Zambrana, Richard Ahmed

Opinion

PD-1560-15 PD-1560-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 11/25/2015 11:46:08 AM Accepted 11/25/2015 11:56:05 AM IN THE ABEL ACOSTA CLERK

COURT OF CRIMINAL APPEALS

AT

AUSTIN, TEXAS

RICHARD AHMED ZAMBRANA, § Appellant § No.---~----- THE STATE OF TEXAS, § Appellee

PETITION FOR DISCRETIONARY REVIEW

FROM THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

NO. 07-12-00 125-CR

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

Daniel Wannamaker State Bar No. 20834300 10 12 Rio Grande Austin, Texas 78701 (512) 236-9929 (512) 233-5979 (fax)

November 25, 2015 TABLE OF CONTENTS

Table of Contents .. ... ......... ..... ........ ...... ........ ... .... . .................... ... ...... i

Identity of Parties and Counsel .............. .. ....... .... . ...... . .. ....... .............. .. .ii

Index of Authorities ... ... ..... .. ........... ........ ....... ........... ...... . ......... ........ iv

Statement Regarding Oral Argument ............. ..... ........ ... ............ ............. v

Statement of the Case ........ ... . .... .... ... .. .......... . ...... ..... ...... ...... .... ... ........ 2

Statement of Procedural History .............................. .............................. 2

Question for Review ..... .... .......... ... .. ....... ... .. ........ ...... ..... ... ........ .... .... 2

MUST THE JUDGMENT OF CONVICTION INAN ASSAULT-FAMILY VIOLENCE CASE ALLEGE THAT AN ASSAULT CAUSING BODILY INJURY OCCURRED?

Argutnent. ...... . ........ ...... ... . ............... .. .. .. ...... .. .... ....... .. .... ... . .... ...... 3

Prayer . ........ . ............................. ..... . ...... .. .... ............. ............ .. ... .... 5

Certificate of Compliance ...... ............................. ............. .................. 5

Certificate of Service ........ .. ............ ..... .. ............................................ 5

Appendix ............ . ...... ... .... ..... ...... .......................... .. ......................... 6

Court of Appeals Opinion Trial Court Order Granting Out-of-time Petition for Discretionary Review IDENTITY OF PARTIES AND COUNSEL

APPELLANT: RICHARD AHMED ZAMBRANA

TRIAL COURT: HONORABLE PAMELA SIRMON POTTER COUNTY COURT AT LAW NO. TWO 500 S. Fillmore, Suite 301 Amarillo, TX 79101

STATE'S ATTORNEY: JANELLE McBRIDE SBN: 00795718 JOSH FRAUSTO SBN: 24074228 Potter County Attorney 500 S. Fillmore, Room 303 Amarillo, TX 791 01 (806) 379-2215

TRIAL COUNSEL: PAUL HERMANN SBN: 09541810 Hermann & Weaver 320 S. Polk, Suite 902 Amarillo, TX 7910 I (806) 342-4242

APPELLANT'S COUNSEL ON APPEAL: DARRELL R. CAREY SBN: 03791700 Hester MeG lasson & Cox 1507 Fourth Avenue Canyon, Texas 79015 (806) 655-1016

11 APPELLANT'S COUNSEL ON PETITION FOR DISCRETIONARY REVIEW: DANIEL WANNAMAKER SBN: 20834300 1012 Rio Grande Austin, TX 78701 (512) 236-9929

APPELLEE 'S COUNSEL: Potter County Attorney 500 Fillmore, Room 303 Amarillo, TX 791 0 1 (806) 379-2215

111 STATEMENT REGARDING ORAL ARGUMENT

Appellant requests oral argument.

v INDEX OF AUTHORITIES PAGE Cases

Gollihar v. State, 46 S.W. 3d 243 (Tex. Crim. App. 2001) ............. ................. ......................................... ...................... 3

Johnson v. State, 409 S.W. 3d 738 (Tex. App.- Houston [1 st Dist.] 2013, no pet.) ......................................................... 4

Statutes

TEX. CODE CRIM. PROC ., ARTICLE 42.01 § 13 ....................... ....... ...................... 4

T EX . PENAL CODE, § 22.01(a)(l) .............................. ................. ............................. 3

RULES

TEX. R. APP. P., Rule 66.3(b) . .. .. . ........ . .... .. .. .. .. ............... ... ..... ..... ...... .4

TEX. R. APP. P., Rule 68 .. .. ........ ......................... .... .......... ... ... .... .. ... .. 1

IV IN THE

COURT OF CRIMINAL APPEALS

AT

AUSTIN, TEXAS

RICHARD AHMED ZAMBRANA, § Appellant § No.---~----- THE STATE OF TEXAS, § Appellee

PETITION FOR DISCRETIONARY REVIEW

FROM THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

NO. 07-12-00125-CR

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

TO THE COURT OF CRIMINAL APPEALS OF TEXAS:

Comes now Appellant Richard Ahmed Zambrana, by and through his

undersigned counsel, and pursuant to Rule 68 of the Texas Ru les of Appellate

Procedure, offers this Petition for Discretionary Review. Appellant respectfully

submits the following: STATEMENT OF THE CASE

On November 15,2011 , Appellant was charged by infonnation in Cause No.

132, 487-2 in County Court at Law Number Two, Potter County with the offense

of Assault Causing Bodily Injury Against A Family Member (Enhanced). On

February 14, 2012, the jury found him gui lty, but without a finding of true as to the

enhancement allegation. The trial court set the punishment at 180 days in jail

probated for eighteen months and a $500 fine. Subsequently, Appellant filed timely

notice of appeal.

STATEMENT OF PROCEDURAL HISTORY

On February 24, 2014, the Amarillo Court of Appeals affirmed the trial

court's judgment in an unpublished opinion. Zambrana v. State, No. 07-12-00125-

CR (Tex. App.- Amarillo, decided Feb. 24, 2014). Appellate counsel did not file a

Petition for Discretionary Review, but Appellant subsequently filed a Writ of

Habeas Corpus seeking permission to file an out-of-time Petition for Discretionary

Review. The trial court granted relief on October 26, 2015 (Appendix).

QUESTION FOR REVIEW

Must the judgment of conviction in an assault-family violence case allege

that an assault causing bodily injury occurred?

2 ARGUMENT

The information in this case alleged that Appellant had caused bodily injury

to his spouse, a class A misdemeanor under Section 22.0l(a)(l) of the Penal Code

CR-2. The trial court's judgment, however, did not reflect that Appellant caused

bodily injury, but only that Appellant had been convicted of "Assault, Domestic

Violence, as charged in the Information." The trial court also entered an

affirmative finding that the alleged victim was a "family member of the defendant

or a member of the defendant's household." Zambrana v. State, supra, Slip

Opinion at p. 4.

In his brief to the Amarillo Court of Appeals, Appellant argued that there

had been a fatal variance between the information and the evidence at trial, on the

one hand, and the judgment, on the other. Because the judgment did not reflect that

Appellant had caused bodily injury, as required for a conviction under Section

22.0l(a)(l), Appellant contended that the judgment should be construed as

reflecting a conviction for class C assault, rendering his sentence illegal.

Appellant's brief at pp. 3-6 .

The Amarillo Court of Appeals rejected the argument, holding that no

variance occurred, because the variance doctrine dealt with a variance between

charging instrument and the evidence. Zambrana at p. 5, citing Gollihar v. State,

3 46 S.W. 3d 243 (Tex. Crim. App. 2001). The Court also concluded that the

reference to "Assault, Domestic Violence" was sufficient, so that the judgment did

not have to reflect that bodily injury had occurred. !d. at p. 5, citing Johnson v.

State, 409 S.W. 3d 738 (Tex. App.- Houston [1 st Dist.] 2013, no pet.).

Article 42.01, § 13 ofthe Code of Criminal Procedure, however, provides

that the judgment must reflect the "offense or offenses for which the defendant was

convicted." TEX. CODE CRIM. PROC., Art. 42.01 § 13. The question here is

whether a judgment of conviction for Assault Family Violence is valid where it

only uses the shorthand term "Assault Domestic Violence" without alleging that

the defendant caused bodily injury, an element of the offense. Johnson v. State,

supra, is not in point, because the issue there was only whether the term "Agg.

Assault Family Member" in the judgment should have been reformed to say "Agg.

Assault Family Violence." Johnson at 409 S.W. 3d 742-743.

The question of how specific a judgment must be under Article 42.01 of the

Code of Criminal Procedure to sustain a conviction for Assault Family Violence is

an important question of state law that has not been settled, and that this Court

should answer. T.R.APP. P., R. 66.3(b).

4 PRAYER

Appellant prays that the Court grant this Petition and allow oral argument.

Respectfully submitted,

Is/ Daniel Wannamaker State Bar: 20834300 1012 Rio Grande Austin, TX 78701 (512) 236-9929 (512) 233 -5979 (fax)

CERTIFICATE OF COMPLIANCE

Pursuant to Rule 9.4 of the Rules of Appellate Procedure, I certify that this

Petition contains 813 words.

Is/ Daniel Wannamaker

CERTIFICATE OF SERVICE

I certify that true and correct copies of this Petition were mailed to the State

Prosecuting Attorney, P.O. Box 1748, Austin, Texas 78711 and to Mr. Scott

Brumley, Potter County Attorney, 500 South Fillmore, Room 301, Amarillo, Texas

79101 on this the 25 111 day of November, 2015 . A copy was also emailed to Mr.

Scott Brumley at countyattorney@co.potter.tx.us.

Is/ Daniel Wannamaker

6 3Jn ~be QCourt of ~peals ~ebentb Jltstrict of ~exas at ~marino

No. 07-12-00125-CR

RICHARD AHMED ZAMBRANA, APPELLANT

v. TilE STATE OF TEXAS, APPEl .I .EE

On Appeal from the County Court at LawNo. 2 Potter County, Texas Trial Court No. 132,487-2, Honorable Pamela Cook Sirmon, Presiding

February 24,2014

MEMORANDUM OPINION

Before QUINN, CJ., and CAMPBELL and HANCOCK,.U.

Appellant Richard Ahmed Zambrana appeals from his jury conviction of an

assault against his wife causing bodily injury, 1 and the resulting punishment of 180 days

confinement in the Potter County Jail , probated for eighteen months, and $500 fine plus

court costs . Through two issues, appellant contends the trial court erred . We will affirm

the judgment.

1 TEX. PENAL CODE ANN . § 22.01 (West 2012) . Background

Appellant was charged by information alleging that in April 2011, he intentionally,

knowingly or recklessly caused bodily injury to his wife Tina Alexander-Zambrana.2 The

couple married in March 2010. They separated in February 2011 but continued to "work

on their marriage. " Alexander filed for divorce in August 2011 .

In April 2011 , the couple went together to a cookout in Groom , Texas. Both

parties consumed alcohol at that gathering. During the evening, appellant became

angry with Alexander and later, while they drove back home, appellant again became

angry with her. Appellant accused Alexander of flirting with another man.

Alexander's testimony at trial described further events of the evening, during

which appellant bought and consumed additional beer, continued to accuse her of

flirting with the other man at the cookout, and became angry when she would not agree

to stay with him that night. Eventually, she testified , they argued and she told appellant

she would not attend their marriage counseling session the next morning. Appellant

then became angry and assaulted her in various ways. By her testimony, he threw her

across the floor and into furniture, kicked her hips and thighs , grabbed her hair, shoved

her into a wall , choked her, and slapped her face .

Alexander testified that after she saw that appellant was asleep, she crawled into

the living room and slept on the couch. She told the jury her head hurt "so bad ," her

back hurt, her legs hurt and "kept trembling ," and her throat was sore. The next

2 Hereafter, we refer to the victim of appellant's assault as Tina Alexander, which is the name by which she identified herself at trial.

2 morning, appellant apologized . The two drove separate cars to their marriage

counseling appointment.

Alexander testified she did not report the assault to the police because she did

not want her marriage to end , nor did she want appellant to lose his job as a firefighter.

A co-worker of Alexander's testified she observed "kind of blue and purplish"

bruises on Alexander's arms at about the same time as the assault occurred .

Alexander's sister also testified she saw dark bruises on her arm on April 10, 2011 .

Appellant did not testify during the guilt-innocence phase of trial.

Following presentation of the evidence, the jury found appellant guilty of the

offense as charged in the information and sentence was assessed as noted. This

appeal followed .

Analysis

Defect in Court's Judgment

Appellant's first issue focuses on the manner in which the trial court's written

judgment describes the offense of which he was convicted . His contention is the same

as that he presented in his appeal of another conviction for assault on his wife, which

appeal is th is Court's Cause No. 07-12-00124-CR. 3

3 The two cases were tried two weeks apart. See Zambrana v. State, No. 07-1 2- 00124-CR, _Tex. App . LEXIS __ (Tex. App.-Amarillo February 24, 2014) (mem. op., not designated for publication).

3 The form of the information, jury charge, verdict form , and judgment in this case

are very similar to the forms of those documents appearing in Cause No. 07-12-00124-

CR. Like the judgment in Cause No. 07 -12-00124-CR, the judgment in this case

contains the language "Offense Convicted of: Assault, Domestic Violence," and "Degree

of Offense: Class A misdemeanor." Like the other judgment, the judgment in this case

also refers in several other places to the convicted offense as "Assault (Domestic

Violence) , a Class 'A' Misdemeanor. " It recites the verd ict of the jury as finding appellant

"guilty of the offense of Assault, Domestic Violence, as charged in the Information." It

adjudges appellant "guilty of the offense of Assault (Domestic violence) , a Class 'A'

Misdemeanor, as found by the Jury." It also contains a family violence finding .4

And , like in Cause No. 07-12-00124-C R, appellant argues here that the wording

of the judgment reflected his conviction only of a Class C misdemeanor offense

because it omitted any express reference to bodily injury. He again refers to the

judgment's omission of an express reference to bodily injury as a "fatal variance ," and

again asserts it requires his acquittal of the Class A misdemeanor offense.

Like in Cause No. 07 -1 2-00124-CR, appellant relies on our opinion in Tanner v.

State, 335 S.W .3d 784 (Tex. App.-Amarillo 2011 , no pet.) to support his position. For

the same reason we have described in our opinion in Cause No. 07 -12-00124-CR, we

find Tanner does not aid appellant in this case . And , we find no variance on this record

because, as was also true in Cause No. 07 -12-00124-CR, there is no discrepancy

between the information and the proof at trial. As we discuss later in this opinion, the

4 See TEX. CODE CRIM. PROC. ANN. art. 42.013 (West 2013) (requiring affirmative finding of family violence).

4 victim's testimony was sufficient to permit the jury to find appellant caused her bodily

injury. See Gol/ihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001) (defining

variance as occurring when there is a discrepancy between the allegation in the

charging instrument and the proof at trial. 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").

Lastly, we note appellant cites no authority supporting his argument that because

the judgment omits express reference to bodily injury, it must refer to assault as a Class

C misdemeanor offense. See Johnson v. State , 409 S.W.3d 738 , 743 (Tex. App .-

Houston [1st Dist.] 2013, no pet.) (modifying judgment but noting defendant cited no

authority for complaint regarding manner in which offense was described in judgment).

We resolve appellant's first issue against him .

Sufficiency of the Evidence

By appellant's second issue, he contends the evidence supporting his conviction

is insufficient.

In assessing the sufficiency of the evidence, we view all of the evidence in the

light most favorable to the verdict to determine whether any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Brooks v.

State, 323 S.W.3d 893, 912 (Tex. Crim. App. 201 0). "[O]nly that evidence which is

sufficient in character, weight, and amount to justify a factfinder in concluding that every

element of the offense has been proven beyond a reasonable doubt is adequate to

5 support a conviction. " Brooks, 232 S.W .3d at 917 (Cochran, J., concurring). Our review

of the evidentiary sufficiency leads ultimately to the question whether the jury's finding

of guilt was a rational finding . /d. at 906-07.

The Jackson v. Virginia standard gives full play to the responsibility of the trier of

fact to resolve conflicts in the testimony , to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts . Jackson, 443 U.S. at 319. When

performing an evidentiary sufficiency review, we may not re-evaluate the weight and

credibility of the evidence or substitute our judgment for that of the factfinder. Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App . 2007). Instead , we must presume that the

factfinder resolved any conflicting inferences in favor of the verdict and defer to that

resolution . Jackson, 443 U.S. at 326; Hooper v. State, 214 S.W .3d 9, 16-17 (Tex. Crim.

App. 2007). We measure the sufficiency of the evidence against the instructions of a

hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App .

1997).

Penal Code section 22.01 (a) provides that a person commits an offense by

intentionally, knowingly or recklessly causing bodily injury to another, including the

person's spouse. TEX. PENAL CODE ANN. § 22.01 (a )(1) (West 2012). The information

alleged that:

... on or about the 81h day of April , 2011 , RICHARD AHMED ZAMBRANA did then and there intentionally, knowingly or recklessly cause bodily injury to TINA ALEXANDER by pulling her hair, slapping her face , grabbing her wrist, grabbing her arm , choking her, pressing on her neck, throwing her against a wall , or throwing her against furniture ; and at the time of this offense, TINA ALEXANDER was a member of the defendant's family or a member of the defendant's household or a person with whom the defendant had or had had a dating

6 relationship, as defined by the Texas Family Code sections 71 .0021 (b), or 71.003, or 71 .005.

Appellant specifically argues the evidence was insufficient to show his actions

caused Alexander bodily injury. For this purpose, "bodily injury" means "physical pain,

illness, or any impairment of physical condition. " TEX. PENAL CoDE ANN. § 1.07(a)(8)

(West 2012). Direct evidence that a victim suffered pain is sufficient to show bodily

injury. Laster v. State, 275 S.W.3d 512, 524 (Tex. Crim. App. 2009).

The prosecutor asked Alexander whether, after the assault, she was "feeling

pain. " As we have noted, Alexander testified her head hurt "so bad, " her back hurt, her

legs hurt and "kept trembling ," and her throat was sore. From the context of her

statement, the jury rationally could have inferred that the pain she referred to in several

parts of her body was caused by the physical assaults from her husband which she had

just described for the jury. See Hooper, 214 S.W .3d at 16 (an inference is a conclusion

reached by considering other facts and deducing a logical consequence from them).

Appellant also points to other reasons why, in his view, Alexander's testimony

could not support a rational finding of guilt. He argues her account of the assault was

rendered untrustworthy by (1) evidence she was intoxicated at the time of the events;

(2) her untruthful testimony concerning the amount she had to drink;5 (3) her frequent

responses to questions during testimony indicating she could not remember particular

events or why she took particular actions; (4) her inability to explain adequately why she

did not leave appellant's home after the attack but slept there ; (5) her failure to make a

5 Another person who attended the cookout testified Alexander drank more vodka than Alexander testified to drinking.

7 report to police or complaint to family members about the assault; (6) the lack of

pictures or documentation of claimed injuries; and (7) evidence of her behavior the next

morning , including her attendance at marriage counseling with appellant. Appellant also

points out Alexander had a financial motive to pursue the prosecution because of the

parties ' pending divorce.

All the factors to which appellant points are reasons why jurors might have

disbelieved Alexander's testimony, but none of them provide reasons the jurors were

required to disbelieve it. It is the role of the jury to judge the credibility of evidence and

the weight to be given particular items of evidence, to resolve conflicts in the testimony,

and to draw reasonable inferences from that evidence. See Jackson, 443 U.S. at 319;

lsassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010); see also TEX. CODE CRIM.

PRoc . ANN . art. 38.04 (West 2012). In carrying out its factfinding functions , the jury was

free to believe Alexander and to give weight to the testimony regarding bruises on her

arms. Viewing all of the evidence in the light most favorable to the verdict, we hold that

a rational trier of fact could have determined beyond a reasonable doubt that appellant

intentionally, knowingly or recklessly caused bodily injury to Alexander, a member of his

family or household, by "pulling her hair, slapping her face, grabbing her wrist, grabbing

her arm, choking her, pressing on her neck, throwing her against a wall or throwing her

against furniture." Jackson, 443 U.S. at 319, lsassi, 330 S.W.3d at 638.

We overrule appellant's second issue, and affirm the judgment of the trial court.

James T. Campbell Justice

Do not publish .

8

October 27, 2015

C. Scott Brumley Potter County Attorney 500 S. Fillmore Amarillo, TX 79101

Wannamaker & Associat~s Danie l H. Wannamaker Attorney at Law 1012 Rio Grande Street Austin, TX. 78701

Re: Ca use No. 132487-2, The Sta te ofTexas vs. RICHARD AHMED ZAMBRANA

Dear Counsel:

The following docume nt h as been filed in the above cap tioned case:

Order on Writ of Habeas Corp us

I am enclosing a copy of t he above m entioned document.

Very truly yo urs,

CC: Judge Sirmon Clerk's File IDn FIL:.:: · ·;-r-.: -· ll [.:""'· ~..,,- ,, ~- · l. flu

1:~ D~tb~ No . 132487 1

EX PARTE § IN THE COUNJ,F,8'!fC/\I,LA;)! Countv .c:, ri<, Pv . ~e; Co. § NUMBERTWCO By Oepu~ RICHARD AHMED ZAMBRANA § POTIER COUNTY, TEXAS

ORDER ON WRIT OF HABEAS CORPUS

On this day came on to be heard Richard Ahmed Zambrana's Application For Writ Of Habeas Corpus.

After due consideration, t he Court finds that t he writ should be GRANTED, and that Applicant is entitled to file an out-of-time Petition For Discretionary Review.

IT IS SO ORDERED on this the z ~ day of October, 2015.

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