Alejandro Caballero v. the State of Texas ( 2021 )

NUMBER 13-20-00109-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ALEJANDRO CABALLERO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the County Court at Law No. 5
of Cameron County, Texas.
DISSENTING MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Silva
Dissenting Memorandum Opinion by Chief Justice Contreras
I agree with the majority that the jury charge was erroneous because it (1) failed
to include an incident-specific unanimity instruction, and (2) failed to include the
instruction mandated by Texas Penal Code § 2.05(a)(2). However, I respectfully dissent
because I would find that appellant was egregiously harmed by the errors.
When a jury charge contains multiple errors, courts may assess the cumulative
effect of the errors in determining whether the appellant suffered egregious harm. See
Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999) (“It is conceivable
that a number of errors may be found harmful in their cumulative effect.”); Abbott v. State,
196 S.W.3d 334, 349 (Tex. App.—Waco 2006, pet. ref’d).
First, with respect to the lack of an incident-specific unanimity instruction, I would
find that the state of the evidence supports a finding of egregious harm. The majority
likens this case to Cosio v. State, 353 S.W.3d 766, 771–72 (Tex. Crim. App. 2011), in
which the Texas Court of Criminal Appeals found no egregious harm resulting from the
lack of an incident-specific unanimity instruction. That case is distinguishable. Cosio was
charged with four counts of indecency with a child, but the evidence showed multiple
instances of misconduct that supported each count; therefore, the court erred by failing
to instruct the jury that it had to be unanimous as to which instance supported each count.
Id. at 774 (noting that “[t]he jury could have relied on separate incidents of criminal
conduct, which constituted different offenses or separate units of prosecution, committed
by Cosio to find him guilty”). Nevertheless, Cosio did not suffer egregious harm from the
error, in large part because Cosio’s “defense was essentially of the same character and
strength across the board” with respect to each of the four instances of misconduct. Id. at
777. Specifically, “Cosio’s defense was that he did not commit any of the offenses and
that there was reasonable doubt as to each of the four incidents because [the
complainant] was not credible and the practical circumstances surrounding the incidents
of criminal conduct did not corroborate [the complainant’s] testimony.” Id. Because
Cosio’s defensive theory as to all four instances was that the complainant was not
credible, it is “highly likely that the jury’s verdicts . . . were, in fact, unanimous.” Id. at 778
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(observing that, “[h]ad the jury believed otherwise, they would have acquitted Cosio on
all counts”).
Here, as in Cosio, there was evidence of multiple discrete instances of misconduct
which would have supported a deadly conduct conviction: (1) the stoplight incident, and
(2) the Stripes incident. But appellant raised slightly different defensive theories as to
each incident—as to the stoplight, appellant claimed that the gun was unloaded and that
it was placed in the center console and never brandished; as to Stripes, appellant said he
was holding his cell phone, not a gun. Notably, McClain testified he “can’t be positive”
that appellant was holding a gun at the Stripes, whereas his testimony regarding the
stoplight incident was far less equivocal. The “character and strength” of the evidence
was not the same with respect to the two instances of misconduct. Cf. id. at 777. Unlike
in Cosio, it is eminently feasible that the jury could have believed one defense but
disbelieved the other—and if that was the case, the lack of an incident-specific unanimity
instruction directly caused the rendition of a non-unanimous verdict.
Second, I would also find that the record supports a finding of egregious harm with
respect to the lack of a § 2.05(a)(2) instruction. I agree with the majority that the lack of
such an instruction was error and that there was nothing else in the jury charge to remedy
the harm suffered. Moreover, as the majority concedes, the State explicitly informed the
venire panel as to the presumption contained in penal code § 22.05(c), but it never
similarly informed the jury that, under § 2.05(a)(2), the presumption is not mandatory. See
TEX. PENAL CODE ANN. § 2.05(a)(2). Both of these factors support a finding of egregious
harm.
I would additionally find that the state of the evidence in the record supports such
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a finding. Penal code § 22.05(c) provides that, for purposes of the deadly conduct offense,
“[r]ecklessness and danger are presumed if the actor knowingly pointed a firearm at or in
the direction of another whether or not the actor believed the firearm to be loaded.” Id.
§ 22.05(c). Here, appellant testified that his gun was not loaded, and there was no
evidence to the contrary. Without the § 22.05(c) presumption, evidence that a person
brandished an unloaded gun would not be enough to prove recklessness or danger to
another, two essential elements of the offense of deadly conduct. See id. § 6.03(c) (“A
person acts recklessly, or is reckless, with respect to circumstances surrounding his
conduct or the result of his conduct when he is aware of but consciously disregards a
substantial and unjustifiable risk that the circumstances exist or the result will occur. The
risk must be of such a nature and degree that its disregard constitutes a gross deviation
from the standard of care that an ordinary person would exercise under all the
circumstances as viewed from the actor’s standpoint.” (emphasis added)). If the jury
believed appellant’s uncontroverted testimony that the gun was unloaded, it would still
have convicted appellant based on the mandatory presumption in § 22.05(c) and the
absence of the required § 2.05(a)(2) instruction.
The majority cites Neely v. State, 193 S.W.3d 687–88 (Tex. App.—Waco 2006, no
pet.) and Garrett v. State, 159 S.W.3d 717, 721 (Tex. App.—Fort Worth 2005), aff’d, 220
S.W.3d 926 (Tex. Crim. App. 2007), for the proposition that “where the great weight of
the evidence supports the facts giving rise to the presumption, egregious harm has not
occurred.” But those cases are inapposite because they asked whether the appellant was
harmed by the lack of an instruction on § 2.05(a)(2)(D), which states that “if the jury has
a reasonable doubt as to the existence of a fact or facts giving rise to the presumption,
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the presumption fails and the jury shall not consider the presumption for any purpose.”
See TEX. PENAL CODE ANN. § 2.05(a)(2)(D). Because the great weight of the evidence
supported the predicate facts in those cases, a § 2.05(a)(2)(D) instruction would not have
made a difference to the result. Here, on the other hand, appellant was harmed from the
lack of an instruction under § 2.05(a)(2)(B), which provides “that if [the predicate facts]
are proven beyond a reasonable doubt the jury may find that the element of the offense
sought to be presumed exists, but it is not bound to so find.” Id. § 2.05(a)(2)(B). Section
2.05(a)(2)(B) operates as a constitutional backstop, ensuring that even statutes
ostensibly establishing “mandatory” presumptions do not relieve the jury of its
responsibility to find each essential element of the offense beyond a reasonable doubt.
See Willis v. State, 790 S.W.2d 307, 309 (Tex. Crim. App. 1990) (“[M]andatory
presumptions are deemed unconstitutional because they eliminate the State’s
constitutionally required burden of proving guilt beyond a reasonable doubt.”). When the
instruction is erroneously omitted, a defendant is deprived of this constitutional protection.
Here, appellant was harmed by the omission because it deprived him of his right to have
the jury find two essential elements of the offense—recklessness and danger—beyond a
reasonable doubt. See Bellamy v. State, 742 S.W.2d 677, 686 (Tex. Crim. App. 1987)
(finding egregious harm from the lack of a § 2.05(a)(2) instruction where the presumed
fact—appellant’s knowledge that the property received was stolen—was the “sole
contested issue,” there was conflicting testimony on the issue, and the prosecutor
mentioned the presumption to the jury); Ross v. State, 594 S.W.3d 566, 572 (Tex. App.—
Amarillo 2019, no pet.) (finding egregious harm from the lack of a § 2.05(a)(2)(B)
instruction where “the circumstantial evidence of appellant’s intent [the presumed fact]
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largely rested on the predicate facts that give rise to the statutory presumption”); Ramirez-
Memije v. State, 466 S.W.3d 894, 901 (Tex. App.—Houston [14th Dist.] 2015, no pet.)
(finding egregious harm from the lack of a § 2.05(a)(2) instruction where the presumed
fact—appellant’s intent to defraud or harm—was the “sole contested issue” and the
evidence of intent was “not overwhelming”).
For the forgoing reasons, and in light of the specific circumstances present here, I
would conclude that the charge errors cumulatively caused egregious harm because they
affected “the very basis of [appellant’s] case,” “deprive[d him] of a valuable right,” or
“vitally affect[ed] a defensive theory.” See Cosio, 353 S.W.3d at 777; Chamberlain, 998
S.W.2d at 238. Accordingly, I would reverse the trial court’s judgment and remand for
further proceedings. I respectfully dissent.
DORI CONTRERAS
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
3rd day of June, 2021.
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