Elizondo v. State

541 S.W.3d 271
CourtCourt of Appeals of Texas
DecidedNovember 14, 2017
DocketNO. 14-16-00871-CR; NO. 14-16-00872-CR; NO. 14-16-00873-CR
StatusPublished
Cited by8 cases

This text of 541 S.W.3d 271 (Elizondo v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Elizondo v. State, 541 S.W.3d 271 (Tex. Ct. App. 2017).

Opinion

Kem Thompson Frost, Chief Justice

Convicted of three counts of aggravated robbery and sentenced to forty years' incarceration, appellant Antonio Thomas Elizondo challenges his sentence and seeks a new punishment hearing. He asserts that the trial judge considered evidence outside of the record and that by doing so, the trial judge did not act as a neutral officer. We address (1) the preservation-of-error requirement, an issue the Court of Criminal Appeals has yet to address in this context and (2) whether the record supports appellant's contention that the trial judge considered evidence outside the record. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant pled "guilty" to three counts of aggravated robbery and testified against two men charged with participating in the same offenses.

The events that led to the charges began with a casual friendship between appellant and one of the complainants, whom appellant met while the two worked together at a pizza place. Appellant gave the coworker rides because the coworker did not have a car. Because appellant was living out of appellant's car, the coworker, who lived with his mother and her boyfriend, offered to let appellant stay in their home. The coworker's mother also befriended appellant, offering him food and washing his clothing.

Appellant learned from the coworker that the coworker was expecting a large tax refund and that the coworker intended to use the proceeds to buy a used car. The coworker mentioned the refund while in the presence of appellant and two of appellant's associates whom the coworker did not know. Appellant and the two associates hatched a plan to rob the coworker. They *273planned to steal the coworker's newly-purchased car and any of the coworker's remaining tax-refund money.

The coworker collected his tax refund and a paycheck, receiving some of the funds in cash and loading the rest onto a debit card. Appellant drove the coworker to purchase the car. While the coworker was driving back, the newly purchased car broke down. Stranded on the highway, the coworker fell asleep in the car. A state trooper found the coworker asleep in the car, on the side of the highway, and realized there was an outstanding warrant for the coworker's arrest because the coworker had unpaid parking tickets. The trooper arrested the coworker and took him to jail.

Appellant and his two associates bonded the coworker out of jail. In the process, the two associates took possession of the property the coworker had turned over to police, including the coworker's debit card, onto which the coworker had loaded the proceeds from his paycheck and tax refund. At some point, the coworker got the broken-down vehicle to his mother's home. It was sitting in the driveway the next day when appellant dropped the coworker off after taking him on an excursion to Houston. Later the same day, appellant got together with the two associates and the three of them went to a store, where they bought duct tape, latex gloves, and plastic bags. The three also acquired two guns.

Appellant drove the two associates to the coworker's home, where they carried out the robbery. The three entered the home, waking up the coworker, the coworker's mother, and the coworker's mother's boyfriend. Appellant and the two associates dragged the coworker, the mother, and the boyfriend into the living room, where they bound them with duct tape and duct-taped plastic bags over their heads.

The coworker immediately gave up the keys to the car and all of the money he had, but appellant and the two associates said that the coworker, the mother, and the boyfriend knew too much and so appellant and the two associates would have to kill them. The coworker and his mother kept trying to get out of the duct tape. They were screaming. While the mother was fighting to escape, one of appellant's associates sexually assaulted her.

Appellant left the scene to buy gasoline. According to appellant, he went to get the gasoline to kill the coworker, the mother, and the boyfriend. The coworker and the mother both testified that appellant "was calling the shots" while these events unfolded.

While appellant was gone, the coworker managed to escape by breaking the duct tape and jumping from a window over a fence into a neighbor's yard. Appellant's associates shot the boyfriend and the mother. Then the associates began looking for the coworker, who was hiding outside. About that time, the associates heard sirens and fled. The associates called appellant, who was on his way back with gasoline, and told him what had happened and where they were hiding so that appellant could come get them.

Injured from the gunshots, the mother was transported by ambulance to a hospital, where she remained in a medically-induced coma for weeks. The coworker immediately told police appellant's identity and the police arrested appellant.

"Guilty" Plea

After appellant pled "guilty" and testified against the two associates, appellant elected to have the trial court assess punishment.

Punishment Hearing

At the punishment hearing, the mother testified that the gunshot wound she suffered *274left her paralyzed, unable to move anything below her chest. The injuries left the mother incontinent and almost completely dependent on others. The mother testified that her life span is greatly reduced and eventually she will die from her injuries. The coworker also testified. Both the coworker and the mother suffer from post-traumatic-stress disorder. The boyfriend did not testify at trial, but the record revealed he suffered a non-fatal gunshot wound.

Appellant's father testified that he had been helping appellant pay for college in the year before the offenses. Appellant testified that he withdrew from school after his grades suffered because he was using drugs and partying too much. Appellant asked his father if appellant could live with him, but the father refused the request because the father was in the process of divorcing appellant's stepmother. The father testified that appellant's mother had not been involved in appellant's life and the father thought appellant could be rehabilitated. Appellant expressed remorse.

The trial judge sentenced appellant to forty years' confinement in each case, with the sentences to run concurrently. Before sentencing appellant, the trial judge stated on the record the reasons for his decision. Appellant now challenges the sentence.

ISSUES AND ANALYSIS

Appellant asserts that the trial court violated his right to due process of law by considering evidence outside of the record in imposing appellant's sentence. Construing the briefing liberally, appellant also argues that the trial court's consideration of evidence outside the record shows that the judge was not neutral and detached.

Before sentencing appellant, the trial judge stated:

The testimony is such that it appears that the defendant, while not directly responsible for the gunshots, he had a high position of authority and responsibility in that outcome. It has every appearance that the defendant initiated the plan or at least was high up in the pecking order of the plan, picked the victim, gathered the coconspirators, was involved in all matters of that case. The defendant fully participated in the preparation of the robbery until right at the end.

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Cite This Page — Counsel Stack

Bluebook (online)
541 S.W.3d 271, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elizondo-v-state-texapp-2017.