Zapata v. State

Full title: VALDEMAR ZAPATA, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourth District, San Antonio

Date published: Apr 19, 2006

No. 4-05-00012-CR (Tex. App. Apr. 19, 2006)

Opinion

No. 4-05-00012-CR

Delivered and Filed: April 19, 2006. DO NOT PUBLISH.

Appeal from the 144th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CR-0866, Honorable Pat Priest, Judge Presiding. Affirmed.

Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice, Rebecca SIMMONS, Justice.

MEMORANDUM OPINION

Opinion by: ALMA L. LÓPEZ, Chief Justice.

Valdemar Zapata was convicted by a jury of burglary of a habitation. In two issues, Zapata complains that the indictment failed to provide him notice of the accusation against him and that the trial court erred in making an affirmative finding of a deadly weapon. We affirm the trial court's judgment.

Background

Zapata's common-law wife, Carolina Puente, has a daughter named Kristine Puente. After Carolina's home was destroyed in a storm, Kristine stayed with a friend, Michelle Espino, her mother, Angelica Espino, and her mother's boyfriend, Frank Gonzales, so that she could finish her senior year of high school. On June 9, 2002, Kristine graduated from high school and planned to vacate Michelle's home that day. Several witnesses testified and presented different accounts of what occurred on June 9th and 10th of 2002. It was alleged that Zapata, Carolina, Kristine, and her friend, Krystal Martinez, arrived at Michelle's residence at 10:00 p.m. to retrieve Kristine's clothes. Frank testified that when the group arrived, Zapata asked if Frank would allow Kristine to gather her belongings. Frank said yes, but then announced that he was going to call the police, which infuriated Zapata. Angelica testified that Zapata threw a beer can at her and then he began fighting with Frank. Angelica further testified that Zapata pulled out a knife and nicked Frank's arm with it. As he left, Zapata threatened that he would come back and kill Frank. Kristine, however, testified that Frank pushed her and told her to leave when she approached the house to retrieve her belongings, which prompted the fight between Frank and Zapata. She testified that it was Frank who pulled a knife on Zapata. Frank and Angelica also testified that at 1:00 the following morning, Zapata kicked in their door and came in swinging a baseball bat at Frank. Medical records show that Frank had three stitches in his arm and bruises on his leg, hip, and knee. Various crime scene photographs show the destruction of the home caused by the swinging of the baseball bat. Krystal testified that Zapata used a bat during the 10:00 p.m. incident. Victor Cabrerra, Frank's neighbor, testified that at about 10:00 p.m. he heard a loud bang and yelling outside. When Victor went outside to investigate, Frank yelled at him to call the police. Victor stated that he heard Zapata yell as he was leaving, "You don't know who you are messing with. I am going to come back and kill you." Victor also testified that at about 1:00 a.m., he heard three knocks on Frank's front door, and when he looked outside, he saw Zapata kick in Frank's door and enter the home holding a bat in his hand. Kristine and Carolina testified that this second incident never occurred and that Zapata was at home sleeping the entire night. Zapata was charged in a two-count indictment as follows:

COUNT I: Paragraph A

[on or about the] 10th day of June, A.D., 2002, VALDEMAR ZAPATA, hereinafter referred to as defendant, did then and there knowingly and intentionally enter a habitation with intent to commit AGGRAVATED ASSAULT, without the effective consent of FRANK GONZALES, the owner of said habitation;

COUNT I: Paragraph B

. . . [o]n or about the 10th day of June, A.D., 2002, . . . VALDEMAR ZAPATA, hereinafter referred to as defendant, did then and there knowingly and intentionally enter a habitation and therein attempted to commit and committed AGGRAVATED ASSAULT, without the effective consent of FRANK GONZALES, the owner of said habitation;

COUNT II

. . . [o]n or about the 10th day of June, A.D., 2002, . . . VALDEMAR ZAPATA, hereinafter referred to as defendant, did then and there use and exhibit a deadly weapon, namely: A BAT, THAT IN THE MANNER OF ITS USE AND INTENDED USE WAS CAPABLE OF CAUSING DEATH AND SERIOUS BODILY INJURY, and did then and there intentionally and knowingly CAUSE BODILY INJURY to FRANK GONZALES, hereinafter referred to as complainant, by STRIKING THE SAID COMPLAINANT WITH SAID DEADLY WEAPON;

Immediately prior to trial, the State voluntarily abandoned the second count, and proceeded solely on the burglary charge. The trial court overruled Zapata's objection that the indictment was defective because there was no factual allegation concerning the aggravated assault. Though the testimony from the witnesses was conflicting, the jury found Zapata guilty of burglary of a habitation as charged in the indictment. The trial court made an affirmative finding of a deadly weapon and assessed punishment at ten years' confinement in the institutional division.

ANALYSIS

In his first issue, Zapata contends that the trial court erred in overruling his objection to the indictment, which failed to provide the notice guaranteed by both the Sixth Amendment of the United States Constitution and Article I, section 10 of the Texas Constitution. Zapata claims that after the State abandoned the second count of the indictment, the indictment was rendered defective in that there was no factual allegation concerning the aggravated assault alleged in the first count. As a general rule, an indictment must give the defendant notice of precisely what he is charged with so that he may prepare an adequate defense. State v. Moff, 154 S.W.3d 599, 603 (Tex.Crim.App. 2004). The Code of Criminal Procedure states that "[e]verything should be stated in an indictment which is necessary to be proved." Tex. Code Crim. Pro. Ann. art. 21.03 (Vernon 1989). In this case, Zapata was charged with the crime of burglary. A person commits the offense of burglary if he enters a habitation without the effective consent of the owner with the intent to commit a felony, theft, or an assault, or if he enters a habitation without consent and commits or attempts to commit a felony, theft, or an assault. Tex. Pen. Code Ann. § 30.02(a)(1), (3) (Vernon 2003). In an indictment for burglary, it is not necessary to allege the elements of the underlying felony, theft, or assault so long as the indictment specifically states that the entry was with the intent to commit a specifically named felony, theft, or an assault. See Davila v. State, 547 S.W.2d 606, 608 (Tex.Crim.App. 1977). Accordingly, an indictment charging burglary under section 30.02 of the Penal Code is sufficient if it alleges that the accused committed a named felony, theft, or an assault; or attempted to commit a named felony, theft, or an assault; or it may allege each of the essential elements of the felony, theft, or assault in question. Id. at 609 ; Mitchell v. State, 648 S.W.2d 776, 777 (Tex.App.-San Antonio 1983, no pet.). Because Zapata was charged with entry with intent to commit aggravated assault, we do not find that the indictment was defective in failing to state the essential elements of assault. Zapata next argues that the trial court erred in making an affirmative finding of the use of a deadly weapon. Zapata contends that because the indictment's first count did not expressly allege the use of a deadly weapon, he was not on notice that the State would seek a deadly weapon finding as required by article I, section 19 of the Texas Constitution. Accused persons are entitled to notice in some form that the use of a deadly weapon will be a fact issue at the time of prosecution. See Ex parte Beck, 769 S.W.2d 525, 526 (Tex.Crim.App. 1989). An affirmative finding of use or exhibition of a deadly weapon must be supported by a written pleading, albeit not necessarily in the indictment. Luken v. State, 780 S.W.2d 264, 266 (Tex.Crim.App. 1989). In Grettenberg v. State, 790 S.W.2d 613 (Tex.App. Crim. 1990), an almost identical factual situation to the instant case was presented. The defendant was charged in a single indictment which alleged burglary with intent to commit aggravated assault in the first count, and attempted capital murder by strangling with an unknown object in the second count. Grettenberg, 790 S.W.2d at 614. The defendant was originally indicted in Harris County, but before the cause was transferred to Bexar County, the State abandoned the second count. Id. at 615. The Court of Criminal Appeals reasoned that the dismissed portion of the indictment adequately notified the defendant that the use of a deadly weapon would be a fact issue at the time of trial. Id. at 614. "When the theories of prosecution contained in the counts are so interrelated as under the facts of this case, the election by the State to pursue one of the counts in preference to the other will not vitiate the notice given in the indictment in its original form." Id. at 614-15. Accordingly, because Zapata was aware of the original two-count indictment against him, he was also on notice that the use of a deadly weapon would be a fact issue at his trial. Id.

Conclusion

The judgment of the trial court is affirmed.