PD-0372-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 8/17/2015 10:05:32 PM Accepted 8/18/2015 8:09:55 AM August 18, 2015 ABEL ACOSTA NO. PD-0372-15 CLERK
IN THE
COURT OF CRIMINAL APPEALS OF TEXAS AUSTIN, TEXAS
LUIS SANCHEZ APPELLANT,
V.
STATE OF TEXAS APPELLEE
APPELLANT’S BRIEF ON PETITION FOR DISCRETIONARY REVIEW On review from the ELEVENTH COURT OF APPEALS , EASTLAND, TEXAS CASE NO. 11-13-00099-CR
M. Michele Greene State Bar No.00789966 2833 Wildwood Ave. Odessa, Texas 79761 Tel: (432) 238-1255 Email: mmg@michelegreenelaw.com
Attorney for Appellant
ORAL ARGUM ENT WAS NOT GRANTED NO. PD-0372-15
GARY JAY MCCOY APPELLANT,
APPELLANT’S BRIEF ON PETITION FOR DISCRETIONARY REVIEW On review from the ELEVENTH COURT OF APPEALS , EASTLAND, TEXAS CASE NO. 11-13-000099-CR
TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS OF TEXAS:
NOW COMES Luis Sanchez, Appellant in this cause, by and through his court-
appointed appellate counsel, M. Michele Greene, and files this brief on petition for
discretionary review. IDENTITY OF PARTIES AND COUNSEL
The following is a complete list of all parties, as well as the names, addresses,
and emails (if known), of all counsel.
Defendant/Appellant: Luis Sanchez
Complainant/Appellee/: State of Texas
Appellant’s Counsel: at Trial: William R. Bowden, Jr. 221 W. 4th Street Odessa, Texas 79761
Appellant’s Counsel on Appeal: M. Michele Greene 2833 Wildwood Ave. Odessa, Texas 79761 mmg@michelegreenelaw.com
Appellee’s Counsel at Trial:1 Dusty Gallivan Deputy District Attorney 300 N. Grant Ave., Rm. 305 Odessa, Texas 79761
Appellee’s Counsel on Appeal: Michael Bloch Assistant District Attorney 300 N. Grant Ave. Rm. 305 Odessa, Texas 79761 MICHAEL.BLOCH@ectorcountytx.gov.
1 The Reporter’ s Record reflects that a “Mr. Conner” was asking questions and making objections on behalf of the State during the bench trial; however, this individual is not otherwise specifically identified in any volume of the Reporter’s Record. (RR 4:79-83,91).
ii Trial Court: The Honorable John W. Smith, 161ST District Court, Ector County, Texas
Appellate Court: Justices Jim R. Wright, Mike Wilson, and John M. Bailey, Court of Appeals, Eleventh District of Texas.
iii RECORD REFERENCES
The Clerk’s Record contains only one volume; therefore, references in this
brief to the Clerk’s Record are by volume and page number, indicated as “CR 1:__.”
The Clerk’s Record contains the pleadings, orders, and correspondence filed with (or
sent to) the trial court and clerk that are pertinent to this appeal.
This appeal also includes two Supplemental Clerk’s Records. Each
Supplemental Clerk’s Record contains only one volume. References to the
Supplemental Clerk’s Record dated December 11, 2012, in this brief are by volume
and page number, indicated as “SCR 1:__.” References to the Supplemental Clerk’s
Record dated August 19, 2013, in this brief are also by volume and page number,
indicated as “2SCR 1:__.”
The Reporter’s Record contains six volumes; therefore, references to the
Reporter’s Record in this brief are by volume and page number, indicated as “RR
__:__.” The Reporter’s Record includes the transcripts of the arraignment hearing
held on April 5, 2010,2 and the pretrial hearing held on June 8, 2011. The Reporter’s
Record also includes transcripts of the bench trial held on September 6, 2012, and the
post-judgment hearing held on October 2, 2012.
2 Volume 2 of the Reporter’s Record reflects that the arraignment hearing in this cause was held on September 6, 2012; however, this date reflects a typographical error, as the arraignment hearing was actually held on April 5, 2010. (SCR 1:15).
iv This appeal also includes a Supplemental Reporter’s Record. Such
Supplemental Reporter’s Record contains only one volume; therefore, references in
this brief to the Supplemental Reporter’s Record are by volume and page number,
indicated as “SRR 1:__.” The Supplemental Reporter’s Record includes the mental
competency hearing held on December 10, 2012.
Furthermore, the Reporter’s Record includes all of the parties’ exhibits
submitted to the trial court and admitted into evidence during the bench trial. All
such exhibits are contained in Volumes 4 and 5 of the Reporter’s Record. References
to the parties’ exhibits are indicated as “RR __:SX#__” or “RR __:DX#__.”
PARTY REFERENCES
Appellant Luis Sanchez shall be referred to as “Sanchez.” The State of Texas,
Appellee, shall be referred to as “the State.” The Eleventh Court of Appeals shall be
referred to as “the Appellate Court.”
v TABLE OF CONTENTS PAGE
IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
RECORD REFERENCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
PARTY REFERENCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x
STATEMENT OF PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . x
ISSUES FOR WHICH REVIEW WAS GRANTED . . . . . . . . . . . . . . . . . . . . . . xi
STATEMENT OF FACTS RELATIVE TO GRANTED ISSUES . . . . . . . . . . . . 1
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
M Third-Degree Felony: Assault Family Violence . . . . . . . . . . . . . . . . 4 M Distinct Classes of Individuals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 M Membership in multiple Classes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 M The State’s Indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 M The Trial Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 M The Fatal Variance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 M The Majority Justices’ Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 M Inapplicable Case Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 M The Dissenting Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 M Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
vi CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
vii INDEX OF AUTHORITIES
CASES Cada v. State, 334 S.W.3d 766 (Tex. Crim. App. 2011) . . . . . . . . . . . . . . . . . 7,10
Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) . . . . . . . . . . . . . . . . . . 10
Hill v. State, No. 01-10-00926-CR, 2012 TEX. APP. LEXIS 2225 (Tex. App.–Houston [1st Dist.], March 22, 2012, no pet.) (mem. op.) (not designated for publication) . . . . . . . . . . . . . . . . . . . . . . . . 12
Johnson v. State, 409 S.W.3d 738 (Tex. App.–Houston [1st Dist.] 2013, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Sanchez v. State, 460 S.W.3d 675 (Tex. App.–Eastland, March 5, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x,2,11,13-15
White v. State, No. 05-09-00112-CR, 2010 TEX. APP. LEXIS 5985 (Tex. App. Dallas, July 29, 2010, pet ref’d) (mem. op.) (not designated for publication) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
STATUTES TEX. FAM. CODE ANN. § 2.001 et seq. (LEXIS 2015) . . . . . . . . . . . . . . . . . . . . . . 14
TEX. FAM. CODE ANN. § 71.0021(a) (LEXIS 2015) . . . . . . . . . . . . . . . . . . . . . . . . 11
TEX. FAM. CODE ANN. § 71.0021(b) (LEXIS 2015) . . . . . . . . . . . . . . . . . . . . . . . . 5
TEX. FAM. CODE ANN. §§ 71.0021(b)(1-3) (LEXIS 2015) . . . . . . . . . . . . . . . . . . . 5
TEX. FAM. CODE ANN. § 71.003 (LEXIS 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . 6,8
TEX. FAM. CODE ANN. § 71.005 (LEXIS 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . 6,9
TEX. FAM. CODE ANN. §§ 71.0021(b), 71.003, and 71.005 (LEXIS 2015) . . . . . . . 5
viii TEX. GOV’T CODE ANN. § 311.021(3) (LEXIS 2015) . . . . . . . . . . . . . . . . . . . . . . 15
TEX. GOV’T CODE ANN. § 573.024(a)(1) (LEXIS 2015) . . . . . . . . . . . . . . . . . . . . . 6
TEX. PEN. CODE ANN. § 22.01(a)(1) (LEXIS 2015) . . . . . . . . . . . . . . . . . . . . . . . . . 4
TEX. PEN. CODE ANN. § 22.01(b) (LEXIS 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
TEX. PEN. CODE ANN. §§ 22.01(b)(2), 22.01(b)(2)(B) (LEXIS 2015) . . . . . . . . . . . 5
ix STATEMENT OF THE CASE
Sanchez was indicted for assault family violence–a third degree
felony–pursuant to TEX. PEN. CODE ANN. §§ 22.01(a)(1), (b)(2)(B) and TEX. FAM.
CODE § 71.0021(b). Sanchez pleaded not guilty to this charge. (RR 4:7-8). A bench
trial was held on September 6, 2012. (RR 4:1). At the conclusion of the bench trial,
the trial court found Sanchez guilty of the indicted charge. (CR 1:57-58; RR 4:138).
The trial court sentenced Sanchez to six years imprisonment in the Institutional
division of the Texas Department of Criminal justice pursuant to TEX. PEN. CODE §
12.14. (CR 1:57-58; RR 5:10). Sanchez timely filed his notice of appeal. (CR
1:59).
STATEMENT OF THE PROCEDURAL HISTORY
In a published opinion, the majority of the Appellate Court affirmed Sanchez’
conviction. Sanchez v. State, 460 S.W.3d 675, 681 (Tex. App.–Eastland, March 5,
2015). Chief Justice Jim. R. Wright entered a dissenting and concurring opinion. Id.
Sanchez did not file a Motion for Rehearing with the Appellate Court. Rather,
Sanchez filed a petition for discretionary review with this Court on April 21, 2015.
On or about July 1, 2015, the Court granted his petition for discretionary review.
x ISSUES FOR WHICH REVIEW WAS GRANTED
Issue No. 1:
A resolution is necessary of the disagreement amongst the justices of the Appellate court as to whether a defendant can be convicted of assaulting his spouse based solely on their past dating relationship under TEX. PEN. CODE ANN. § 22.01(b)(2) and TEX. FAM. CODE § 71.0021(b).
Issue No. 2:
An n important question of state law is presented that has not been, but should be, settled by this Court as to whether a defendant can be convicted of assaulting his spouse based solely on their past dating relationship under TEX. PEN. CODE ANN. § 22.01(b)(2) and TEX. FAM. CODE § 71.0021(b).
xi STATEMENT OF FACTS RELATIVE TO GRANTED ISSUES
During the bench trial, Rachael Sanchez a/k/a Rachael Price, (“Price”), alleged
that on December 18, 2009, Sanchez physically assaulted her. (RR 4:21-24). Price
also testified that on the date of the alleged assault, she and Sanchez were involved
in a dating relationship. (RR 4:18-19). Specifically, Price testified on direct
examination that she and Sanchez were in a dating relationship for two and a half
years. (RR 4:18-19). She testified their dating relationship began in June of 2006
and ended in December of 2009. (RR 4:19).
On cross-examination, however, Price admitted that she was not simply in a
dating relationship with Sanchez during that time period, but that she had actually
entered into a common law marriage with him. (RR 4:47). Price immediately
recanted her testimony and asserted that she never considered herself married to
Sanchez, even though Price acknowledged she had lived with Sanchez and they had
filed joint tax returns together. (RR 4:48-49).
Price also denied that she had ever filed a divorce petition alleging she was
married to Sanchez. (RR 4:49). When confronted with an Original Petition for
Divorce she had filed on June 22, 2010, Price finally admitted she had filed a divorce
proceeding seeking a divorce from Sanchez and alleging she had entered into a
common law marriage with Sanchez in August of 2006. (RR 4:50-51). A copy of
1 this divorce petition was introduced into evidence during the bench trial. (RR
4:DX#1). Price further admitted she had been judicially awarded a divorce from
Sanchez a few months after filing the divorce petition. (RR 4:47,51).
Although she had just testified that she had not only filed for divorce from
Sanchez, but had actually been awarded a divorce from Sanchez, Price continued to
assert on re-direct examination that she did not consider herself married to Sanchez
prior to filing for a divorce from him. (RR 4:67). In direct contrast to her testimony,
Price’s father testified at the bench trial there was no question that Price had entered
into a common law marriage with Sanchez in August of 2006 and that Price had
gotten a divorce from Sanchez after the alleged assault had occurred. (RR 4:115-
16,123).
Based on 1) Price’s own admissions at trial, 2) her father’s unequivocal
testimony, and 3) the introduction into evidence of the file-stamped copy of Price’s
June 22, 2010 Original Petition for Divorce, the evidence at trial conclusively
established Price and Sanchez were actually married on the date the assault allegedly
occurred—i.e. December 18, 2009. In this regard, all three justices of the Appellate
Court agreed the evidence introduced at trial conclusively established that Price and
Sanchez were actually married on December 18, 2009. Sanchez, 460 S.W.3d at 677,
684. Thus, the question before this court is not whether Sanchez and Price were
2 actually married. Rather, the dispute to be settled by this Court revolves around the
specific language included in the indictment upon which Sanchez’s third-degree
felony, family-violence assault conviction was based.
SUMMARY OF THE ARGUMENT
The State failed to plead alternative elements under TEX. PEN. CODE §
22.01(b)(2) in this case. As a result, the State limited its case against Sanchez to
proving he and Price were involved in a “dating relationship” as defined in TEX.
FAM. CODE § 71.0021(b). At trial, the evidence conclusively established Sanchez and
Price were actually married and not simply dating when the assault occurred.
The majority justices mistakenly concluded that because Sanchez and Price had
dated approximately three and a half years prior to the assault and before they got
married, the State met its burden of proof under § 71.0021(b). A marriage
relationship under the TEXAS FAMILY CODE is separate and distinct from a dating
relationship. A marriage relationship is therefore not subsumed in the definition of
a dating relationship found in § 71.0021(b).
The majority justices’ conclusion to the contrary was therefore erroneous.
Because there was a fatal variance between the indictment and the State’s proof in
this case, Sanchez’s conviction of the third-degree felony offense of assault family
violence should not be affirmed on appeal.
3 ARGUMENT
Issues for Review Restated:
Issue No. 1: A resolution is necessary of the disagreement amongst the justices of the Appellate court as to whether a defendant can be convicted of assaulting his spouse based solely on their past dating relationship under TEX. PEN. CODE ANN. § 22.01(b)(2) and TEX. FAM. CODE § 71.0021(b).
Issue No. 2: An n important question of state law is presented that has not been, but should be, settled by this Court as to whether a defendant can be convicted of assaulting his spouse based solely on their past dating relationship under TEX. PEN. CODE ANN. § 22.01(b)(2) and TEX. FAM. CODE § 71.0021(b).3
M Third-Degree Felony: Assault Family Violence.
A person commits an assault if he intentionally, knowingly, or recklessly
causes bodily injury to another, including the person’s spouse. TEX. PEN. CODE
ANN. § 22.01(a)(1) (LEXIS 2015). Such offense is generally a Class A misdemeanor.
TEX. PEN. CODE ANN. § 22.01(b) (LEXIS 2015).
However, the offense is elevated to a third degree felony when the assault (1)
is committed against a person who falls within one of the classes of individuals
defined in TEX. FAM. CODE § 71.0021(b) (dating relationship), TEX. FAM. CODE §
3 As both issues involve the same facts, case law, and statutory statutory authority, they will be addressed together.
4 71.003 (family) and TEX. FAM. CODE § 71.005 (household); and (2) is committed by
strangulation or suffocation. TEX. PEN. CODE ANN. §§ 22.01(b)(2), 22.01(b)(2)(B)
(LEXIS 2015); TEX. FAM . CODE ANN. §§ 71.0021(b), 71.003, and 71.005 (LEXIS
2015).
M Distinct Classes of Individuals.
The TEXAS FAMILY CODE clearly defines these separate and distinct classes of
individuals. For example, § 71.0021(b) of the TEXAS FAMILY CODE defines a “dating
relationship” as a “relationship between individuals who have or have had a
continuing relationship of a romantic or intimate nature.” TEX. FAM. CODE ANN. §
71.0021(b) (LEXIS 2015). Factors to consider in determining the existence of a dating
relationship are:
(1) the length of the relationship; (2) the nature of the relationship; and (3) the frequency and type of interaction between the persons involved in the relationship.
TEX. FAM. CODE ANN. §§ 71.0021(b)(1-3) (LEXIS 2015).
Section 71.003 of the TEXAS FAMILY CODE defines “family” to include the
following:
(1) individuals related by consanguinity or affinity; (2) individuals who are former spouses of each other; (3) individuals who are the parents of the same child without regard to marriage; and
5 (4) foster children and foster parents, without regard to whether those individuals reside together.
TEX. FAM. CODE ANN. § 71.003 (LEXIS 2015).
Two individuals are related to each other by “affinity” if they are “married to
each other.” TEX. GOV’T CODE ANN. § 573.024(a)(1) (LEXIS 2015). Accordingly,
a person’s spouse is statutorily included in the definition of “family” under § 71.003.
In contrast, the term “family” as defined in § 71.003 does not necessarily include an
individual with whom the actor is in a “dating relationship.” Johnson v. State, 409
S.W.3d 738, 742 (Tex. App.–Houston [1st Dist.] 2013, no pet.).
Section 71.005 of the TEXAS FAMILY CODE defines “household” as “a unit
composed of persons living together in the same dwelling, without regard to whether
they are related to each other.” TEX. FAM. CODE ANN. § 71.005 (LEXIS 2015).
M Membership in Multiple Classes.
Conceivably, a victim of an assault might be a member of more than one of the
classes described in § 22.01(b)(2). For example, an assault victim who is a
defendant’s spouse would be (1) related to the defendant by affinity (§ 71.003-
family); and could possibly be (2) the parent of the defendant’s child (§ 71.003-
family); and/or (3) living in the defendant’s household (§ 71.005–household).
6 On the other hand, an assault victim who is a defendant’s girlfriend would be
(1) an individual having a dating relationship with the defendant (§ 71.0021(b)-dating
relationship); and could possibly be (2) the parent of the defendant’s child (§ 71.003-
family); and/or (3) living in the defendant’s household (§ 71.005–household).
When there is overlap or uncertainty concerning the membership of an
individual in a particular class, the State may plead alternatives in the indictment.
Cada v. State, 334 S.W.3d 766, 772 (Tex. Crim. App. 2011) (where overlap or
uncertainty concerning status or service of particular person within protected general
class, State may plead alternatives in indictment).
If, however, the State elects to plead only one specific element from a penal
offense that contains alternatives for that element, the sufficiency of the evidence is
measured by the element that was actually pleaded and not by any other statutory
alternative element. Id. at 774. For example, if the State alleges in an indictment that
the victim of an assault belongs to only one particular class, the State is limited at trial
to proving the victim was a member of that particular class. Accordingly, a
defendant’s third-degree felony conviction for assault family violence cannot be
upheld by evidence that the victim was a member of a different class of individuals.
7 M The State’s Indictment.
The indictment in the case at bar was filed on March 22, 2010, (the
“Indictment”), and included the following language:
. . . LUIS SANCHEZ, hereafter styled the Defendant, heretofore on or about the 18th day of December, 2009, did then and there intentionally, knowingly, or recklessly cause bodily injury to Rachel Price, a person with whom the Defendant has or has had a dating relationship, as described by Section 71.0021(b), Family code, by intentionally, knowingly or recklessly impeding the normal breathing or circulation of the blood of the said Rachel Price by applying pressure to the throat or neck of the said Rachel Price . . .
(CR 1:5). Undisputedly, the State alleged in the Indictment that Price was a
member of only one class described in § 22.01(b)(2)---a victim involved in a dating
relationship with the defendant as defined in § 71.0021(b). (Id.).
M The Trial Evidence.
The evidence at trial established Price was a member of several different
classes under § 22.01(b)(2). For example, as Sanchez’s spouse, she was related to
him by affinity and was thus a member of his family under § 71.003. See TEX.
FAM. CODE ANN. § 71.003 (LEXIS 2015).
Additionally, Price testified she and Sanchez had a daughter during their
marriage. (RR 4:20). Consequently, Price was also member of Sanchez’s family
under § 71.003 because they were the parents of the same child. Id.
8 Finally, Price testified that she was living with Sanchez on the date the
alleged assault occurred. (RR 4:47,51). As such, Price was a member of Sanchez’s
household under § 71.005. See TEX. FAM. CODE ANN. § 71.005 (LEXIS 2015).
Yet, the State failed to plead any alternatives under § 71.003 or § 71.005 in
the Indictment. The State also never amended the Indictment to include any
alternative classes of individuals under § 71.003 or § 71.005. As a result, the State
proceeded to trial based solely on the single allegation that Sanchez and Price were
involved in a “dating relationship.” (RR 4:7). Because of the failure to plead any
alternatives in the Indictment, the State limited its case against Sanchez to proving
he had committed an assault against Price, a person with whom he “has or had” a
“dating relationship.”
M The Fatal Variance.
The State failed to meet its burden of proof in this regard. Instead of proving
a continuing or past dating relationship between Price and Sanchez, the State
actually proved at trial that Price was Sanchez’s spouse---not a girlfriend–who was
living with him at the time the assault occurred. The State, therefore, proved Price
was a member of Sanchez’s family and Sanchez’s household, but the State did not
prove Price and Sanchez were involved in a “dating relationship.” Accordingly,
there was a fatal variance between the Indictment and the State’s evidence at trial.
9 A “variance” occurs when there is a discrepancy between the allegations in
the charging instrument and the proof at trial. Gollihar v. State, 46 S.W.3d 243,
246 (Tex. Crim. App. 2001). “In a variance situation, the State has proven the
defendant guilty of a crime, but has proven its commission in a manner that varies
from the allegations in the charging instrument.” Id. A variance claim is treated
as an insufficiency of the evidence issue on appeal. Id. at 247. A fatal variance
renders a conviction void, and the only remedy is to render an acquittal. Cada, 334
S.W.3d at 776 (reversing judgment of court of appeals and rendering acquittal
where there was material variance between indictment and proof adduced at trial).
In this case, the State failed to prove Price was a member of the class alleged
in the Indictment---that Price was an individual involved in a “dating relationship”
with Sanchez. This element was a distinct statutory element of the third-degree
felony offense for which Sanchez was being prosecuted. Consequently, the State
was required to prove the statutory element it had chosen to allege, and not one of
the other alternative statutory elements it had failed to allege. See Id. As a result
of the State’s lack of evidence as to this element, a fatal variance occurred. Sanchez
was therefore entitled to an acquittal as to the third-degree felony charge of assault
family violence.
10 M The Majority Justices’ Error.
The majority of the Appellate Court, however, held otherwise. Rather than
acknowledging this fatal variance, the majority justices conducted a strained reading
of § 71.0021(b) that ran counter to 1) the express statutory language, 2) the Texas
Legislature’s purpose in enacting the current version of § 22.01, and 3) common
sense.
Focusing on the words “have had,” as included in § 71.0021(b), the majority
justices concluded that because Sanchez and Price “had a dating relationship in the
past, such a relationship falls within the provisions of the statute that increase this
assault to a third-degree felony.” Sanchez, 460 S.W.3d at 680. To reach this
conclusion, the majority justices simply disregarded the different classes of assault
victims as defined by § 71.0021(b), § 71.003, and § 71.005.
Likewise, to sustain Sanchez’s third-degree felony conviction, the majority
justices read § 71.0021(b) in a vacuum and ignored the statutory language found in
§ 71.0021(a) which specifically distinguishes “a dating relationship” from a
“marriage.” See TEX. FAM. CODE ANN. § 71.0021(a) (LEXIS 2015).
M Inapplicable Case Law.
Finally, to support their ruling, the majority justices relied upon unpublished
memorandum opinions from sister appellate courts. Specifically, the majority
11 justices relied upon White v. State, No. 05-09-00112-CR, 2010 TEX. APP. LEXIS
5985 (Tex. App. Dallas, July 29, 2010, pet ref’d) (mem. op.) (not designated for
publication); and Hill v. State, No. 01-10-00926-CR, 2012 TEX. APP. LEXIS 2225
(Tex. App.–Houston [1st Dist.], March 22, 2012, no pet.) (mem. op.) (not designated
for publication).
Neither White nor Hill involved defendants who were married to the victims
at the time of the assaults. In fact, the assault victims in White and Hill were never
married to the defendants at any point in time. Likewise, neither White nor Hill
involved the issue of a fatal variance. Rather, both White and Hill involved
questions as to whether the defendants had been romantically involved with the
assault victims during the thirty to sixty days prior to the assaults. White, 2010
TEX. APP. LEXIS 5985, at *1; Hill, 2012 TEX. APP. LEXIS 2225, at *5.
Neither White nor Hill held that a defendant could be convicted of a third-
degree felony for assaulting his spouse based on their past dating relationship under
§ 22.01(b)(2) and § 71.0021(b). More importantly, there appears to be no Texas
case law----notwithstanding the case at bar-----in which an appellate court has held
that a defendant can be convicted of assaulting his spouse–or for that matter his
former spouse—under § 22.01(b)(2) and § 71.0021(b).
12 M The Dissenting Opinion.
Recognizing the deficiencies in the majority justices’ analysis, as well as the
lack of case law to support their decision, Chief Justice Jim “R” Wright entered a
well-reasoned dissenting and concurring opinion in this case. Sanchez, 460 S.W.3d
at 681-85. Chief Justice Wright determined that based on the language included in
§ 71.0021, the Texas Legislature intended “marriage” and a “dating relationship”
to be two separate and distinguishable relationships. Id. at 682. He further
concluded that based on the specific language of § 71.0021, the terms “dating
relationship” and “marriage” were mutually exclusive as used in the statute. Id.
Chief Justice Wright also determined that as a result of the specific verb
tenses utilized in § 71.0021(b), the Texas Legislature intended the phrase “have had
a dating relationship” to mean “the dating relationship must have recently ended.”
Id. at 683. Thus, even if § 71.0021(b) was applicable to a defendant’s spouse, Chief
Justice Wright found that “as a matter of law,” a dating period occurring
approximately three and half years prior to the assault did “not fit within the concept
of ‘recently.’” Id.
Finally, Chief Justice Wright also noted that the State could have plead
alternative classes in the Indictment. Id. at 684. Chief Justice Wright pointed out
that the State chose not do so in this case; therefore, the State “limited itself to the
13 ‘dating relationship’ provision” of § 22.01(b)(2). Id. Chief Justice Wright then
correctly found the State had alleged a single narrow element for which there was
no supporting evidence. Id. at 685. Because there was a fatal variance between the
indictment and the proof, Chief Justice Wright properly concluded Sanchez’s
conviction for the third-degree felony of assault family violence could not be
affirmed on appeal. Id.
M Conclusion.
The Texas Legislature has gone to great lengths to identify and distinguish
the marriage relationship. See TEX. FAM. CODE ANN. § 2.001 et seq. (LEXIS 2015).
By defining the separate classes of assault victims in § 71.0021(b), § 71.003, and
§ 71.005, the Texas Legislature clearly intended to distinguish between a dating
relationship and a marriage relationship. If the majority justices’ interpretation is
upheld, all language found in these statutes pertaining to marriage would be
superfluous because the marriage relationship will be subsumed in the definition of
“dating relationship” found in § 71.0021(b).
In fact, the distinguishment of the marriage relationship in § 71.0021(b), §
71.003, and § 71.005 would become unnecessary as all marriages would be subject
to the incredibly broad definition of a “dating relationship.” For example, if the
majority justices’ reasoning is correct, a defendant who has been married for thirty
14 years can be convicted of a third-degree felony for assaulting his spouse under §
22.01(b)(2) and § 71.0021(b) based on their past dating relationship which occurred
thirty-one years ago.
Recognizing this irrational conclusion, Chief Justice Wright noted in his
dissent that under the majority justices’ holding, it would not matter when a dating
relationship existed, “even decades prior,” just so long as the relationship ended at
some indefinite time prior to the time of the assault being prosecuted. Sanchez, 460
S.W.2d 683. This absurd conclusion was clearly not the intent of the Texas
Legislature in enacting § 22.01(b)(2) and § 71.0021(b).
When § 71.0021(b), § 71.003, and § 71.005 are read together, it becomes
clear that a defendant’s spouse falls within the protected class of family and/or
household, and not within the purview of a “dating relationship.” Such common
sense interpretation is the just and reasonable result intended by the Texas
Legislature. See TEX. GOV’T CODE ANN. § 311.021(3) (LEXIS 2015) (in enacting
a statute, it is presumed that a just and reasonable result is intended).
In this case, the State simply failed to err on the side of caution and include
alternative elements in the Indictment. As a result, the State limited its case against
Sanchez. When the evidence was presented at trial, the State could not meet its
narrow burden of proof.
15 As such, this Court should not adopt the majority justices’ strained
interpretation of § 71.0021(b) simply to side-step the fatal variance clearly apparent
on the Record of this case. To do so would set a poor precedent in future cases.
This Court should therefore reverse the Appellate Court’s ruling sustaining
Sanchez’s conviction of the third-degree felony of assault family violence as a
matter of law.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant Luis Sanchez
respectfully prays that this Court 1) reverse the Appellate Court’s majority ruling
affirming Sanchez’s third-degree felony conviction for assault family violence, 2)
affirm Sanchez’s conviction for simple assault, and 3) remand this case for a new trial
solely as to punishment. Additionally, Sanchez prays that this Court grant him such
other and further relief to which he may be entitled.
16 Respectfully submitted,
M. MICHELE GREENE Attorney at Law 2833 Wildwood Ave. Odessa, Texas 79761 Tel: (432) 238-1255 Email: mmg@michelegreenelaw.com
By: /s/ M. Michele Greene M. Michele Greene State Bar No.00789966
Appellate Counsel for Appellant Luis Sanchez
CERTIFICATE OF COMPLIANCE
In accordance with Rules 9.4(e) and (i) of the TEXAS RULES OF APPELLATE PROCEDURE, the undersigned attorney of record certifies that the Brief on Petition for Discretionary Review contains 14-point typeface for the body of the brief, 12-point typeface for footnotes in the brief, and contains 3435 words, excluding those words identified as not being counted in Rule 9.4(i)(1) and was prepared on Word Perfect Version 9.
/s/ M. Michele Greene M. Michele Greene
17 CERTIFICATE OF SERVICE
I certify that a copy of the Appellant’s Brief on Petition for Discretionary Review was served electronically on this the 17h day of August, 2015, to the following party and that the electronic transmission was reported as complete:
Michael Bloch Ector County District Attorney’s Office Ector County Courthouse 300 N. Grant Ave. Rm. 305 Odessa, Texas 79761 MICHAEL.BLOCH@ectorcountytx.gov.
Attorney for the State of Texas, Appellee