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stating that "[e]vidence showing that a defendant was born in the United States is sufficient to establish citizenship so that a failure to admonish regarding the possible deportation and immigration consequences of a guilty plea is harmless error"
Summary of this case from Moreno v. StateOpinion
NO. 03-15-00233-CR
03-23-2017
Isreal Reyes, Sr., Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
NO. CR2012-428 , THE HONORABLE JACK H. ROBISON, JUDGE PRESIDING MEMORANDUM OPINION
Appellant Isreal Reyes, Sr., was charged by indictment with three felony offenses—aggravated family violence assault (Count I), see Tex. Penal Code § 22.02(b)(1), endangering a child (Count II), see id. § 22.041(c), and unlawful possession of a firearm by a felon (Count III), see id. § 46.04(a)—all arising out of a shooting incident involving his ex-girlfriend who was pregnant with his child. At trial, appellant pled guilty to the weapon possession offense charged in Count III but submitted the issue of his guilt for the assault offense charged in Count I and the endangering offense charged in Count II to a jury. The jury found appellant guilty of all three offenses and assessed appellant's punishment at confinement in the Texas Department of Criminal Justice for twenty years for the aggravated family violence assault, see id. § 12.32, ten years for the endangering a child, see id. § 12.35(c), and ten years for the unlawful possession of a firearm by a felon, see id. § 12.34. The trial court ordered the three sentences to be served concurrently. See id. § 3.03(a). On appeal, appellant challenges the sufficiency of the evidence to support two of his convictions, complains about the trial court's failure to properly admonish him prior to his guilty plea, and requests modification of the judgment of conviction for endangering a child. We affirm the judgments of conviction for aggravated family violence assault and unlawful possession of a firearm by a felon; we modify the judgment of conviction for endangering a child and affirm the judgment as modified.
BACKGROUND
Because the parties are familiar with the facts of the case, its procedural history, and the evidence adduced at trial, we provide only a general overview of the facts of the case here. We provide additional facts in the opinion as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.1, 47.4. The facts recited are taken from the testimony and other evidence presented at trial.
The jury heard evidence that appellant and Billie Jean McCann were involved in a dating relationship and lived together. However, the two separated, and McCann, who was approximately eight months pregnant with appellant's child, moved in with her sister, Shawna Flowers. Several days after the break up, on June 6, 2012, appellant confronted McCann at her sister's house about a cell phone, and an argument ensued. During the argument, McCann was on the front porch and appellant was on the ground at the base of the steps leading up to the porch. At one point, appellant brandished a handgun and threatened to shoot McCann's dog, which was chained on the porch. Appellant discharged the gun and a bullet struck McCann in the face. It is unclear from the evidence where appellant was pointing the gun when he fired it—at the dog, at the ground, in McCann's direction, or directly at McCann. McCann's sister, who was inside her house during the argument, heard the gunshot as she was making her way to the front porch to intervene in the argument. Following the gunshot, Flowers heard McCann exclaim to appellant, "You shot me!" and then heard appellant respond, "[N]o, I didn't." Flowers ran to aid her sister, saw that she was bleeding from wounds on her face, and called 911.
Deputies from the Comal County Sheriff's Office were dispatched to a report of a female shot in the face. Upon arrival, the deputies made contact with McCann who was holding a towel to her face as she sat in a chair on the front porch of her sister's home. The responding deputy noted McCann's "large pregnancy belly" and, when she removed the towel from her face at his request, he observed two injuries to her face—a crescent-shaped wound on the front of her chin, which was bleeding a little bit, and a star-shaped wound a few inches away on her jaw. McCann told the deputy that appellant had shot her.
EMS arrived on the scene, and McCann walked to the ambulance, without assistance, for treatment. Once inside the ambulance, EMS personnel evaluated McCann's condition. At that point, McCann's wounds were no longer bleeding. Because of her advanced pregnancy, McCann was airlifted to University Hospital in San Antonio. At the hospital, a CAT scan revealed a linear injury track connecting the wounds on her jaw and chin, "which [was] the course the presumed bullet traveled." In the injury track were metallic fragments, which were pieces of the bullet. McCann's facial wounds were cleaned and stitched closed in the emergency room. She received pain medication and antibiotics and then was transported by wheelchair up to labor and delivery for evaluation and monitoring. She and the baby were monitored for twenty-four hours. The monitoring indicated that "[e]verything was okay," and McCann was discharged from the hospital. A week after appellant shot her in the face, McCann gave birth to their daughter. About a month later, at the end of June or early July, McCann underwent surgery to remove metal fragments that were protruding from her face.
DISCUSSION
In four points of error, appellant challenges the sufficiency of the evidence to support the assault and endangering convictions, complains about the trial court's failure to properly admonish him prior to his guilty plea for the weapon possession offense, and requests modification of the judgment of conviction for endangering a child to correct non-reversible error.
Sufficiency of the Evidence
In his first two points of error, appellant challenges the sufficiency of the evidence supporting his convictions for aggravated family violence assault (Count I) and endangering a child (Count II).
Standard of Review
Due process requires that the State prove, beyond a reasonable doubt, every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 313 (1979); Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014). When reviewing the sufficiency of the evidence to support a conviction, we consider all the evidence in the light most favorable to the verdict to determine whether, based on that evidence and the reasonable inferences therefrom, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013); see also Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). In our sufficiency review we must consider all the evidence in the record, whether direct or circumstantial, properly or improperly admitted, or submitted by the prosecution or the defense. Thompson v. State, 408 S.W.3d 614, 627 (Tex. App.—Austin 2013, no pet.); see Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Finley v. State, 449 S.W.3d 145, 147 (Tex. App.—Austin 2014), aff'd, 484 S.W.3d 926 (Tex. Crim. App. 2016). We review all the evidence in the light most favorable to the verdict and assume that the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. Jackson, 443 U.S. at 318; see Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We consider only whether the factfinder reached a rational decision. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010) ("Our role on appeal is restricted to guarding against the rare occurrence when a factfinder does not act rationally.").
To determine whether the State has met its evidentiary burden of proving a defendant guilty beyond a reasonable doubt, we compare the elements of the offense as defined by the hypothetically correct jury charge to the evidence adduced at trial. Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)); Felder v. State, No. 03-13-00707-CR, 2014 WL 7475237, at *2 (Tex. App.—Austin Dec. 19, 2014, no pet.) (mem. op., not designated for publication). A hypothetically correct jury charge is one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Thomas, 444 S.W.3d at 8 (quoting Malik, 953 S.W.2d at 240); Roberson v. State, 420 S.W.3d 832, 840 (Tex. Crim. App. 2013). The law as authorized by the indictment consists of the statutory elements of the charged offense as modified by the factual details and legal theories contained in the indictment. Patel v. State, No. 03-14-00238-CR, 2016 WL 2732230, at *2 (Tex. App.—Austin May 4, 2016, no. pet.) (mem. op., not designated for publication); see Thomas, 444 S.W.3d at 8 ("The 'law as authorized by the indictment' consists of the statutory elements of the offense and those elements as modified by the indictment."); Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013) ("The law as 'authorized by the indictment' includes the statutory elements of the offense 'as modified by the charging instrument.'").
The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc. art. 38.04; Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). Thus, when performing an evidentiary sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we "determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict." Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 198 (2015) (quoting Clayton, 235 S.W.3d at 778). We must presume that the factfinder resolved any conflicting inferences in favor of the verdict and defer to that resolution. Id. at 448-49. The standard of review is the same for direct and circumstantial evidence cases—circumstantial evidence is as probative as direct evidence in establishing guilt. Dobbs, 434 S.W.3d at 170; Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014). "It is not necessary that the evidence directly proves the defendant's guilt; circumstantial evidence is as probative as direct evidence in establishing the guilt of the actor, and circumstantial evidence alone can be sufficient to establish guilt." Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)).
Aggravated Family Violence Assault
In his first point of error, appellant argues that the evidence was insufficient to support his conviction for aggravated family violence assault.
As relevant to the assault offense as charged in Count I of the indictment, a person commits aggravated family violence assault if he intentionally, knowingly, or recklessly causes serious bodily injury to a person whose relationship or association with the actor is described by sections of the Family Code that define a dating relationship, a family relationship, or a household relationship, and the person uses a deadly weapon during the assault. See Tex. Penal Code §§ 22.01(a) (defining assault causing bodily injury), 22.02(b)(1) (defining aggravated family violence assault as assault when defendant both uses deadly weapon and causes serious bodily injury to family member, household member, or dating partner); see also Tex. Fam. Code §§ 71.0021 (defining "dating relationship"), 71.003 (defining "family"), 71.005 (defining "household"). Appellant restricts his sufficiency challenge in this point of error solely to the element of "serious bodily injury," maintaining that the evidence was "insufficient to prove that McCann suffered serious bodily injury as that term is statutorily defined and judicially construed."
The Texas Penal Code defines "bodily injury" as "physical pain, illness, or any impairment of physical condition." Tex. Penal Code § 1.07(a)(8). The Penal Code defines "serious bodily injury" as "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Id. § 1.07(a)(46). The distinction between "bodily injury" and "serious bodily injury" is often a matter of degree and the distinction must be determined on a case-by-case basis. Camarillo v. State, 82 S.W.3d 529, 537 (Tex. App.—Austin 2002, no pet.); see Moore v. State, 739 S.W.2d 347, 349, 352 (Tex. Crim. App. 1987), overruled on other grounds by Blea v. State, 483 S.W.3d 29, 34 (Tex. Crim. App. 2016).
As numerous courts of appeals have recognized, there are no wounds that constitute "serious bodily injury" per se. See Holman v. State, No. 09-16-00147-CR, 2016 WL 7473897, at *2 (Tex. App.—Beaumont Dec. 28, 2016, no pet. h.) (mem. op., not designated for publication); Castro v. State, No. 12-14-00080-CR, 2016 WL 900749, at *6 (Tex. App.—Tyler Mar. 9, 2016, pet. ref'd) (mem. op., not designated for publication); Hollaway v. State, 446 S.W.3d 847, 851 (Tex. App.—Texarkana 2014, no pet.); Jackson v. State, 399 S.W.3d 285, 292 (Tex. App.—Waco 2013, no pet.); Sizemore v. State, 387 S.W.3d 824, 828 (Tex. App.—Amarillo 2012, pet. ref'd); Ramirez v. State, No. 13-05-00785-CR, 2009 WL 1567340, at *3 (Tex. App.—Corpus Christi Jan. 22, 2009, pet. ref'd) (mem. op., not designated for publication); Cunningham v. State, No. 08-03-00363-CR, 2004 WL 3017680, at *3 (Tex. App.—El Paso Dec. 16, 2004, pet. ref'd, untimely filed) (mem. op., not designated for publication). Instead, whether a victim's injuries constitute a "serious bodily injury" is determined on a case-by-case basis; the appellate courts must evaluate each case on its own facts to determine whether the evidence sufficed to permit the jury to reasonably conclude that the injury fell within the definition of "serious bodily injury." Holman, 2016 WL 7473897, at *2; Sizemore, 387 S.W.3d at 828; Eustis v. State, 191 S.W.3d 879, 884 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd); see Moore, 739 S.W.2d at 352. Further, when evaluating the sufficiency of the evidence to determine whether the victim suffered a "serious bodily injury," "an appellate court should not consider the amelioration or exacerbation of an injury by actions not attributable to the offender, such as medical treatment." Blea, 483 S.W.3d at 35. The relevant issue is the degree of risk of death that the injury caused, or the disfiguring or impairing effect of the injury as it was inflicted. Id.; Stuhler v. State, 218 S.W.3d 706, 714 (Tex. Crim. App. 2007); Holman, 2016 WL 7473897, at *3; Burks v. State, No. 05-13-00852-CR, 2014 WL 5141663, at *3 (Tex. App.—Dallas Oct. 14, 2014, no pet.) (mem. op., not designated for publication); Miller v. State, 312 S.W.3d 209, 213 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd).
The evidence presented to the jury in this case demonstrated that when appellant shot McCann, he caused two wounds to the surface of her face: a star- or X-shaped entrance wound on her cheek at her jawline and a crescent-shaped exit wound in the middle of her chin. Both wounds bled at the scene, splattering blood on the porch floor, the wall of the house, and the carpet inside the doorway. The crime scene photographs of McCann in the ambulance at the scene depict the wounds, reflecting that the entrance wound on her cheek measured approximately 1/4 of an inch by 3/8 of an inch and the exit wound on her chin measured approximately 5/16 of an inch by 5/8 of an inch. These photographs and the testimony at trial established that both were open wounds. As McCann's sister described, "On the side here (on her cheek) it was a star mark, it like had an X pattern, but it was open. And then her chin was just a big hole." Accordingly, both open wounds required cleaning and suturing, each with multiple stitches, at the hospital. In addition, McCann was given antibiotics to ward off infection and pain medication. The evidence also indicated that the two facial wounds were connected by a linear injury track in the tissue, which contained air pockets caused by the vacuum effect of the bullet as it traveled through McCann's face. Further, as the bullet passed through the tissue of McCann's face, it deposited metal fragments. Approximately one month later, some of the metal fragments, which the evidence indicated were bullet fragments, had migrated to the surface of McCann's face and begun to protrude from her face. Surgery was required to remove the protruding fragments. However, not all of the bullet fragments were removed; some were still in McCann's face at the time of trial, nearly eighteen months after she was shot. In addition, McCann's mother testified that McCann had two scars on her face as a result of the shooting. She described the scar on McCann's chin as "easy to see" and about the size of a dime, and the one on her cheek, also readily visible, as about the size of the "end of a marker."
McCann did not testify during the guilt-innocence phase of trial because she did not comply with subpoena and appear for trial. She was taken into custody on a writ of attachment and testified during the punishment phase of trial. Thus, the jurors were able to observe for themselves the extent of her scarring. However, because she did not appear before them prior to their deliberations on guilt-innocence, we do not consider their personal observations of McCann's scarring in our sufficiency analysis.
Appellant focuses his insufficiency argument on the "serious permanent disfigurement" aspect of "serious bodily injury," maintaining that the evidence merely showed that McCann had a small scar, which did not suffice to demonstrate serious permanent disfigurement. We disagree.
As appellant correctly notes, the fact that an injury causes scarring is not sufficient, on its own, to establish serious permanent disfigurement. Castro, 2016 WL 900749, at *7; Sizemore, 387 S.W.3d at 828; see, e.g., Hernandez v. State, 946 S.W.2d 108, 113 (Tex. App.—El Paso 1997, no pet.) (finding evidence of one-inch scar from stab wound in addition to a surgical scar insufficient to "elevate 'bodily injury' to 'serious bodily injury'"); McCoy v. State, 932 S.W.2d 720, 724 (Tex. App.—Fort Worth 1996, pet. ref'd) (concluding evidence of slight scar on lip, though permanent, was not sufficient to show serious permanent disfigurement). Rather, the record must support a finding of "some significant cosmetic deformity" in order to conclude that the evidence of serious bodily injury is sufficient. Castro, 2016 WL 900749, at *7; Sizemore, 387 S.W.3d at 828. Here, contrary to appellant's contention, the evidence in this case reflects more than a small scar. The evidence showed that McCann has two scars of significant size that are prominently visible on her face. We believe that the location of the scarring is a relevant factor to consider. While a dime-size scar on the leg or torso may not be disfiguring, a jury could reasonably determine that such a scar prominently visible on the face could be disfiguring and constitute "significant cosmetic deformity." As one of our sister court of appeals has noted, "Disfigurement, like beauty, is in the eye of the beholder." Hernandez, 946 S.W.2d at 113.
More importantly, the evidence before the jury demonstrated more than just scarring. As a result of the shooting, McCann had two open wounds on her face, which required medical treatment that included cleaning, multiple sutures, antibiotics, and pain medication. Testimony from Dr. John Meyers, the head trauma surgeon at the hospital who treated McCann in the emergency room, established the serious complications that result from leaving such open wounds untreated, which include bleeding and "some necrotizing, soft tissue infection." While it is true that whether a "bodily injury" is "serious," in terms of the Texas Penal Code, does not depend solely upon whether the victim received medical treatment, Sizemore, 387 S.W.3d at 829; see Webb v. State, 801 S.W.2d 529, 533 (Tex. Crim. App. 1990); Moore, 739 S.W.2d at 354, in evaluating the evidence supporting serious bodily injury, courts consider whether the injury would be permanently disfiguring without medical treatment. Sizemore, 387 S.W.3d at 829; see Brown v. State, 605 S.W.2d 572, 575 (Tex. Crim. App. 1980), overruled on other grounds by Hedicke v. State, 779 S.W.2d 837, 840 (Tex. Crim. App. 1989) (concluding evidence that broken nose would cause disfigurement and dysfunction if untreated was sufficient to establish serious bodily injury). Thus, while the necessity of medical treatment alone is insufficient to establish serious bodily injury, it is a relevant factor to consider in assessing the disfigurement. See Webb, 801 S.W.2d at 533; Sizemore, 387 S.W.3d at 829. Here, not only did McCann require medical treatment at the hospital for her open facial wounds, she required additional medical treatment approximately one month later because she had bullet fragments protruding from her face. This deformity was only ameliorated by subsequent surgery.
In assessing the legal sufficiency of the evidence, the reviewing court must "give deference to 'the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'" Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016) (citing Hooper, 214 S.W.3d at 13 (quoting Jackson, 443 U.S. at 318-19)). Furthermore, jurors are free to use their common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life when giving effect to the inferences that may reasonably be drawn from the evidence. Boston v. State, 373 S.W.3d 832, 837 (Tex. App.—Austin 2012), aff'd, 410 S.W.3d 321 (Tex. Crim. App. 2013); Eustis, 191 S.W.3d at 884. That said, from the evidence presented in this case and the reasonable inferences from it, the jury could have reasonably found that there was evidence of "significant cosmetic deformity" to McCann. The jury here could have rationally concluded that McCann suffered serious permanent disfigurement from the photographs of her injury at the time of the shooting, testimony describing the injuries—open bleeding wounds—from those who observed them, medical testimony describing the injuries and complications associated with them, testimony about the medical treatment provided to McCann, testimony describing the size and location of the scars that resulted, and the testimony describing the metal fragments protruding from McCann's face that required subsequent surgery to remove. Thus, we conclude that the evidence is sufficient to support the jury's finding that appellant caused McCann "serious bodily injury" when he shot her in the face. Therefore, the evidence is sufficient to establish the requisite elements of aggravated family violence assault. Accordingly, we overrule appellant's first point of error.
Because the parties are familiar with the evidence adduced at trial, and appellant limits his sufficiency challenge, we do not recite all of the evidence supporting appellant's conviction in our analysis. Rather, we limit our recitation to the evidence that is relevant to appellant's particular sufficiency challenge.
Endangering a Child
In his second point of error, appellant contends that the evidence was insufficient to support his conviction for endangering a child.
As relevant to the endangering a child alleged in Count II of the indictment in this case, a person commits an offense if he "intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment." Tex. Penal Code § 22.041(c). Appellant restricts his sufficiency challenge solely to the element of "imminent danger" of bodily injury or death, maintaining that the evidence merely showed that he placed the unborn child in a potentially dangerous situation by shooting at the child's mother but did not show that "physical pain or impairment was ready to take place."
As noted previously, the Texas Penal Code broadly defines "bodily injury" as "physical pain, illness, or any impairment of physical condition." Id. § 1.07(a)(8). The Penal Code does not define "physical impairment," but "Texas courts have interpreted 'impairment' to include the diminished function of a bodily organ." Garcia v. State, 367 S.W.3d 683, 688 (Tex. Crim. App. 2012); Felder, 2014 WL 7475237, at *3; see, e.g., Camarillo, 82 S.W.3d at 532 (impairment when injury to victim's nose rendered breathing difficult); Adams v. State, 969 S.W.2d 106, 111 (Tex. App.—Dallas 1998, no pet.) (impairment when defendant's conduct interfered with victim's ability to stand and walk). The word "imminent" is not defined in the Penal Code, but the Texas Court of Criminal Appeals has defined the term to mean "'ready to take place, near at hand, impending, hanging threateningly over one's head, menacingly near.'" Garcia, 367 S.W.3d at 689 (quoting Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989) (internal quotation marks omitted)); see State v. Clampitt, No. 05-15-00901-CR, 2016 WL 3947943, at *1 (Tex. App.—Dallas July 15, 2016, pet. ref'd) (mem. op., not designated for publication); Millslagle v. State, 81 S.W.3d 895, 898 (Tex. App.—Austin 2002, pet. ref'd). It is not sufficient that the accused placed the child in a situation that is potentially dangerous. Millslagle, 81 S.W.3d at 898; see Mayberry v. State, 351 S.W.3d 507, 513 (Tex. App.—San Antonio 2011, pet. ref'd) ("Conduct that merely places a child in a potentially dangerous situation is not sufficient for conviction."). The defendant's conduct must threaten the child with immediate, impending death, bodily injury, or impairment. Millslagle, 81 S.W.3d at 898; see Clampitt, 2016 WL 3947943, at *1 ("'[T]o be "imminent" for [the purpose] of imposing responsibility pursuant to Penal Code § 22.041(c), the situation must be immediate and actual, not potential or future, at the moment of the act or omission by the defendant.'") (quoting Newsom v. B.B., 306 S.W.3d 910, 918 (Tex. App.—Beaumont 2010, pet. denied)); see, e.g., Devine, 786 S.W.2d at 270 (holding that defendant did not place eight-year-old daughter in imminent danger by permitting man on probation for indecency with child to move into home she shared with her children).
The evidence in this case showed that when deputies arrived at the scene and made contact with McCann, her eyes were "wide open" and she appeared "to be in shock." She had two open wounds on her face, "a crescent-shaped wound on the front of her chin and a star-shaped wound on the backside of her jaw," which were bleeding. McCann's bleeding was enough to result in blood spatter on the porch floor, the wall of the house, and the carpet just inside the doorway. Instead of being taken to a local hospital, McCann was airlifted to University Hospital in San Antonio because of concerns that she was going to go into labor early and "[that hospital had] a better NICU unit" to care for the baby.
At University Hospital, McCann was treated in the emergency room by Dr. John Meyers, the head trauma surgeon at the hospital. Dr. Meyers testified that "if you go back to the time of injury, potential bleeding left untreated, if the mother gets stressed, the child will get stressed, [which] could result in fetal demise or premature delivery." McCann was also treated by Dr. Michael Berkus, a maternal fetal medicine specialist, who monitored McCann and the baby for twenty-four hours after McCann was treated in the emergency room for the gunshot wounds to her face. Dr. Berkus testified,
Anytime there's trauma to the mother, that can affect the pregnancy, even if it is not directly to the pregnancy itself. If she's at all compromised, blood will shift away from the uterus and the uterus can start contracting. The placenta could sheer [sic] off -- it is called an abruption -- and the baby could be in trouble.He further testified about the risks to the baby from a premature delivery, which include that "the baby could be injured permanently respiratory-wise, hearing, eyes, depending on how premature, or not survive." The doctor testified that even for late term pregnancies, such as McCann's since she was thirty-six or thirty-seven weeks along, risks still exist:
. . .
The danger [of striking a pregnant woman with a gunshot] would be that the mother's body would -- would direct the blood flow to wherever her injury was to protect her. And that would have to come away from the uterus and the baby. And so that could start labor, that could put the baby in distress.
It is called -- it's called late premature. There's some small number of babies who do have problems. So we don't electively deliver anybody at 37 weeks unless the mother has some problem, because those babies can have respiratory problems, feeding problems, bonding problems. It is not common, but it happens enough that we don't deliver babies until they are 39 weeks.
Thus, the evidence showed that McCann suffered a trauma in which she sustained injuries that caused her to bleed and appear "to be into shock." According to expert medical testimony, these injuries would have diverted blood away from the uterus and the baby, which created a risk of premature labor. A premature delivery forces an early separation from the mother—literally the baby's source of life—and means the baby is removed from her normal means of receiving oxygen and nutrients (through the placenta and umbilical cord). A premature delivery also interrupts the baby's natural development. A jury could reasonably find that this forced separation and interrupted development constitute "any impairment of physical condition" included in the definition of "bodily injury." In addition, the evidence before the jury indicated that a premature delivery, even a late premature delivery, puts the baby at risk for respiratory problems, hearing problems, visual problems, feeding problems, and bonding problems. Problems breathing, hearing, seeing, or eating constitute "any impairment of physical condition" included in the definition of "bodily injury" as well as "diminished function of a bodily organ" per the definition of "physical impairment."
Appellant suggests that these risks associated with a premature delivery were merely remote "potential scenarios" that do not show "imminent danger." However, the testimony of the maternal fetal medicine specialist indicated that the risks associated with a premature delivery were severe enough—and the occurrence of the associated problems was frequent enough—that delivering a baby before thirty-nine weeks gestation is contrary to the hospital's accepted medical practice. Moreover, from the decision of the emergency medical personal to airlift McCann to a hospital better equipped to handle a premature delivery and care for a premature baby, the jury could reasonably infer that the risk of premature delivery and the associated risks to the baby were "ready to take place, near at hand, impending, . . . or menacingly near." Thus, the record demonstrates that the danger to McCann's unborn baby was "imminent."
Evidence is sufficient to support a conviction when, based on the evidence and reasonable inferences therefrom, any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Anderson v. State, 416 S.W.3d 884, 888 (Tex. Crim. App. 2013). Based on the evidence presented at trial and the reasonable inferences from it, we conclude that the jury could have rationally found beyond a reasonable doubt that appellant's conduct of shooting McCann in the face placed McCann's unborn baby in "imminent danger" of bodily injury or physical impairment as required by the statute. Therefore, the evidence is sufficient to support appellant's conviction for endangering a child. We overrule appellant's second point of error.
Once again, because the parties are familiar with the evidence adduced at trial, and appellant limits his sufficiency challenge, we do not recite all of the evidence supporting appellant's conviction in our analysis. Rather, we limit our recitation to the evidence that is relevant to appellant's particular sufficiency challenge.
Failure to Admonish
In his third point of error, appellant complains about the trial court's failure to admonish him of the possible deportation and immigration consequences of his guilty plea to unlawful possession of a firearm by a felon.
Pursuant to article 26.13 of the Texas Code of Criminal Procedure, before accepting a guilty plea or plea of nolo contendere, a trial court must admonish the defendant of, among other things, "the fact that if the defendant is not a citizen of the United States of America, a plea of guilty or nolo contendere for the offense charged may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law." Tex. Code Crim. Proc. art. 26.13(a)(4). The record reflects, and the State concedes, that the trial court failed to admonish appellant, either orally or in writing, of the potential deportation and immigration consequences of his guilty plea. Accordingly, the trial court committed error in failing to comply with the mandatory statute. See VanNortrick v. State, 227 S.W.3d 706, 707-08 (Tex. Crim. App. 2007); see also Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002).
As the admonishments under article 26.13 are not constitutionally required, such error is "non-constitutional" error subject to a harm analysis under Rule 44.2(b) of the Rules of Appellate Procedure. VanNortrick, 227 S.W.3d. at 708; see Burnett, 88 S.W.3d at 637. Accordingly, we disregard the error unless it affects an appellant's "substantial rights." See Tex. R. App. P. 44.2(b); VanNortrick, 227 S.W.3d at 708. To ascertain whether an appellant's substantial rights have been affected, we must conduct an independent examination of the entire record to determine harm; neither party has a burden to demonstrate harm or harmlessness. Id. at 708-09; see Anderson v. State, 182 S.W.3d 914, 918 (Tex. Crim. App. 2006).
The critical inquiry in determining harm is whether, "considering the record as a whole, do we have a fair assurance that the defendant's decision to plead guilty would not have changed had the court admonished him?" VanNortrick, 227 S.W.3d at 709 (quoting Anderson, 182 S.W.3d at 919); see Hines v. State, 396 S.W.3d 706, 708-09 (Tex. App.—Houston [14th Dist.] 2013, no pet.); De la Cruz v. State, No. 04-10-00786-CR, 2011 WL 4088702, at *2 (Tex. App.—San Antonio Sept. 14, 2011, pet. ref'd) (mem. op., not designated for publication). Concerning harm due to the failure to admonish about deportation and immigration consequences, the Court of Criminal Appeals has concluded that
when the record shows a defendant to be a United States citizen, the trial court's failure to admonish him on the immigration consequences of his guilty plea is harmless error. This is so because such a defendant is not subject to deportation, the threat of which could not have influenced that defendant's decision to plead guilty.VanNortrick, 227 S.W.3d at 709 (citing Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997), overruled by statute on other grounds); see Luna v. State, No. 07-15-00231-CR, 2016 WL 1179091, at *2-3 (Tex. App.—Amarillo Mar. 25, 2016, no pet.) (mem. op., not designated for publication). Appellant contends that the record in this case is silent regarding his citizenship status. We disagree.
Evidence showing that a defendant was born in the United States is sufficient to establish citizenship so that a failure to admonish regarding the possible deportation and immigration consequences of a guilty plea is harmless error. Hines, 396 S.W.3d at 708-09; see U.S. Const. amend. XIV, § 1 ("All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."); see, e.g., Cain, 947 S.W.2d at 263-64 & n.2 (trial court's failure to admonish defendant concerning deportation consequences of plea was harmless because Texas Department of Corrections record showing defendant's birthplace as Parker County, Texas reflected that appellant was U.S. citizen and therefore not subject to deportation); Easley v. State, No. 01-14-00296-CR, 2015 WL 1263140, at *2-3 (Tex. App.—Houston [1st Dist.] Mar. 19, 2015, pet. ref'd) (mem. op., not designated for publication) (testimony during punishment phase that appellant was born in Houston, Texas demonstrated that appellant was U.S. citizen, thus trial court's error in failing to admonish appellant about deportation consequences was harmless); Hines, 396 S.W.3d at 709 (evidence of appellant's admission that he was born in Mississippi supported reasonable conclusion that appellant was U.S. citizen and not subject to deportation; therefore, trial court's failure to properly admonish him on possible immigration consequences of guilty plea was harmless); Lawrence v. State, 306 S.W.3d 378, 379 (Tex. App.—Amarillo, 2010, no pet.) (evidence in pen packet that defendant was born in Texas was sufficient evidence that he was United States citizen not subject to deportation, thus the failure to admonish appellant about deportation consequences was harmless); Gist v. State, No. 07-08-00030-CR, 2009 WL 3320203, at *2 (Tex. App.—Amarillo Oct.14, 2009, no pet.) (mem. op., not designated for publication) (appellant's bond paperwork contained in supplemental record that showed that appellant was born in Arkansas permitted inference that appellant was United States citizen, and thus error in failing to admonish appellant pursuant to article 26.13 was harmless).
According to a document from the TXGANG database, a database on gang membership, that was admitted into evidence (without objection) during the punishment phase of trial, appellant is a U.S. citizen. First, the document states that appellant's place of birth was "OR," which is a common abbreviation for the state of Oregon. Second, the document further reflects appellant's citizenship as "U.S." We conclude that the record in this case provides this Court with enough facts that we may infer that appellant is a citizen of the United States. See Fakeye v. State, 227 S.W.3d 714, 716 (Tex. Crim. App. 2007) ("[I]t is not a requirement that support for an inference regarding citizenship be direct evidence."); VanNortrick, 227 S.W.3d at 710 ("[A]ppellate courts should draw reasonable inferences from facts in the record when conducting a harm analysis due to a trial court's failure to admonish a defendant about the consequences of pleading guilty."). Because the record reflects that appellant is a United States citizen, he would not be subject to deportation. Consequently, the trial court's error in failing to give the deportation and immigration admonishment required under article 26.13(a)(4) prior to appellant's guilty plea to unlawful possession of a firearm by a felon was harmless. We overrule appellant's third point of error.
Error in Judgment
In his fourth point of error, appellant requests modification of the trial court's written judgment of conviction for endangering a child because, he contends, the judgment erroneously reflects that he was convicted of a third degree felony when the judgment should reflect that the endangering offense was a state jail felony. The State agrees that the judgment is erroneous and should be modified.
Subsection (c) of the endangering a child statute, section 22.041 of the Penal Code, defines the offense of endangering a child as alleged in Count II of the indictment in this case. See Tex. Penal Code 22.041(c). Subsection (f) of that statute classifies the offense as alleged, an offense under subsection (c), as a state jail felony. See id. § 22.041(f). The jury found appellant guilty of endangering a child as alleged in Count II of the indictment, a state jail felony.
Section 12.35 of the Penal Code, entitled State Jail Felony Punishment, sets forth the punishment ranges for state jail felonies. See id. § 12.35. Under subsection (c) of that statute, "[a]n individual adjudged guilty of a state jail felony shall be punished for a third degree felony if it is shown on the trial of the offense that a deadly weapon as defined by Section 1.07 was used or exhibited during the commission of the offense." Id. § 12.35(c). Count II of the indictment alleged the use of a firearm, a deadly weapon per se, see id. § 1.07(17)(A), in the commission of the endangering a child offense. Thus, 12.35(c) applied in this case, and appellant was punished for a third degree felony.
However, although section 12.35(c) allows for the punishment of a state jail felony to be increased to that of a third degree felony, it does not change the classification or level of the offense to a third degree felony. See Chambless v. State, 411 S.W.3d 498, 502 (Tex. Crim. App. 2013) ("Section 12.35(c)'s phrase 'an individual adjudged guilty of a state jail felony shall be punished for a third degree felony' means that, while the conviction is for a state-jail felony, it is punishable as a third-degree felony."); Ford v. State, 334 S.W.3d 230, 234 (Tex. Crim. App. 2011) ("When applicable, Section 12.35(c) increases the punishment level for a 12.35(a) state jail felony to a third-degree felony, but the primary offense itself remains a state jail felony."); see also Ex parte Reinke, 370 S.W.3d 387, 389 (Tex. Crim. App. 2012) (drawing distinction between "enhancing the level of the offense and enhancing the level of punishment"). Thus, the trial court's judgment of conviction for endangering a child, which states that the offense is a third degree felony, is erroneous. The judgment should reflect that appellant was convicted of a state jail felony. We sustain appellant's fourth point of error and modify the judgment accordingly. See Tex. R. App. P. 43.2(b) (authorizing court of appeals to modify trial court's judgment and affirm it as modified); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (Texas Rules of Appellate Procedure empower courts of appeals to reform judgments).
CONCLUSION
Having concluded that the evidence is sufficient to support appellant's conviction for aggravated family violence assault, we affirm the trial court's judgment of conviction for aggravated family violence in Count I. Having concluded that the evidence is sufficient to support appellant's conviction for endangering a child but that the written judgment for that offense contains non-reversible error, we modify the trial court's judgment of conviction for endangering a child in Count II to reflect that appellant was convicted of a state jail felony and affirm that judgment as modified. Finally, having concluded that the trial court's error in failing to give the mandatory deportation and immigration admonishment prior to appellant's guilty plea to unlawful possession of a firearm by a felon was harmless, we affirm the trial court's conviction for unlawful possession of a firearm by a felon in Count III.
/s/_________
Melissa Goodwin, Justice Before Justices Puryear, Goodwin, and Field Count I Aggravated Family Violence Assault: Affirmed Count II Endangering a Child: Modified and, as Modified, Affirmed Count III Unlawful Possession of a Firearm by a Felon: Affirmed Filed: March 23, 2017 Do Not Publish