Hector Tellez v. State ( 2015 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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HECTOR TELLEZ, No. 08-13-00141-CR
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Appellant, Appeal from
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v. 384th District Court
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THE STATE OF TEXAS, of El Paso County, Texas
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Appellee. (TC # 20120D04773)
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OPINION
Hector Tellez appeals his convictions of intoxication manslaughter (Counts I and III) and
aggravated assault (Count V). A jury found Appellant guilty of Counts I, III, and V, and
assessed his punishment at a fine of $10,000 and imprisonment for a term of twenty years on
Counts I and III, and a fine of $10,000 and imprisonment for a term of fifteen years on Count V.
The trial court ordered the sentence for Count III to run consecutively to the sentence for Count
I, while the sentence in Count V will concurrently with Counts I and III. We affirm.
FACTUAL SUMMARY
On July 8, 2011, a band called “Ancient of Days” played a concert at the Open Gate
Church in Northeast El Paso. Mark Anthony Dobbs, Jon Cervoni, Aaron Carrillo, Brandon
Beltran, and Austin Ramos were in the band. As Dobbs drove home in his parents’ Nissan
Sentra, he experienced car trouble and pulled onto the shoulder of Loop 375. Dobbs turned on
the vehicle’s hazard lights and called Cervoni for help because he did not want to call his
parents. Cervoni and Carrillo arrived within ten or fifteen minutes. Cervoni pulled his car in
front of Dobbs’ car so that the two cars were facing each other, and they attempted to start
Dobbs’ car with jumper cables but were unsuccessful. Dobbs and Cervoni got in Dobbs’ car to
call for assistance while Carrillo stood outside on the passenger side. Dobbs remembered the
three of them talking and the next thing he remembered was waking up in the hospital. His
father was present and told him that Cervoni and Carrillo were dead.
Evadne Atkinson, a registered nurse, was driving home on Loop 375 sometime after 11
p.m. when she saw a truck ahead of her that was driving on the shoulder rather than in a lane of
traffic. The truck continued to travel on the shoulder and Atkinson suddenly saw it become
airborne and flip. Atkinson did not see the truck’s brake lights illuminate before the accident.
Atkinson stopped and got out of her car. She saw a man, whom she identified at trial as
Appellant, coming from the direction of the truck. Atkinson asked Appellant if he was okay and
he replied that he could not find his cell phone. Appellant was staggering as he walked and he
wandered out into the roadway. Atkinson described him as being oblivious to everything going
on around him. Based on her experience, Atkinson concluded that Appellant was intoxicated.
After Atkinson guided Appellant out of the roadway, she went over to one of the other vehicles
at the scene and found two passengers. The person seated in the driver’s seat was dazed and
unable to respond, but he was breathing and did not have any visible injuries. The person on the
passenger’s side was pinned against the dashboard, barely breathing, and unresponsive. Other
motorists stopped, and after calling 911, they removed the driver from the vehicle.
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El Paso Police Officer Adrian Armendariz is assigned to the Special Traffic
Investigations and was called out to investigate the collision. His investigation showed that the
Toyota Tundra struck the rear of the Nissan Sentra with such force that the trunk was pushed into
the front passenger area of the vehicle and the right rear tire was immediately behind the front
passenger seat. Carrillo’s body was thrown 79 feet by the force of the collision. Armendariz
found no evidence that Appellant applied his brakes. An open 30-pack of Budweiser beer was
found next to the Tundra. Several of the cans were open and empty. A civilian witness at the
scene testified that the inside of the Tundra smelled like alcohol.
El Paso Police Officer Daniel Conway arrived at the accident scene and asked Appellant
for identification. Appellant’s speech was slurred and he had a strong odor of alcoholic
beverages on his breath as he spoke to Conway. Appellant volunteered to Conway that he had
been on his cell phone at the time of the accident. Conway placed Appellant in handcuffs and
told Appellant that he was under arrest for intoxication assault. Appellant was transported to
Beaumont Army Hospital in an ambulance. Appellant refused to state his name when asked and
he claimed that the cars were in an accident before he arrived at the scene.
Officer Raul Lom was dispatched to the scene of the accident and he spoke with civilian
witnesses. Lom determined that the collision was caused by an intoxicated driver and he went to
Beaumont Army Hospital where Appellant was being treated. Appellant would not respond
when Lom asked him to identify himself. Lom told Appellant he was under arrest and
administered the Miranda warnings to him. He also read the statutory warnings form known as
the DIC-24 to Appellant and asked Appellant for a specimen of his blood. Appellant did not
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respond. At Lom’s request, a nurse drew a specimen of Appellant’s blood using a kit provided
by Lom. Analysis of that specimen showed that Appellant’s blood alcohol level was .29.
The jury found Appellant guilty of intoxication manslaughter of Jon Cervoni (Count I),
intoxication manslaughter of Aaron Carrillo (Count III), and aggravated assault with a deadly
weapon of Mark Dobbs. Further, the jury assessed Appellant’s punishment at a fine of $10,000
and imprisonment for a term of twenty years on Counts I and III, and a fine of $10,000 and
imprisonment for a term of fifteen years on Count V. The trial court ordered the sentence for
Count III to run consecutively to the sentence for Count I, while the sentence in Count V will run
concurrently with Counts I and III.
AMENDED BRIEF
It is necessary to address the effect of the filing of an amended brief by Appellant on our
consideration of the issues presented on appeal. Appellant filed an original brief on November
22, 2013 raising three issues: (1) the blood evidence was obtained in violation of the Fourth
Amendment; (2) trial counsel was ineffective because he failed to object to the blood evidence;
and (3) the evidence was insufficient to support Appellant’s convictions. After the State filed its
brief, we granted Appellant’s motion to substitute appellate counsel. The El Paso County Public
Defender’s Office subsequently filed a motion on behalf of Appellant to rebrief the case because
Appellant was not satisfied with the performance of his prior appellate counsel. We granted that
motion in order to protect Appellant’s right to the effective assistance of counsel on appeal and
permitted Appellant to file an amended brief even though it delayed submission of this case. See
TEX.R.APP.P. 38.7 (“A brief may be amended or supplemented whenever justice requires, on
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whatever reasonable terms the court may prescribe.”). In his amended brief, Appellant attempts
to incorporate portions of the argument raised in his original brief. The filing of an amended
brief, in contrast with a supplemental brief, operates to replace the original brief. See Florence v.
State, No. 01-11-00822-CR, 2013 WL 3957696 at *1 n.1 (Tex.App.--Houston [1st Dist.] July 30,
2013, no pet.)(not designated for publication). Consequently, we have restricted our review to
the amended brief and have not considered the original brief filed by Appellant’s prior appellate
counsel.
INEFFECTIVE ASSISTANCE
In Issue One, Appellant argues that he was denied the effective assistance of counsel
because his attorney failed to: (1) exclude evidence related to an unconstitutional blood draw;
(2) exclude evidence from his privileged hospital-treatment records; (3) request an interpreter for
him during the guilt/innocence phase of trial; (4) object to alleged misstatements of law by the
prosecutors; (5) request the trial court to take judicial notice of Sections 545.303 and 545.058 of
the Texas Transportation Code; and (6) request the trial court to instruct the jury during the
punishment phase that Appellant’s sentences could be served consecutively or concurrently.
Standard of Review
Both the United States and the Texas Constitutions guarantee an accused the right to
assistance of counsel. U.S. CONST. amend. VI; TEX.CONST. art. I, § 10; TEX.CODE
CRIM.PROC.ANN. art. 1.05 (West 2005). This right includes the right to reasonably effective
assistance. Strickland v. Washington, 466 U.S. 668, 683-86, 104 S. Ct. 2052, 2062, 80 L. Ed. 2d
674 (1984). In Strickland, the Supreme Court set forth the standard of review for evaluating
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claims of ineffective assistance of counsel. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. The
two-prong Strickland test requires Appellant to show that: (1) counsel’s performance fell below
an objective standard of reasonableness, and (2) counsel’s performance prejudiced his defense.
Id. Prejudice requires a showing that, but for counsel’s unprofessional error, there is a
reasonable probability that the result of the proceeding would have been different. Id.; Mitchell
v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002); Vasquez v. State, 830 S.W.2d 948, 949
(Tex.Crim.App. 1992). Reasonable probability is defined as a “probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
Appellant has the burden to prove ineffective assistance of counsel by a preponderance of
the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998). In analyzing a
claim for ineffective assistance, we begin with the strong presumption that counsel was
competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Appellant must
overcome the presumption that counsel’s conduct falls within the wide range of reasonable,
professional assistance, and that, under the circumstances, the challenged action might be
considered sound trial strategy. Thompson, 9 S.W.3d at 814. Counsel’s action or inaction will
be found reasonable if the record is silent as to the facts, circumstances, or rationale behind a
particular course of action. Id. If trial counsel is not given an opportunity to explain his actions,
an appellate court should not find deficient performance unless the challenged conduct was so
outrageous that no competent attorney would have engaged in it. Goodspeed v. State, 187
S.W.3d 390, 392 (Tex.Crim.App. 2005). Appellant filed a motion for new trial, but he did not
allege ineffective assistance. Because the record does not reflect the rationale for any of the
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challenged acts or omissions, we will not find deficient performance unless Appellant meets his
burden of showing that counsel’s conduct was so outrageous that no competent attorney would
have engaged in the same conduct.
The Blood Evidence
Appellant first asserts that counsel’s performance was deficient because he did not seek
to suppress the blood test results on the ground that the warrantless search was unreasonable
under the Fourth Amendment. He argues that counsel should have moved to suppress the blood
test evidence based on Missouri v. McNeely which held that the natural dissipation of alcohol in
the bloodstream is not a per se exigent circumstance justifying a blood test without a warrant in
all DWI cases. Missouri v. McNeely, --- U.S. ---, 133 S. Ct. 1552, 1567-68, 185 L. Ed. 2d 696
(2013).
McNeely was decided on April 17, 2013. The trial of this case began two days later, on
April 19, 2013, and the blood test evidence was admitted on April 23, 2013. Obviously, no
Texas appellate court had addressed the impact of Missouri v. McNeely on Texas’ mandatory
blood draw statute at the time this case was tried. On January 13, 2014, the U.S. Supreme Court
vacated the San Antonio Court of Appeals’ decision in Aviles v. State, cite, and remanded the
case for reconsideration in light of McNeely. Aviles v. Texas, --- U.S. ---, 134 S. Ct. 902, 187
L. Ed. 2d 767 (2014). Ten days later, the Thirteenth Court of Appeals was the first Texas
intermediate appellate court to apply McNeely when it decided State v. Villarreal on January 23,
2014. See State v. Villarreal, No. 13-13-00253-CR, 2014 WL 1257150, at *11 (Tex.App.--
Corpus Christi Jan. 23, 2014, pet. granted)(holding repeat offender provision of the mandatory
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blood draw statute did not constitute an exception to the Fourth Amendment’s warrant
requirement).1 Other courts of appeals have since concluded that Texas’ mandatory blood draw
and implied consent statutes do not provide an exception to the warrant requirement. See Gentry
v. State, No. 12-13-00168-CR, 2014 WL 4215544 at*3-4 (Tex.App.--Tyler Aug. 27, 2014, pet.
filed); Aviles v. State, 443 S.W.3d 291, 293-94 (Tex.App.--San Antonio 2014, pet. filed); State v.
Ballard, No. 11-13-00224-CR, 2014 WL 3865815 at *3 (Tex.App.-Eastland July 31, 2014, pet.
filed); Weems v. State, 434 S.W.3d 655, 665-66 (Tex.App.--San Antonio 2014, pet. granted);
Holidy v. State, No. 06-13-00261-CR, 2014 WL 1722171 at *2-4 (Tex.App.--Texarkana Apr. 30,
2014, pet. granted); Reeder v. State, 428 S.W.3d 924, 930 (Tex.App.--Texarkana 2014, pet.
granted); Sutherland v. State, 436 S.W.3d 28 (Tex.App.--Amarillo 2014, pet. filed). We recently
applied McNeely and held that Section 724.012(b) does not provide an exception to the warrant
requirement. Burcie v. State, No. 08-13-00212-CR, 2015 WL 2342876 (Tex.App.--El Paso
May 15, 2015, pet. filed).
Counsel’s performance must, however, be measured against the state of the law in effect
during the time of trial. Ex parte Chandler, 182 S.W.3d 350, 359 (Tex.Crim.App. 2005). At the
time this case was tried, it was accepted law in Texas that blood drawn in compliance with the
Section 724.012(b) of the Transportation Code was a valid search. See Beeman v. State, 86
S.W.3d 613, 615 (Tex.Crim.App. 2002). While Missouri v NcNeely was decided two days
before trial on the merits began, its impact on Texas law was decidedly unsettled when this case
1
The Court of Criminal Appeals issued an opinion affirming the court of appeals’ decision in State v. Villiarreal,
but it has since granted rehearing. See State v. Villarreal, No. PD-0306-14, 2014 WL 6734178 (Tex.Crim.App.
November 26, 2014)(rehearing granted).
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was tried. Furthermore, the record does not reflect counsel’s reasoning for not moving to
suppress the blood test results and we do not find that counsel’s failure to seek suppression based
on McNeely was so outrageous that no competent attorney would have made the same decision.
Under these circumstances, we conclude that Appellant has failed to show that his counsel’s
performance was deficient. See Bernal v. State, No. 02-13-00381-CR, 2014 WL 5089182 at *4-
5 (Tex.App.--Fort Worth Oct. 9, 2014, no pet.)(concluding that appellant failed to show
ineffective assistance of counsel related to allegation that counsel did not move to suppress
evidence under Missouri v. McNeely where the law was unsettled at the time of appellant’s trial
and counsel was not given an opportunity to explain his reasoning).
Appellant’s Medical Records
Appellant also contends that trial counsel should have sought exclusion of his medical
records, admitted as State’s Exhibits 53 and 54, because the records are related to his treatment
for drug and alcohol abuse, and as such, the records are privileged and inadmissible under
TEX.R.EVID. 509(b). Rule 509(b) provides that there is no physician-patient privilege in a
criminal case, but a confidential communication is not admissible in a criminal case if made: (1)
to a person involved in the treatment of or examination for alcohol or drug abuse; and (2) by a
person being treated voluntarily or being examined for admission to treatment for alcohol or drug
abuse. TEX.R.EVID. 509(b). When an ineffective assistance claim alleges that counsel was
deficient in failing to object to the admission of evidence, the defendant must show, as part of his
claim, that the evidence was inadmissible. Ortiz v. State, 93 S.W.3d 79, 93 (Tex.Crim.App.
2002).
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State’s Exhibits 53 and 54 were admitted as business records pursuant to TEX.R.EVID.
902(10). State’s Exhibit 53 contains the medical records from William Beaumont Army
Hospital related to Appellant’s treatment in the emergency department on July 9, 2011 for his
injuries suffered in the accident. These records are unrelated to treatment for drug or alcohol
abuse and there is nothing in the records indicating that Appellant made a confidential
communication to a person involved in the treatment of or examination for Appellant’s
admission to drug or alcohol treatment. Consequently, State’s Exhibit 53 is not subject to a Rule
509(b) objection. An attorney does not render deficient performance by failing to make a
meritless objection. See Ex parte White, 160 S.W.3d 46, 53 (Tex.Crim.App. 2004); Patrick v.
State, 906 S.W.2d 481, 496 (Tex.Crim.App. 1995).
State’s Exhibit 54 contains approximately 105 pages of medical records related to
Appellant’s admission to the hospital’s ICU unit for treatment of his accident-related injuries on
July 9, 2011. The adult admission assessment form reflects that Appellant drinks alcohol and
uses recreational drugs. The record does not reflect that Appellant provided this information to a
person involved in the treatment of or examination for Appellant’s admission to drug or alcohol
treatment. Consequently, this portion of State’s Exhibit 54 is admissible. Another portion of
State’s Exhibit 54 contains a one-page note titled “NURS Alcohol Abuse.” “Alcohol abuse” is
the sole diagnosis written in the section of the note titled “nursing diagnoses.” In the “expected
outcomes” section of the note, the author wrote that the patient “acknowledges alcohol problem
and the need for support to maintain alcohol free lifestyle” and “has contract and AA or other
community support and mental health groups.” The note also states Appellant should be
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observed for withdrawal symptoms, including hallucinations and “DTS” and provided with
medications to control withdrawal symptoms.
Assuming for the sake of argument that Appellant’s statements satisfy the first part of
Rule 509(b)’s test, the record does not support a finding that the second part of the test is
satisfied because there is no evidence that Appellant was being treated voluntarily for alcohol or
drug abuse or that he was being examined for admission to treatment for alcohol or drug abuse.
See TEX.R.EVID. 509(b). The nurse’s assessment of Appellant was made during the course of his
one-day hospital stay in connection with his medical treatment for injuries suffered in the
accident. Consequently, the evidence does not support a finding that State’s Exhibit 54 was
inadmissible under Rule 509(b). Appellant’s trial counsel was not required to make a meritless
objection. See Ex parte White, 160 S.W.3d at 53; Patrick, 906 S.W.2d at 496.
Failure to Request Interpreter
Appellant also asserts that counsel was ineffective because he failed to request an
interpreter for him during the guilt/innocence phase of trial. Under the Sixth Amendment, an
accused has the right to be present at his trial and confront the witnesses brought against him.
U.S. CONST. amend. VI. Encompassed within these rights is the right to understand the
testimony of the witnesses. See Garcia v. State, 149 S.W.3d 135, 140-41 (Tex.Crim.App. 2004).
Consequently, if an accused does not understand English, he must be provided with an
interpreter. Garcia, 149 S.W.3d at 140-41. This constitutional requirement is codified in Article
38.30. See TEX.CODE CRIM.PROC.ANN. art. 38.30 (West Supp. 2014). The Court of Criminal
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Appeals has determined that the right to an interpreter is a category two-waiveable only Marin2
right. Garcia, 149 S.W.3d at 144. Therefore, the judge has an independent duty to implement
this right in the absence of a knowing and voluntary waiver by the defendant. Id. The trial judge
may become aware of the defendant’s language problem either by being informed of it by one or
both parties or by noticing the problem sua sponte. Id. Article 38.30(a) addresses the procedure
to be followed if a party files a motion for appointment of an interpreter. TEX.CODE
CRIM.PROC.ANN. art. 38.30(a).
To establish deficient performance based on an allegation that counsel failed to request
appointment of an interpreter, Appellant must demonstrate that he was entitled to the assistance
of an interpreter and that the trial court would have erred in denying a motion on that basis. Ex
parte Cockrell, 424 S.W.3d 543, 546 (Tex.Crim.App. 2014). To be entitled to an interpreter,
there must be a showing that the accused does not understand English. See Hernandez v. State,
862 S.W.2d 193, 198 (Tex.App.--Beaumont 1993, pet. ref’d).
Appellant asserts in his brief that he is a Spanish-speaker, but fluency in a language other
than English does not demonstrate an inability to understand English. See Abdygapparova v.
State, 243 S.W.3d 191, 201 (Tex.App.--San Antonio 2007, pet. ref’d). There is evidence in the
record that Appellant understood English. Appellant appeared to understand and speak English
at the scene of the accident. For example, he told Michael Rolon, “I’m sorry. My life’s over.
My life sucks.” Armando Sifuentes, a firefighter/paramedic, approached Appellant and placed
his hand on Appellant’s shoulder while asking him if he was okay. Appellant slapped Sifuentes’
hand off of his shoulder and said, “Leave me alone.” Sifuentes repeated his question, and
2
Marin v. State, 851 S.W.2d 275 (Tex.Crim.App. 1993).
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Appellant said, “Just leave me alone.” During the punishment phase, Appellant chose to testify
and he had the following exchange with the trial court when he was called to testify:
[Court]: Mr. Tellez, please stand.
(Defendant approaches witness table)
[Court]: Raise your right hand. Do you swear to tell the truth -- well, do you
need the interpreter?
[Appellant]: I do understand English, but I need her for answering questions.
[Court]: That’s fine.
(Witness sworn through duly sworn interpreter)
[Court]: All right. Please be seated. Mr. Tellez, I know you understand English,
but we have the interpreter here to interpret your responses in English. So she’s
going to interpret the questions into Spanish for you, and she will interpret your
responses back into English.
So you respond in Spanish and she’ll interpret your responses. Okay?
[Appellant]: Okay.
Appellant’s admission to the trial court that he understood English severely undercuts his claim
on appeal that the trial court was required to appoint an interpreter for him during guilt-
innocence so that he could understand the proceedings and the testimony of the witnesses against
him. The record does not support Appellant’s claim that he does not understand English nor
does it show that the trial court would have abused its discretion by denying a request for
appointment of an interpreter during the guilt-innocence portion of trial. Trial counsel did not
render deficient performance by failing to ask the trial court to appoint an interpreter for the
guilt-innocence phase of trial.
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Failure to Object to Misstatements of the Law
and Request Court to Take Judicial Notice of Relevant Law
Appellant next argues that counsel’s performance was deficient because he did not object
to misstatements of law by the prosecutor and two witnesses. He directs our attention to Officer
Adrian Armendariz’s testimony that Dobbs and Cervoni had not violated any traffic laws by
parking their vehicles on the shoulder because Dobbs’ vehicle was broken down and Cervoni
was attempting to provide a jump start. Appellant maintains that Cervoni violated Section
545.303 of the Texas Transportation Code by parking his vehicle on the shoulder so that it faced
Dobbs’ vehicle and counsel should have asked the trial court to take judicial notice of the statute.
Section 545.303 addresses stopping or parking a vehicle on a roadway. TEX.TRANSP.CODE ANN.
§ 545.303 (West 2011). “Roadway” is defined in the Transportation Code as “the portion of a
highway, other than the berm or shoulder, that is improved, designed, or ordinarily used for
vehicular travel.” TEX.TRANSP.CODE ANN. § 541.302(11). Thus, Section 545.303 does not
pertain to stopping or parking a vehicle on the shoulder.
Section 545.058, which addresses driving on an improved shoulder, provides as follows:
(a) An operator may drive on an improved shoulder to the right of the main
traveled portion of a roadway if that operation is necessary and may be done
safely, but only:
(1) to stop, stand, or park;
(2) to accelerate before entering the main traveled lane of traffic;
(3) to decelerate before making a right turn;
(4) to pass another vehicle that is slowing or stopped on the main traveled
portion of the highway, disabled, or preparing to make a left turn;
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(5) to allow another vehicle traveling faster to pass;
(6) as permitted or required by an official traffic-control device; or
(7) to avoid a collision.
TEX.TRANSP.CODE ANN. § 545.058(a). The record reflects that Dobbs stopped his car and
parked on the shoulder because the vehicle was disabled. Cervoni parked his vehicle on the
shoulder to render assistance to Dobbs. Under the applicable law, neither of these drivers
violated the Transportation Code. Thus, Armendariz did not misstate the law by testifying that
Dobbs and Cervoni did not violate the Transportation Code by parking on the shoulder.
Appellant also asserts that counsel should have objected to Armendariz’s testimony that
Appellant violated a traffic law by driving on the shoulder. As noted by the State, the prosecutor
asked Armendariz whether it is legal to drive on the shoulder “as if it were a lane of travel,” and
Armendariz replied that it is illegal. The evidence at trial showed that Appellant was driving on
the shoulder when he struck the parked cars. There is no evidence that any of the circumstances
set forth in Section 545.058 were present in this case. Consequently, Armendariz’s testimony
was not a misstatement of the law and an objection to the testimony would not have been valid.
Appellant additionally alleges that trial counsel failed to object to Officer Lom’s
testimony that Appellant’s blood was drawn pursuant to Section 724.012 of the Transportation
Code even though the decision in Missouri v. McNeely “drew the constitutionality of the
statute . . . into serious question.” We understand Appellant to argue that the officer’s testimony
was a misstatement of the law. At the time this case was tried, it was generally understood that
blood drawn in compliance with Section 724.012(b) of the Transportation Code was a valid
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search. See Beeman, 86 S.W.3d at 615. As we stated in our discussion of Appellant’s claim that
counsel was ineffective because he did not move to suppress the blood evidence, McNeely was
decided only two days before the trial in this case began and its impact on Texas law was
unsettled. Appellant has failed to show that counsel’s decision to not object to the testimony is
so outrageous that no competent attorney would have made the same decision.
Instruction on Concurrent/Consecutive Sentences
Appellant also complains that trial counsel did not request a jury instruction during the
punishment phase that Appellant’s sentences could be served consecutively or concurrently. The
State filed a motion requesting cumulative sentences pursuant to Article 42.08 of the Code of
Criminal Procedure. During punishment deliberations, the jury sent out a note asking whether
the sentences would be served consecutively or concurrently, and the trial court answered the
jury by stating that all of the definitions and instructions that can be given to the jury are
provided in the court’s charge.
Section 3.03(b) of the Texas Penal Code provides that when a defendant is found guilty
of more than one offense arising out of the same criminal episode, the sentences may run
concurrently or consecutively if each sentence is for a conviction of an offense under Section
49.07 or 49.08. TEX.PENAL CODE ANN. § 3.03(b)(1)(A)(West Supp. 2014). Further, Article
42.08(a) provides that the trial court has discretion to order that sentences run concurrently or
cumulatively. TEX.CODE CRIM.PROC.ANN. art. 42.08(a)(West Supp. 2014). The Texas
Legislature has assigned the task of cumulating sentences exclusively to the trial judge. Beedy v.
State, 250 S.W.3d 107, 110 (Tex.Crim.App. 2008); Barrow v. State, 207 S.W.3d 377, 380
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(Tex.Crim.App. 2006). Consequently, Appellant was not entitled to an instruction regarding the
trial court’s authority to order the sentences to be served consecutively or concurrently. See Clay
v. State, 102 S.W.3d 794, 798 (Tex.App.--Texarkana 2003, no pet.); Villarreal v. State, No. 13-
08-00601-CR, 2010 WL 2638486 at *2 (Tex.App.--Corpus Christi June 29, 2010, no pet.)(not
designated for publication); Manzano v. State, No. 10-04-00323-CR, 2006 WL 348463 at *4
(Tex.App.--Waco Feb.15, 2006, pet. ref’d)(not designated for publication)(holding that due
process does not require that the jury be given information about the trial court’s ability to
cumulate sentences or order them to run concurrently). Trial counsel is not required to request
an instruction to which the defendant is not entitled.
Appellant has not demonstrated that any of the challenged actions or decisions of trial
counsel amounted to deficient performance. Consequently, he has failed to establish his claim of
ineffective assistance. Issue One is overruled.
CRUEL AND UNUSUAL PUNISHMENT
In Issue Two, Appellant contends that his sentence violates the Eighth Amendment’s
prohibition against cruel and unusual punishment because the jury was not informed that the trial
court could order the sentences to run consecutively or concurrently. As a prerequisite to
presenting a complaint for appellate review, Appellant must present to the trial court a timely
request, objection, or motion stating the specific grounds for the desired ruling. TEX.R.APP.P.
33.1(a)(1)(A); Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996). Constitutional
rights, including the right to be free from cruel and unusual punishment, may be waived by the
failure to object. Rhoades, 934 S.W.2d at 120; Curry v. State, 910 S.W.2d 490, 496
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(Tex.Crim.App. 1995). Appellant did not raise this complaint about his sentences at the time
they were imposed or in his motion for new trial. Consequently, the asserted error is waived.
Issue Two is overruled.
CONCURRENT/CUMULATIVE SENTENCE INSTRUCTION
In Issue Three, Appellant asserts that he suffered egregious harm from the absence of an
instruction in the punishment charge informing the jury that the trial court could order the
sentences to run concurrently or consecutively. Appellate review of alleged jury charge error
involves a two-step process. Kirsch v. State, 357 S.W.3d 645, 649 (Tex.Crim.App. 2012);
Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984)(op. on reh’g). First, we must
determine whether error occurred. Wooten v. State, 400 S.W.3d 601, 606 (Tex.Crim.App. 2013).
If there is error in the charge, we must then analyze whether sufficient harm resulted from the
error to require reversal. Wooten, 400 S.W.3d at 606. Under this second step, the degree of
harm necessary for reversal usually depends on whether the appellant properly preserved the
error by objection. Middleton v. State, 125 S.W.3d 450, 453 (Tex.Crim.App. 2003).
In addressing Appellant’s assertion in Issue One that his trial counsel was ineffective
because he did not request this instruction, we concluded that Appellant was not entitled to an
instruction regarding the trial court’s authority to order the sentences to be served consecutively
or concurrently. See Clay, 102 S.W.3d at 798; Villarreal, No. 13-08-00601-CR, 2010 WL
2638486 at *2; Manzano, No. 10-04-00323-CR, 2006 WL 348463, at *4. Issue Three is
overruled.
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CUMULATIVE ERROR
In his final issue, Appellant argues that the trial court erred by allowing his conviction to
be based on “false testimony.” Appellant does not claim that any of the witnesses committed
perjury. He instead contends that the jury “was substantially misled by the cumulative effect of
the repeated misstatements of law.” This issue focuses on the complaints raised in Issues One
through Three related to the alleged misstatements of law made by two police officers during
their testimony and the trial court’s failure to instruct the jury regarding the court’s authority to
order the sentences to be run concurrently or consecutively.
The Court of Criminal Appeals has recognized that a number of errors may be found
harmful in their cumulative effect, but there is no authority holding that non-errors may in their
cumulative effect cause error. Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App.
1999). We have already determined that Appellant failed to establish that his trial counsel
rendered ineffective assistance and the trial court did not err by failing to include an instruction
in the punishment charge regarding the trial court’s ability to order the sentences to run
concurrently or consecutively. Consequently, there can be no cumulative error or harm. See id.
Issue Four is overruled. Having overruled each issue, we affirm the judgment of the trial court.
September 16, 2015
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rodriguez, and Hughes, JJ.
(Do Not Publish)
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