PD-0660-15 June 1, 2015
NO. _____________
IN THE COURT OF CRIMINAL APPEALS
STATE OF TEXAS
ANDRES ALFREDO SEGOVIA,
PETITIONER
VS.
THE STATE OF TEXAS,
RESPONDENT ___________________________________________________
PETITION IN CAUSE NUMBER 04-14-00367-CR APPEALED FROM THE 399TH JUDICIAL DISTRICT COURT OF BEXAR COUNTY, TEXAS AND THE COURT OF APPEALS FOR THE FOURTH SUPREME JUDICIAL DISTRICT OF TEXAS
___________________________________________________
PETITION FOR DISCRETIONARY REVIEW
BARRY P. HITCHINGS 645 South Presa San Antonio, Texas 78210 (210) 224-1433 (210) 224-4840 (telecopier) hpb@stic.net ATTORNEY FOR PETITIONER State Bar No. 09723600 IDENTITY OF PARTIES, COUNSEL AND JUDGES APPELLANT/PETITIONER: Andres Alfredo Segovia TRIAL DEFENSE ATTORNEYS: Mr. Tony Jimenez, III State Bar No. 10666800 214 Dwyer Avenue, Suite 315 San Antonio, Texas 78204 (210) 225-0777 Ms. Catherine Valenzuela State Bar No. 788575 P.O. Box 780395 San Antonio, Texas 78278 (210) 382-4335 TRIAL PROSECUTORS: Mr. Steven Speir State Bar No. 24047633 Ms. Julie Wright State Bar No. 00788722 Assistant Criminal District Attorneys Paul Elizondo Tower 101 W. Nueva, 4th Floor San Antonio, Texas 78205 (210) 335-2377 APPELLATE DEFENSE ATTORNEY: Barry P. Hitchings State Bar No. 09723600 645 South Presa San Antonio, Texas 78210 (210) 224-1433 (210) 224-4840 (fax) APPELLATE STATE’S ATTORNEY: Nathan E. Morey State Bar No. 24074756 Assistant Criminal District Attorney Paul Elizondo Tower 101 W. Nueva, Suite 370 San Antonio, Texas 78205 (210) 335-2414 (210) 335-2436
ii TRIAL JUDGE: Judge Ray J. Olivarri, Jr. 399th District Court Bexar County Justice Center 300 Dolorosa San Antonio, Texas 78205 Judge George Godwin Senior Retired Judge Sitting for the 299th District Court 300 Dolorosa San Antonio, Texas 78205 (At Punishment Hearing) APPELLATE JUSTICES: Patricia O. Alvarez Luz Elena D. Chapa Jason Pulliam
iii TABLE OF CONTENTS IDENTITY OF PARTIES, COUNSEL AND JUDGES . . . . . . . . . . . . . . . . . . ii-iii TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2 STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 GROUNDS FOR REVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1. The Court of Appeals erred in holding that a “sudden passion arising from an adequate cause” instruction is never warranted in a murder conviction in which a defendant admits to two (2) prior felony convictions
2. The Court of Appeals erred in holding that the trial court did not abuse its discretion in failing to solicit a plea on the State’s enhancement allegations requiring the State to prove each enhancement allegation beyond a reasonable doubt and without a plea of true, then instructing the jury that “you will find” the enhancement allegations to be true
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-15
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
iv INDEX OF AUTHORITIES
TEXAS CASES Page(s)
Bell v. State, 994 S.W. 2d 173 (Tex. Crim. App. 1999). . . . . . . . . . . . . . . . . . . . 14
Cornett v. State, 405 S.W.3d 752 (Tex.App.–Houston [1st Dist.] 2013, pet.ref’d) 8-9
Daniels v. State, 645 S.W.2d 459 (Tex. Crim. App. 1983) . . . . . . . . . . . . . . . . . 6-7
Mims v. State, 3 S.W.3d 923 (Tex. Crim. App. 1999) . . . . . . . . . . . . . . . . . . . . 1, 7
Roberts v. State, 321 S.W. 3d 545 (Tex.App.–Houston [14th Dist.]2010 pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-14
State v. Mancuso, 919 S.W.2d 86 (Tex. Crim. App. 1996) . . . . . . . . . . . . . . . 10-12
Trevino v. State, 100 S.W.3d 232 (Tex. Crim. App. 2003) . . . . . . . . . . . . . . . . . 1, 7
Washington v. State, 677 S.W. 2d 524 (Tex. Crim. App. 1984) overruled on other grounds Bell v. State, 994 S.W.2d 173 Tex.Crim.App. 1999) .14-15
Wooten v. State, 400 S.W.3d 601 (Tex. Crim. App. 2013) . . . . . . . . . . . . . . . 1, 6-7
TEXAS STATUTES AND CODES
TEX. PENAL CODE ANN. § 12.35 (Vernon 2013) . . . . . . . . . . . . . . . . . . . 10, 12
TEX. PENAL CODE ANN. § 12.42 (Vernon 2013) . . . . . . . . . . . . . . . 1, 4-5,10,12
TEX. PENAL CODE ANN. § 19.02 (Vernon 2013). . . . . . . . . . . . . . . . . . . . . . 1, 4
TEX. GOV’T CODE ANN. § 311.021 (Vernon 1995) . . . . . . . . . . . . . . . . . . 10, 11
TEX. GOV’T CODE ANN. § 311.026 (Vernon 1995) . . . . . . . . . . . . . . . . . . . . . 11
v Statement Regarding Oral Argument
Oral argument is requested in this case since as the Fourth Texas Court of
Appeals’ ruling in the Petitioner’s case notes — “[i]n this case of first impression, we
are asked to determine whether a defendant who presents evidence on the statutory
requirements of the requested instruction, but is prohibited from receiving the
statutory benefit of the requested instruction, is entitled to the instruction.”
(Appendix: Fourth Court of Appeals opinion at page 18). The Texas Court of
Criminal Appeals has ruled that the Section 19.02 Texas Penal Code (Murder
requiring a sudden passion charge if raised by the evidence) charge should be given
to a jury if raised by the evidence. Wooten v. State, 400 S.W.3d 601, 605 (Tex. Crim.
App. 2013); Trevino v. State, 100 S.W.3d 232, 238 (Tex. Crim. App. 2003); Mims
v. State, 3 S.W.3d 923, 928 (Tex. Crim. App. 1999). However, Wooten, Trevino and
Mims did not involve the issue of reconciling Section 19.02 of the Texas Penal Code
with Section 12.42 (d) (Habitual Felony) of the Texas Penal Code. This case
represents a conflict between Sections 19.02 and 12.42 (d) of the Texas Penal Code.
Statement of the Case
Petitioner was charged by indictment with the offense of Murder. (CR-8). The
State subsequently filed a “Notice of Intent to Use Two Prior Convictions for
Enhancement of Punishment.” (CR-52-53). Petitioner filed an “Election of
1 Punishment” in which he requested “that the jury assess the punishment in this case
in the event the jury finds the defendant guilty.” (CR-65). A jury found the Petitioner
guilty of murder. (CR-79). The jury assessed punishment for fifty-five (55) years in
the Institutional Division of the Texas Department of Criminal Justice. (CR 92-93).
The trial court judge signed a Trial Court’s Certification of Defendant’s Right to
Appeal on May 6, 2014. (CR-95). Petitioner timely filed a “Notice of Appeal”
including an additional “Trial Court’s Certification of Defendant’s Right of Appeal”
on May 22, 2014. (CR 100-101). On April 29, 2015, the Fourth Court of Appeals
issued an opinion affirming the ruling of the trial court. (See Appendix).
Statement of Procedural History
On April 29, 2015, the Fourth Court of Appeals issued an opinion affirming the
ruling of the trial court. (See Appendix). No Motion for Rehearing was filed.
Ground for Review
1. The Court of Appeals erred in holding that a “sudden passion arising from an adequate cause” instruction is never warranted in a murder conviction in which a defendant admits to two (2) prior felony convictions
2. The Court of Appeals erred in holding that the trial court did not abuse its discretion in failing to solicit a plea on the State’s enhancement allegations requiring the State to prove each enhancement allegation beyond a reasonable doubt and without a plea of true, then instructing the jury that “you will find” the enhancement allegations to be true
2 Argument
In its April 29, 2015 Opinion, the Fourth Court of Appeals discussed the facts
and law relating to Petitioner’s Grounds for Review numbers 1 and 2 under the
heading of “Punishment Charge” on pages 14 through 23 of its opinion. (See
Appendix). The Opinion of the Fourth Court of Appeals notes that Petitioner claims
that the trial court’s charge contained two (2) errors: “(1) failure to include a sudden
passion instruction and (2) instructing the jury that ‘you will find’ rather than ‘if you
find’ on the habitual offender instruction.” (Appendix, Fourth Court of Appeals
Opinion at page 14).
Lack of a Sudden Passion Charge
At the conclusion of the testimony at the punishment phase of the trial, the trial
court conducted a charge conference regarding the Charge of the Court on
Punishment. (RR. 7, pp. 190-196). Petitioner had submitted a “Defendant’s Special
Requested Charge #1" requesting the trial court to issue instructions to the jury on the
issue of “whether the [Petitioner] caused the death under the immediate influence of
sudden passion arising from an adequate cause” based upon the provisions of Section
19.02 of the Texas Penal Code. (CR 80-82). The trial court judge noted that since the
Petitioner admitted to two prior felony convictions at punishment requiring a
3 punishment range between 25 to 99 years imprisonment pursuant to Texas Penal
Code Section 12.42 (d) the trial court would deny Petitioner’s request for a Section
19.02 charge on “sudden passion arising from an adequate cause.” (RR. Vol 7, p.
193).
Petitioner’s trial attorney subsequently re-urged the sudden passion instruction
and argued that:
MR. JIMENEZ: . . . . I want to reurge it on the grounds that my client has a right to present a complete defense on his behalf including punishment. In this particular instance, a complete defense would include the passion, the heat of passion instruction. We’re making that request now under the Sixth and Fourteenth Amendments of the United States Constitution. That also impact, Your Honor, the right to effective representation of counsel under the Sixth Amendment.
(RR. 8, p. 5). However, the trial judge responded by informing Petitioner’s attorney
that his objection on the lack of a sudden passion instruction “will be overruled once
again.” (RR. 8, p. 6).
Texas Penal Code § 19.02 (entitled “Murder”) provides in part:
(a) In this section: (1) “Adequate cause” means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection. (2) “Sudden passion” means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of
4 the offense and is not solely the result of former provocation. (b) A person commits an offense if he: (1) intentionally or knowingly causes the death of an individual; (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. [c] Except as provided by Subsection (d), an offense under this section is a felony of the first degree. (d) At the punishment stage of a trial, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree.
Texas Penal Code § 12.42 (entitled “Penalties for Repeat and Habitual Felony
Offenders on Trial for First, Second or Third Degree Felony”) provides in part:
(d) . . . . if it is shown on the trial of a felony offense other than a state jail felony punishable under section 12.35 (a) that the defendant has previously been finally convicted if two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years. . . .
In Petitioner’s case, the Petitioner was indicted for the First Degree offense of
Murder. (CR 8). The State also filed a “Notice of Intent to Use Two Prior
Convictions for Enhancement of Punishment.” (CR 52-53). On appeal before the
Fourth Court of Appeals, the State in the State’s Brief recited that “the State does not
5 dispute that Appellant introduced sufficient evidence that raised the defensive issue
of ‘sudden passion.’” (State’s Brief to the Fourth Court of Appeals at page 18).
In Wooten v. State, after the jury rejected a murder defendant’s self defense
claim, the trial court denied the murder defendant’s request for a sudden passion
charge at punishment in which the murder defendant claimed that “once the shooting
began, that he was overwhelmed by emotions of fear, disorientation, confusion. .
. .” 400 SW3d 601, 604 (Tex. Crim. App. 2013). In reversing the court of appeals,
the Court of Criminal Appeals in Wooten ruled that:
[t]o justify a jury instruction on the issue of sudden passion at the punishment phase, the record must at least minimally support an inference: 1) that the defendant in fact acted under the immediate influence of a passion such as terror, anger, rage, or resentment; 2) that his sudden passion was in fact induced by some provocation by the deceased or another acting with him, which provocation would commonly produce such a passion in a person of ordinary temper; 3) that he committed the murder before regaining his capacity for cool reflection; and 4) that a causal connection existed “between the provocation, passion, and homicide.” It does not matter that the evidence supporting the submission of a sudden passion instruction may be weak, impeached, contradicted, or unbelievable. If the evidence thus raises the issue from any source, during either phase of trial, then the defendant has satisfied his burden of production, and the trial court must submit the issue in the jury charge – at least if the defendant requests it.
Id. at 605 (Emphasis Added). However, after conducting a harm analysis, the Court
of Criminal Appeals in Wooten citing Daniels v. State noted that “‘a bare claim of’
6 fear will not necessarily support a claim of sudden passion, but that fear that ‘rises to
the level of terror’ will suffice (if the cause is adequate)” to invoke a sudden passion
instruction. Wooten at 607 citing Daniels, 645 S.W.2d 459, 460 (Tex. Crim. App.
1983). The Court of Criminal Appeals in Wooten then concluded that:
whatever error the trial court may have committed by failing to charge the jury with respect to sudden passion did not harm the appellant. Finding our harm analysis thus dispositive, we need not address whether the trial court did, in fact, err not to include the instruction.
Id. at 607.
Earlier Texas Court of Criminal Appeals’ rulings in Trevino v. State (“sudden
passion charge should be given if there is some evidence to support it, even if that
evidence is weak, impeached, contradicted or unbelievable”) and Mims v. State (“if
raised by the evidence, the sudden passion issue should be submitted in the
punishment phase of an attempted murder prosecution”) support giving a “sudden
passion” charge if supported by the evidence. Trevino, 100 S.W.3d 232, 238 (Tex.
Crim. App. 2003); Mims, 3 S.W.3d 923, 928 (Tex. Crim. App. 1999). Since an
attempted murder defendant (in which attempted murder would be a second degree
felony) would be entitled to a “sudden passion arising from an adequate charge”
instruction in Mims, the offense would remain a second degree felony even though
Mims would get the benefit of the mitigation charge of “sudden passion arising from
7 an adequate cause.” Thus a “sudden passion arising from an adequate charge”
instruction would serve the dual purpose of (1) a charge reduction and/or (2) a
mitigation instruction.
Although briefed and argued to the Fourth Court of Appeals, the Fourth Court
of Appeals should have followed the example of Cornett v. State, 405 S.W.3d 752,
754-756 (Tex.App.-Houston [1st Dist.] 2013, pet. ref’d). Cornett involved the three
(3) factors in Petitioner Segovia’s case, i.e. (1) a murder conviction; (2) a stipulation
to two prior felony convictions; and (3) a request for a “sudden passion arising from
an adequate cause” punishment instruction which the trial court judge in Cornett
granted. Id. at 756.
The jury in Cornett sentenced the defendant to serve a sentence of forty-two
(42) years confinement for a first degree murder. However, the sole issue before the
1st District Court of Appeals was not whether to give a “sudden passion arising from
an adequate cause” instruction (since such a charge was given) but whether the
punishment phase jury charge on the sudden passion special issue erroneously
allowed the jury to return a non-unanimous verdict on the sudden passion issue. The
1st District Court of Appeals ruled that the jury instruction improperly “conditioned
the first-degree felony punishment range on only a failure to find sudden passion
unanimously rather than a unanimous negative finding on the issue.” Id. at 760.
8 However, in its harm analysis, the 1st District Court of Appeals concluded that the
erroneous punishment instruction on sudden passion (relating to “unanimity”) did not
cause the defendant egregious harm. Id at 754, 763.
There is no reference in the Fourth Court of Appeals’ opinion in the
Petitioner’s case to the opinion in Cornett in which the Texas Court of Criminal
Appeals denied discretionary review. Instead, the Fourth Court of Appeals appeared
overly concerned that to give the “sudden passion” charge requested by defense
counsel: (1) “could have potentially led jurors to believe that a penalty range was a
possibility” and (2) “such a discrepancy in the charge could have potentially been
misleading or allowed for some form of jury nullification.” (Appendix, Fourth Court
of Appeals opinion at page 18).
Applying, Cornett, the trial court judge should have: (1) granted Petitioner’s
“sudden passion arising from an adequate cause” jury instruction request; (2)
instructed the jury that if they found “sudden passion arising from an adequate cause”
the charge would then be reduced to a second degree felony with a range of
punishment from 2 to 20 years imprisonment; and (3) further instructed the jury that
if the jury found that the State had proved beyond a reasonable doubt that the
defendant had twice before been convicted of non-state jail felonies then the range
of punishment would be imprisonment in the Texas Department of Criminal Justice
9 for life, or for any term of not more than 99 years or less than 25 years. Such a charge
would have given Petitioner Segovia his statutory entitlement to a “sudden passion
arising from an adequate cause” charge and applied the Section 12.42 (d) Texas Penal
Code habitual offender requirement of a range of punishment of life or not more than
99 years or less than 25 years. Instead, the Fourth Court of Appeals published
opinion in Petitioner Segovia’s case effectively now holds that in Texas a sudden
passion instruction is never warranted in a murder conviction in which a defendant
admits to two (2) prior felony convictions. Such a ruling now precludes murder
defendants in Texas with two (2) prior felonies from using “sudden passion arising
from an adequate cause” for either charge reduction or mitigation purposes.
The Fourth Court of Appeals could have resolved the apparent conflict between
Texas Penal Code § 19.02 (Murder) and Texas Penal Code § 12.42 (d) (Habitual
Felony Offenders) by following the logic of the Texas Court of Criminal Appeals in
State v. Mancuso, 919 S.W.2d 86 (1996). In Mancuso, the Texas Court of Criminal
Appeals:
granted the State’s petition for discretionary review to determine whether the Court of Appeals erred in holding the trial judge properly sentenced appellees under Tex.Penal Code Ann. § 12.35 and art. 42.12 § 15, rather than Tex.Penal Code Ann. § 12.42 (d)
In Mancuso, the Texas Court of Criminal Appeals construed Tex. Gov’t Code §§s
10 311.021 (entitled “Intention in Enactment Statutes”); 311.023 (entitled “Statute
Construction Aids”); 311.026(a) and 311.026(b) (entitled “Special or Local Provision
Prevails over General”). In construing statutes the Texas Court of Criminal Appeals
noted:
It is the duty of the Legislature to make laws, and it is the function of the Judiciary to interpret those laws. Cites omitted. When we interpret statutes we seek to effectuate the ‘collective’ intent or purpose of legislators who enacted the legislation. Cites omitted. Consequently, we focus on the text of the statute and interpret it in a literal manner attempting to discern the fair, objective meaning of the text. Cites omitted. It is our duty while interpreting the statute to give the ordinary and plain meaning to the language of the Legislature. Cites omitted. Where the statute is clear and unambiguous, the Legislature must be understood to mean what it has expressed, and it is not for the courts to add or subtract from such a statute. Cites omitted. Only when the application of a statute’s plain language is ambiguous or would lead to absurd consequences which the Legislature could not possibly have intended, should we look to extratextual factors. Cites omitted. These extratextual factors include, but are not limited to executive and/or administrative interpretations, consequences of construction, goal of legislation, circumstances under which the statute was enacted and legislative history. Cites omitted. This exception to the general rule is not intended to, nor should it, intrude upon the lawmaking powers of the legislative branch and it should not be construed as an invasion of legislative authority. Failing an absurd consequence or ambiguous language this Court need not delve into the extratextual factors affecting a statute. Cites omitted. It is presumed in the enactment of a statute that the entire statute and all words in the statute are intended to be effective, and the language therein will create a just and reasonable result. Cite omitted. If a general provision conflicts with a specific provision, the provisions shall be construed, if
11 possible, so that effect is given to both. Cites omitted. If the statutes are unable to be reconciled, the specific statute will prevail as an exception to the general statute, unless the general statute is the later enactment and the manifest intent is that the general provision prevail. Cite omitted.
In Mancuso, then Art. 42.12 § 15 of the Texas Code of Criminal Procedure
specifically provided for the enhancement of punishment for offenses under §
12.35(a) [State Jail Felonies] when there were two or more felony convictions and §
12.42 (d) of the Texas Penal Code providing for enhancements on the trial of a
felony offense in which there were two prior felony convictions enhancing the
punishment to life or not more than 99 years or less than 25 years. The State
contended that § 12.42 (d) applied to all felonies, including state jail felonies. Id. at
89. Applying the statutory construction aids, the Texas Court of Criminal Appeals
in Mancuso affirmed the Court of Appeals in ruling that state jail felonies could not
be enhanced under § 12.42 (d) of the Texas Penal Code. Id. at 90. Section 12.42 (d)
of the Texas Penal Code was amended after the Mancuso opinion to recite “on trial
of a felony offense other than a state jail felony.”
Habitual Felony Offender Punishment Charge
In its “Charge of the Court on Punishment” the trial court included a charge
that instructed the Jury that — “You will find that the defendant has previously been
finally convicted of two felony offenses, as alleged, and the second previous felony
12 conviction is for an offense that occurred subsequent to the first previous conviction
having become final.” (CR 87-88). The Petitioner’s attorney objected to the “You
will find” language and requested an instruction using the words – “If you find.” (RR
8, pp. 4-6). Petitioner’s trial attorney argued that the “You will find” instruction
constituted “a comment on the weight of the evidence” by the trial court judge. (RR
8, pp. 4-6).
In its opinion, the Fourth Court of Appeals ruled that the trial court judge in
Segovia committed error in submitting the “You will find” language in the Court’s
charge to the jury. (Appendix - Fourth Court of Appeals’ Opinion at page 19). After
reviewing the record on appeal, the Fourth Court concluded that in Petitioner
Segovia’s case “because there was no plea, the burden of proof rested on the State
and the trial court’s charge usurped that burden.” Id. Accordingly, the charge was
in error.” (Appendix – Fourth Court of Appeals Opinion at page 19).
In its subsequent “harm analysis” the Fourth Court of Appeals relied on
Roberts v. State, 321 S.W.3d 545 (Tex. App. – Houston [14th Dist.] 2010, pet. ref’d).
In Roberts, the defendant’s trial court attorney did not object to the punishment
charge which instructed the jury to find each of four enhancement allegations true
despite defendant Robert’s plea of not true to one of the enhancement allegations. Id
at 533. However, in Petitioner Segovia’s case, his trial court attorney vigorously
13 objected to the trial court’s charge of “You will find.” (RR. 8, pp. 4-6). The Fourth
Court noted that the harm analysis in Roberts would focus on the issue of “egregious
harm” while the Segovia harm analysis would focus on “some harm” to require
reversal. (Appendix– Fourth Court of Appeals Opinion at p. 21). In Petitioner
Segovia’s case the Fourth Court of Appeals concluded that – “Even assuming error,
the record does not support any finding of harm.” Id. at 22.
Petitioner Segovia contends that the more analysis of the trial court’s judge’s
“You will find” jury charge instruction is in Washington v. State, 677 S.W.2d 524,
528-29 (Tex. Crim. App. 1984) overruled on other grounds Bell v. State, 994 S.W.2d
173, 175 (double jeopardy issues generally not applicable to noncapital sentencing
proceedings). In Washington, after a jury found a defendant guilty the trial court
judge immediately discharged the jury because the trial court judge found that the
defendant had “admitted to the truth of the enhancement allegations when he testified
at the guilt state of trial” and thus “there was no issue for the jury to resolve. Id. at
527. The Texas Court of Criminal Appeals concluded that the trial court judge in
Washington erred since “an accused person in Texas does have the statutory right to
have the jury assess his punishment.” Id. The Texas Court of Criminal Appeals in
Washington concluded that:
even though appellant admitted when he testified to the alleged
14 prior felony convictions, nevertheless, a question of fact still existed that, because of his election, was to be answered by the jury, and not the trial judge. . . . The admission by the defendant does not warrant the trial judge taking the case from the jury, because the jury is still charged with the responsibility of determining guilt. . . . In dismissing the jury prematurely, the trial court deprived appellant of a valuable statutory right.
Id. at 529.
Prayer for Relief
WHEREFORE, Petitioner prays that this Honorable Court of Criminal Appeals
will grant this Petition for Discretionary Review. Petitioner further prays that upon
reviewing the decision of the Fourth Court of Appeals, that this Court reverse the
decision and enter a ruling reversing the judgment of the trial court and the Fourth
Court of Appeals and remand this case for a new trial.
Respectfully submitted,
LAW OFFICES OF HITCHINGS & POLLOCK 645 South Presa San Antonio, Texas 78210 (210) 224-1433 (210) 224-4840 (telecopier)
By: /S/ Barry P. Hitchings BARRY P. HITCHINGS State Bar No. 09723600 ATTORNEYS FOR Petitioner
15 CERTIFICATE OF COMPLIANCE
1. This Petition for Discretionary Review complies with the type-volume limitation of TEX. R. APP. P. 9.4 (i)(1)(2)because this brief contains 4508 words, excluding parts of the brief exempted by TEX. R. APP. P. 9.4 (i)(1).
2. This Petition for Discretionary Review complies with the typeface and type style requirements of TEX. R. APP. P. 9.4 (e) because this Petition for Discretionary Review has been prepared in a proportionally spaced typeface using Word Perfect X4 for Windows in 14 point font size and Times New Roman type style.
/S/ Barry P. Hitchings BARRY P. HITCHINGS Attorney for Appellant Andres Alfredo Segovia Dated: May 29, 2015
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 29th day of May, 2015, a true and correct copy of this Petition for Discretionary Review was served by e-filing at nathan.morey@bexar.org and hand-delivered to the Bexar County Criminal District Attorneys Office, Paul Elizondo Tower, 101 W. Nueva Street, San Antonio, Texas 78205 and served upon the State Prosecuting Attorney, P.O. Box 12405, Austin, Texas 78711 by e-filing at information@spa.texas.gov.
/S/ Barry P. Hitchings BARRY P. HITCHINGS
16 APPENDIX
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Envelope 5473053 Case Information Location Court Of Criminal Appeals Date Filed 05/29/2015 02:36:28 PM Case Number Case Description Assigned to Judge Attorney Barry Hitchings Firm Name Hitchings & Pollock Filed By Julie Pollock Filer Type Not Applicable Fees Convenience Fee $0.00 Total Court Case Fees $0.00 Total Court Filing Fees $0.00 Total Court Service Fees $0.00 Total Filing & Service Fees $0.00 Total Service Tax Fees $0.00 Total Provider Service Fees $0.00 Total Provider Tax Fees $0.00 Grand Total $0.00 Payment Account Name Hitchings & Pollock Transaction Amount $0.00 Transaction Response Transaction ID 8983783 Order # 005473053-0
Petition for Discretionary Review Filing Type EFileAndServe Filing Code Petition for Discretionary Review Filing Description SegoviaAndresPetitionForDiscretionaryReview Reference Number 04-14-00367-CR Comments Status Rejected Fees Court Fee $0.00 Service Fee $0.00 Rejection Information Rejection Time Rejection Comment Reason 06/01/2015 The petition for discretionary review does not contain a certification in compliance Other 02:43:43 with T.R.A.P. 9.4(i)(3); counsel indicates the petition contains 4508 words which
https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=846a069a-d670-4cdb-9ce2-56c279effa55[6/1/2015 2:49:21 PM] Envelope Details
PM exceeds the limit of 4500. You have ten days to file a corrected petition. Documents Lead Document Segovia PDR.pdf [Original] Attachments Segovia4thCtOpinionAppendix.pdf [Original]
eService Details Name/Email Firm Service Type Status Served Date/Time Opened State Prosecuting Attorney 05/29/2015 EServe Sent Yes information@spa.texas.gov 03:28:32 PM Nathan Morey 05/29/2015 EServe Sent Yes nathan.morey@bexar.org 03:25:18 PM
https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=846a069a-d670-4cdb-9ce2-56c279effa55[6/1/2015 2:49:21 PM]