Zambrana, Richard Ahmed

• Court: Court of Appeals of Texas
• Decided: November 25, 2015
• Docket: PD-1545-15
• Status: Published

Opinion

PD-1545-15 PD-1545-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 11/25/2015 11:43:10 AM Accepted 11/25/2015 11:55:08 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. 07-12-00124-CR

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

Daniel Wannamaker State Bar No. 20834300 1012 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 Rgarding Oral Argument . ........... .......... .......................... ... ..... v

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

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

Questions for Review .. ............... . .. ........ . .... ... ..... .......... ...................... 3

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

Argu1nent .... ...... . ........ . ... ...... ....... ...... .............. ........... . .................. 3

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

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

Certificate of Service ..... ..... ..... ....... ....... ............ .. .. .. ...... .... .......... ..... .6

Appendix .... ................... ....... .. ..... .. ...... ... .. ............. . ......................... 7

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

APPELLANT: ruCHARDAHMED ZAMBRANA

TRIAL COURT: HONORABLE PAMELA SIRMON POTTER COUNTY COURT ATLAW N O. 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) 3 79-2215

TRIAL COUNSEL: PAUL H ERMANN SBN: 09541810 Hermann & Weaver 320 S. Polk, Suite 902 Amarillo, TX 79101 (806) 342-4242

APPELLANT' S COUNSEL ON APPEAL: DARRELL R. CAREY SBN: 03791700 Hester McGlasson & Cox 1507 Fowih Avenue Canyon, Texas790 15 (806) 655-1016

ll 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 01 (806) 379-2215

Ill INDEX OF AUTHORITIES PAGE Cases

Gollihar v. State, 46 S.W. 3d 243 (Tex. Critn. App. 2001) .............. ........................................... .................................... 4

Johnson v. State, 409 S.W. 3d 738 (Tex. App. - Houston [ 151 Dist.] 2013, no pet.) ........................................................ . 4

Statutes

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

TEX. PENAL CODE, § 22 .01(a)(l) ........................................... ........ ......................... 3

RULES

TEX. R. APP. P., Rule 66.3(b) ... ......................... ............. .......... .. ....... .. 5

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

IV STATEMENT REGARDING ORAL ARGUMENT

Appellant requests oral argument.

v IN THE

RlCHARD AHMED ZAMBRANA, § Appellant § No. __________________ THE STATE OF TEXAS, § Appellee

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 Rul es of Appellate

Procedure, offers this Petition for Discretionary Review. Appellant respectfully

submits the following: STATEMENT OF THE CASE

On June 8, 2011 , Appellant was charged by information with the offense of

Assault Causing Bodily Injury Against a Family Member in Cause No. 131,171-2

in the County Court at Law Number Two in Potter County, Texas (CR-2). Paul

Herrmann was retained to represent Appellant at trial (CR-4). On November 15,

2011, a jury was selected (RR 2 - 58). On November 15, 2011, a mistrial was

granted (RR 2- 80). On January 4, 2012, a double jeopardy hearing was held (RR

3- 4) and the Court denied the motion to dismiss (RR 3 - 22). The State waived

count 2 of the information of February 28,2012 (RR 4 - 7). On February 28,2012,

a jury was selected (RR 4 - 73). On February 28, 2012, the jury returned a verdict

of guilty of the offense of Assault Causing Bodily Injury Against a Family

Member as alleged in the information (RR 4 - 259). The Court set the punishment

at 45 days in county jail and a $300.00 fine (CR 66-67). Subsequently, Appel lant

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. 07-12-00124-

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

2 Petition for Discretionary Review, but Appellant subsequently fi led a Writ

of

Habeas Corpus seeking permission to fi le 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-fami ly violence case allege

that an assault causing bodily injury occurred?

ARGUMENT

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

to his spouse, a class A misdemeanor under Section 22.01(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." Zam.brana v_ State, supra, Slip

Opinion at p. 3.

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

3 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

22.01 (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 occuned, because the variance doctrine dealt with a variance between

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

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.ld. at p. 5, citing Johnson v.

State, 409 S.W. 3d 738 (Tex. App.- Houston [1 51 Dist.] 2013, no pet.).

Article 42.01 , § 13 of the 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,

4 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).

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 902 words.

/s/ Daniel Wannamaker

5 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 Attom.ey, 500 South Fillmore, Room 301, Amarillo, Texas

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

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

6 APPENDIX

7 Jn m:be ~ourt of ~peals ~ebentb j!Btstrirt of m:exa:s a:t ~ma:rillo

RICHARD AHMED ZAMBRAN~ APPELLANT

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

On Appeal from the County Court at Law No. 2 Potter County, Texas Trial Court No. 131,171-2, Honorable Pamela Cook Sirmon, Presiding

February 24, 2014

MEMORANDUM OPINION Before QUINN, CJ ., and CAMPBELL and HANCOCK, .IT.

Appellant Richard Ahmed Zambrana appeals from his conviction by jury of an

assault against his wife causing bodily injury 1 and the resulting punishment of 45 days

in county jail and a $300 fine. He presents two issues. Finding appellant has not

shown the trial co urt erred, we will affirm the court's judgment.

1 TEx. PENAL CODE ANN . § 22.01 (West 2012). The conviction resulted from the second trial on this charge ; the first trial ended in a mistrial. Background

The State's information alleged appellant intentionally, knowingly or recklessly

caused bodily injury to Tina Alexander-Zambrana ,2 by squeezing her arm with his hand,

grabbing her with his hand, grabbing her hair with his hand or kicking her, and that she

was then a member of his family or household. At the time of the assault in May 2011,

Alexander and appellant were married but separated. They, however, "continued to

work on their marriage." The couple went to a restaurant to celebrate appellant's

birthday. Both had drinks with their meal. At the end of the two-and-a-half-hour meal ,

appellant argued with the restaurant manager. Alexander testified that when they left

the restaurant, she asked appellant for his keys because he had too much to drink.

Appellant became angry, grabbed her arm, pulled her hair and kicked her. She got out

of the car and appellant drove off. Restaurant employees testified both to the

confrontation between appellant and the manager, and to appellant's conduct toward

his wife like that alleged in the information.

Alexander also testified , over objection, that about six weeks after the incident at

the restaurant, appellant called and asked her not to testify or to change her story and if

she did not, he would "make things very obnoxious" for her. Appellant testified at trial ,

denying any assault to Alexander.

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 Analysis

Defect in Court's Judgment

The judgment the trial court signed states the "offense convicted of:" as "assault

(domestic violence) ." It also states the "degree of offense:" as "class 'A' misdemeanor."

The judgment also later recites that appellant "pleaded Not Guilty to the offense as

alleged in the Information herein, to wit: Assault (Domestic Violence), a Class 'A '

Misdemeanor." The judgment recites the verdict of the jury as finding appellant "guilty

of the offense of Assault, Domestic Violence, as charged in the lnformation."3 The

judgment's ordering paragraph states that appellant "is hereby adjudged guilty of the

offense of Assault (Domestic violence) , a Class 'A' Misdemeanor, as found by the Jury."

The judgment's paragraph ordering appellant's sentence repeats the same statement,

decreeing that "[appellant], who has been adjudged guilty of the offense of Assault

(Domestic Violence) , a Class 'A' Misdemeanor .. . ."

The judgment further conta in s an affirmative finding "that the victim of this

offense was a family member of the defendant or a member of the defendant's

household."4

3 The recitation in the judgment is accurate. The verdict form reflects the jury's finding of appellant "guilty of the offense of Assault, Domestic Violence as charged in the Information." The court's charge instructed the jury that "Our law provides that a person commits the offense of Assault, Domestic Violence if he intentionally, knowingly or recklessly causes bodily injury to a member of the Defendant's family or household." The charge further defined "family" to include "individuals who are married to each other. " 4 See TEX. CODE CRIM. PROC. ANN. art. 42.013 (West 2013) (requiring affirmative finding of family violence).

3 The judgment's characterization of the offense as assault (domestic violence) is

consistent with the offense's characterization from the outset of the case. The

information states at its outset, "Offense: Assault- Class A (Domestic Violence)."

Despite the quoted statements in the judgment, by his first issue appellant

contends the judgment reflects his conviction only of a Class C misdemeanor offense.

By appellant's reasoning , because the judgment omits any reference to bodily injury, it

must refer to an assault constituting a Class C misdemeanor offense. See TEX. PENAL

CODE ANN . § 22.01 (c) (West 2012) (providing, with exceptions, that assaults committed

in the manners defined in § 22.01 (a)(2) and (a)(3}, not requiring bodily injury, are Class

C misdemeanors). Because the information charged appellant with the means of

assault causing bodily injury, that defined in § 22.01 (a)(1 }, a Class A misdemeanor, see

§ 22.01(b), appellant sees what he describes as a "fatal variance" in the record,

requiring his acquittal on the Class A misdemeanor offense.

Appellant cites our opinion in Tanner v. State, 335 S.W.3d 784 (Tex. App.-

Amarillo 2011 , no pet.}, as authority. Tanner involved a challenge to the sufficiency of

the proof that the defendant's prior misdemeanor assault had been committed against a

family member, which proof was necessary to enhance his later assault to a third

degree felony. /d. at 785; see TEX. PENAL CODE ANN. § 22.01 (b}(2)(A) (West 2012).

Finding the evidence insufficient to establish the enhancement, we reversed his felony

conviction and remanded the cause for entry of a misdemeanor conviction judgment

and resentencing. /d. at 786. Tanner does not support appellant's argument. There is

no contention that the State's evidence was insufficient to support conviction on the

4 charged offense of assault causing bodily injury. The victim's testimony was sufficient

to show her bodily injury, and appellant does not contend otherwise.

Nor does this record present a fatal variance. "A variance occurs 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. " Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001 ). No

discrepancy between the information, which charged assault causing bodily injury, and

the proof at trial , which showed bodily injury, appears here. The State 's proof matched

the allegations of its charging instrument.

None of the authority appellant cites supports 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 [1 51 Dist.] 2013, no pet.) (mod ifying judgment but noting defendant cited no

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

For all these reasons , we overrule appellant's first issue.

Admission of Evidence of Extraneous Misconduct

During trial, Alexander testified that on two occasions, about six weeks after the

incident at the restaurant, appellant contacted her, asking that she lie for him and say

she "made everything up." He also told her he would "make things very obnoxious for

[her]" if she testified at trial. Appellant objected to the testimony , arguing Rule of

5 Evidence 404(b) required its exclusion. The trial court disagreed. By his second issue,

appellant complains of the court's admission of the testimony. We overrule the issue.

Assuming, without deciding, the trial court erred by overruling the objections

raised, we have no hesitation to conclude the error was harmless.

Erroneous admission of the testimony would be subject to error analysis under

the standard for nonconstitutional errors. TEX. R. APP. P. 44.2(b); Hernandez v. State,

176 S.W.3d 821, 824 (Tex. Crim. App. 2005). We must disregard a nonconstitutional

error that does not affect a criminal defendant's "substantial rights." TEX. R. APP. P.

44.2(b). An error affects a substantial right of the defendant when the error has a

substantial and injurious effect or influence in determining the jury's verdict. King v.

State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Reversible error has not occurred if

we, after examining the record as a whole , have "fair assurance that the error did not

influence the jury, or had but a slight effect." Johnson v. State, 967 S.W.2d 410, 417

(Tex. Crim. App. 1998); see also Motif/a v. State, 78 S.W.3d 352, 355 (Tex. Crim . App.

2002).

In his testimony before the jury, appellant acknowledged his argumentative

encounter with the restaurant manager. But he testified he engaged in no assaultive

behavior toward his wife. Confronted on cross examination with her testimony, and that

of the restaurant employee, appellant responded they were lying . Because of the sharp

conflict between their versions of the incident, appellant argues, the improper admission

of evidence of his later misconduct swayed the jury toward acceptance of Alexander's

6 account of the assault. Having reviewed the entire trial record , we cannot agree her

testimony of their telephone conversations had such a substantial and injurious effect.

The testimony regarding the telephone conversations was like that regarding the

assault: Alexander said he made the statements attempting to influence her testimony;

appellant denied making the statements. There was no evidence he made the

statements other than her testimony. We see no indication in the record of a likelihood

the jury accepted her testimony about the assault only because they found her

testimony about the telephone conversations credible. Said another way, if jurors did

not believe Alexander's version of the assault, we see no reason they should have

believed her version of the telephone conversations. See Jones v. State, 984 S.W.2d

254, 257 (Tex. Crim. App. 1998) Uury is the sole judge of the cred ibility of witnesses and

is free to believe or disbelieve all or part of a witness's testimony). Nor were the

telephone conversations further emphasized to the jury; they were not mentioned during

counsel 's arguments.

Viewing the record as a whole , we are fairly assured that any error in admitting

Alexander's testimony relating to the two conversations with appellant did not influence

the jury, or had but a slight effect, in finding appellant guilty. Johnson, 967 S.W.2d at

417.

We affirm the judgment of the trial court.

James T. Campbell Justice

Do not publish.

7

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

Wannamaker & Associates Daniel H. Wannamaker Attorney at Law 1012 Rio Grande Street Aust in, TX 78701

Re: Cause No. 131171-2,The State ot Texas vs. RICHARD AHMED ZAMBRANA

Dear Counsel:

The following document has been fi led in the above captioned case:

ORDER ON WRIT OF HABEAS CORPUS

I am enclosing a copy of the above mentioned document.

Very truly yours,

Julie Smith, Potter County Clerk

B~~, Jnie Kauffman

CC: Judge Sirmon Clerk's File No. 131171

EX PARTE §

§

RICHARD AHMED ZAMBRANA §

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

After due consideration, the Court finds that the writ should be GRANTED, and that Applicant is entitled t o 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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