Magalde, Fernando ( 2015 )

/ / V/5"
REF'D NO PDR 0114-15
IN THE COURT OF CEIMINAi
ORIGINAL
APPEALS, AUSTIN
FERNANDO MAGALDE
PETITIONER
COURT OF CRIMINAL APPEALS
V. APR 17 2015
THE STATE OF TEXAS Abel Acosta. Clerk
APPELLEE
FILED IN
COURT Of CRIMINAL APPEALS
On Appeal in Cause NO 20110D0535 APR 17 2015
in the 120th District Court
El Paso County,Texas Abel Acosta, Clerk
The Honorable Maria Salas-Mendoza, Judge Presiding
PETITION FOR DISCRETIONARY REVIEW
ORAL ARGUMENT REQUESTED
Judge Defense Attorneys at trial
Maria Salas-Mandoza
M.Clara Hernandez
Attorneys for the State Robert Riley and
Jaime Esparza, Jaime Gandara
Manuel Arambula ElPaso County Public defender
Nathan Brown and Assistant Public defender
34th Dist Att 500 E.San Antonio,Room 501
500 E.San Antonio,Room 201, El Paso Texas 79901
El,Paso,Texas 79901
Appellate Attorney
Appellate Stage M,Clara Hernandez,El Paso
County Texas
Jaime Esparza, 500 E.San antonio Room 501
El Paso Texas 79901
IN THE COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
FERNANDO MAGALDE §
Petitioner
§
§ PD 0-115-05
App NO 08-01200065-CR
§ Trial BO 2O11OOJOS035
THE STATE OF TEXAS §
Appellee
§
PETITION FOR DISCRETIONARY REVIEW
WITH MEMORANDUM IN SUPPORT
TO THE HONORABLE JUDGE OF SAID CCLKT
Comes now Fernando Magalde, Pro se hereinafter Magalde in the above styled
and numbered cause to file this petition for Discretionary Review of the
opinion of the 8th court of appeals El Paso County ,Texas Appeal NO 08-
012-00065-CR , whom affirmed the conivction from the 120th Judicial District
Court Trail NO 20110D05035 in and unpublished Cpinicft March,..28,2012 in support
thereof petitioner will show the following
I
FACTUAL / PROCEDURAL HISTORY
Petitioner was charged by indictment'for a violation of a protective Order
trial Number 20110D06141, The indictment also included that petitioner had
a prior felony conviction for driving while intoxicated, The state subsequently
filed a notice of Enhancement and Habitualization, alleging r.tree prior
felony at trial petitioner pleaded not ture to the violation of a protective
order,during the guil / innocence phase the jury found petitioner to be guilty
as charged ( CR at page 3 ) the trial then procedded to the punishment stage
(RR 5, 1-5-12-17 ) a plea of not true was entered to the enhancement allegations
(RR5, 17),after oral argument of both parties the jury found the enhancement
/habitualization paragraphs true and assessed punishment at (40) forty years
imprisonment and a fine of $ 10,000 dallor, the judgment was thereby
FOOTNOTE
1, in addition petitcner had been charged in a three count indictmait with Robbery ( Count
""' I ) Aggravated Kidnapping ( Count II )And Unlawfull use of a Motor Vehicle ( Count in)
Upon agreemsnt of the parties ,the trial court consolidated the two cases for a single trial,
~^_ •- - •-_.._ . found him guilty
_, . — ^.^ „ = -, , 2 Lesser offense unlawful
separate appeal
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entered in accordance with the jurys verdict ( RR5, ) On appeal petitioner
contends that the trial court abused it's discretion by admitting evidence
of his gang membership at issue before this Honorable Court ,
II
JURISDICTION
Pursuant to Texas Rules of Appellate Procedural, Rules 66-1, 66.3 and 68
this honorable court as part of its punitive power has subject matter Jurisdict
ion to review a petition for discretionary review of the opinion of the 8th
court of appeals
III"
ORAL ARGUMENTS REQUESTED
Oral argument are necessary to establish petitioners substaintial due process
rights to a fair and impartial trial where violated by the trial court abuse
a.
of discretion in allowing the state to introduce the exhibit containing his
gang membership at the punishmant stage which was clearly in violation of
Rules 401,403 and 404 of the Tex. R.Evid
-2-
•2.
TABLE OF CONTENTS
Cover Page 0
Factual / Procudural History . 1
Jurisdiction 2
Oral Arguments Requested • 2
Table of Contents ... . . 3
Table of Authorities .... 4
Statement of the Case ....... . . . .5
Statement of Facts . . . . . . . . . . .. 5
issue presented for Review ... . . . . ... 7
Summary of Argument . . . . . . . . . .7
Argument and Authorities .... . . . . . .7
preservative of the error ...... . . . - -8
Standard of Review Abuse of Discretion .... . . . - -10
Conclusion - • - - - - - 14
Prayer for Relief - - - - • - • - ... 15
Certificate of service - ....... - - -15
TABLE OF AUTHORITIES
Federal Cases ,
Garcean-v-Woodford, 276 F.2d.769 (20001 ) 14
State Case,
Anderson.v.State, 901 S.W.2d at 949 ( Tex.Crim.App 1995 ) . , . . .9
Beasley.v.State,902 s.w.2d 452,456 ( Tex.Crim.App 1995 ) 9
Burks.v.State, 876 S.W. 2d 877,909 ( Tex.Crim.App 1994 ) 7
Couret-v.State,792 S.W. 2d 107 ( Tex.Crim.App 1990 ) 13
Garcia, v. State, 201 S.W.3d 695 ( Tex.Crim.App 2006 ) 15
Geuder.v.State, 115 S.W.3d 15 (Tex.Crim.App 2001 ). 8
Gigliobianco.v.State, 210 S.W. 3d at 641,642 ( Tex.Crim,App 2006 ) . . •. .9
Heitman.v.State, 815 S.W. 2d at 681,690 (Tex.Crim.App 1991 ) 7
Idown.v.State, 73 S.W. 3d 918,923.(Tex.Crim.App 2002 ) . ... . . . . .. 8
Kemp.v.State, 846 S.W. 2d at 289,307 (Tex.Crim.App 1992 ) 14
Klueppel -v.State,Supre 505 S.W. 2d at 552,574 ( Tex.Crim.App 1974 ) . . . 14
Coffin.v.State 885 S-W- 2d at 140,149 ( Tex- Crim.App 1994 ) 13
-3-
Hayos.v.State, 982 S.W. 2d at 419,422 ( Tex. Crim.App 1996 ) . . io
Lamas.v.State, 707 S.W. d at 566 ( Tex.Crim.App 1986 ) , . . ,14
Lopez.v.State, 200 S.W. 3d at 246,248 ( Tex.App Houst [14th Dist] 2006 ) 13
Maranda.v.State, 253 S.W. 3d 762,769 (Tex.App .Amarillo 20007 no pprt ) ... iq
Massey.v.State, 933 S.W. 2d 532,587 ( Tex. CApp Houst [1st Dist] 1996 ) ... 8
Montgomery.v.State, 810.S.W. 2d 372,387,388 ( Tex. Crim.App 1990 ) . • • •n
pondexter.v.State, 942 S.W.2d at 577 ( Tex. Crim.App 1996 ) 9
Rhoades.v.State,934 S.W. 2d 113,121,127 ( Tex.Crim.App 1986 )..... io
Robinson.v.State, 16 S.W.3d at 808, 813 ( Tex. Crim.App 2000) e
Roethel.v.State 80 S.W. 3d at 276,278 ( Tex. App Auston 2000 no pet ) . . .13
Sanchez.v.State, 120 S.W.3d 366 ( Tex. Crim.App 1999 ) 8
Schaffer.v.State, 777 S.W.2d at 114 ( Tex. Crim.App 1985 ) .7
Steels.v.State, 170 S.W.3d at 765 ( Tex. App.Waco. 2005 ) 8
Tellez.v.State, 170 S.W. 3d at 58 ( Tex. Crim.App 2006 ) . . 7
webber.v.State, 29 S.W.3d 226232 ( Tex. App Houst [14th Dist] 2010 ) . - ±q
Young.v.State, 137 S.W. 3d 65,70 ( Tex. Crim.App 2004 ) ... ... -8
Zillender.v-State,557.S.WW2d 515,517 ( Tex.CR.App 1977 ) 13
Constitutiona, Statutes and Rules
Article 37.07 § 3(a) (1) ...... ; ... 7
Artucle 33.1(a) . . . . ...... . . . . . .7-8
Article 44.2 (a) 13
Rules of Crim Evidence
Rule 401, 403, 404, 404(b),and 405 . 3,4,6,
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STATEMENT OF CASE
Petitioner Magalde is Now applealing the opinion of the 8th Court of Appeals
and its denial of Relief from the Judgment and Punishment assessed by the
120th Judicial District Court El Paso County,Texas for Violation of a protect-
ive order ( CR at Page 3 ) In which he retrieved a 40 year sentence (RR5,233)
( CR 63,70 ) The appeal was filed on August 15,202 STYLED FERNANDO MAGALGE.V.
THE STATE OF TEXAS ,App NO 08-12-00065-CR ,h\-,..> in an unpublished opinion
affirmed the conviction March 28,2014, The Originial date for filing the
PDR was April 27, 2014, However a letter was sent by petitioner to the El
paso County public defender office requesting them to file a motion for exten-
ion of time, which was not timely transmitted to the court of appeals due
to a clerical error^ that caused the period for filing the (PDR) to expire
, A Motion was later filed by the El Paso Public defender office to the
court of criminal appeals June 13, 2014 seeking and extension , that was
denied on the 16th of June 2014, Petitioner then filed a Writ of Habeas Corpus
Writ NO ( WR 82-561-01 ) which was granted January 20,2015, A motion for
extension of time was granted February 2, 2015 thereby extending the period
for filing the PDR until may 11, 2015 PD 115-15 ,
STATMENT OF FACTS
At the trial of this cause petitioner was found guilty of Violation of a
protective Order on January 24,2012 ( RR4, 98 ) At the punishment phase January
25, 2012,the state was allowed to through multiple sources introduce evidence
pretaining to petitioners gang membership through Officer Duran, Officer
Pineira,and Detective Sanchez, all the Exhibit's 37,38,and 39 confirmed that
petitioner was identified as a gang member ( RR5, 88-90 ) Defense counsel
objected to the "Veracity" of the information contained in states Exhibit
# 37, ,However over his objection Judge Salas-Mendoza admitted the information
( RR 5, 90 ),When the state asks if it could public the information to the
jury defense counsel objected that it was hearsay ,Then asks the Judge if
it would review-: the information, to determine what if any hearsay was contain
ed in the Exhibit, after a bench hearing the court admitted the exhibits
-5-
at the conclusion of the punishment phase the jury found the Enhancement
and Habitualization alleging true(RR4,98 CR At P 63 ) The jury assessed punish
ment at (40 ) Forty years in the Texas Department of Criminal Justice Institut
ional Divisiion and a $10,000 fine, ( RR5; at 233 CR p, 70 ),72-73 ) Notice
of Appeal containing Cartification of petitioners rights to appeal was filed
on January 30, 2012 (CR 74 ) ,
On appeal petitioner asserted that the trial court had abused it's discretion
by allowing the state prosecutor to at the punishment phase admit Evidence
that he was a Member of the Barrio Azteca Gang, at issue before this Honor
able Court ,
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ISSUE PRESENTED FOR REVIEW
The 8th Court of Appeals Error in holding petitioner fail to preserve
the issue for appellate review Citing to TEXAS RULE OF APPELLATE PROCEDURE
33.1(a)
SUMMARY OF THE ARGUMENT
In a sole point of Error petitioner challenges the decision of the 8th Court
of appeal,and its opinion that he fail to preserve the issue and will by
and through Numerous Citation of Case Law demonstrate his trial objection
was sufficient to preserve the issue, although only a general objection to
the "Varacity" of the information contained in States Exhibit 37 was made
Citing Tellez.v.State 170 S.W. .2d 158 (Tex.Crim.App 2006 ) , In addtition
petitioner will also demonstrate the admission of States Exhibit 37 by the
trial Court was an abuse of discretion Citing Schaffer.v.State 777 S.W.2d.at-"
114 ( Tex.Crim.App.1985 )
ARGUMENT / AUTHORITIES
Petitioner argues that the failure of the 8th Court of Appeals to Review
his claim related to the improper admission at the pumishment phase of his
trial information of his purported gang affilations and activites we're clear
ly a violation of TEX.R.FJVID 401,403 and 404 ,and Constitutes an abuse of
discretion on part of the trial court,when overruling defense counsels object
ion to the "Veracity" ( RR 5,90 ) in a case like this compounded by a lack
of a statutory requirement that it be proven beyond a reasonable doubt,Because
extraneous offense evidence may be introduced at the punishment hearing of
a trial,Burks.v.State 876 S.W. 2d 877,909 ( Tex.Crim.App.1994 ) ARTICLE 37.07
Section 3(a)
a sentencing issue may be preserved by objection at the punishment hearing
here, the state sought to admit States Exhibit # 37, (RR 5,90 ) while the EecxiKdl
2
indicates there was only an objection to the gang related evidence, .Whence:
when the state offered Exhibit 37, into evidence,His objection was sufficient
enough to preserve the issue for appellate review Citing Heitman.v.State 815
S.W. 2d at 681,690.(Tex.Crim.App.1991 ) Which held that when the objection
or Current ground of exclusion [i]s obvious to the judge and opossing counsel
FOOTNOTE
21 Petitioner trial objection supports his theory raised on direct appeal that, the evidence in
Exhibit 37, was irrelevant ana the veracity was prejudice ,and abuse of discretion admitt
ing it in to evidence at the punishmant phase, , Therefore the 8th court of appeal should
have reviewed the claim ,since it involved a due process Error
-7-
1
no [] waiver results from a general "or' imprecise objection Id 690,Likewise the
1st Court of Appeals Houston in Massey.v.State, 933 S.W. 2d .582,587 (Tex.App
Houst [1st Dist] 1996 no pet' )There the court held that Massey objection
that the testimony was getting into extraneous offenses was sufficient object
ion under Rule 404 (b) ,Therefore petitioner would argue that although no
objection was based on Rule 401 or otherwise Texas Rules of Evidence 403,Or
404 ,The lack of such objection did no[t] forfeite his rights to complain
on appeal ,The trial courts Abuse of discretion in allowing the state to
introduce Book in information related to his gang membership Citing,Idown.v.
State,73 S.W. 3d .918,923 ( Tex.Crim.App.2002 ) /Because his trial objection
was so clearly obvious to the trial court and opossing Counsel(RR 5, 88-90)
Geuder.v.State 115 S.W.3d at 13 (Tex.Crim.App 2001 \ Sanchez.v.State 120 S.W.
3d.at 366 and ,Tellez.v.State 170 S.W. 3d at 158/: The.courts there, held that
while Tellez trial counsel did not made a trial objection to the trial court
entering of a deadly weapon findings ,The lack of objection did no[t] waive
Tellez rights to complain on appeal that trial court abused it's discretion
by entering such ,Id when there is error of a fundamental "or' Constitutional
Nature there need [N]ot be any specific objection to preserve for appellate
review,3 For Example , In Robinson.v.State 16 S.W. 3d.808.813 (Tex.Crim.App.2000
the court of Criminal Appeals held that no objection was needed or necessary
at the trial level to bring a claim of inffective Assistance of counsel
for the first time on appeal,.Likewise the Waco Court also in steels.v.State
170.SAW.3d. 765 ( Tex.App. Waeoc,'20050held no objection was required for Steels
to bring a Double Jeopardy claim on appeal for the first time, although it
was no[t] properly preserved by a timely trial objection , as a primary pur
pose for requiring a specific and contemporanceous objection is to advise
the trial court of impending error and afford the court an opportunity to
a^oid-the error or take corrective action to cure the error, Young.v.State 137
S.W. .3d 65,70 ( Tex.Crim.App.2004 ) /Thus the reviewing court must first
determine whether petitioner has preserved any potentail error for its review,
,TEX R.App. P 33.1(a) absents an objection defertdanti'."waives the error unless
the error is fundamental/ that:..is the error creates egregious harm, While
FOOTNOTE
3, Cn appeal petitioner is asserting a due process violation , cause by the trial courts abuse of
discretion ,the proper standard of review is an abuse of discretion standard Citing Green.v.
State-934 S.W.. 2d at 92,101-02 ( Tex.Crim.App 1996 )
Rule 401,of the Texas Rule Criminal Evidence, defines Relevant evidence as
evidence having any tendency to make the existence of any fact of consequence
to the determination of the action more probable or Less probable that it
would be without the evidence, All Relevant evidence is admissible under
TEX.R.CRIM.EVID 402, However Relevant Evidence may be excluded ,if its proba-
ive valve is substantially out weighted by the danger of unfair prejudice,TEX
R.CRIM.EVID 403 , At issue here is the punishment phase TEX.R.EVID 404,
which provides that evidence maybe offered at the punishment stage either
by the defendant or prosecution as to the prior criminal record of the accused
Citing , Pondexter.v.State,942 S.W..2d 577.(Tex.Crim.App.1996 ) holding that
although evidences of gangmembership is admissible at the punishment phase
of a trial as to relevant Character evidence,4 TEX.R.CRIM.EVID.401 /In Pondext-
er the court acknowledged that testimony as to gang membership and as to
the criminal activities of the gang may have been prejudicial , Citing to
the opinion of Anderson.v.State, 901 .S.W.2d AT ,9#6 ( Tex.Crim.App 1995)
There Judge Clinton ,wrote in Concurring opi^nAoraithat gang Membership is
relevant to prove petitioner character, However Article 37.07 § 3(a) in
as much as it incorporates Rule 405(b) of the Texas Rules of Criminal Evidence,
he said gang membership or affiliation is ,[N]ot an .iai:dmissibl[e] method of
proving character per se, he said it might be admissible for some other legit
imate purpose, Rule 405 of the Texas R.Evid, The permissible method of charac
ter evidence would be reputation or opinion testimony under/Rule 405 Tex.R.
Crim.Evid Citing Gigliobianco.v.State,210 .S.W.3d.637,641-642 ( Tex.Crim.App
2006 )
There the court of criminal appeals stated that when under taking a Rule
401 or 403 analysis, it must balance among other things the inherent probative
force of the evidence along with the proponents need for that evidence against
the tendency of the evidence to confuse or distract the jury from the main
issue or any tendency of the evidence to be given undue'.'i~ weight by the jury
citing Beasley.v.State 902.S.W.2d 452 456 (Tex.Crim.App 1995 ) , There the
court of criminal appeals held that that such evidence of gang membership
admissible at the the punishment stage to show the accused character ,so
that the jury can determine the appropriate punishment ( RR5, 233) ,Here
FOOTNOTE
4, Texas Rule Crim-Evid 401, Evidence of ther crima wrongs or acts is No[t] admissible to prove
character of a person in order to show that he acted in conormity there with Evans 876 S.W.
2d 459,464(Tex.App.Texarkanna 1994 no pat )
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no Rule 401/403 or 405 objection was made/petitioner would argue that while
this honorable court has in the past pursuant to Rule 33.1(a) of Tex.R.Evid
Refuse to review claims raised on appeal for the first time without a timely
of proper specific objection on the issue or point , Citinq Rhoades.v.State
934..SW. 2d .113,121,127 ( Tex. Crim.App 1986 ) an exception should apply
here the record is clear his trial objection was apparent to the trial court
and the state prosecution ( RR5 88-90 ) the record also demomstrates that
after trial court had overruled the objection to the :Veracity" of the informat
ion, and objection was made on the ground of hearsay once the state sought
to publish the information to the jury ,the trial court was then asks by
defense counsel i. .if it would review ( in Camera ) to see what if ,any hearsay
was contained
Petitioner would argue that the trial court fail to determine the applicabili
ty of the protitfered justification for the admission of the hearsay information
and if additionally'. requested perform the requisite relevancy balancing
test by comparing the probative value of the the hearsay against its danger
for unfair prejudice, at anY" rate the objection at trial did not waive the iss
ue or. complaint about the admissibility of the evidence Citing Webber.v.State
29 S.W. 3d at 226,232 ( Tex.App.Houst [14th Dist] 2000:) therefore the 8th
court of appeals flawed in its opinion and decision not to review the issue
when it was properly before the court
Petitioner next will demomstrate the trial court admission of the gang member
information was .i an abuse of discretion which deprived him of a fair impart
ial trial,
STANDARD OF REVIEW
When the appellate court review a trial courts ruling on the admissibility
of evidence, it must untilize an abuse of discretion standard , And will
up hold the trial courts ruling ,if it is within the zone of reasonable dis
agreement, Maranda.v.State,253.S.W.3d.762,769.(Tex.App Amarillo 2007 no pet)
in addition the reviewing court must review the trial courts ruling in light
of what was before the trial court at the time of its ruling ,Hayos.v.State 982
S.W.. 2d at 419,422 ( Tex.Crim.App.1996 )
Footnote
5, Although petitioner may give up the rights .. .He is never daemad to have done so ,in fact un
less he says so plainly freely and intelligently, .and the trial court has an independent duty
to inplemant the waiver Sanchez,120 SW 2d 359,366 ( Tex.Crim.App 2003 )
-10-
A party who attacks the trial courts ruling as an abuse of discretion labors
under a heavy burden, The test for abuse of discretion is not whether the
opinionftsfthe reviewing Court, the facts present an appropriate case for trial
courts actions.-Rather ...it is a question of whether the court acted without
reference to any guiding rules and principles, ..Stated another way the test
is whether the act was arbitrary ..or..unreasonable, ,The proporent of the
evidence must persuade the trial court that the evidence has relevance .a
part from character conformity that is,it tends to establish some elemental
fact,such as intent, is tendes to establish some evidenceiary fact,such as
motive,opportunity "or" preparative leading inferentially to an accident
ciiting , Montgomery..v.State, 810.S.W..2d.372,387,388..(Tex.Crim.App.l990 )
As Mention through ,Multiple Sources the prosecutor where able to introduce
into evidences states Exhibit's 37, 38,and 39 all of which included inform
ation concerning petitioner gang affiliation Officer Duran, Offier Pineina,
and Detective Sanchez,, all confirmed that petitioner was identified as a gang
member, , The state first called officer Duran a detention officer at the
El Paso County jail, he testified that he processed petitioner for Booking
the state question officer Duran, about the booking documentation in which
he pointed to a statement that "Remarked "Barri© Azteca"which officer Duran
testified usually meant it was confirmed gang membership (RR5,93) Defense
counsel on Cross examination of officer Duran was able to get Mr Duran to
admit petitioner hadn't told him he was a gang member ,and that according
to him petitioner didn't fill in the space on the the booking Documentation
( RR5, 96 )
In addition to officer Duran testimony ,the state also called officer Pual
Pireira, through him the state was able to offer up Exhibit 38, Officer pineira
a deputy for the Security Threat Group intelligence Coordinator,(RR 5,98,99)
he testified that his tast was to gather compiling information on anyone
booked into the jail, that were suspected of having been involved in gang,
he explained why it was necessary to obtain such information about a person
gang membership he also explained there pointing system,and how it was used
to identify someone as a gang member,he said when they identify a person
they interview him,ask him ,if he's a gang member check this affiliations
and whether he was arrested with a gang member by using the point system,
FOOTNOTE
6,Therefore petitioner arguo,that the court of appeals should have assinged error ,although no
specific objection to the contents of the information in the items as a matter of its Judic
ial power Rezac.v.State, 782 S.W. 2d at 869,870 ( Tex.Criiri.Arp 1990 )because the record can be
-11-
officer pineira also said that the point sheet reflected that petitioner
was affiliated with the "Barrio Azteca" gang /Because he had accumulated
10 points /5 points for self admission/3 points for being identified by a
confirmed gang member, and 2 points for being:; identified as a gang member
by unknown informant ( RR 5, 102,103,104 )
Through Mr Pineira the state was also allowed to admit Exhibit #39, which
was a document showing petitoner self admission into the "Barrio Azteca"gang
in his update entry on September 10,20110 ,he testified that petitioner had
told officer O,Gonzalez that he was a gang member,but refuse to sign the
form, that such refusal was regular, ( RR5, 105,106 ) However on Cross
examation by defense counsel, Mr Pineira agreed that petitioner hadn't been
confirmed by law enforcement agency , wasn't related to a gang member,wasn't
arrested with a gang member ,didn't possess any tattoo or other gang paragh-
ernalia,didn't associate with confirmed "or" other suspected gang members
and didn't commit illegal acts "or" activities that violate jail rules with
other suspected gang member that had been comfirmed ( RR 5, 110,111 )
The record reflects the state also called as a witness at the punishment
Detective Andres Sanchez, who also testified that he was assigned to the
gang investigation unit, he testified •.; unit investigated gang related crimes,
such as 'Assualts,'Burglaries' Robberies and 'Homicides, Detective Sanchez
testified that he identified different gangs within the city ( RR 5, 147
after being offered as a gang expert Detective Sanchez, talked a little about
how the " Barrio Azteca" gang was a known prison gang that begain around
1987, and continued to thrive once its member came out of prison, he testified
that the gangs primary purpose is illegal criminal activity such as "Murder
"Aggravated Assault "Kidnappings"Robberies"drug trafficking"Money laundering
"extortion and "white collar offenses ( RR5, 149,150 )
Detective Sanchez further testified he called the county jail two or three
times a day to get or to give information about gang members who had been
arrested ( RR 5, 153 ) he also admitted he some times work with officer
pineira on a regular basis he was asked if he had seen anything to indicate
clearly established that at trial petitioner vas making an objection to the relevant of the info
and claim en appeal that the trial court Abused its discretion in allowing the state to improper
introduce to the jury such evidences ,because a due process error is alleged the appeals court
should have review.this issue ,rather then state t^t.rpt±iing^was maser^.py a failure to mak
3 specific . objection under Texas Rule of Criminal Evidence 4017402 or4C4 (b)
-12-
that /petitioner claims of being a Barrio azteca gang member he replied"No"
( RR 5/ 156,157 ) He testified further that he reviewed petitioners prison
records and that the assault he had been involved in in prison we're consist
ent with being a Barrclo azteca gang member
UtJder Article 37.07 § 3(a) ,evidence may be offered by the state and defend;-
ant as to any matter the trial court deems relevant to sentencing?, /including
but not limited to the prior criminal record of the accussed, his general
reputation, his character, and opinion regarding his character the circumst
ances of the offense for which he is being tried, and any other evidence
of an extraneous crime or bad act, Citing Roethel.v.State,80 S.W.3d. 276,278
( Tex. CApp. Austin 20000 no pet ) , Rule 403 Requires exclusion of evidence
only when there exist a clear dispartity between the degree of prejudice
of the offered evidence and its probative valve, the question s of admissibili
ty of evidence under TEX,R ,Evid 402 through 404 are assigned to the trial
court and are reviewable on appeal only for abuse of discretion , citing
Coffin-.iv i5State 885 S..W. 2d 140.149 (Tex.CrimApp 1994 ) ,Thus when determining
whether evidence is admissible under Rule 403, the reviewing court must con
sider no[t] just only whether the evidence is more prejudicial than probative
it must also consider whether the probative valve is substantially outweighed
•7
by the danger of unfair prejudice ,Id
Petitioner would argue here that the improper admission of states exhibits
37, 38,and 39 allowed the jury to give undue weight to the hearsay evidence
regarding his gang membership which was detrimental to him, Citing Lopez.v.
State 200 S.W.-3d at 246,245,255 ( Tex.App Houst [ 14th Dist ] 2006 pet Ref'd)
The houston court there concluded "..^hat" it was an abuse of discretion by
the trial courts admitting duble hearsay," the court held its nextstep would
require it to evaluate the error for harm, Citing Tex,R,App,Proc 44.2(b)
FOOTNOTE
7, Zillender.v.State,557 S.W, 2d 515,517 ( Tex.Crim.App. 1977 ) where the correct grcud of excus-
icn [i]s obvious to the judge and oppposing counsels no waiver results from a general or
imprecise objection
8, Couret.v.State, 792 S.W.2d at 107 ( Tex. Crim-App 1990 )
-13-
a violation of evidentiary rules that results in erroneous admission of eviden
ce is considered Non-Constitutionan error and are subject to a harm analysis
under Tex.R.App P 44.2(b) an error is considered harmless if the court deter-
9
mine it did not effect the accuse substantial rights ,ones substamtial rights
are violated if the error had a substaintial and injurious effect or influnce
in the jurys determining of its verdict, , as such petitioner would argue
that the punishment stage of his trial should have been more focus on the
accusation made by the state in their pleading, Citing Garcean.v.Woodford/276
F.2d. 769 ( 2001 ) he should no[t] be assessed punishment for collateral
crimes or for being a criminal generally, he is entitled tobe punished upon
those accusation in which he was found guilty..here the states emphasized
and encuraged juror to punish him additionally for collateral crimes or because
he was a member of the Barrio Azteca gang , a gang in which the expart testif
ied its member where known for "Assaults"Robberies,"Kidnapping "Drug traff
icking, "Money laundering "extortion and other white collar offenses ( RR5,149
150 ) Citing Kemp.vState 846 S.W. 2d 289,307 ( Tex.Crim,App 1992 ) also
Citing Klueppel.v.State. Supre at 505 S.W. 2d.at 552,574 ( Tex.Crim.App 1974)
Petitioner therefore . argues that the states argument at the punishment phase
more or less asks juror to speculate about other victims,asking them to consid
er evidence not in the record,asking them to further speculate whether he
was involved in Lthese activity to which the expert witness testified it's
members where known for by attempting to show unadjudicate criminal acts
in which petitioner had not been tried for only to get additional punishment
for him being a member of a gang , with out any particutor referance to any
offenses contected to petitioner or his gang ,Thus inviting the jury to
assess additional punishment for anremote collateral crime ','went beyond the
bounds of merely asking juror in assessing there punishmentto.consider the
facts and circumstance immedately surrounding the charged • offense ,Citing
Lamas.v.State,707 S.W. 2d at 566 ( Tex.Crim.App 1986 ) Therefore the evidence
FOOTNOTE
9,In making its determination the reviewing courts should consider the record as a whole,inc-
Cluding any testimony or physical evidence admitted for the jurys consideration,the nature
of the evidence supporting the verdict, the charater of the alleged error,and how it might
be considered in connection with other evidence in the case,
-i#
surrounding petitioner gang membership should have been excluded ,because
1 ) it was not Relevant, 2 ) it was impermissible character evidence,3) the
evidence tendency to prejudice the jury substabtially outweighed its probative
value, 4) the evidence was not offered to either prove motive or intent wasn't
admissible to rebut a defense theory ,Therefore this Court should Reverse and
Remand for cause ,and a New punishment phase Citing Garcia.v.State201 S.W.3d
695 ( Tex.Crim.App 2006 )
PRAYER
Wherefore prenriteaConsidered, Petitioner for Discretionary review and reasons
stated above,the judgment and holding of the 8th Court of Appeal and that
of the 120th, District Court be set aside and a New Punishment hearing be
granted petitioner in the interest of Justice,
Respectfully Submitted -
TDCJ-ID NO 01828058
McConnell Unit
3001 S,Emily DR
Beeville Texas 78102
4 / co / 2015
CERTIFICATE OF SERVICE
I, Fernando Magalde hereby certify that a true and correct copy of the
above foregoing petitioner for Discretionary Review has been placed in the
U.S Postage Service Box Addressed to the Court of Criminal Appeal P.O BOX
12308 Capital Station Austin ,Texas 78711 on this day-»^-Lanc3 date -^2.of
2015
Respectfully Submitted
((Mr, Fernando Magalde
TDCJ-ID NO 01828058
McConnell Unit
3001 S,Emily DR
Beeville Texas 78102
4 / (O / 2015
-15-
Case:Nbv
(Tjhe Clerk ofthe convicting court will fill this line in.)
m the court o:f/crimin^l:.appeals?of TEXAS- •
APPLICATION FOR A WRIT OF HABEAS CORPUS
SEEKING RELIEF FROM FINAL FELONY CONVICTION
UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07
Fernando Magalde
NAME: , .
DATE OF BIRTH:
PLACE OF CONFINEMENT:. McConnell Unit
TDCJ-CID NUMBER: 01828058 . ; SID'NIJMBER: -:- ,
(I): This application concerns (check all that apply):
P a cQhvictiph: • parole*
P a sentence, P. •mahdatdry^upejr^isibh' i
P time credit (3 out-of-time appeal or petition for
discretionary review
(2) What district court entered the judgment ofthe conviction youi'want relief from?
(Include the court number and county.)
12th District El Paso County,Texas
(3) What was the case number in the frialcourt?
20110D05035
(4) What was the name of the trial j udge?
Maria-Salas Mendoza
Effective: January 1,2014
;Rev. 01/14/14
(5) Were you represented by counsel? Ify'esV-pr^vide.the.:;att6Fne.y/is;ha.m'ei
Robert Riley & Jaime Gandara
(6) What was the date that the judgment was entered?
January 25, 2012
(7) Fori what offense were you convicted and what was the senterice?
Violation of A Protective Order forty years
(8) Ifyou were sentenced on more than one count of an? indictment in the same court at
the same time, what counts were you convicted of and what was the sentence in each
count?
(?) What was the plea you entered? (Check/one.)
D guilty-open plea P guilty-plea bargain
ED not guilty P nolo conterutere/ria* contest
If yoii entered different pleas to counts in a multi-count indictment, pleaseexplain:
N/A
(10) What kind of trial did you have?
• no jury 13 jury for guilt and punishment
D jury for guilt; judge for punishment
Rev. 01/14/14
(11) Did you testify at trial? If yesj at what phase of the trial did you testify?
N/A
(12) Did you appeal from the judgmehtof cohvietion?
S yes P. no
If you did appeal, answer the following questions:
(A): 'What-court: of'appeals did yoii appeal to? 8th Court of Appeals
(B) What was the case number? 08-12-00065-CR __ ;
((E)- Were-you representecfby wunsel onappeal^ If yes, provide the attorney's
name:
M,Clara Hernandez & Penney Lee Andersen
:(D) What was the-decision and the date of the declsiou? Affirmed March 28,2014
(13) Did you file a petition for discretionary review in the Court ofCritMinal Appeals?
E3 yes P' no
Ifyoii did file a petition for discretionary reviewy answerthe following questions:
(A) What^was the case number? N//A -; .....,;._-.,..• .• ; -
(B) What was the decision and the date of the decision? i
(14) Haveyou previously filed ah application for a writ of habeas: corpus under Article
11.07 of the Texas Code ofCriminal Procedurechallenging this conviction'!
0 :yes P no.
If you answered yes, answer the following questions:
(A) What was theCourt ofCriminal Appeals' writ nUmbert m 82-561-01
Rev. 01/14/14
(B) What wasi the decision and thfe date ofthe decision? Granted January 2,2015
(C) Please identify the reason that the current claims were not presented and could
hot have been presented on your previous application;
The original date to file the PDR was April 27,2014 ,But a letter
to the El Paso Piblic defender office was not transfered to the
court of appeals ,due to a clerical error which caused the time
period to expire after a motion for out-of-time PDR was denied
on June 16,2014,A Writ of Habeas corpus was filed to the court of
criminal appeal who granted petitioner a chance to file this out-
of time PDR (WR PD 115-15 ) now before this Honorable Court
(15) Doyou currently•'hay&ajiy petition or appeal pending in any other state or federal
court?
P ;yes g] no
If you answered yes, please provide the name of the court and the case number:
N/A
(16) Ifyou are presenting a claim for time credit, have you exhausted your
administrative remedies by presenting your claim to the time credit resolution
system of the Texas Department of Criminal Justice? (This requirement applies to
any final felony conviction, including state jail felonies)
•yes D no
If you answered yes, answer the following questions:
(A): What date did you present the claim? , n/a . • .. . _.
(B) Did you receive a decision and, if yes, what was the date of the decision?
N/A
If you answered no, please explain why you, have riot submitted your claim:
Rev, 01714/14
(17) Beginning on page 6, state concisely every legal ground for your claim that you are
being unlawfully restrained, and then briefly summarize the facts supporting each
ground. You must present each ground on the form application and a brief
summary of the facts. Ifyourgrounds and briefsummary ofthefacts have not been
presented on theform application, the. Court willnot consideryourgrounds.
If you have more than four grounds, use pages 14 and 15 of the form, which you
may copy as many times as needed to give you a separate page for each ground, with
each ground numbered in sequence. The recitation of the facts supporting each
ground must be no longer than the two pages provided for the ground in the form.
You may include with the form a memorandum of law if you want to present legal
authorities, but the Court will not consider grounds for relief set out in a
memorandum of law that were not raised on the form. The citations and argument
must be in a memorandum that complies with Texas Rule of Appellate Procedure 73
and does not exceed 15,000 words if computer-generated or 50 pages if not. If you
are challenging the validity of your conviction, please include a summary of the facts
pertaining to your offense arid trial in your memorandum.
Rev. 01/14/14
GROUND ONE*- T^e tr"ial court abused its discretion ,allowing prosecutor
to introduce at the punishment phase evidence of his purpose
gang membership ,Thus deprived him of a fair trial
FACTS SUPPORTING GROUND ONE:. The 8th Court of appeals was wrong not
consider petitioner claim , ,at the punishment phase the objection to the
veracity of the information "was sufficient to properly preserve the issue
for appellate review, , when the prosecution was ready to offer Exhibit
37,which contained booking information"",not relevant to the issue petitioner
timely objected (RR5,80-83-90 ) over his objection the trial court allowed
the prosecution to introduce the documents into evidence ,when it wasn't
to publish the information petitioner further objected to it being hearsay
the court was asks ;.if it would review the information ( in Carma ) after
a short bench conference ,the trial judge overruled both objection to veracity
and hearsay and allowed the information to be Heard"by the jury , The state
was also permitted to improperly introduce other forms Exhibits 38,39 to
the jury at the punishment phase which also contained unrelible information
concerning him being a member of the Barrio Azteca gang ;after detention
officer MR :Duran, testified that he" was the person that booked petitioner
into the county jail ./and testified that another officer ?.'i-.:0,Gonzalez told
him petitioner Magalde told him he was a gang member (RR5,110-111) officer
Pineira also at the punishment stage testified that petitioner was a gang
member ,the state also called MR Sanchez, whom was deemed an expert by the
trial court(RR5,149,150 ) and testified he knew the "Barrio Azteca" gang
to be involved in illegal activity such as "Murder"Kidnapping"Aggravated
Assaults"Robberies"and Drug trafficking etc , On appeal petitioner asserted
a claim of abuse of discretion on part of the trial court , for allowing
the prosecution over his objection to introduce such prejudicial evidences
the 8th court of appeal was wrong in not]Jconsidering petitioners due process
claim See Memorandum pages 1-15
Rev. 01/14/14
Rev. 01/14/14
WHEREFORE, APPLICANT PRAYS THAT THE COURT GRANT APPLICANT
RELIEF TO WHICH HE MAY BE ENTITLED IN THIS PROCEEDING.
VERIFICATION
This application.must be verified or it will be dismissed for npn-complianee. For
V erification purposes, an applicant is a person filing the application on his or herown behalf. A
petitioner is a person filing the application on behalfofan applicant, for example, an applicant's
attorney. An inmate is a person who is in custody.
The inmate applicant must sign either the "Oath Before a Notary Public" before a
notary public orthe "Inmate's Declaration" without a notary public. Ifthe inmate isrepresented
by a licensed attorney, the attorney may sign the "Oath Before a Notary Public" as petitioner and
then complete "Petitioner's ^formation." A non-inmate applicant.must sign the "Oath Before a
Notary Public" before a notary public unless he is represented by a licensed attorney, inwhich
casethe attorney may sign the verification as petitioner.
Anon-inmate non-attorney petitioner must sign the "Oath Before a Notary Public"
before anotary public and must also complete "Petitioner's Information." An inmate petitioner
must sign either the "Oath Before a Notary Public" before a notary public or the "Inmate's
Declaration" without a notary public and must also complete the appropriate "Petitioner's
Information."
OATH BEFORE A NOTARY PllBLIC
STATE OF TEXAS
-COUNTY OF" .
_, being duly swt>rn,:under oath:says:; 'Tarn
the applicant /petitioner (circle one) in this action and know the contents of the above
application for awrit<5f habeas corpus and, according to my belief, thefaets stated in the
application are true.''
Signature of Applicant •/• Petitioner (circle one)
SUBSCRIBED AND SWORN TO BEFORE ME THIS __DAY OF ,20
Signature of Notary Public
16
Rev. 01/14/14
PETITIONER'S INFORMATION
Petitioner's printed name:_
State barnumber, ;ifapplicable:
Address:
Telephone^
Fax:
INMATE'S. DECLARATION
_, am theapplieaht /petitioher (circle one) and
being presently incinerated in , declare under penalty of
perjury that, accordirig to my belief^ the facts stated inmeabove application are true and correct.
Signed on ,M
Signature of Applicant / Petitioner (circle one)
1-7
Rev. 01/14/14
PETITIONER'S INFORMATION:
Petitioner'sprinted name:: -
Address: - -- -
Telephone:
Fax: *
Signed oh ,. 20_
Signature ofPetitioner
18:
Rev;M/l4/14
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
FERNANDO MAGALDE, No. 08-12-00065-CR
Appellant, Appeal from
§
v. 120th District Court
§
THE STATE OF TEXAS, of El Paso County, Texas
§
Appellee. (TC#2011D05035)
§
OPINION
Fernando Magalde appeals his punishment verdict. For the reasons that follow, we
affirm.
FACTUAL SUMMARY
In cause number 20110D05035, Appellant was charged by indictment for the offense of
violation of a protective order.1 The indictment also included an allegation that Appellant had a
prior felony conviction for driving while intoxicated. In addition, the State subsequently filed a
Notice of Enhancement and Habitualization, alleging three prior felony convictions. Appellant
1 This is a companion case. In trial court cause number 20100D06141 Appellant was charged in a three-count
indictment with robbery (Count I), aggravated kidnapping (Count II), and unlawful use of a motor
vehicle (Count III). Atthe request of Appellant and the State, the trial court consolidated the two cases for a single
trial, In cause number 20100D06141, the jury found Appellant not guilty of robbery and unlawful use of a motor
vehicle as alleged in Counts I and III. The jury also found Appellant notguilty of aggravated kidnapping as alleged
in Count II, but returned a guilty verdict on the lesser-included offense of unlawful restraint. In a separate appeal
(No. 08-12-00064-CR), Appellant appeals his conviction.
pled "not true" to violation of a protective order. During punishment, he also pled "not true" to
the allegations contained in the enhancement/habitualization paragraphs. At the conclusion of
the guilt/innocence phase, a jury found Appellant guilty as charged. The trial then proceeded to
the punishment stage.
Gang Related Punishment Evidence
Testimony of Officer Duran and State's Exhibit 37 (Booking Document on Appellant)
Officer Duran, a detention officer with the El Paso County Sheriffs Office (EPSO)
testified that he processed Appellant for booking into county jail. The State offered booking
documents marked as State's Exhibit 37. The following exchange then took place:
[COUNSEL FOR APPELLANT]: We would only object as to the veracity of the
information contained in the item, but not to the introduction of the item per se.
THE COURT: Is this booking information?
[PROSECUTOR FOR THE STATE]: It is.
THE COURT: 37 will be admitted.
The prosecutor then sought permission to publish the exhibit and defense counsel objected as to
hearsay information which may be contained within the exhibit and requested the court to review
the exhibit in camera to determine what, if any, hearsay was contained within. At the bench, the
following conversation ensued:
THE COURT: His own statements?
[COUNSEL FOR APPELLANT]: No, these aren't his statements.
THE COURT: Who else do they get it from? They ask him.
[PROSECUTOR FOR THE STATE]: Yes. And the point here is--
2 On appeal, Appellant's compliant is limited to challenging evidence admitted during the punishment stage. He
does not challenge the sufficiency ofthe evidence to support his conviction. Therefore, we limit our recitation ofthe
factual background to those facts relevantto the instant appeal.
[COUNSEL FOR APPELLANT]: I suppose I can take him on voir dire, except
there is a chance that he's going to say hearsay things.
[PROSECUTOR FOR THE STATE]: Which is exactly what the exception is
meant to address. He's the one who keeps the records. These aren't objections.
THE COURT: At or near the time goes to him as custodian. How they get that
information comes from them.
[COUNSEL FOR APPELLANT]: My client is not a Barrio Azteca member,
though.
[PROSECUTOR FOR THE STATE]: And that's exactly one of the other facts
we're going to prove up in just a minute.
[COUNSEL FOR APPELLANT]: This guy is going to have contradicting
information. >
THE COURT: Goes to weight.
[COUNSEL FOR APPELLANT]: Okay.
The prosecutor then questioned Officer Duran about the information in the booking documents.
Pointing to the statement, "Remarks, Barrio Azteca," he asked Officer Duran what the statement
meant. Office Duran responded, "Usually it's a confirmed gang member, but that's done
through a gang intel officer." He also explained that the gang affiliation notation is included as a
safety measure.
On cross examination, defense counsel asked the officer whether Appellant told him he
was a gang member. Officer Duran replied that Appellant had not told him and confirmed that
he did not fill in the Barrio Azteca information on the booking documents.
Testimony of Deputy Pineira and State's Exhibits 38 and 39
Deputy Pineira was the Security Threat Group Intelligence Coordinator, otherwise known
as the gang-intelligence coordinator. He was tasked with compiling information oh anyone
booked into jail who was suspected of being a gang member. He also served as custodian of
those records. Detective Pineira explained that it is necessary to obtain information about gang
membership so that gang members can be separated from the general population for safety
reasons. He then explained the 10-point system used to identify someone as a gang member.
Detective Pineira identified State's Exhibits 38 and 39 as business records of the EPSO.
The prosecutor then offered them into evidence and defense counsel responded, "No objection,
Your Honor." State's Exhibit 38 was the Security Threat Group Member Confirmation Point
Sheet for Appellant, or the 10-point system applied to Appellant. Pineira said the point sheet
reflected that Appellant was affiliated with the Barrio Azteca gang because he had accumulated
10 points: 5 points for self-admission of gang membership; 3 points for being identified by a
confirmed gang member; and 2 points for being identified as a gang member by an unknown
informant. He then identified State's Exhibit 39 as the Security Threat Group Self-Admission
Sheet. The form reflected that Appellant admitted he was a Barrio Azteca gang member to two
detention officers. The form was not signed by Appellant, but Detective Pineira testified that it
was common for gang members to not sign the form.
Testimony of Detective Sanchez
Detective Andres Sanchez worked in the El Paso Police Department Gang Investigation
Unit. The gang unit is tasked with investigating gang related crimes, gathers information on El
Paso gangs, and works to identify their members. Without objection, Detective Sanchez was
allowed to testify as an expert witness. He explained that the gang unit uses the criteria set forth
in Chapter 61 of the Texas Code of Criminal Procedure to identify gang members. He was
familiar with State's Exhibits 37-39 and, based on his review of the documents, Appellant was a
member of the Barrio Azteca gang.
Punishment Verdict and Appeal
A jury found the enhancement/habitualization paragraphs true and assessed punishment
at forty years' imprisonment and a $10,000 fine. The trial court entered judgment in accordance
with the jury's verdict. On appeal, Appellant contends the trial court abused its discretion by
admitting evidence of his gang membership.
EVIDENTIARY ERROR?
Appellant contends that evidence of gang membership was not relevant, was more
prejudicial than probative, and should have been excluded. The State responds that Appellant
failed to preserve his issue for appellate review. We agree.
Generally, a party may not complain on appeal about the trial court's admission or
exclusion of evidence unless that party made a timely, specific objection, request or motion and
pursued such to an adverse ruling. See TEX.R.APP.P. 33.1(a); TEX.R.EVID. 103(a)(1); Layton v.
State, 280 S.W.3d 235, 239 (Tex.Crim.App. 2009); Martinez v. State, 98 S.W.3d 189, 193
(Tex.Crim.App. 2003). Subject to two exceptions, a party must continue to object each time
inadmissible evidence is offered. Martinez, 98 S.W.3d at 193, citing Ethington v. State, 819
S.W.2d 854, 858 (Tex.Crim.App. 1991). These two exceptions require that counsel either: (1)
obtain a running objection, or (2) request a hearing outside the presence of the jury. Martinez, 98
S.W.3d at 193, citing Ethington, 819 S.W.2d at 858.
At the punishment hearing, the State introduced evidence of Appellant's gang
membership through multiple sources. State's Exhibits 37, 38, and 39 all include documentation
of Appellant's gang affiliation. Officer Duran, Officer Pineira, and Detective Sanchez all
confirmed that Appellant was identified as a gang member. Appellant's only objection to the
-5
gang related evidence occurred when the State offered Exhibit 37 into evidence. But the
objection was only to, "the veracity of the information contained in the item, but not to the
introduction of the item per se." At no point did Appellant object based on Rule 403 or the
prejudicial value outweighing the relevance of the evidence. Even if his objection could be
construed as a complaint about either the relevance or prejudicial nature of the evidence,
Appellant failed to object to the same evidence when offered through repeated sources.
Consequently, Appellant failed to preserve this issue for our review. See Tex.R.App.P. 33.1(a);
Tex.R.Evid. 103(a)(1); Brumfieldv. State, 18 S.W.3d 921, 924 (Tex.App.-Beaumont 2000, pet
ref d). We overrule the point sole and affirm the judgment of the trial court.
March 28, 2014
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rivera, and Rodriguez, JJ.
(Do Not Publish)