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Elizondo v. State

Court of Appeals of Texas, Fourteenth District

November 14, 2017

ANTONIO THOMAS ELIZONDO, Appellant
v.
THE STATE OF TEXAS, Appellee

         On Appeal from the 56th District Court Galveston County, Texas Trial Court Cause Nos. 15-CR-0430, 15-CR-0431, 15-CR-0432

          Panel consists of Chief Justice Frost and Justices Boyce and Jewell.

          OPINION

          Kem Thompson Frost Chief Justice.

         Convicted of three counts of aggravated robbery and sentenced to forty years' incarceration, appellant Antonio Thomas Elizondo challenges his sentence and seeks a new punishment hearing. He asserts that the trial judge considered evidence outside of the record and that by doing so, the trial judge did not act as a neutral officer. We address (1) the preservation-of-error requirement, an issue the Court of Criminal Appeals has yet to address in this context and (2) whether the record supports appellant's contention that the trial judge considered evidence outside the record. We affirm.

         Factual and Procedural Background

         Appellant pled "guilty" to three counts of aggravated robbery and testified against two men charged with participating in the same offenses.

         The events that led to the charges began with a casual friendship between appellant and one of the complainants, whom appellant met while the two worked together at a pizza place. Appellant gave the coworker rides because the coworker did not have a car. Because appellant was living out of appellant's car, the coworker, who lived with his mother and her boyfriend, offered to let appellant stay in their home. The coworker's mother also befriended appellant, offering him food and washing his clothing.

         Appellant learned from the coworker that the coworker was expecting a large tax refund and that the coworker intended to use the proceeds to buy a used car. The coworker mentioned the refund while in the presence of appellant and two of appellant's associates whom the coworker did not know. Appellant and the two associates hatched a plan to rob the coworker. They planned to steal the coworker's newly-purchased car and any of the coworker's remaining tax-refund money.

         The coworker collected his tax refund and a paycheck, receiving some of the funds in cash and loading the rest onto a debit card. Appellant drove the coworker to purchase the car. While the coworker was driving back, the newly purchased car broke down. Stranded on the highway, the coworker fell asleep in the car. A state trooper found the coworker asleep in the car, on the side of the highway, and realized there was an outstanding warrant for the coworker's arrest because the coworker had unpaid parking tickets. The trooper arrested the coworker and took him to jail.

         Appellant and his two associates bonded the coworker out of jail. In the process, the two associates took possession of the property the coworker had turned over to police, including the coworker's debit card, onto which the coworker had loaded the proceeds from his paycheck and tax refund. At some point, the coworker got the broken-down vehicle to his mother's home. It was sitting in the driveway the next day when appellant dropped the coworker off after taking him on an excursion to Houston. Later the same day, appellant got together with the two associates and the three of them went to a store, where they bought duct tape, latex gloves, and plastic bags. The three also acquired two guns.

         Appellant drove the two associates to the coworker's home, where they carried out the robbery. The three entered the home, waking up the coworker, the coworker's mother, and the coworker's mother's boyfriend. Appellant and the two associates dragged the coworker, the mother, and the boyfriend into the living room, where they bound them with duct tape and duct-taped plastic bags over their heads.

         The coworker immediately gave up the keys to the car and all of the money he had, but appellant and the two associates said that the coworker, the mother, and the boyfriend knew too much and so appellant and the two associates would have to kill them. The coworker and his mother kept trying to get out of the duct tape. They were screaming. While the mother was fighting to escape, one of appellant's associates sexually assaulted her.

         Appellant left the scene to buy gasoline. According to appellant, he went to get the gasoline to kill the coworker, the mother, and the boyfriend. The coworker and the mother both testified that appellant "was calling the shots" while these events unfolded.

         While appellant was gone, the coworker managed to escape by breaking the duct tape and jumping from a window over a fence into a neighbor's yard. Appellant's associates shot the boyfriend and the mother. Then the associates began looking for the coworker, who was hiding outside. About that time, the associates heard sirens and fled. The associates called appellant, who was on his way back with gasoline, and told him what had happened and where they were hiding so that appellant could come get them.

         Injured from the gunshots, the mother was transported by ambulance to a hospital, where she remained in a medically-induced coma for weeks. The coworker immediately told police ...


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