STATE'S RESPONSE BRIEF

IN THE COURT OF APPEALS FOR THE FIFTH COURT OF APPEALS DISTRICT ANGEL AGUILAR, 05-12-00219-CR APPELLANT V. NOS. & THE STATE OF TEXAS, APPELLEE 05-12-00220-CR 5th Court of Appeals FILED: 06/27/2012 14:00 Lisa Matz, Clerk APPEALED FROM CAUSE NUMBERS F10-45384 AND F10-45385 IN THE 265 TH JUDICIAL DISTRICT COURT OF DALLAS COUNTY, TEXAS; THE HONORABLE PAT MCDOWELL, JUDGE PRESIDING. STATE'S RESPONSE BRIEF CRAIG WATKINS Criminal District Attorney Dallas County, Texas MICHAEL R. CASILLAS, Assistant Criminal District Attorney, Chief Prosecutor - Appellate Division, Oral Argument is requested, 133 N. Riverfront Blvd., LB 19 but only if Appellant is Dallas, TX 75207-4399 also requesting argument. (214) 653-3600/ FAX (214) 653-3643 State Bar No. 03967500

TABLE OF CONTENTS TABLE OF AUTHORITIES...ii SUMMARY OF THE CASE...1 STATEMENT OF FACTS...2 SUMMARY OF STATE'S RESPONSIVE ARGUMENTS...................... 3 STATE S REPLY TO APPELLANT S FIRST POINT OF ERROR...4 The contentions in Appellant s first point of error entitle Appellant to no relief on appeal. Due to the fact that the record contains sufficient evidence in support of the trial court s entry of the deadly weapon finding, the trial court s deadly weapon finding should not be deleted from the judgment in cause number F10-45385. LEGAL AUTHORITY...4 APPLICATION...6 STATE S COMBINED REPLY TO APPELLANT S SECOND AND THIRD POINTS OF ERROR...11 Appellant is entitled to have the trial court s judgments reformed or modified in each of the ways Appellant has requested. LEGAL AUTHORITY...12 APPLICATION...12 CONCLUSION AND PRAYER...14 CERTIFICATE OF SERVICE...15 i

TABLE OF AUTHORITIES CASES PAGES Alexander v. State, 868 S.W.2d 356 (Tex. App. Dallas 1993, no pet.)............6,8 Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996)........................ 5 Coleman v. State, 145 S.W.3d 649 (Tex. Crim. App. 2004)....................... 9 Denbow v. State, No. 02-03-102-CR, 2004 Tex. App. LEXIS 7584 (Tex. App. Fort Worth August 24, 2004, pet. dism d untimely filed)(not designated for publication)............... 9,10 Dimas v. State, 987 S.W.2d 152 (Tex. App. Fort Worth 1999, pet. ref d)...9 Dinnery v. State, 592 S.W.2d 343 (Tex. Crim. App. 1980)(op. on reh g).........5,6,8 Edwards v. State, 835 S.W.2d 660 (Tex. App. Dallas 1992, no pet.)..............6,8 Ex Parte Martin, 747 S.W.2d 789 (Tex. Crim. App. 1988).....................5,6,7 Green v. State, 934 S.W.2d 92 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1200 (1997)....7 Haynes v. State, 43 S.W.2d 617 (1940)(op. on reh g)...........................10 Hill v. State, No. 05-07-00727-CR, 2008 Tex. App. LEXIS 3600 (Tex. App. - Dallas May 19, 2008, no pet.)(not designated for publication)......................5,6,7 Jackson v. Virginia, 443 U.S. 307 (1979)....5 Keller v. State, 125 S.W.3d 600 (Tex. st App. Houston [1 Dist.] 2003, pet. dism d)........................... Lewis v. State, 911 S.W.2d 1 (Tex. Crim. App. 1995)...........................7.6,8 ii

Messer v. State, 757 S.W.2d 820 (Tex. App. st Houston [1 Dist.] 1988, pet. ref d).....8 Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991)....................7 O Brien v. State, 154 S.W.3d 908 (Tex. App. Dallas 2005, no pet.)...5,6 Patterson v. State, 769 S.W.2d 938 (Tex. Crim. App. 1989)....................... 9 Powell v. State, 898 S.W.2d 821 (Tex. Crim. App. 1994), cert. denied, 516 U.S. 991 (1995)....7 Rankin v. State, 953 S.W.2d 740 (Tex. Crim. App. 1996)........................9 Reissig v. State, 929 S.W.2d 109 (Tex. App. th Houston [14 Dist.] 1996, pet. ref d)....8 Rogers v. State, 853 S.W.2d 29 (Tex. Crim. App.1993)..........................7 ARTICLES, CODES, RULES, and CONSTITUTIONS: Tex. Code Crim. P. art. 1.15....4,5,6 iii

TO THE HONORABLE COURT OF APPEALS: The instant brief in response to the brief of Appellant, Angel Aguilar, is filed on behalf of Craig Watkins, the Criminal District Attorney of Dallas County, Texas. SUMMARY OF THE CASE In regard to two different instances, Appellant was charged via two separate indictments with having delivered between 4 and 200 grams of heroin and with having 1 possessed heroin with the intent to deliver it. (CR-1: 9; CR-2: 8). The indictment returned in regard to the latter charge alleged that a deadly weapon, to-wit: a firearm had been used in the commission of the crime. (CR-2: 8). Without the benefit of any plea bargain agreement, Appellant entered open guilty pleas to the charged offenses. (CR-1: 8, 47-48, 55-57; CR-2: 7, 20-21, 25-27; RR: 4-5, 8-9). Appellant executed judicial confessions that were contained within the actual sets of open plea documents and executed second, separate, written judicial confessions admitting not only his guilt of the crimes charged, but also the truth of the deadly weapon allegation contained in the second indictment. (CR-1: 53, 55-57; CR-2: 23, 25-27). During the punishment phase, the trial court heard testimony from a police officer and from Appellant himself. (RR: 10-29). After hearing the arguments of the parties, the trial court found Appellant guilty of both offenses, sentenced him to imprisonment for a period of eight years, and made clear that a deadly weapon finding was being entered in the latter 1 The abbreviations CR-1 and CR-2 refer respectively to the Clerk s Records filed in cause numbers F10-45384 and F10-45385. 1

case. (CR-1: 8, 47-48, 57-60; CR-2: 7, 20-21, 27-29; RR: 32-33). The judgment entered by the trial court in cause number F10-45385 included a deadly weapon affirmative finding. (CR-2: 28-29). STATEMENT OF FACTS Undercover police officer Justin Lawrence was involved with making three drug purchases from Appellant and Appellant s brother. (RR: 11-12, 15-17). While the first such purchase involved a gram of heroin, the second which occurred on August 3, 2010 involved the purchase of ten grams and was completed in the motel room Appellant and his brother were using. (RR: 12, 17). During the second transaction, Officer Lawrence saw Appellant holding a.380 pistol that had a silver chrome finish. (RR: 11-12). The third drug transaction then occurred on August 5, 2010 and resulted in the arrest of Appellant and Appellant s brother. (RR: 13-14). The record indicates that Appellant had approximately 5 grams of drugs when he was arrested. (RR: 17-18). After having arrested Appellant and Appellant s brother, Officer Lawrence secured the issuance of a search warrant and searched the same motel room in which Appellant had been seen holding the gun with the silver chrome finish. (RR: 13-15). In searching the motel room, the same gun that Appellant had held was recovered, as well as an additional quantity of heroin. (RR: 13-14, 18-20). While a total of some 22 grams of controlled substance was recovered as a result of the events of August 5, 2010, the record indicates that the bulk of the 22 grams was recovered from the motel room in which the silver chrome handgun was also 2

found. (RR: 18-20). According to Officer Lawrence, Appellant told another officer that the gun was his. (RR: 19-20). Appellant himself admitted that his having the gun had provided a level of security for the drug dealing in which he was engaged with his brother. (RR: 22-27). SUMMARY OF STATE'S RESPONSIVE ARGUMENTS State's Reply to Appellant's First Point of Error: The contentions in Appellant s first point of error entitle Appellant to no relief on appeal. Due to the fact that the record contains sufficient evidence in support of the trial court s entry of the deadly weapon finding in the judgment of conviction for cause number F10-45385, the deadly weapon finding should not be deleted from the judgment in cause number F10-45385. State's Combined Reply to Appellant's Second and Third Points of Error: Appellant is entitled to have the trial court s judgments reformed or modified in each of the ways Appellant has requested. 3

STATE'S REPLY TO APPELLANT S FIRST POINT OF ERROR: Appellant s contentions: In his first point of error, Appellant contends that the deadly weapon should be deleted from the trial court s judgment in cause number F10-45385. (Appellant s Brief at pp. iii, 1, 4-6). State s responses: The contentions in Appellant s first point of error entitle Appellant to no relief on appeal. Due to the fact that the record contains sufficient evidence in support of the trial court s entry of the deadly weapon finding in the judgment of conviction in cause number F10-45385, the deadly weapon affirmative finding should not be deleted from the judgment in cause number F10-45385. LEGAL AUTHORITY While Tex. Code Crim. P. art. 1.15 is statutory authority that permits defendants to enter pleas of guilty and nolo contendere, a portion of the article expressly states, [T]hat it shall be necessary for the state to introduce evidence into the record showing the guilt of the defendant... and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same. Tex. Code Crim. P. art. 1.15. According to the manner in which Tex. Code Crim. P. art 1.15 has been interpreted, a defendant s waiver of his right to a jury trial and entry of plea of guilty or nolo contendere does not relieve the State from the requirement that sufficient evidence to support the plea and establish the 4

defendant s guilt must still be introduced into the record. See Hill v. State, No. 05-07-00727- CR, 2008 Tex. App. LEXIS 3600, at *2 (Tex. App. - Dallas May 19, 2008, no pet.)(not designated for publication). While the evidence need not be sufficient to prove the defendant s guilt beyond a reasonable doubt, it must embrace every essential element of the offense charged in order to be sufficient. See Stone v. State, 919 S.W.2d 424, 427 (Tex. Crim. App. 1996); Ex Parte Martin, 747 S.W.2d 789, 792-93 (Tex. Crim. App. 1988). In reviewing the sufficiency of the State s evidence to support a plea of guilty or nolo contendere, the appellate court does not apply the standards for conducting a legal sufficiency review under Jackson v. Virginia, 443 U.S. 307 (1979) or the standards that were formerly used for conducting a factual sufficiency review under Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996) and its progeny. See, e.g., Ex Parte Martin, 747 S.W.2d at 791; O Brien v. State, 154 S.W.3d 908, 910 (Tex. App. Dallas 2005, no pet.); see also, e.g., Hill, No. 05-07-00727-CR, 2008 Tex. App. LEXIS 3600, at *1-2. Instead, the appellate court reviews the record only to make certain that the evidence introduced in support of the defendant s plea embraces every essential element of the crime charged. See Stone, 919 S.W.2d at 427; Ex Parte Martin, 747 S.W.2d at 792-93; see also, e.g., Hill, No. 05-07-00727- CR, 2008 Tex. App. LEXIS 3600, at *2-3. A defendant s judicial confession, standing alone, constitutes sufficient evidence to sustain a conviction on a guilty plea and to satisfy the requirements of Tex. Code Crim. P. art. 1.15. See Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. 1980)(op. on reh g); 5

Edwards v. State, 835 S.W.2d 660, 664 (Tex. App. Dallas 1992, no pet.). Moreover, no other evidence corroborating the judicial confession need be introduced in order to satisfy the requirements of Tex. Code Crim. P. art. 1.15. See Dinnery, 592 S.W.2d 352-54. Also defendant s judicial confession by itself constitutes sufficient evidence justifying a trial court s issuance of a judgment that includes a deadly weapon affirmative finding. See Alexander v. State, 868 S.W.2d 356, 360 (Tex. App. Dallas 1993, no pet.); see also, Keller st v. State, 125 S.W.3d 600, 605 (Tex. App. Houston [1 Dist.] 2003, pet. dism d). APPLICATION Appellant contends that the deadly weapon affirmative finding contained in the judgment in cause number F10-45385 should be deleted. (Appellant s Brief at pp. iii, 1, 4-6). Appellant s argument is based on the testimony of Officer Lawrence that Appellant was not possessing the firearm when he was arrested in regard to the offense of August 5, 2010. (Id. at pp. 9-10). Appellant, however, is incorrect regarding his assertion that the deadly weapon finding should be deleted from the judgment in cause number F10-45385 because there was more than sufficient evidence to justify the trial court s inclusion of the deadly weapon finding in the judgment in cause number F10-45385. Since Appellant pled guilty, the State was not even required to produce evidence that proved Appellant s guilt or the use of a deadly weapon beyond a reasonable doubt. See, e.g., Ex Parte Martin, 747 S.W.2d at 791; O Brien, 154 S.W.3d at 910; see also, e.g., Hill, No. 05-07-00727-CR, 2008 Tex. App. LEXIS 3600, at *1-2. In light of Appellant s guilty plea, the 6

State at most needed to introduce evidence that embraced every essential element of the offense charged. See Stone, 919 S.W.2d at 427; Ex Parte Martin, 747 S.W.2d at 792-93; see also, e.g., Hill, No. 05-07-00727-CR, 2008 Tex. App. LEXIS 3600, at *2-3. Furthermore, the State introduced evidence that was more than sufficient under the law. Finally, the trial court s decision to issue a judgment containing a deadly weapon affirmative finding does not constitute an abuse of discretion unless the decision is reached without reference to any guiding rules or principles such that it is so arbitrary and capricious as to fall outside the zone within which reasonable minds can disagree. See, e.g., Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1200 (1997); Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995); Powell v. State, 898 S.W.2d 821, 826 (Tex. Crim. App. 1994), cert. denied, 516 U.S. 991 (1995); Rogers v. State, 853 S.W.2d 29, 32 (Tex. Crim. App.1993); Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1991). Appellant actually executed a sum total of two written judicial confessions in regard to the offense charged in cause number F10-45385. (CR-2: 23, 25-26). While the judicial confession contained within the set of plea documents merely admits that the crime was committed exactly as it had been alleged in the indictment, the other judicial confession tracks the language of the indictment and includes an admission that a firearm was used in the commission of the offense. (CR-2: 23, 25-26). Since Appellant executed a judicial confession that tracked the language of the indictment, Appellant expressly admitted thereby that a firearm had been used in the commission of the offense charged under cause number 7

F10-45385. (CR-2: 23, 25-26). Either of Appellant s judicial confessions, standing alone, constituted sufficient evidence in support of the trial court s issuance of a judgment that included the deadly weapon affirmative finding. See Dinnery, 592 S.W.2d at 353; Keller, 125 S.W.3d at 605; Alexander, 868 S.W.2d at 360; Edwards, 835 S.W.2d at 664. Accordingly, the presence of two such judicial confessions in regard to the offense charged in cause number F10-4585 provides more than sufficient evidence regarding the trial court s issuance of a judgment that contained a deadly weapon affirmative finding, such that the deadly weapon finding should not be deleted from the judgment in cause number F10-45385. While Appellant seeks to persuade this Court that the deadly weapon finding should be deleted based on the testimony developed during the punishment phase, the trial court, acting in it role as exclusive trier of fact, was not required to find the testimony more credible or persuasive than Appellant s written judicial confessions. See, e.g., Reissig v. State, 929 th S.W.2d 109, 113 (Tex. App. Houston [14 Dist.] 1996, pet. ref d)(trial court acting as fact finder not required to believe even uncontradicted assertions of witness); Messer v. State, st 757 S.W.2d 820, 828 (Tex. App. Houston [1 Dist.] 1988, pet. ref d). Additionally, all the testimony developed actually provided sufficient circumstantial proof in support of the trial court s entry of the deadly weapon finding. It is undisputed that the testimony established that, on August 5, 2010, approximately five grams of drugs were found in direct connection with Appellant s arrest and a separate amount thereof (that was the bulk of the 22 total grams recovered) was found from searching 8

the motel room from which Appellant and his brother had been conducting their drug transactions. (RR: 18-20). While the indictment in cause number F10-45385 did relate to the offense that had been committed on or about August 5, 2010 and did charge an offense based on possessing controlled substances in an amount between 4 and 200 grams, the indictment did not specify that it was charging only the amount of drugs directly found in connection with Appellant s arrest or only the amount found as a result of searching Appellant s motel room (or a combination of both). (CR-2: 8). Acting as the trier of fact, the trial court could have found Appellant guilty of the crime charged based on Appellant s possession of the drugs recovered from the motel or the drugs found at the time Appellant was arrested (or both). See, e.g., Rankin v. State, 953 S.W.2d 740, 741 (Tex. Crim. App. 1996). Additionally, the indictment alleged that Appellant had used or exhibited the deadly weapon. (CR-2: 8). The law is clear that, in cases where a firearm was allegedly used in conjunction with the possession of drugs, controlled substances, or contraband, a deadly weapon finding may properly be entered not only where the firearm was actively exhibited during the commission of the offense, but also where the firearm was merely used in the sense of being merely possessed, so long as the mere possession of the firearm facilitated the associated felony offense of possessing the contraband in question. See Coleman v. State, 145 S.W.3d 649, 652 (Tex. Crim. App. 2004); Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989); Dimas v. State, 987 S.W.2d 152, 153-55 (Tex. App. Fort Worth 1999, pet. ref d); see also, Denbow v. State, No. 02-03-102-CR, 2004 Tex. App. LEXIS 7584, at 9

*11 (Tex. App. Fort Worth September 24, 2004, pet. dism d untimely filed)(not designated for publication). The trial court knew that Appellant had literally held the gun in regard to the crime he had committed just two days earlier on August 3, 2010 and that Appellant had admitted that his possession of the gun provided security relative to the drug sales transactions he and his brother were conducting. (RR: 11-12, 27-30). Accordingly, the circumstantial evidence from the record as a whole provided more than sufficient proof from which the trial court could have rationally concluded that Appellant had possessed the gun on August 5, 2010 and that Appellant s possession of the gun had facilitated Appellant s possession of the drugs found in the motel room, as well as those which he had taken with him when he left the motel room and was subsequently arrested. (RR: 18). See, e.g., Haynes v. State, 43 S.W.2d 617, 619 (1940)(op. on reh g)(any fact may be proven by circumstantial evidence). Since the record contains sufficient evidence that more than justified the trial court s entry of the deadly weapon finding relative to the offense charged in cause number F10-45385, the deadly weapon finding should not be deleted from the judgment rendered in cause number F10-45385. Finally, the fact that the law grants the trial court the discretion to refrain from making a deadly weapon affirmative finding even where the evidence in support thereof is sufficient as a matter of law in no way compels any conclusion that the trial court in this case erred and abused its discretion by issuing the judgment in cause number F10-45385 which contained 10

a deadly weapon affirmative finding. The mere fact that the law permits a trial court to exercise its discretion so as to refrain from making a deadly weapon affirmative finding constitutes no legal authority for concluding that a trial court abuses its discretion when it refuses to refrain from making a deadly weapon affirmative finding when sufficient evidence exists in support of making the deadly weapon affirmative finding. For all the aforementioned reasons and because the record contains evidence that is far more than sufficient regarding the trial court s decision to issue a judgment in cause number F10-45385 that included a deadly weapon affirmative finding, the trial court neither erred nor abused its discretion in issuing the judgment in cause number F10-45385 which included the deadly weapon affirmative finding. Accordingly, the deadly weapon finding should not be deleted from the judgment in cause number F10-45385 and Appellant s first point of error should be overruled. Appellant s contentions: STATE'S COMBINED REPLY TO APPELLANT S SECOND AND THIRD POINTS OF ERROR: In his second and third points of error, Appellant contends that the trial court s judgment in each case must be reformed or modified to reflect that there was no plea bargain agreement. (Appellant s Brief at pp. iii, 2, 7-8). State s responses: Appellant is entitled to have the trial court s judgments reformed or modified in each 11

of the ways Appellant has requested. LEGAL AUTHORITY When the record of the proceedings in the trial court contains the information necessary to ascertain that the trial court s judgment is incorrect as well as that necessary to permit an accurate correction to be made to the trial court s judgment, the intermediate appellate court has the authority to order that the trial court s judgment be reformed. Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); Abron v. State, 997 S.W.2d 281, 282 (Tex. App. Dallas 1998, pet. ref d). In short, An appellate court has the power to correct and reform a trial court judgment to make the record speak the truth when it has the necessary data and information to do so, or make any appropriate order as the law and nature of the case may require. Nolan v. State, 39 S.W.3d 697, 698 st (Tex. App. Houston [1 Dist.] 2001, no pet.), quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex. App. Dallas 1991, pet. ref d). APPLICATION In his second and third points of error, Appellant contends that the trial court s judgment in each case must be reformed or modified to reflect that there was no plea bargain agreement. (Appellant s Brief at pp. iii, 2, 7-8). A review of the trial court s judgment in each case reveals that Appellant has accurately characterized the contents thereof and that the judgments at the very least imply that a plea bargain agreement had been reached by Appellant and the State. (CR-1: 12

58-60; CR-2: 28-29). However, the remainder of the documents contained in the Clerk s Records for each case make it totally clear that, in each case, Appellant entered an open guilty plea without the benefit of any plea bargain agreement. (CR-1: 8, 47-48, 55-57; CR-2: 7, 20-21, 25-27). Additionally, it is undisputed that the Reporter s Record reflects that no plea bargain agreement of any type was reached and that Appellant entered open guilty pleas in regard to the charges contained in both indictments. (RR: 4-6, 8-9). In light of all the aforementioned undisputed facts reflected in the appellate record and the fact that Appellant is asking this Court to modify or reform the judgment to reflect the truth in regard to how there was no plea bargain agreement between the parties in both cases, Appellant is correct in his assertions that both judgments incorrectly reflect that there was a plea bargain agreement between Appellant and the State. See Tex. R. App. P. 43.2(b); Bigley, 865 S.W.2d at 27; Abron, 997 S.W.2d at 282. In short, the trial court s judgment in each case should be reformed to reflect the truth regarding how Appellant entered an open guilty plea in each case and how no plea bargain agreement existed in the two cases. See Nolan, 39 S.W.3d at 698; Asberry, 813 S.W.2d at 529. For all the aforementioned reasons, Appellant should be afforded the relief he has requested in his second and third points of error. 13

CONCLUSION AND PRAYER The record reflects sufficient evidence in support of the trial court s decision to issue a judgment in cause number F10-45385 which included a deadly weapon affirmative finding. Accordingly, the deadly weapon finding should not be deleted from the judgment in cause number F10-45385. While the State prays that this Court will reform or modify the judgments in both cases to make clear that no plea bargain agreement existed in the two cases, the State also prays that this Court will affirm the entirety of both of the trial court s judgments of conviction as modified or reformed. Respectfully submitted, CRAIG WATKINS Criminal District Attorney Dallas County, Texas MICHAEL R. CASILLAS, Assistant Criminal District Attorney, Chief Prosecutor - Appellate Division 133 N. Riverfront Blvd., LB 19 Dallas, Texas 75207-4399 (214) 653-3600/FAX (214) 653-3643 State Bar No. 03967500 14

CERTIFICATE OF SERVICE A true copy of the State's Response Brief has been served on opposing counsel, the Hon. Katherine A. Drew, Assistant Public Defender/Chief Appellate Public Defender, 133 N. Riverfront Blvd., LB 2, Dallas, Texas 75207 by delivering said copy by hand to the Office of the Dallas County Public Defender, no later than June 29, 2012 and by e-mailing an electronically-formatted copy of said brief no later than June 29, 2012. MICHAEL R. CASILLAS 15