment instructions, the Court instructed the jury
to find the enhanced punishment allegation to be “true,” but did not provide a form for
such finding to be made by the jury.
