                                                                                PD-0093-15
                                                               COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                             Transmitted 3/7/2015 10:27:37 PM
                                                               Accepted 3/10/2015 9:00:57 AM
                                                                                 ABEL ACOSTA
                             No. PD-0093-15                                              CLERK

                                  IN THE

               Court of Criminal Appeals
                        At Austin
                              __________

      AARON FRANK DOMANGUEX,
                              Appellant
                                    v.

             THE STATE OF TEXAS
                               Appellee
                               _________
                          Cause number 1388369
                    In the 262nd Judicial District Court
                         Of Harris County, Texas

                      Cause number 14-14-00122-CR
      In the Court of Appeals for the Fourteenth Judicial District
                               _________

Appellant’s Petition for Discretionary Review
                                __________

                                           KELLY ANN SMITH
                                           Texas Bar No. 00797867
                                           Kelly.A.Smith.06@gmail.com
   March 10, 2015                          P.O. Box 10751
                                           Houston, TX 77206
                                           281-734-0668

                                           Counsel for Appellant
                             Ground For Review


             The Court of Appeals erred by holding the trial court
             did not err by considering evidence of prior
             convictions which was admitted by an invalid
             stipulation.



                 Statement Regarding Oral Argument

Because this case involves important issues regarding this state's jurisprudence, the

appellant submits that oral argument would benefit this Court and pursuant to TEX.

R. APP. P. 68.4 (c), requests the opportunity to present oral argument.




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                                  No. PD-0093-15

                                      IN THE

                     Court of Criminal Appeals
                              At Austin
                                  __________

            AARON FRANK DOMANGUEX,
                                   Appellant
                                        v.

                    THE STATE OF TEXAS
                                   Appellee
                                   _________
                              Cause number 1388369
                        In the 262nd Judicial District Court
                             Of Harris County, Texas

                           Cause number 14-14-00122-CR
            In the Court of Appeals for the Fourteenth Judicial District

                                   _________
  Appellant’s Petition for Discretionary Review
TO THE COURT OF CRIMINAL APPEALS OF TEXAS:

      The appellant, by and through undersigned counsel, files this Petition for

Discretionary Review and urges this Court to grant discretionary review in this case

and in support demonstrates the following.




                                             ii
                      IDENTITY OF PARTIES AND COUNSEL


The Appellant has provided a complete list of all interested parties’ names below,

under TEX. R. APP. P. 68.4.

       The appellant or convicted person:
               Aaron Frank Domanguex                     Appellant


       Counsel for the appellant:
            Kelly Ann Smith               Counsel on appeal
                                           PO Box 10751
                                           Houston, Texas 77206
                                           Phone: (281) 734-0668
               David Garza                 Counsel at trial
                                           102 S Lockwood Drive
                                           Houston, Texas 77011
                                           Phone: (713) 228-4341

Counsel for the State:
               Devon Anderson             District Attorney of Harris County
                                           Harris County Criminal Justice Center
               James O'Donnell            Assistant District Attorney at trial
                                           Harris County Criminal Justice Center
                                           1201 Franklin, Suite 600
                                           Houston, Texas 77002
                                           Telephone: (713) 755-5800

Trial Judge:
               Hon. Denise Bradley  Presiding Judge of the 338th District Court




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                                            TABLE OF CONTENTS
                                                                                                                        Page

GROUND FOR REVIEW................................................................................................. I
STATEMENT REGARDING ORAL ARGUMENT ............................................................... I
IDENTITY OF PARTIES AND COUNSEL ....................................................................... III
INDEX OF AUTHORITIES.............................................................................................. V
STATEMENT OF THE CASE ...........................................................................................2
STATEMENT OF THE PROCEDURAL HISTORY ...............................................................2
GROUND FOR REVIEW .................................................................................................3
REASONS FOR REVIEW ................................................................................................3
PRAYER .......................................................................................................................6
CERTIFICATE OF COMPLIANCE & SERVICE ..................................................................7




                                                                   iv
                                           INDEX OF AUTHORITIES

Cases
Bryant v. State,
  187 S.W.3d 397 (Tex. Crim. App. 2005) ........................................................................ 5

Statutes
TEX. CODE CRIM. PROC. art. 1.15 ........................................................................................ 6
TEX. CODE CRIM. PROC. art. 37.07 ...................................................................................... 4

Rules
TEX. R. APP. P. 68.4.............................................................................................................. i
TEX. R. EVID. 404 ................................................................................................................ 4




                                                                      v
TO THE HONORABLE COURT OF APPEALS:

                           STATEMENT OF THE CASE

      The State accused the appellant of aggravated assault. (CR 9). The indictment

alleged that the Appellant caused bodily injury to Herman Jordan by striking Mr.

Jordan with a bat (CR 9). The indictment also alleged that the bat was a deadly

weapon (CR 9). The Appellant waived his right to a jury trial and pled guilty to the

indictment’s allegations. The Honorable Denise Bradley, Presiding Judge of the 262 nd

District Court of Harris County, Texas, held a punishment hearing then assessed the

Appellant’s punishment at eight years in prison (CR 92). The Appellant filed a notice

of appeal (CR 95).




                STATEMENT OF THE PROCEDURAL HISTORY

      The Fourteenth Court of Appeals affirmed the appellant’s conviction in Aaron

Frank Domanguex v. The State of Texas, No. 14-14-00122-CR, (Tex. App.—Houston

[14th Dist.] December 9, 2014). Neither party filed a motion for rehearing.




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                              GROUND FOR REVIEW

             The Court of Appeals erred by holding the trial court
             did not err by considering evidence of prior
             convictions which was admitted by an invalid
             stipulation.

                              REASONS FOR REVIEW


      The Appellant waived a jury trial and pled guilty to aggravated assault, then the

trial court assessed the Appellant’s punishment after considering a list of the

Appellant’s purported prior convictions, which were admitted as an invalid

stipulation. Because the stipulation was invalid, the trial court erred in considering

this stipulation when assessing the Appellant’s punishment and the court of appeals

erred by holding otherwise.

      Appellant waived a jury trial then pled guilty to aggravated assault (CR 79-80;

RR 5). The trial court conducted a punishment on January 14, 2014 (RR 5). At the

beginning of the hearing, the State informed the trial court: “we have a stipulation to

the [Appellant’s] priors” (RR 6). The State offered state’s exhibit #1, which was a

document entitled “Supplemental Notice of Intention to Use Evidence of Prior

Convictions and Extraneous Offenses” that the State had filed with the district clerk

(RR 6; State’s exhibit #1). State’s #1 is a list of convictions that the State intended to

use at trial and is an intended to comply with the Texas Rules of Evidence 404(b) &




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609 as well as Texas Code of Criminal Procedure 37.07. See TEX. R. EVID. 404 & 609;

TEX. CODE CRIM. PROC. art. 37.07.

      After the state offered exhibit #1, the Appellant stated he had no objection,

and the trial court admitted State’s exhibit #1 (RR 7).

      The following is evidence adduced during the punishment hearing. In May

2013, Herman Jordan was hanging out in a “trap house” smoking some crack (RR

10). The Appellant, with whom Mr. Jordan was acquainted, was in the “trap house”

also (RR 11-12, 22). Referring to the Appellant, Herman Jordan testified “He

whopped my ass with that bat.” (RR 13). Mr. Jordan testified that the Appellant hit

him in the head once with a bat because Mr. Jordan would not give the Appellant

money to buy drugs (RR 12-15, 17). As a result, Mr. Jordan suffered a temporary

vision loss, and the wound required three staples to close (RR 15-16).

      The Appellant acknowledged he plead guilty and admitted he hit Mr. Jordan.

But the Appellant claimed he hit Mr. Jordan not with a bat but with a table leg,

because Mr. Jordan owed the Appellant money (RR 27). The Appellant lost control

of himself (RR 27). The Appellant expressed remorse for hitting Mr. Jordan and said

the two were “good associates” (RR 30). The Appellant admitted he had two

previous felony convictions for which he served time in the county jail (RR 33).

      After both sides presented evidence, the Appellant asked the trial court to place

him on community supervision (RR 48-9). The State asked the trial court to sentence

the Appellant to ten years in prison (RR 50).

                                                4
       The trial court stated that she had an opportunity to review the Appellant’s

criminal history and assessed his punishment at eight years in prison (RR 51).

       The court of appeals erred by holding the Appellant’s “criminal history” based

upon an invalid stipulation was not erroneously admitted because the appellant

“acknowledged” them. It is true a defendant may stipulate to evidence against him,

and the stipulation is a kind of judicial admission. Bryant v. State, 187 S.W.3d 397, 400

(Tex. Crim. App. 2005). But State’s exhibit #1 is not a stipulation and is not actually

evidence of anything. State’s exhibit #1 did not provide any evidentiary support for

the State's punishment case, and the trial court should not have relied on it as proof of

the Appellant’s criminal history.

       In this case the purported stipulation did not state that the evidence would

prove the contents of the stipulation nor was it approved by the trial court in writing.

Thus it violated Article 1.15 of the Texas Code of Criminal Procedure, which, in

relevant part, states:



              No person can be convicted of a felony except upon
              the verdict of a jury duly rendered and recorded,
              unless the defendant, upon entering a plea, has in
              open court in person waived his right of trial by jury in
              writing in accordance with Articles 1.13 and 1.14....
              The evidence may be stipulated if the defendant in
              such case consents in writing, in open court, to waive
              the appearance, confrontation, and cross-examination
              of witnesses, and further consents either to an oral
              stipulation of the evidence and testimony or to the
              introduction of testimony by affidavits, written
              statements of witnesses, and any other documentary


                                                5
              evidence in support of the judgment of the court. Such
              waiver and consent must be approved by the court in
              writing, and be filed in the file of the papers of the
              cause.

TEX. CODE CRIM. PROC. art. 1.15.

       In this case, the “stipulation” regarding the Appellant’s prior criminal history

was deficient because it did not say that the evidence will prove the content of the

stipulation and was not approved by the trial court in writing. Furthermore, the

“stipulation” created no evidentiary support for the State's punishment case because

there was no agreement about the truthfulness of the evidence. State’s exhibit #1 is

merely notice of the state’s intention to use certain evidence at trial. Because state’s

exhibit #1 is not a valid stipulation, the trial court erred by relying on it as evidence of

the Appellant’s criminal history when assessing his punishment. The court of appeals

erred by holding the trial court did not err in considering appellant’s prior record in

assessing punishment

                                        PRAYER

       The appellant respectfully urges this Honorable Court to grant the Appellant’s

Petition for Discretionary Review.


                                                    ______ /s /___________________
                                                    KELLY ANN SMITH
                                                    Texas Bar No. 00797867




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                 CERTIFICATE OF COMPLIANCE & SERVICE

      Under TEX. R. APP. P. 9.4, 9.5 & 68.11, this certifies that this document contains

2243 words and the undersigned served a copy of this petition on the State of Texas and

the State Prosecuting Attorney at the following addresses:


      Devon Anderson                            Lisa C. McMinn
      Harris County District Attorney           P.O. Box 13046
      1201 Franklin, Suite 600                  Capitol Station
      Houston, Texas 77002                      Austin, Texas 78711
                                                (512) 463-1660




                                                   ______ /s /___________________
                                                   KELLY ANN SMITH
                                                   Texas Bar No. 00797867
                                                   P.O. Box 10752
                                                   Houston, TX 77206
                                                   281-734-0668




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Affirmed and Memorandum Opinion filed December 9, 2014.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00122-CR

                 AARON FRANK DOMANGUEX, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 262nd District Court
                           Harris County, Texas
                       Trial Court Cause No. 1388369

                 MEMORANDUM                      OPINION


      Appellant Aaron Frank Domanguex appeals his conviction for aggravated
assault with a deadly weapon. See Tex. Penal Code § 22.02. In a single issue
appellant argues the trial court erred in considering evidence of prior convictions,
which was admitted by an invalid stipulation. We affirm.

      Appellant pleaded guilty to aggravated assault with a deadly weapon without


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an agreement as to punishment. Following his guilty plea the trial court held a
hearing at which the complainant and appellant testified. At the beginning of the
hearing, the following discussion took place:

      MR. GARZA [defense counsel]: Your Honor, we do have some
      stipulations we’d like to introduce first, as far as records, any Brady
      material and any convictions and extraneous for the Defendant, also,
      Your Honor.
      MR. O’DONNELL [prosecutor]: That’s correct.
      THE COURT: You have a stipulation?
      MR. O’DONNELL: Yes, we have a stipulation to the Defendant’s
      priors. This is a list of the Defendant’s prior criminal history as well
      as relevant impeachable criminal history of the State’s witness.
      THE COURT: Okay. I guess, for purposes of this hearing, I’m going
      to mark the — and really you just, it’s just a Supplemental Notice of
      Intention to Use Evidence of Prior Convictions and Extraneous
      Offenses that were filed with the Court. So, for purposes of this
      hearing, I will mark it as State’s Exhibit No. 1.
      MR. O’DONNELL: That’s fine, Your Honor.
      THE COURT: Is there any objection then to State’s Exhibit No. 1?
      MR. GARZA: There is not, Your Honor.

      In his sole issue on appeal appellant argues the trial court erred in
considering State’s Exhibit No. 1 because it was an improper stipulation pursuant
to article 1.15 of the Texas Code of Criminal Procedure. Appellant argues that
because State’s Exhibit No. 1 was called a “stipulation” that article 1.15 applies to
the trial court’s consideration of the evidence.

      Article 1.15, entitled “Jury in felony,” provides:

      No person can be convicted of a felony except upon the verdict of a
      jury duly rendered and recorded, unless the defendant, upon entering a
      plea, has in open court in person waived his right of trial by jury in
      writing in accordance with Articles 1.13 and 1.14; provided, however,
      that it shall be necessary for the state to introduce evidence into the

                                           2
      record showing the guilt of the defendant and said evidence shall be
      accepted by the court as the basis for its judgment and in no event
      shall a person charged be convicted upon his plea without sufficient
      evidence to support the same. The evidence may be stipulated if the
      defendant in such case consents in writing, in open court, to waive the
      appearance, confrontation, and cross-examination of witnesses, and
      further consents either to an oral stipulation of the evidence and
      testimony or to the introduction of testimony by affidavits, written
      statements of witnesses, and any other documentary evidence in
      support of the judgment of the court. Such waiver and consent must
      be approved by the court in writing, and be filed in the file of the
      papers of the cause.

Tex. Code Crim. Proc. art. 1.15.

      This provision has been interpreted to require the proffer of evidence,
independent of a simple guilty plea, sufficient to establish culpability. Stringer v.
State, 241 S.W.3d 52, 58 (Tex. Crim. App. 2007). However, it has been held to
apply “where a felony-defendant the right to trial by jury at the guilt stage” of the
prosecution. Id. Appellant was not at the guilt stage of the prosecution when the
State introduced evidence of his prior convictions. Appellant had pleaded
guilty prior to the punishment hearing.

      Appellant further argues that the trial court erred in considering his “criminal
history” because State’s Exhibit No. 1 is not a valid stipulation. The stipulation,
entitled “Supplemental Notice of Intention to Use Evidence of Prior Convictions,”
contains a list of appellant’s known prior convictions, including two felony
convictions, 13 misdemeanor convictions, and one felony charge that was reduced
to a Class A misdemeanor. Three of the misdemeanor convictions were for assault.
Appellant testified to the two prior felony convictions contained in the stipulation
and admitted that he had “some assaults on [his] record.” On redirect examination
appellant acknowledged the prior misdemeanor and felony convictions.


                                          3
       “Regardless of the plea and whether the punishment be assessed by the
judge or the jury, evidence may be offered by the state and the defendant as to any
matter the court deems relevant to sentencing, including but not limited to the prior
criminal record of the defendant[.]” Tex. Crim. Proc. Code Ann. art. 37.07 §
3(a)(1). Whether evidence of appellant’s prior criminal record was admitted
through the “stipulation” or appellant’s testimony, the trial court did not err in
considering appellant’s prior record in assessing punishment. We overrule
appellant’s sole issue. See id.

      The judgment of the trial court is affirmed.



                                             PER CURIAM



Panel consists of Chief Justice Frost and Justices Christopher and Busby.
Do Not Publish — Tex. R. App. P. 47.2(b).




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