Daniel Aragon MacHado v. State ( 2021 )

Opinion filed March 31, 2021
In The
Eleventh Court of Appeals
__________
No. 11-19-00092-CR
__________
DANIEL ARAGON MACHADO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 42nd District Court
Taylor County, Texas
Trial Court Cause No. 27117A
MEMORANDUM OPINION
The jury convicted Daniel Aragon Machado of evading detention with a motor
vehicle. See TEX. PENAL CODE ANN. § 38.04(b)(2)(A) (West 2016). After Appellant
pleaded “true” to an enhancement allegation for a prior felony offense, the jury
assessed his punishment at confinement for fifteen years in the Institutional Division
of the Texas Department of Criminal Justice.
Appellant brings two issues on appeal. First, Appellant asserts that the
evidence was legally insufficient to establish that he was guilty of evading detention.
Second, Appellant argues that he was egregiously harmed by the trial court’s failure
to include a jury instruction in the punishment charge that extraneous offenses must
be proven beyond a reasonable doubt in order for the jury to consider them in
assessing punishment. We modify and affirm.
Background Facts
Around midnight on September 9, 2016, Officer Catherine Eberhardt was
patrolling the streets of Abilene in a marked police vehicle. Officer Eberhardt
observed Appellant run a red light on a motorcycle at the intersection of North 1st
and Grape. Officer Eberhardt activated the emergency lights on the police vehicle
and utilized the siren to clear the intersection in pursuit of Appellant.
Officer Eberhardt caught up to the motorcycle at the intersection of North 1st and
Graham.
As Officer Eberhardt approached the intersection, Appellant was stopped in
the left-hand lane with another vehicle in the right-hand lane waiting for the light to
turn green. Appellant cut in front of the other vehicle and began traveling
northbound on Graham. Officer Eberhardt reactivated her siren and continued to
pursue Appellant. Appellant then rolled through a stop sign at the intersection of
Graham and North 3rd and turned west onto North 3rd. Appellant then went north
onto Kirkwood, west onto North 5th, north onto Park where he ran a stop sign at
North 6th and Park, south onto Westmoreland, and then east onto North 5th where
he came to a stop at his house at 501 Westmoreland.
Officer Eberhardt had to accelerate in excess of fifty miles per hour at one
point, eventually making contact with Appellant at his home. She testified that
Appellant quickly dismounted the motorcycle, at which point she displayed her
TASER so that he would not try to escape on foot. She then placed him into custody.
Appellant gave numerous reasons for his failure to stop immediately, some of which
contradicted one another. Appellant claimed that he was trying to get out of
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Officer Eberhardt’s way, that he thought she was responding to another call, that he
did not know he was the one being pursued, and that he was just trying to get home.
Officer Eberhardt believed Appellant may have discarded something along the
route, but a search of the area by other officers returned no discarded contraband.
Officer Eberhardt conducted a field sobriety test on Appellant, ultimately
excluding intoxication and admitting that Appellant appeared to be telling the truth
about only having had one beer two hours prior. Officer Eberhardt conceded that, if
Appellant truly wanted to escape from her, he could have gone to the highway,
opened the throttle, and disappeared.
Appellant testified that he had been at an ex-girlfriend’s house prior to these
events and had picked up some beer on his way home. Appellant stated that he did
not notice Officer Eberhardt behind him until he was stopped at the intersection of
North 1st and Graham. Appellant believed he was impeding the path of an
emergency vehicle, and he testified that he asked the motorist next to him, whose
window was down, if he could turn in front of her in an effort to get out of the way.
This maneuver was a right turn from the left-hand lane in front of a vehicle legally
in the right-hand turn lane, an illegal maneuver regardless of whether another driver
gave Appellant permission to do so. Appellant proceeded on this route heading
toward his house. He testified that, due to the wind noise on his motorcycle, it was
not easy to hear things behind him.
Appellant stated that, as he turned onto North 3rd, he realized the officer was
still following him. Ahead of Appellant were reflections of flashing police vehicle
lights pulsating off neighborhood homes and objects. Appellant assumed that the
officer behind him was responding to the location of other officers. Appellant
testified that he turned toward the other flashing lights out of curiosity and did not
realize that he was the one being pursued until he had already passed the other
officers. Appellant testified that, at this point, he was near his house and that he
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needed to get home because his girlfriend was on her way over and did not have a
key to his house.
Appellant admitted to running stop signs, contending that it was a bad habit
of motorcyclists in an effort to not put their feet down. Appellant understood why
Officer Eberhardt could have believed that he was trying to evade her, but Appellant
insisted that he was not attempting to do so. Appellant claims that, if he had truly
been trying to escape, he would have taken off toward the interstate or turned down
a narrow alleyway. Appellant adamantly denied having ditched any contraband on
his route home. Appellant also claimed that it was difficult for him to see the officer
behind him because his custom chopper did not have a rearview mirror. Appellant
testified that he was just trying to make it home.
After hearing testimony, argument, and reviewing the evidence, including the
recorded dashcam video of the pursuit and stop, the jury found Appellant guilty of
evading detention with a motor vehicle. The punishment phase of the trial began
immediately thereafter. The State sought to enhance Appellant’s punishment based
on Appellant’s prior felony conviction for forgery. Appellant pleaded “true” to the
enhancement allegation.
Issue One
In Appellant’s first issue, he asserts that the State presented insufficient
evidence to support a conviction for the offense of evading detention with a motor
vehicle. We disagree.
Standard of Review
We review a challenge to the sufficiency of the evidence, regardless of
whether it is framed as a legal or factual sufficiency challenge, under the standard of
review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89
(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all
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of the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the charged offense
beyond a reasonable doubt. Jackson, 443 U.S. at 319; Zuniga v. State, 551 S.W.3d
729, 732 (Tex. Crim. App. 2018); Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim.
App. 2010).
Viewing the evidence in the light most favorable to the verdict requires that
we consider all the evidence admitted at trial, including improperly admitted
evidence. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). As such, we defer to the
factfinder’s credibility and weight determinations because the factfinder is the sole
judge of the witnesses’ credibility and the weight their testimony is to be afforded.
Winfrey, 393 S.W.3d at 768; Brooks, 323 S.W.3d at 899. The Jackson standard is
deferential and accounts for the factfinder’s duty to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from the facts.
Jackson, 443 U.S. at 319; Zuniga, 551 S.W.3d at 732; Clayton, 235 S.W.3d at 778.
We may not reevaluate the weight and credibility of the evidence to substitute our
judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.
Crim. App. 1999). Therefore, if the record supports conflicting inferences, we
presume that the factfinder resolved the conflicts in favor of the verdict, and we defer
to that determination. Jackson, 443 U.S. at 326; Merritt v. State, 368 S.W.3d 516,
525–26 (Tex. Crim. App. 2012); Clayton, 235 S.W.3d at 778.
Analysis
“A person commits an offense if he intentionally flees from a person he knows
is a peace officer or federal special investigator attempting lawfully to arrest or
detain him.” PENAL § 38.04(a). An offense under Section 38.04 is a Class A
misdemeanor, except that the offense is a felony of the third degree if the actor uses
a vehicle while the actor is in flight. Id. § 38.04(b)(2)(A).
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Appellant contends that the evidence was insufficient to prove beyond a
reasonable doubt that Appellant intentionally fled from Officer Eberhardt.
Appellant argues that, because the pursuit did not involve high speeds, because he
did not utilize his motorcycle’s full abilities, because he turned toward other police
cars, because he led Officer Eberhardt to his home, and because he had no reason
for actually trying to evade Officer Eberhardt, combined with the rational and
corroborated explanations of the route he took, the jury, even with minimal evidence
to support evading, could not have found him guilty based on all of the evidence.
We disagree.
Fleeing is “anything less than prompt compliance with an officer’s direction
to stop.” Horne v. State, 228 S.W.3d 442, 446 (Tex. App.—Texarkana 2007, no
pet.). Moreover, the statute does not require high-speed fleeing, or even effectual
fleeing. Mayfield v. State, 219 S.W.3d 538, 541 (Tex. App.—Texarkana 2007, no
pet.). Thus, “fleeing slowly is still fleeing.” Id.Here, Officer Eberhardt testified that she observed Appellant fail to stop at a
red light, which is a violation of traffic laws. See TEX. TRANSP. CODE ANN.
§ 544.007(d) (West Supp. 2020). Appellant ultimately ran two red lights and two
stop signs, turned in front of a vehicle stopped at one of those red lights, and traveled
at a speed high enough to cause Officer Eberhardt to lose sight of him, all while a
marked black and white police vehicle with activated emergency lights and siren
followed him.
Appellant asserts that, until Officer Eberhardt caught up to him at the light at
the intersection of North 1st and Graham, he could not have known that he was being
pursued. Therefore, Appellant argues that it would be irrational to conclude that he
believed she was pulling him over when he turned in front of the vehicle stopped at
the intersection. Assuming without finding that Appellant did not perceive that the
patrol officer was attempting to stop him at North 1st and Graham, the events that
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transpired after he cut in front of the vehicle at that intersection do not support
Appellant’s contention that the evidence presented was insufficient. In conjunction
with Appellant’s first issue, disputing the legal sufficiency of the evidence, this court
reviewed State’s Exhibit No. 1.
State’s Exhibit No. 1 is a police dashcam video of the pursuit and stop of
Appellant. After a momentary but distanced initial pursuit by Officer Eberhardt, the
video shows the police vehicle, with emergency lights on, approaching from a
position immediately behind Appellant. Appellant was stopped in the left-hand lane
at the stop light at the intersection of North 1st and Graham. A reasonable jury was
free to conclude that a driver, including Appellant, should have been alerted that the
police vehicle was signaling. Indeed, Appellant admits that this is the point at which
he first realized Officer Eberhardt was behind him. When Appellant then began a
right turn from the left-hand lane, turning in front of a vehicle in the right lane also
stopped at the light, the officer immediately hit her siren. At that point, a reasonable
jury could have concluded that a driver should have little doubt that the police
vehicle was signaling him. Instead of pulling over to the right and stopping,
Appellant, with the police vehicle directly behind and siren and lights signaling, then
proceeded to take what a jury could have concluded was an unnecessarily winding
route of seven turns—turning every block or two through a residential neighborhood,
running stop signs as he went. Appellant wore no helmet, so the perception of a
siren and flashing lights at night, immediately behind him and reflecting off
neighborhood objects, would presumably not be blocked. Appellant’s speed, while
not excessive, was quick in combination with the constant turns taken. When finally
stopped and detained by the officer, Appellant said that he was “just [going] home.”
However, a reasonable jury was free to conclude that this did not appear to have
been a direct or effective route to that location, and the jury could have reasonably
concluded that Appellant knew that the officer was attempting to stop his vehicle.
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See Mayfield, 219 S.W.3d at 540–41. When viewed in the light most favorable to
the verdict, State’s Exhibit No. 1 by itself provides legally sufficient evidence to
support a jury’s finding that Appellant attempted to evade detention. Combining
State’s Exhibit No. 1 with the testimony of Officer Eberhardt and the admissions of
Appellant, the evidence is legally sufficient to support the jury’s verdict as to the
guilt of Appellant for evading detention under Section 38.04(b)(2)(A) of the Texas
Penal Code.
Although Appellant claimed to have had good reasons for failing to stop, the
jury, in viewing the recorded dashcam video and hearing the dialog therein, was free
to wholly reject Appellant’s explanations and accept the testimony of
Officer Eberhardt. See Jackson, 443 U.S. at 326; Sharp v. State, 707 S.W.2d 611,
614 (Tex. Crim. App. 1986). Likewise, the jury was entitled to make reasonable
inferences from the evidence presented. See Jackson, 443 U.S. at 326; Brooks, 323
S.W.3d at 899. The trier of fact, therefore, was justified in finding beyond a
reasonable doubt that Appellant knew that a peace officer was attempting to detain
him, that he intentionally fled from that detention, and that he used a motor vehicle
in doing so. See Brown v. State, 498 S.W.3d 666, 672 (Tex. App.—Houston [1st
Dist.] 2016, pet. ref’d). We overrule Appellant’s first issue.
Issue Two
In his second issue, Appellant argues that the trial court committed reversible
error when it did not sua sponte instruct the jury that, before it could consider the
extraneous-offense evidence during the punishment phase, the jury must find that
the State had proved those offenses beyond a reasonable doubt. Here, there were
two unadjudicated extraneous offenses, with questions of fact as to the level of
Appellant’s involvement, requiring an instruction that, in order for those offenses to
be considered in assessing punishment, the State must have proven Appellant guilty
of those extraneous offenses beyond a reasonable doubt. We agree that the trial
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court’s failure to include the instruction was error; however, we do not find it to be
reversible error. In so doing, we do not suggest that courts can blindly or
intentionally ignore their responsibility to advise the jury of its duty with regard to
consideration of extraneous offenses during the punishment phase of the trial. We
merely find that, based on this record and for the reasons stated below, the failure to
instruct the jury did not rise to the level of reversible error.
Standard of Review
Article 36.14 of the Texas Code of Criminal Procedure provides in part that
the trial court shall include in the jury charge “the law applicable to the case.” TEX.
CODE CRIM. PROC. ANN. art. 36.14 (West 2007); see Huizar v. State, 12 S.W.3d 479,
483 (Tex. Crim. App. 2000). Article 37.07, section 3(a)(1) provides in relevant part:
[E]vidence may be offered by the state and the defendant as to any
matter the court deems relevant to sentencing, including but not limited
to . . . evidence of an extraneous crime or bad act that is shown beyond
a reasonable doubt by evidence to have been committed by the
defendant or for which he could be held criminally responsible.
CRIM. PROC. art. 37.07, § 3(a)(1) (West Supp. 2020).
The plain language of Article 37.07, section 3(a)(1) requires that evidence of
extraneous crimes or bad acts “may not be considered in assessing punishment until
the fact-finder is satisfied beyond a reasonable doubt that [the extraneous bad acts
and offenses] are attributable to the defendant.” Huizar, 12 S.W.3d at 481 (alteration
in original) (quoting Fields v. State, 1 S.W.3d 687, 688 (Tex. Crim. App. 1999)); see
CRIM. PROC. art. 37.07, § 3(a)(1). It is well settled that, if extraneous-offense
evidence is offered during the trial’s punishment phase, the trial court must sua
sponte provide a reasonable-doubt instruction. Brown v. State, 243 S.W.3d 141, 151
(Tex. App.—Eastland 2007, pet. ref’d) (citing Huizar, 12 S.W.3d at 484–85).
Therefore, we hold that the trial court erred when it did not include the extraneous-
offense instruction in its charge to the jury.
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If the appellant failed to object to the jury-charge error, as here, we reverse
only if the appellant suffered “egregious harm.” Almanza v. State, 686 S.W.2d 157,
171 (Tex. Crim. App. 1985). Appellant made no objection to the proposed jury
charge. Thus, we must determine whether the error was “so egregious and created
such harm” that Appellant was deprived of “a fair and impartial trial.” Id.“Egregious harm is a difficult standard to prove and such a determination must be
done on a case-by-case basis.” Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim.
App. 1996). We do not consider theoretical harm to Appellant by the admission of
the extraneous-offense evidence; rather, we consider the “impact of the omission in
the jury charge of a reasonable-doubt instruction.” Ellison v. State, 86 S.W.3d 226,
228 (Tex. Crim. App. 2002). Jury-charge error is egregiously harmful if “it affects
the very basis of the case, deprives the defendant of a valuable right, or vitally affects
a defensive theory.” Martinez v. State, 313 S.W.3d 358, 367 (Tex. App.—Houston
[1st Dist.] 2009, pet. ref’d) (quoting Stuhler v. State, 218 S.W.3d 706, 719 (Tex.
Crim. App. 2007)).
Egregious harm is determined by a review of:
• The jury charge as a whole;
• The state of the evidence, including contested issues and the weight of
probative evidence;
• Trial arguments of counsel; and
• Any other relevant information when viewing the record as a whole.
Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006); Almanza, 686
S.W.2d at 171. An additional part of our assessment includes whether evidence of
the extraneous offense was clear, strong, direct, and unimpeached. Martinez, 313
S.W.3d at 367.
Texas courts have concluded that egregious harm has not been
shown because of the omission of a reasonable-doubt instruction
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when: (1) the defendant did not challenge the sufficiency of the
evidence connecting him to the extraneous conduct at trial and/or on
appeal, see McClenton v. State, 167 S.W.3d 86, 98 (Tex. App.—Waco
2005, no pet.); Bolden v. State, 73 S.W.3d 428, 432 (Tex. App.—
Houston [1st Dist.] 2002, pet. ref’d); Arnold v. State, 7 S.W.3d 832, 835
(Tex. App.—Eastland 1999, pet. ref’d); (2) the evidence connecting the
defendant to the extraneous conduct is “clear-cut,” see Allen v. State,
47 S.W.3d 47, 52–53 (Tex. App.—Fort Worth 2001, pet. ref’d); and
(3) the punishment assessed is at the low end or in the middle of the
available punishment range and/or significantly less than sought by the
prosecution, see Tabor v. State, 88 S.W.3d 783, 789 (Tex. App.—Tyler
2002, no pet.); Bolden, 73 S.W.3d at 432; Allen, 47 S.W.3d at 53;
Arnold, 7 S.W.3d at 835.
Johnson v. State, 181 S.W.3d 760, 766 (Tex. App.—Waco 2005, pet. ref’d).
Therefore, we must analyze each of these factors as they apply to this case.
Analysis
At trial, the State introduced evidence of certain prior offenses and bad acts
committed by Appellant. Reference to Appellant’s crimes and bad acts was made
under the authority of Article 37.07, section 3(a)(1). These other crimes and bad
acts included Appellant’s prior conviction for forgery—to which he pleaded “true”;
a conviction for driving while intoxicated with child passenger; and Appellant’s
involvement in an “outlaw” motorcycle gang—the Bandidos.
The judgment against Appellant for his prior felony conviction for forgery
was introduced into evidence. Appellant testified that he had been convicted of the
state jail felony offense of driving while intoxicated with a child passenger.
Officer Jeremiah Torrez testified during the punishment phase of Appellant’s trial
that Appellant had admitted being a member of the Bandidos. Appellant’s defense
witness Caleb Preznal testified and admitted that he knew Appellant to be a member
of the Bandidos. Similarly, Robert Allen Stephens, Appellant’s other defense
witness, testified during the punishment phase that Appellant was a member of the
Bandidos. Aside from a motion in limine that was overruled, Appellant did not
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contest the fact that he was a member of the Bandidos and did not dispute the two
prior felony convictions.
As for the two prior convictions, when an offense has been adjudicated, a
beyond-a-reasonable-doubt instruction in the punishment charge is not necessary.
See Bluitt v. State, 137 S.W.3d 51, 54 (Tex. Crim. App. 2004). Additionally, “[a]s
a general matter, testimony regarding a defendant’s affiliation with a gang may be
relevant and admissible at the punishment phase to show the defendant’s character.”
Mitchell v. State, 546 S.W.3d 780, 789 (Tex. App.—Houston [1st Dist.] 2018, no
pet.) (quoting Garcia v. State, 239 S.W.3d 862, 866–67 (Tex. App.—Houston [1st
Dist.] 2007, pet. ref’d)). Therefore, no error was committed by the trial court’s
admission of the evidence of the two adjudicated prior felonies or the evidence of
Appellant’s membership in the Bandidos motorcycle gang.
The State also produced witnesses who testified as to Appellant’s alleged
involvement in two unadjudicated offenses. These offenses included the stabbing
of Roy Martinez Jr. and the robbery and assault of Van West Robinson.
Unadjudicated extraneous offenses cannot be considered by the factfinder during the
punishment phase unless the State proves beyond a reasonable doubt that the acts or
offenses are attributable to the defendant. CRIM. PROC. art. 37.07, § (3)(a)(1); see
Huizar, 12 S.W.3d at 484.
On the night of September 30, 2016, only three weeks after Appellant’s arrest
for evading detention, Jamie Dickerson and her boyfriend, Roy Martinez Jr., went
to the Western Edge bar. Shortly after they arrived, Cherokee Miller confronted
Dickerson about knowing Miller’s boyfriend. Miller and Dickerson began to fight,
and Martinez stepped in to try and break up the two women. As Martinez went to
break up the fight, he noticed Jacob Garcia and Appellant approach him from behind.
Garcia began punching and stabbing Martinez from the front and left side, while
Appellant assaulted Garcia from behind. When Dickerson got up from the fight, she
12
saw Garcia and Appellant standing over Martinez who had been stabbed eleven
times in the neck, head, side, arm, back, and abdomen. Dickerson testified that she
noticed a knife in Garcia’s hand, but not one in Appellant’s hand. Martinez stated
the same: that he saw a knife in Garcia’s hand, but not one in Appellant’s. Dickerson
testified that she saw Appellant striking Martinez in the back of the head, and she
speculated that a knife could have been concealed. Garcia was sentenced to forty-
five years for the stabbing.
On July 25, 2018, Officer Jerod Daniel responded to a robbery where three
assailants had beaten and robbed Van West Robinson. Robinson testified that he
was a member of the Kinfolk motorcycle club and that he had driven his motorcycle
past the Bandidos’ clubhouse wearing his Kinfolk “cut,” a leather vest worn by
members of motorcycle clubs. As he passed the clubhouse, he saw numerous people
jump on their motorcycles and begin to chase him. Three individuals on motorcycles
caught up to him and attempted to kick him off his motorcycle. The three men
ultimately cut him off and forced him to stop in a parking lot. Robinson testified
that he pulled out a pistol but never pointed it at any of the three men. After words
were exchanged between Robinson and the three men, Robinson was instructed to
leave, agreed to do so, holstered his gun, and got back on his motorcycle. Robinson
testified that, as he attempted to leave, Jessie Trevino charged him and threw him on
the ground and that all three men then commenced to kicking and beating him.
Robinson claims that they then stole his vest, which he referred to as his “cut,” as
well as his personal cell phone and a pistol. Robinson testified that he could not see
who was doing what but that he was being attacked by more than one person.
Officer Daniel arrived a short time later and began his investigation to
determine who had attacked Robinson. Robinson described his attackers as rival
gang members, one of whom he was able to specifically name as Trevino. When
Officer Daniel attempted to learn the name of the other assailants, Robinson
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generally described Appellant’s physical characteristics. Officer Daniel had
encountered Appellant on previous occasions, recognized his description as given
by Robinson, and showed Robinson a Taylor County website booking photo of
Appellant. Robinson immediately exclaimed that the individual in the photo,
Appellant, was one of the three individuals who had beaten and robbed him.
Robinson testified that he had been around Appellant numerous times before but
could not remember his real name, only his road name, “Rock.”
The punishment charge submitted to the jury did not include a reasonable-
doubt instruction, which would operate to prevent the jury from considering
evidence of extraneous offenses unless the jury was satisfied that the State had
proven the defendant’s involvement beyond a reasonable doubt. We do note,
however, that the jury charge submitted during the guilt/innocence phase of trial
included a proper reasonable-doubt instruction relating to evidence of other offenses.
A correct instruction in the guilt/innocence phase weighs against the finding of
egregious harm. Zarco v. State, 210 S.W.3d 816, 819–20 (Tex. App.—Houston
[14th Dist.] 2006, no pet.); see also McClenton, 167 S.W.3d at 97. Further, looking
at the argument of counsel per Sanchez, the record reveals that the State discussed
its burden of proof five times in voir dire and that Appellant’s trial counsel did so
four times. While this voir dire argument did not specifically refer to the punishment
phase of trial, it did not exclude it either. Closing arguments of both parties also
discussed the State’s burden of proof, although not specifically as to extraneous
evidence. Appellant argues that the trial court’s failure to sua sponte include this
instruction in the jury charge at the punishment phase of trial constitutes reversible
error. As noted above, Appellant did not object to the omission of this instruction;
therefore, even though the trial court’s failure to include it does constitute error, the
error is only reversible if it amounts to “egregious harm.” See Almanza, 686 S.W.2d
at 171.
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We conduct our egregious-harm analysis viewing the entire record and
applying the Johnson test outlined above. 181 S.W.3d at 766. First and foremost,
Appellant does not challenge the sufficiency of the evidence connecting him to the
extraneous conduct. See id. While Appellant’s trial counsel did cross-examine the
State’s witnesses who testified concerning the unadjudicated extraneous offenses,
Appellant admits in his brief to this court that “[t]he evidence as to the extraneous
offenses was sufficient.”
The State’s proof tying Appellant to the extraneous offenses and bad acts also
diminishes the harm Appellant suffered by failing to receive an instruction to the
jury that it should not consider such evidence unless it attributed such extraneous
offenses and bad acts to Appellant beyond a reasonable doubt. There is sufficient
evidence linking Appellant to the crimes alleged—though there were fact questions
surrounding his level of participation in those extraneous offenses. Dickerson
identified Appellant as the person whom she saw approach Martinez and strike him
in the back of the head. While Appellant’s trial counsel did cross-examine
Dickerson and elicit testimony that she did not see a knife in Appellant’s hand at the
time, Dickerson still identified Appellant as one of the individuals involved in the
stabbing of Martinez. Appellant provided no rebuttal witnesses or other evidence to
contradict Dickerson’s assertion that Appellant struck Martinez from behind on the
night of Martinez’s stabbing.
Additionally, Martinez identified Appellant as one of the two individuals who
approached him from behind as he tried to break up the fight between Dickerson and
Miller. Martinez testified that Garcia stepped in front of Martinez and began
stabbing him, while Martinez felt Appellant punch him from behind, later learning
that he was also stabbed from behind. Martinez testified that Appellant was the only
one who could have caused the stab wounds to his head and neck. Appellant’s trial
counsel cross-examined Martinez and elicited testimony that Martinez never saw a
15
knife in Appellant’s hand. However, Appellant provided no rebuttal witnesses, nor
did he provide any evidence to the contrary to suggest that he was not involved in
the assault of Martinez that night.
As to the alleged assault and robbery of Robinson, Robinson testified that
Appellant was one of three men who chased him down, cornered him in a parking
lot, and then assaulted and robbed him. Robinson testified that, at the time, he did
not know Appellant’s real name but knew him by his road name, “Rock.” Robinson
testified that, after attempting to knock him off his motorcycle, Appellant and two
other men assaulted him and stole his vest, cell phone, and a pistol. Robinson
testified that he did not know which of the three men was attacking him from which
direction but that he was receiving punches and kicks “from everywhere.” Appellant
cross-examined Robinson, asserting a theory that Robinson was the aggressor, not
the victim, but Appellant did not, through his cross-examination, contest that
Appellant was involved in the altercation.
Officer Daniel testified that, upon arriving at the scene where Robinson was
attacked, Robinson identified Trevino as one of his assailants. Officer Daniel
attempted to determine the names of the other two men. Officer Daniel testified that
Robinson physically described another of his assailants as “a large male who
appeared to be African American.” Officer Daniel had had previous encounters with
Appellant and believed Robinson to be describing Appellant’s physical
characteristics. He then looked up a photo of Appellant from one of his previous
arrests and showed the photo to Robinson. Robinson immediately exclaimed that
“that was him, meaning that [Appellant] was the second person he had described in
the assault.” Appellant cross-examined Officer Daniel regarding his method of
showing Robinson the photograph of Appellant in an effort to identify the
individuals who assaulted Robinson. However, Appellant provided no rebuttal
16
witnesses or evidence to rebut the State’s assertion that Appellant was involved in
the attack of Robinson.
Appellant’s only witnesses, who testified as to his character, were Preznal and
Stephens. Both testified during the punishment phase of Appellant’s trial. Preznal
testified that he knew Appellant through the motorcycle community and stated that
Appellant was an asset to the Santa Saddle Bag, a charitable event run by the
spiritually based motorcycle club Sinners and Saints. Preznal further testified that
he did not know Appellant to be someone that goes around beating people and that
Appellant has always been a good friend to him. Stephens testified similarly, stating
that he knew Appellant through the motorcycle community and knew Appellant to
be someone who always helped others and was a respectful person who never acted
in accordance with the crimes of which he was being accused. However, neither of
these witnesses were present during either of the alleged extraneous offenses and,
therefore, could not provide direct testimony refuting the State’s claims that
Appellant was involved in the stabbing of Martinez and the assault and robbery of
Robinson.
The testimony by Dickerson, Martinez, Robinson, and Officer Daniel tends to
show that Appellant was involved in the stabbing of Martinez and the assault and
robbery of Robinson. When clear-cut evidence credits Appellant for significant
roles in these offenses and bad acts, it is difficult to ascribe “egregious harm” to the
trial court’s failure to instruct the jury not to consider evidence of these extraneous
offenses and bad acts in assessing punishment unless the jury found beyond a
reasonable doubt that Appellant committed such extraneous offenses or bad acts.
See Allen, 47 S.W.3d at 53. The harm analysis would be more difficult if the record
as a whole did not so clearly demonstrate Appellant’s participation in the extraneous
offenses and bad acts introduced into evidence and argued at punishment by the
State. See id.17
Lastly, the punishment assessed by the jury is below that which the State
requested and the maximum sentence allowed by law. See Johnson, 181 S.W.3d at
766 (“Texas courts have concluded that egregious harm has not been shown because
of the omission of a reasonable doubt instruction when . . . the punishment assessed
is at the low end or in the middle of the available punishment range and/or
significantly less than sought by the prosecution.” (citations omitted)); Tabor, 88
S.W.3d at 789. Here, although the State asked the jury to start its punishment
analysis at the maximum punishment of twenty years, the jury only assessed
Appellant’s punishment at fifteen years and did not impose a fine. Cf. PENAL § 12.33
(West 2019).
Based on our analysis of the record, we find that the trial court’s error did not
cause egregious harm. We therefore overrule Appellant’s second issue.
Finally, we note that the judgment incorrectly reflects that Appellant pleaded
guilty to evading detention. An appellate court has the power to modify the trial
court’s judgment to make the judgment speak the truth when it has the necessary
information before it to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865
S.W.2d 26, 27–28 (Tex. Crim. App. 1993). Because the record reflects that
Appellant pleaded not guilty to evading detention, we modify the judgment of the
trial court to reflect that Appellant pleaded “NOT GUILTY.”
We also note that the judgment of the trial court erroneously reflects “N/A”
with respect to the enhancement pleas and findings. The record reflects that
Appellant pleaded “true” to the enhancement allegation based on his prior felony
conviction for forgery and that the jury found the enhancement allegation to be true.
Therefore, we modify the judgment of the trial court to reflect that Appellant pleaded
“TRUE” to the first enhancement paragraph and that the jury found the enhancement
paragraph to be “TRUE.”
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This Court’s Ruling
As modified, the judgment of the trial court is affirmed.
W. BRUCE WILLIAMS
JUSTICE
March 31, 2021
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
19