Diaz, Daniel

PD-0035-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 2/12/2015 4:02:02 PM
Accepted 2/13/2015 9:18:45 AM
ABEL ACOSTA
No. PD-0035-15 CLERK
ln the Court of Criminal Appeals
DANIEL DIAZ, APPELLANT
VIIRSUS
Tue Srnra oF TEXAS, APPELLDE
ON AppEAL FRoM THE 253RD Julrcu.L DISTRICT couRT
LIBERTY COUNTY, TEXAS
TRIAL COURT CAUSE NO. 1259853
AND
THE COURT OF.APPtrALS FOR THE NINTH JUDICIAL DISTRICT OF TEXAS
BEAUMONT, TEXAS
No. 09-I3-00104-CR
APPELLANT,S PETITION FoR DISCRETIONARY REVIEW
wENDRT-r- A. Onorrr Jn.
TEXAs BAR # i5208500
440 I-oursrANA Sr., SrE 200
I IousToN, TExAS 77002
(713)223-ss7s
(713)224-28rs lrnxl
February 13, 2015
ATToRNEY FoR Arne II,IN
I)ANIEL DIAZ
IORAL ARGUMENT RrquEsrEo]
IDENTITIES oF PARTItrS AND COUNSEL
Daniel Diaz Appellant
State of Texas Appellee
Honorable Susan Baker Trial Courl Judge
PO Box 3937 253'd District Court
Galveston,'l exas 77 552 Liberty Counly, TX
Wendell A. Odom, Jr. Appellate Counsel
440 Louisiana St., Ste 200 for PDR
I Iouston, Texas 77002
Richard Burroughs Appellate Counsel
P.O. Box 1676 in Courl of Appeals
Cleveland, Texas 77328
Paul Aman Trial Counsel
7l 2 Westcotl St.
Houston, 'Iexas 77007
Logan Pickett District Attorney
1923 Sam Houston, Ste 112 on Appeal
I-iberty, Texas77575
Anne Streit Assistant District
1923 Sam Houston, Ste 112 Attorney at Trial
Liberty, Texas77575
TABLE oF CONTENTS
PAGE
IDDNTITIES oF PARTIES, COUNSELS AND JUDGE ..........., .........,.................i
TABLE oF CONTENTS ............ .................... ii
INDEX oF AurHoRrrrtrs ........................... iii
STATEMENT REGARDTNG ORAL ARGUMENT ..............,....1
STATEMENT oF THE CasE'............... ...........2
STATDMENT oF PROCEDURAL HrsroRy... ........................2
STATEMENT oF FAcrs.......... ......................3
GROUNDS FoR REvrtrw ..............................5
I. _
ISSUE I DID THE COURT oF APPEALS RULE INCOII.RECTLY WHEN THtrY
FOUND THAT THE EVIDENCT] WAS SUF'FICIENT TO SUSTAIN THE
CONVICTION?
il. ISSUD II _ DID THE COURT oF APPDALS RULD INCORRECTLY WHEN THEY
FOUND THAT MR. DIAZ wAS PROVIDED EFFECTIVE ITEPRESENTATION
uNDER ,srflcrzlND AND TI{E 6t " AMENDMENT To rHE UNTTED STATDS
CONSTITUTION?
ARGUMENT AND AurHoRrrIES ..................... ....................5
I. IssuE I...................... ...................5
A. HYPOTHETICALLY CORRECT JURY CHARGD......... ............6
B. ARGUMENT ............................7
I IssuE II........... ...........................10
A. DEFrcrtrNT PERFORMANCD..................... ...........................11
B. HARM RESULTED FROM DEFrcrENcy...... .........................13
PRAYER FoR R8LrEF.............. ..................,14
CERTTFTCATn oF SERvrcE .......................15
II
INDEX oF AurHoRrrrEs
CASES
Ex Parte Lal-lood,401 S.W.3d 45 (Tex. Crim. App. 2013)
Fuller v. State,73 S.W.3d 250 (Tex. Crim. App. 2002)........
Garcia v, State,827 S.W.2d 937 (Tex. C[im. App.1992)
Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001)....... 6
I'lorton v. State,4l8l LEXIS I (Tex. App. Houslon[14th Disl.] 2010) 1
Statutes
Tcx. Trans. ('odc Antt. $ 545.1 5b ...9
lll
NO. PD-0035-15
In The Court of Crjrninal Appeals
DANItrL DIAZ, APPDLLANT
VERSUS
TH E STATE oF TEXAS, APPELLEE
On Appeal from the 253'd Judicial District Court
Liberty County, Texas
Trial Court Cause No. CR-29411
And
The Court of Appeals for thc Ninth Judicial District of Texas
Beaumont, Texas
No. 09-13-00104-CR
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Comes Now, Daniel Diaz, Petitioner, in the above styled and nurnbered
cause and respectfully urges this Court to grant discretionary revierv of 1he above
named cause, pursuant to the rules of appellate procedures
STATEMENT REGARDING ORAL ARGUMENT
Petitioner requests oral argument. Tltis case presents tlte irnportanl issue of
whether lhe lower courl inconectly ruled that th.e evidence was sfficient to
maintain a convictionfor official oppression when it is un.disputed fi'otn tlte record
tltat probable couse existed for lhe detention All of the issues presented require
discussiol of the facts, and are issues that require a look at the correct application
of the lau, to the facts in this case. Oral argument would be helpful to the Coutt
and to the parties because the issues in this case are fact-intensive and oral
argument would allow the parties 1o respond 10 any concerns or questions of this
Court.
STATEMENT OF THE CASE
Appellanl was charged with official opprcssion in violation of Texas Penal
Code $ 39.03(a)(1) in Liberty County, Texas. On February 28,2013, he was
convicted subsequent to a trial by iury, and sentenced to the maximum of one year
in the Liberty County Jail. The Court of Appeals for the Ninth Judicial District of
Texas affinned his conviction, holding that the evidence was sufficient to sustain a
conviction and that Appellant was not denied his 6tl' arnendment right to effective
representation.
STATEMENT OF PROCEDURAL HISTORY
The Courl o1'Appeals for the Ninth Judicial District of Texas affinled the
trial court's judgment on October 22,2014 in an unpublished opinion. Di.az v.
State, Appellate Number 09-13-00104-CR. A rnotion for rehearing was filed on
Novernber 2I,2014. 'l-his rnotion was overuuled by the Court of Appeals on
December I0,2014. This petition for discretionary review is tirnely if filed by
February 9,2015. See Tex. R.App.P. 68.2(a), (c).1
' A Motion to Extend has been filed with this Petition for Discretionary l{eview. That Motion is requesting
an additional two (2) days to file the Petition for Discretionarf Review.
2
STATtrMENT OF FACTS
Daniel Diaz ("Mr. Diaz") worked for Texas Parks and Wiidlife of "fexas as
an acling garne warden. RR6-7.2 As a peace officer, Mr. Diaz was responsible for
enforcing all of the laws in the State of Texas including those relating 1o Texas
fish and garne. RR4-27.
Throughout his tirnc as a galne warden, Mr. Diaz had cone into conlact
with rnany people in Liberty County, Texas. One person that he liad contacted on
more than one occasion was James David McCorrnick ("Mr. McCorrnick"), the
cornplaining witness in this case. See RR2, RR3-6. As a result of these contacts,
Mr. McCorrnick had filed official complaints against Mr. Diaz for various
allegations of harassment while Mr. Diaz was acting in his capacity as a garne
warden. See RR2. These cornplaints against Mr. Diaz took place prior to 201 1.
Mr. McCormick had also beerl charged with assaulting Mr. Diaz in 2006 after an
altercation at Mr. Diaz's horne. RR3-12-13.
On the rlorning of Novenber 13,2011, Mr. Diaz was scheduled to be on
patrol as a gane warden for Texas Parks and Wildlife. Mr. Diaz got into his state
issued garne warden vehicle at around 6:20 that morning. 511.3 As he sat in his
driveway, Mr. Diaz observed a Ford F-350 truck corning down his slreet with no
head lights on. S11. Further, Mr. Diaz noted that the car seemed to be traveling in
2
RR will refer to the Repoder's Record in the record on appeal. The number foJlowing the RRwill refer to
the volurne number, and the number afler the dash refers to the page number within that volurno. For
exarnple. RR6-7 refers to Volurne 6 oftl)e Reporter's Record at page 7.
' S will refer to State's Exhibits iD the trial. The numbel after the S will refer to the exhibit number. S1 I is
state's exhibit I L
3
clear excess of the 30 MPH posted speed lirrit for his neighborhood. S 11. The
Ford F-350 was being driven by Mr. McCorrnick.
Mr. Diaz pulled out of his driveway and began to follow Mr. McCorrnick
RR3- I 80. Shortly thereafter, Mr. Diaz lurned on his emergency lights in an
atternpt to pull the vehicle over, and lalk to Mr. McColnick. RR3-180. Mr
McCorrnick failed 1o respond to Mr. Diaz's emergency lights. RR3-180-187.
Instead of pulling over, Mr. McCormick called 911 for advice, noting that he was
concerned about Mr. Diaz's inlentions in pulling hiur over that rnorning. Id. AlTer
close to a rnile, Mr. McCorrnick decided to subrnit to Mr. Diaz and pulled his car
over to the side of Minglewood road outside of Mr. Diaz's neighborhood. RR3-
209
Mr. Diaz asked Mr. McCormick for his license and proof ol insurance.
RR3-211. The two men had a few words back and forth, and Mr. McCormick was
placed in handcuffs for officer safety. RR3-275-217. Shortly after Mr
McCormick was placed in handcuffs, two officers with the City of Liberty Police
Departrnent arrived on the scene. RR3-221. Mr. Diaz and the two officers
discussed the natter, and Mr. Diaz decided that he would let Mr. McCormick go
with a verbal warning. S 10
Mr. McCorrnick filed an official complaint with the internal affairs division
of Texas Parks and Wildlife in Austin, Texas. RR4-55. After an investigation, the
Liberty County District Attorney's Office accepted charges of Official Oppression
against Mr. Diaz for his actions on Novernber 13, 2011. RR4-112.
4
GROUNDS FOR REVIEW
1. DID THE COURT OF APPEALS RULE INCORRECTLY
WHEN THEY FOUND THAT THE EVIDENCE WAS
SUFFICIENT TO SUPPORT THE CONVICTION?
2. DID THE COURT OF APPEALS RULE INCORRECTLY
WHEN THEY FOUND THAT MR. DIAZ WAS PROVIDED
EFFECTIVE REPRESENTATION UNDER,STRIC&IND AND
THE 6TIT AMENDMENT OF THE UNITED STATES
CONSTITUTION?
ARGUMENT
I The 9th Court of Appeals rulcd incorrectly when they found that the
evidence was sufficicnt to support a conviction in light of the
undisputed testimony that Mr. Diaz had probablc cause that Mr.
McCormick had violated Texas Transportation Code, Title 1
Subchapter C S 545.156 prior to his detention.
A. The Rule of Law
In reviewing the evidence for sufficiency, the court uust consider the evidence
in the light most favorable to the verdict to determine whether any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt. Jackson v. Virginia,443 U.S. 307, 318-19 (1979); Brooks v. State, 323
S.W.3d 893, 898 (Tex. Crini. App. 2010). Evidence can be held to be insufficient
under 1he Jackson standard in two circumstances: 11,) the record contains no
evidence, or merely a "rnodicum" of evidence, probative of an element of the
offense, or (2) the evidence conclusively establishes a reasonable doubt. See
Jackson,443 U.S. at 314,318 n. 1l;see also Lasterv. State,275 S.W.3d 512,518
(Tex. Crirn. App. 2009); Williams v. State,235 S.W.3d 742,750 (Tex. Crim. App
2007).
5
The sufficiency-of-the-evidence standard allocates to the fact-finder the
responsibility to lesolve conflicts in the lestimony, to weigh the evidence, and tro
draw reasonable inferences frorn basic facts to ultiurate facts. See Jackson,443
U.S. at 319; Claytonv. State,235 S.W.3d 772,778 (Tex. Crirn. App.2007). There
is a presurnption that the fact-finder resolved any conflicts in the evidence in favor
of the verdict and review of legal sufficiency defers to that resolution, provided
that the resolution is rational. See Jackson,443U.S. a|326
Legal sufficiency in a case is measured against the elements of the offense
as defined by a hypolhetically correct jury charge for the case. Malik v. State,953
5.W.2d234,240 (Tex. Crim. App. 1997). A hypolhetically correct jury charge is
one that "accurately sets out the law, is authorized by the indictrnent, does not
unnecessarily increase the State's burden ofproof or necessarily restrict the State's
theories of iiability, and adequately describes the parlicular offense for which the
defendant was tried." Id. A hypothelically coruect jury charge would no1 simply
quote fronr the controlling statute. Gollihar v. State,46 S.W.3d 243,254 (Tex.
Crim. App. 2001). Its scope is limited by "the statutory elernents of the offense
as nrodified by the charging instrument." Fuller v. State, 13 S.W.3d 250,254
(Tex. Crinr. App.2002) (Keller, P.J., concurring); Cuty v. State,30 S.W.3d 394,
404 (Tex. Crim. App. 2000).
B. Hvpotheticallv Correct Jurv Charge
Under Texas Penal Code $ 39.03 (a)(1), the State has to prove that Mr
Diaz, while acting under color of his office, intentionally subjected the
6
colnplainant to a detention that he knew was criminal, tortious, or both. Palacios
v. State, 2014 WL 37'71870 (Tex. App.-Corpus Christi 2014). In order for a
delendant to know that the detention is unlawful under the official oppression
statule, the detention rnust be in fact, unlawful. State v. Edmond,933 S.W.2d 120,
127 (Tex. Crirn. App. 1996). Otherwise a defendant's 'rnislake of law' as to the
illegality of his own act would create liability where none before existed. 1d
A detention under the 4th amendment does not take place until i ) the officer
makes a showing of his authority and 2) there is a subrnission to that authority.
Johnsonv. State,912 S.W.3d 221 ,234 (Tex. Crirn. App. 1995). Atraffic stop is a
detention once the person submits to the officer's authority by stopping his
vehicle. Id. A peace of.ficer may lawfully detain a rnotorist rvho commits a traffic
violation when the officer has probable cause to believe a traffic violation has
occuned. Garcia v. State,827 S.w.2d 937,944 (Tex. Crim. App. 1992).
Probable cause exists where police have reasonably trustworthy infonnation
sufficient to warrant a reasonable person to believe that a particular person has
cornrnitted or is cornrnitting an offense. McGee v. State, 105 S.W.3d 609, 614
(Tex. Crirn. App. 2003). The test for probable cause is objective and does not take
into account the subjective thoughts or rnotives of the officer. Amador v. Slate
275 S.W.3d 872,878 (Tex. Crirn. App. 2009). Further, a peace officer rnay rnake
a warrantless arresl of any person who commits a traffic violation in his presence.
Horton v. State, 4187 LEXIS 1, 7-8 (Tex. App.-Houston [14th Dist.] 2010).
C. Argument
1
The facts in this case are such that no reasonable juror could have found the
element of an unlawful detention beyond a reasonable doubt. Given the facts in
this case, there are three different sets of facts which could have given Mr. Diaz
the requisite probable cause to lawfully detain Mr. McConlick:
1. Mr. Diaz's statement that Mr. McCormick's lights were off while traveling
through his neighborhood before the sun rose. S I 1.
2. Mr. Diaz's statenent that Mr. McCorrnick appeared to be lraveling well
over the 30 MPII speed lirnit posted in his neighborhood. S11
3. The undisputed fact that Mr. McCorrnick failed to pull to the side of the
road and stop when confronted with an ernergency vehicle. S11, RR3-180-
r 87.
The Court of Appeals was corect in their analysis that the first two sets of
facts were not strong enough for a successful challenge to the sufficiency of the
evidence under ,Iackson The hrst reasons for probable cause detailed above,
regarding the speed of Mr. McCorrnick and whether his lights were on, were
heavily disputed in the record on appeal. Testirnony was delivered by Mr.
McCorrnick that he was traveling 28 MPH when he saw Mr. Diaz and his lights
were "on" when he passed Mr. Diaz's house. RR3-178, RR3-176. The jury
weighs the credibility of all of the witnesses, and they were within their power to
choose to believe Mr. McCorrnick during trial. For that reason, a reasonable juror
could have found the elernent of an unlawful detention beyond a reasonable doubl
if they were given just the first two sels of facts
8
However, the objective standard set out under our 4rl' amendrnent
jurisprudence only requires thal the facts of the case show one set of fhcts that
provide probable cause for a lawful detention. In other words, the Court of
Appeals for the Ninth Judicial District needed to view the merits of the third
ground for probable cause standing on its own rvithout referring to other facts
Mr. Diaz need not prove he had probable cause that three violations occurred in
order to show it was a lawful detention. If the evidence shows an undisputed set
of facts that would provide probable cause for the traffic stop then the dctention is
lawful without any need to defer to the iury's province of weighing the wilness's
credibility.
In this case, it is undisputed that Mr. McCormick violated Texas
Transportation Code, Title 7 Subtitle C $ 545.156 - Vehicle Approached by
Authorized Emergency Vehicle. This section of the Transportation Code requires
that on the immediale approach of an authorized ernergency vehicle using audible
and visual signals, a driver shall 1) yield the right-of-way; 2) immediately drive to
a position parallel to and as close as possible to the right-hand edge or curb ofthe
roadway clear of any intersection; and (3) stop and rernain standing until the
authorized energellcy vehicle has passed.
Under any version of the facts that the jury chose to believe, Mr
McCormick violated this statute when he 1) saw Mr. Diaz behind hitn with his
emergency lights activated and sirens audible, 2) failed to yield the right-of-way,
and 3) continued driving for-ward instead of stopping and remaining still until Mr.
9
Diaz had an opportunity to pass. A vierv of Mr. McCormick's or Mr. Diaz's
statements in the record on appeal will establish these baseline facts to suppod a
lawful detention. There is no difference in their testin.ronies. S 11, RR3-180-187.
Furlher, the other evidence in the case presented by the State corroborates their
teslirnonies that Mr. McCorrnick did not pull over rvhen confronted with an
emergency vehicle. See RR. These undisputed facts provided Mr. Diaz the
probable cause necessary to effectuate a lawful traffic stop (detention) on Mr
McCorrnick. I-Iis subjective intent or pasl dealings with Mr. McCormick are
iruelevant to the analysis of whether the detention was in fact unlawful. With
conclusive evidence that Mr. McCorrnick violated a traffic law in the presence of
Mr. Diaz, the evidence at trial was insufficient to suppoft a reasonable juror in
finding that the element of an unlawful detention was met. The Courl of Appeals
for the Ninth Judicial District ofTexas tnade an incorrect application of the law to
the facts in this case rvhen they found the evidence sufficient to support the
conviction for Official Oppression on direct appeal.
2 The Court of Appcals ruled incorrectly when they ftrund that Mr.
Diaz's Trial Counsel was not ineffective under Stricklarrl and the 6tr'
amendment of the United States Constitution.
A. Rule of Law
To prevail on a claim for ineffective assistance of counsel, an appellant
must prove two elements by the preponderance of the evidence: 1) trial counsel's
performance was deficient; and 2) harrn resulted fron-r that deficiency sufficient 1o
undermine the confidence in the outcome of the trial. Strickland v. Washittgton,
10
466 U.S. 668,687,69a (1984); Ex Parte LaHood,40l S.W.3d 45, 49-50 (Tex
Crirn. App. 2013). A clairn for ineffective assistance of counsel must be firlnly
rooted in the record such that the record affirrnatively demonstrales the
meritorious nature of the clairn. Menefield v. Stale, 363 S.W.3d 59i, 592 (Tex
Crim. App. 2012). When trial counsel fails to object to questiolts or testitnony
during trial, the Appellant must show that the trial court judge would have
comrnitted error by overruling those objections in order to establish deficient
performance.
B. Deficient Performance from Trial Counsel
a Texas Rule of Evidence 404(b)
The State in this case must prove beyond a reasonable doubt that Mr.
Diaz knew that the deterrtion o1'Mr. McCormick was unlawful. In order to meet
this elernent, the State brought in six separate instances of "run-ins" beflveen Mr.
Diaz and Mr. McCorrnick in the guilt innocence phase of trial. These instances
involved: l) a 2004 incident when Mr. Diaz advised Mr. McCormick to not drive
his foul wheeler in the neighborhood bayou, 2) a 2006 incident where Mr. Diaz
gave Mr. McCormick a verbal warning for throwing fish heads over the
neighbor's fence, 3) a 2006 incident where Mr. McConnick wenl 1o Mr. Diaz's
horne and an altercation broke out resulting in assault charges against Mr
McCormick, 4) an incident around 2010 where Mr. Diaz tried to block Mr
McCorrnick's path dorvn a street in their neighborhood with his car, 5) an incidenl
where Mr. Diaz flashed his energency lights behind Mr. McCorrnick on I{ighway
11
146, and 6) an incident where Mr. Diaz followed Mr. McCorrnick down
Minglewood outside of their neighborhood for a short tirne. RR3-187-207.
Trial Counsel in this case argued the inadrnissibility oI these acts in his
nrotion in limine prior to trial. See RR2. Trial Counsel argued that these instances
were improper extraneous evidence as the standard for an unlawful stop was
objective and not subjective. See RR2, RR3-43. When the Trial Court denied his
urotion in lirnine, Trial Counsel asked for a running objection on that ground
RR3-43. This was the last time that Trial Counsel obiected to thc admission of the
past incident testimony
At no point in the trial did Trial Counsel obiect to the admission of this
line of testirnony as it came into evidence befbre the jury. Trial Counsel
understood the vaiue of the testimony enough to have a hearing on a motion in
limine prior to trial, but nonetheless, decided that objecting to the adrnission ofthe
testimony to preserve error and provide the jury with limiting instructions was
unneeded.
If Trial Counsel had obiected to the adrnission of these incidenls into the
record, the Trial Courl would have erred if they adrnitted the evidence without a
limiting instruction in line with Texas Rule of Evidence 404(b). These past "bad
ac1s" or dealings with Mr. McCorrnick could not be used for confonnity purposes,
but rather, may only be used by the State to go towards Mr. Diaz's knora4edge of
the unlarvfulness of the detention. It is incumbent on the Trial Courl to provide a
limiting instruction on that matter when prompted by Trial Counsel. The Trial
12
Court thus would have erred by allowing the evidence 10 come in without a
limiting instruction that it could only go towards a proper purpose. The Trial
Court did not nake those limiting instructions in this case because Trial Counsel
failed to object upon the subrnission of these pieces of testimony before the jury.
RR3-187-207.
There is no trial strategy that could justify Trial Counsel's failure to
object in lhis case. This evidence was the center piece of the State's case, and
allowing the jury to hear this evidence without an appropriate lirniting instruction
serves no purpose other than to harm Mr. Diaz. Trial Counsel's inability to obj ect
10 these key pieces of evidence in the tlial was deficient, and no competent
attorney would have failed to rnake these appropriate obiections.
C. Harm Resulted frorn the Deficiency
The State's case from starl to finish rested on the prior relationship between
Mr. Diaz and Mr. McCormick. The State spent a large porlion of their case-in-
chief building up the prior relationships between Mr. Diaz and Mr. McCormick.
See RRs. When arguing the casc in closing argumenl the State added that Mr
McCorrnick wouldn't lie because all he wanted was to "stop the harasstnent." ,See
RR3, 4, 5-52. In order to meet the eletnents of official oppression, the State
needed more than controverted testirnony about the validity of the detention. They
needed to use the prior encounters between the two men to shorv that this case was
outside the realm of appropriate police work, and thus, Mr. Diaz knew that his
treatment of Mr. McCorrnick was unlawful. It is hard to irnagine a scenario where
13
the State obtains a conviction under these facts without the prior history between
Mr. McCornrick and Mr. Diaz.
The value of the prior incidenl teslimony cannot be overstated, and the
conl'rdence in this trial was undermined by Trial Counsel's inability to
appropriately object to these incidents as they came into evidence. Without the
proper limiting instructions, the jury was free to use the evidence as they deerned
fit throughout the trial. It was crucial thal the prior incident testirnony be handled
cornpetently to insure that Mr. Diaz received a fair trial. In this case, Trial
Counsel was entirely incompetent in this area, and harnr resulted frorn this
deficiency. The Courl of Appeals for the Ninth Judicial District of Texas ruled
incorrectly when they found that Mr. Diaz's trial counsel was not ineffective under
the Strickland standard and the 6tl'amendrnent of the United States Constitution.
PRAYER F'OR RELIEF
For the reasons herein alleged, Petitioner respectfully requests this Court
grant discretionary review ofthe lower court's opinion and grant oral argument.
Respectfully subrnitted,
NDELL A OM, JR
State Bar No. 15208500
440 Louisiana Streel, Suite 200
I Iouston, Texas 77002
(713) 223-5s7s
(713) 224-2815 fax
14
CERTIFICATE OF COMPLIANCE WITH TRAP 9.4
I hereby certi$ that this Petition for Discretionary Review cornplies with Texas
Rule of Appellate Procedure 9.4 in that it is written in 14 point font, Tirnes New
Roman, and contains 3,539 words.
ELL DOM, JR
CERTIF'ICATE OF SERVICE
I hereby certify that a lrue and colrect copy of the foregoing Petition for
Discretionary Review was served on the Assistant Crirninal District Attorney and
the State Attorney by electronic transmission on February 12,2015 .
EL OM, JR.
15
APPENDIX
In The
Court of Appeals
Ninth District of Texas ot Beflumont
NO. 09-13-00104-cR
DANIEL DIAZ, Appellant
v
THE STATE OF TEXAS, Appellee
On Appeal from the 253rd District Court
Liberty County, Texas
Trial Cause No. CR29411
MEMORANDUM OPINION
Appellant Daniel Diaz was indicted for official oppression under section
39.03 of the Texas Penal Code. See Tex. Penal Code Ann. $ 39.03 (West Supp.
2014).' The indictment alleged that on or about November 13, 2011, Diaz
"intentionally subject[ed] James David McCormick to detention that [Diaz] knew
was unlawful, and [Diaz] was then and there acting under color of his employment
lBecause the amendments do not affect this case, we cite to the current
version of the statutes.
1
as a public servantl namely, Game Warden." A jury found Diaz guilty and the trial
court sentence d Diaz to one year confinement in the Liberty County Jail and
assessed a $4,000 fne.Diaz appeals.
On appeal, Diaz argues that ( 1 ) the evidence is legally and factually
insufficient to sustain the jury's verdict; (2) the trial court abused its discretion by
admitting irrelevant and prejudicial evidence from a series of alleged extraneous
acts in violation of Rules 401 , 403, and 404(b) of the Texas Rules of Evidence; (3)
he was "denied his [c]onstitutionally protected and guaranteed right to effectrve
assistance ofcounsel[;]" and (4) that if the decision of the trial court is upheld by
this Courl, "it will create a level of unceftainty that will have a chilling effect on
every traffic stop conducted by law enforcement officers within the State of
Texas." We overrule his issues and affirm the judgment
Guilt/Innocence Evidence
The testimony at trial indicated that Diaz and McCormick had a "prior
history" that preceded the incident of November 13,, 2011. In 2006, Diaz
confronted McCorrnick about some "fish heads" McCormick allegedly threw over
the fence and into his neighbor's pasture. Diaz drove up in his "game warden
truck" while McCormick was throwing out the fish and asked McCormick why he
was thlowing fish heads onto the neighbor's property. McCormick told him "I
2
always throw thern back here." Diaz asked to see McCormick's fishing license and
continued to question McCormick. Based upon Diaz's tone of voice, McCormick
called the Liberty Police Department and asked them to send an officer to the
scene. McCormick testified that as soon as Diaz noticed the Liberty police officer
pulling into McCormick's driveway, Diaz "handed [McCormick his] fishing
license and said I'm going to give you a warning this time. Don't throw fish heads
over here no more unless you get permission frorn [the neighbor]." A day or two
later, and after he obtained permission from the neighbor, McCormick drove over
to Diaz's home to let him know that the neighbor had given McCormick
permission to throw the fish heads over onto her property. According to
McCormick, Diaz then told McCormick he knew that McCormick had "called the
law" on him and he stated to McCormick, "you better not ever call the law on me
again and you better watch your back." McCormick testified he totd Diaz he was
not there to argue, and Diaz told McCormick that he was arresting him and "[he]
was going to jail" for trespassing. When McCormick proceeded to walk to his
truck, Diaz grabbed McCormick's wrist and held it up in the air and began
screaming at McCormick telling him he was going to jail. McCormick went to jail
and was charged with "assault" on Diaz. The assault case went to trial in 2010, and
the jury found McCormick not guilty.
J
McCormick testified that while McCormick was waiting to go to trial on the
2006 assault charge, Diaz followed him on more than one occasion' One evening
Diaz blocked the path of McCormick's vehicle with his personal truck and when
McCormick drove around Diaz to pull into McCormick's driveway, Diaz followed
him and "stayed parked" in front of McCormick's house for fifteen minutes. Right
after the jury found McCormick not guilty on the 2006 assault charge, Diaz again
foltowed McCormick, and Diaz flashed his lights at McCormick but did not stop
him. McCorrnick notified the police department that Diaz was "harassing" him but
he did not make a formal report. McCormick indicated at trial that the police
department personnel told him there was "pretty much nothing they [could] do."
McCorrnick testified that on another occasion, prior to being stopped by Diaz in
November 2011, while McCormick was driving on Highway 146,Diaz followed
McCormick. McCormick also told the jury that prior to November 2011, he spoke
to law enforcement about getting a restraining order against Diaz and they told him
he needed to hire an attorney.
According to McCormick, on November 13,2011, around 6:20 a.m., he was
driving his vehicle on Minglewoo d (a/W a Mizell) Road, on his way to work, and
he drove past the driveway to Diaz's home. McCormick had to drive past Diaz's
home to exit his subdivision. McCormick testified he had his headlights on because
4
it was still dark outside. He stated that he knew he was not going over 30 m.p.h.,
"[b]ecause I always make sure I'm going under 30 when I pass . . . Mr. Diaz's
house[,] . . . to try to avoid any trouble that I might have as I pass by his house." As
he approached Diaz's driveway, he noticed Diaz's game warden truck parked in
the driveway. Diaz's vehicle had its headlights on and as McCormick approached
Diaz's driveway, Diaz turned his game warden truck "red and blue lights on."
After McCormick's vehicle got into the first curve past Diaz's driveway,
McCormick then noticed that Diaz pulled out onto the roadway behind
McCormick. McCormick testified that he was "afraid for [his] safety" because of
their "past history" and that is why he did not immediately pull over. McCormick
stated,
I yielded for [Diaz] to go around because I thought
rnaybe that he had a call that he was going to, so I
yielded. . . . I also yielded for [Diaz] to go around while I
was on [the] phone with 911, but [Diaz] stayed behind
me. Then [Diaz] started getting close to rny vehicle, so at
that point, I knew [Diaz] must have been pulling me
ovef.
McCormick testified that "[t]here was no other cars on the road, so at that point I
called 911 because I wasn't really sure what to do. I was afraid for my safety at
that time." McCormick pulled over and stopped while he was talking to the
91 l operator.
5
After stopping,Diaztold McCormick to get out of his truck and McCormick
cornplied. Diaz asked to see McCormick's driver's license and proof of insurance.
Diaz told McCormick to put his driver's license on the hood of Diaz's truck, and
McCormick did what he asked. Then Diaz told McCormick to put his hands behind
his back andDiaz handcuffed McCormick, and told hirr he was arresting him for
"speeding." McCormick testified thatDiaz also "got right in [McCormick's] face"
and asked McCormick, "[D]id you get satisfaction out of us going to court[?]"
McCormick replied, "[D]amn right. I enjoyed every minute of it, especially when
you got up on the stand and lied . . . you made a fool out of yourself." McCormick
told Diaz that he had called 91 1 . Diaz then called someone and said "I have James
McCormick pulled over and I have him handcuffed for my protection." Diaz never
had his citation book out or with him, and none of the officers issued McCormick a
citation for anflhing.
The Liberty Police officers responded to a call to assist. When they arrived,
they took Diaz over in front of their vehicle and they had a discussion with Diaz.
McCormick testified that the male officer came back and told McCormick "Mr.
Diaz [is] going to set [you] free," and the officer told Diaz to take the cuffs off of
McCormick. Before McCormick left to go to work, Diaz told McCormick he was
"going to get a warrant" to arrest McCormick for evading arrest. McCormick
6
turned to the male officer and said, "[C]an he do that?" McCormick told the jury
the officer looked at McCormick "and winked" and told McCormick to contact an
attorney.
Officer Cedric McDuffie, a Deputy with the Liberty County Constable's
Office and formerly a police officer with the Liberty Police Department, testified
that he and his partner, Officer Elizabeth Polasek, responded to a call on November
13,2011, to assist at the scene of a traffic stop. McDuffie had over twenty years in
law enforcement at the time of trial. McDuffie testified that when they arrived
McCormick was in handcuffs standing on the side of the road over by the Game
Warden's truck. McDuffie got out of his vehicle and walked over to speak with
Diaz. According to McDuffi e, Diaz indicated that McCormick was speeding and
Diaz stated he had observed McCorrnick driving by Diaz's residence at "maybe
about 30 miles per hour." Diaz also said "possibly" McCormick did not have his
headlights on. At that time, the subject of evading arrest never came up. Officer
McDuffie testified that the City of Liberty requires a radar to determine speed, and
he would never recommend that an officer try to enforce a traffic law for speeding
without getting a radar and special training to enforce speeding laws.2 At one point
'McDrffie explained that the Liberty Police use radar to document the speed
of a vehicle, but indicated that you can also use "[r]adar pacing and ciocking[.]"
According to McDuffie, radar pacing is where the officer follows behind someone
7
at the scene, Diaz admitted to McDuffie that he had no reason to give Mr.
McCormick a ticket. At trial, McDuffie acknowledged on direct examination that it
was "fair to say that [Diaz] had no reason to give [McCormick] aticket[']"
The video captured by the Liberty Police Deparlment dash camera was also
introduced into evidence at trial and played for the jury without any objection from
Diaz. The video (with audio) depicts the arrival of the Liberty police officers to the
scene, and the conversations of Diaz with the officers about the situation. On the
video, Diaz can be heard making the following statement, "No, I don't have a
reason to give him a ticket . . . I really wasn't going to give him a ticket." Diaz can
also be heard telling the Liberty officers that "McCormick got out of . . . an assault
on me . . ,," and "he calls 9-1-1."
The State introduced the audio recording and a transcript of the 911 call
made by McCormick, and there were also records of two calls made by Diaz on the
non-emergency line. Dispatcher Mary Jackson testified that McCormick's 911 call
came in at 6'.27 a.m., and it was the first call she received. Later, she also received
and determines their speed frorn the speed on the officer's speedometer. And,
"clocking" is timing a vehicle from one point to another and then using the exact
distance to extrapolate a speed. Officer McDuffie said he "never felt comfoftable"
using clocking and that only the State of California uses it. McDuffie testified that,
while you can sometimes just "eyeball" a car to determine if it is speeding, it is
more difficult and deceptive, especially around a curve.
8
two calls from Diaz on the non-emergency line. The time lapse between the start of
McCormick's 9i I call and then the beginning of Diaz's first call was about two
minutes. As McCormick hung up with the 91 1 dispatcher, Diaz called the
dispatcher in his first call and then followed up with another call several minutes
later.
Rod Ousley, a Captain with Texas Parks and Witdlife, and Diaz's supervisor
at the time of the 2011 incident, testified thatDiaz came to his office the day after
Diaz stopped McCormick in November of 201 1. Ousley explained to the jury that
Diaz brought in Diaz's handwritten statement about the stop and informed Ousley
that Oustey probably needed to notiff internal affairs because he thought the stop
could potentially generate a complaint. Diaz explained in his statement that he
obserued "a black truck with no lights, headlights or parking lights" that
"appear[ed] to be exceeding the posted speed limit" and that he recognized that the
truck belonged to McCormick ,who he had "had a run-in with in the past." Ousley
testified he notihed Diaz on J anuary 9,2012, that the Internal Affairs investigation
resulted in a letter of intent to take corrective action. The next day, Diaz "put in"
for retilement, and therefore no corrective action was taken.
McCormick spoke with an attorney and decided to file a complaint with
Texas Parks and Wildlife against Diaz. Texas Parks and Wildlife investigated the
9
matter and referred it to Internal Affairs who then sent it to the District Attorney'
The transcript of Diaz's testimony before the grand jury was admitted into
evidence, as well as Diaz's handwritten statement about the incident. According to
the transcript of Diaz's grand jury testimony, Diaz testified that before sunrise on
November 13,2011, he was leaving in his patrol vehicle and saw a truck "50 feet
100 feet something like that" away with no lights on. He recognized the truck
belonged to McCormick as the truck went by, and he pulls behind him and "turns
on his red and blue lights cause I'm going to stop him, he had no lights and I allege
he's speeding." He saw McCormick apply his brakes but not pull over' Diaz
contacted the police department to inform them the vehicle would not pull over,
and the dispatcher said McCorrnick was on the 911 line and was repofting that
Diaz was harassing him. Diaz asked for assistance. According to Diaz, McCormick
pulled over, and when he got out of his truck "he didn't come out very friendly he
said I called the real police and you're in trouble[.]" Diaz made McCormick get
behind his truck and cuffed him because McCormick was talking "in an elevated
voice" and Diaz believed there was going to be "another scuffle" and he "didn't
want to take any chances[.]" The grand jury indicted Diaz.
Irma Sanchez, custodian of records for Texas Parks and Wildlife, testified
that she performed a search for traffic citations and warnings issued by Diaz from
10
2008 thlough 2011. According to Sanchez, her search revealed that during that
time period Diaz did not write any warnings or citations for traffic offenses'
Dorothy Drennan, Cify of Liberty Municipal Court Clerk, testified that she
performed a search of the traffic citation issued by Diaz going back to 1993.
According to Drennan, Diaz had only issued one traffic citation since 1993, and
that was for cutting through a parking lot at an intersection.
Punishment Evidence
At the punishment phase, Special Ranger Jimmy Belt with the Texas
Department of Public Safety, testified he had several "run-ins" with Diaz dating
back to 1986 wherein Diaz tried to intimidate hirn. On at least one occasion, Belt
filed a complaint with Texas Parks and Wildlife regarding Diaz. Belt testified that
Diaz has a reputation for bullying members of the public and members of law
enforcement.
John Feist, a former Chambers County Game Warden, also testified at the
punishment phase. Feist said he has known Diaz for "[p]robably 25 years" and that
Diaz has a reputation for being unprofessional. Similarly, Highway Patrol Sergeant
Steve Holloway, formerly a Liberly County DPS officer from 1989 to 1998, stated
that he had witnessed Diaz threaten another law enforcement officer. Gary Cain, a
retired game warden who had previously worked in Hardin County, acknowledged
1l
that he had people complain to him about Diaz "using his badge to bully the
public[,]" and that he heard complaints about Diaz from private citizens as well as
law enforcement. Captain Ousley, Diaz's forrner supervisor, testified about an
incident in 2011 where Diaz violated Texas Parks and wildlife policies when he
discharged a weapon "to get [a] guy's attention." ln Captain Ousley's opinion,
Diaz engaged in vindictiveness as a game warden. Private citizens also testified
about confrontations they had with Diaz.
In contrast, Game Warden Vu Nguyen, who has known Diaz for eight years
and worked with Diaz on "[m]any occasions[,]" testified that Diaz's behavior was
,,[a]lways professional and courteous." Nine other character witnesses testified that
they have known Diaz for a long time and all of them had good experiences
dealing with Diaz while he was working in his capacity as a game warden. Diaz's
wife testified that they have been married twenty-two years. She testified that Diaz
"is a good man" and a Vietnam veteran.
Lee al and Factual Insufficiencv Challenee
In his first issue, Diaz contends that the evidence is legally and factually
insufficient to sustain the jury's verdict. We construe appellant's first point of error
as a challenge to the legal sufficiency of the evidence. See Brooks v State,323
S.W.3d 893, 912 (Tex. Crim. App. 2010) (there is no longer any meaningful
12
distinction between a legal and factual sufficiency standard when reviewing
sufficiency of evidence to sustain a criminal conviction).
We review the sufficiency of the evidence establishing the elements of a
criminal offense for which the State has the burden of proof under the single
sufficiency standard set out in Jackson v. Virginia,443 U.S. 307,319 (1979)'
Brooks,323 S.W.3d at 912. Under that standard, we view all 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 offense beyond a reasonable doubt.
Jackson,443 U.S. at319; Brool 323 S.W.3d at 899. "It is not necessary that the
evidence directly proves the defendant's guilt; circumstantial evidence is as
probative as direct evidence in establishing the guilt of the actor, and
circunrstantial evidence alone may be sufficient to establish guilt." Carrizales v.
State, 414 S.w.3d 737, 742 (Tex. Crim. App. 2013) (citing Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007)).
We must defer to the jury's assessment of the credibility of the witnesses
and the weight to be given to their testirnony. Brooks,323 S.W.3d at 899. We also
allow for the jury to make "reasonable inferences" from the testimony or evidence.
Williants v. State,235 S.W.3d 742., 750 (Tex. Crim. App. 2007); see also Tex.
Code Crim. Proc. Ann. art. 38.04 (West 1979). When the record suppofts
13
conflicting inferences, we presume that the jury "resolved the conflicts in favor of
the prosecution and therefore defer to that determination." Clayton v. State,235
S.W.3d 772,, 778 (Tex. Crim. App. 2007) (citing to Jackson,443 U.S' at 326).
Sufficiency of the evidence should be measured by the elements of the offense as
alleged in the indictment. Malikv. State,953 S.W.2d 234,240 (Tex. Crim. App.
1997).
On appeal, Diaz contends that the evidence is insufficient because it "did not
prove that [Diaz] acted knowingly, intentionally, and unlawfully in his detention of
James David McCormick." Diaz argues that "a purely objective standard applies to
whether the officer had a valid reason for the stop [or] detention and not a
subjective standard" and Diaz "had reasonable suspicion to conduct and did
conduct a valid traffic stop and legally detained James David McCormick[.]"
Further, Diaz argues that if Diaz had "any legal reason to detain McCormick" then
Diaz "could not be guilty of ofhcial oppression in relation to detaining
McCormick[,] as a matter of law."
To convict Diaz of official oppression as alleged in this case, the State had to
prove that Diaz, a game warden and public servant, while acting under color of his
office or employment, intentionally subjected McCormick to a "detention" that
14
Diaz knew was "unlawful ." SeeTex. Penal Code Ann. $ 39'03(a)(l); see also State
v. Edmond,933 S.W.2d 120, 127 (Tex. Crim. App. 1996) (explaining that when
charged with official oppression by mistreatment, the defendant must have known
that the mistreatment alleged in the indictment was in fact unlawful in that it was
either criminal or tortious). The Penal Code defines "[u]nlawful" as "criminal or
tortious or both and includes what would be criminal or tortious but for a defense
not amounting to justification or privilege." Tex. Penal Code Ann. $ 1.07(a)(a8)
(West Supp. 2014). Therefore, the State had to prove thatDiaz, while acting under
color of his office, intentionally subjected McCormick to a detention he knew was
criminal, tortious, or both. See id., $ 39.03(a)(1).
A temporary detention such as a traffic stop is generally justified when the
officer has reasonable suspicion to believe that an individual is violating the law.
See Terry v. Ohio,392 U.S. 1,29 (1968); Ford v. State,758 S.W.3d 488. 492 (Tex.
Crim. App. 2005). "Reasonable suspicion" exists if the officer has specific
articulable facts that, when combined with rational inferences from those facts,
would lead him to reasonably suspect that a person has engaged, is engaging, or
soon will be engaging in criminal activity. Abney v. State,394 S.W.3d 542,, 548
(Tex. Crim. App. 2013). This objective standard disregards the officer's subjective
intent and looks solely at whether an objective basis for the detention exists. Ford,,
t5
158 S.W.3d at 492. A reasonable-suspicion determination is made by considering
the totality of the circumstances at the time of the detention, considering common
sense judgments and inferences about human behavior. Illinois v. Wardlow, 528
u.s. 1i9, 12s (2000).
Based on the evidence in the record, the jury could reasonably have
determined that Diaz intentionally subjected McCormick to a detention he knew
was criminal, tortious, or both. In particular, evidence in the record indicates that
Diaz and McCormick had a "prior history" of confrontations, that McCormick was
being harassed by Diaz, that McCormick had made several calls to the Libefty
Police Department about Diaz following him, stopping him, and watching him
prior to this incident, that Diaz admitted to the Liberty Police officers who were
dispatched to the scene that Diaz had no "reason to give Mr. McCormick a
ticket[,]" that Diaz did not know the speed of Mccormick's vehicle, and that Diaz
was upset at McCormick for calling 911 and that he felt like McCormick "got out
of' the prior assault charges.
Even though Diaz and his expert witness testified that Diaz had reasonable
suspicion to stop McCorrnick for speeding or for not having his headlights on, or
even possibly failing to yield to an officer, the jury could have reasonably weighed
the credibility of the witnesses and the weight to be given to their testimony, and
l6
made "reasonable inferences" from the testimony or evidence' Williams, 235
S.W.3d at750; see alsoTex. Code Crim. Proc. Ann' aft. 38.04. We presume that
thejury resolved any conflicts in favor of the verdict and we therefore defer to that
determination. Clayton, 235 S.W.3d at 778. Reviewing the sufficiency of the
evidence submitted at trial in the light most favorable to the verdict, we conclude
that the evidence is legally sufficient to support the conviction for official
oppression as alleged in the indictment. We overrule the first issue.
Admission of Evidence
Next, Diaz argues that the trial court erred by admitting inelevant and
prejudicial evidence from a series of alleged extraneous acts. Diaz contends
"[s]pecifically, the trial court erred in admitting the majority if not all of the
testimony of Daniel McCormick, Jimmy Belt, John Feist, Steve Holloway' Gary
Cain, Taylor Webb, Henry Dietz, Patsy Dubois, and Rod Ousley, especially
testimony involving alleged bad acts or opinion testimony with no basis and
relevance to the pending matter[,]" and he was furlher harmed when the State
referenced the "extraneous offenses" in its closing argurnent. Diaz provides us with
no citations to record evidence that would suppoft his arguments as required by
Texas Rule of Appellate Procedure 38.1(i), and in our review of the record we
found no suppoft for his arguments.
t7
Witnesses Belt, Feist, Holloway, Cain, Webb, Dietz, Dubois' and Ousley
testified during the punishment phase, Diaz made no objection to their testimony
during the punishment phase. He failed to preserve any error on this issue relating
to the admission of their testimony.
McCormick testified during the guilt/innocence phase of the trial. To
preserve error for appellate review, a party's objection generally must be
sufficiently specific so as to "'let the trial judge know what he wants' why he
thinks himself entitled to it, and do so clearly enough for the judge to understand
him at a time when the trial court is in a proper position to do something about it."'
Malone v. State,405 S.W.3d 917,925 (Tex. App.-Beaumont 2013, pet. refd)
(quotingResendezv. State,306 S.W.3d 308,313 (Tex. Crim. App.2009)). In order
to raise a Rule 403 complaint, the objecting party must make a 403 objection
separate from a Rule 404(b) objection. See Montgomery v. State,810 S'W.2d 372,
389 (Tex. Crim. App. 1991) (op. on reh'g). Diaz did not specifically make a Rule
403 objection separate from his 404(b) objection, and therefore, has not preserved
a Rule 403 complaint on appeal. See id.; see also Tex. R. App.P. 33.1(a).
Diaz filed a motion in limine to exclude any testimony by McCormick
regarding Diaz's extraneous bad acts. The trial court granted the motion as to
testimony by any complainants (other than Mccorrnick) during the guiltiinnocence
18
phase of the trial, but denied the motion as to McCormick's testimony during the
guilt phase regarding Diaz's extraneous bad acts towards McCormick. Rule 404(b)
expressly provides that evidence of other crimes, wrongs, or acts is not admissible
to prove the character of the defendant in order to show he acted in conformity
therewith. Rule 404(b) codifies the common law principle that a defendant should
be tried only for the offense for which he is charged and not for being a criminal
generally. Rogers v. State,853 S.W.2d 29,32 n.3 (Tex. Crim. App. 1993); see also
Segundo v. State,270 S.W.3d 79, 87 (Tex. Crim. App. 2008) (explaining that the
defendant is generally to be tried only for the offense charged, not for any other
crimes). Extraneous offense evidence, however, may be admissible for other
purposes such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident. Tex. R. Evid. 404(b). The
list of examples in Rule a0a(b) is nonexhaustive. See Prible v. State, 175 S.W.3d
724, 731 (Tex. Crim. App. 2005). "Whether extraneous offense evidence has
relevance apart from character conformity, as required by Rule 404(b), lsa
question for the trial court:' Moses v. State, i05 S.W.3d 622,627 (Tex. Crim. App
2003). The trial courl's Rule 404@) ruling admitting evidence is generally within
the zone of reasonable disagreement "if there is evidence supporting that an
19
extraneous transaction is relevant to a material, non-propensity issue." Devoe v.
state,354 S.W.3d 457,469 (Tex. Crim. App.2011).
The testirnony frorn McCormick about the prior history and confrontations
he had with Diaz was relevant to one or more material issues in the case.
McCormick as the complaining witness explained his history with Diaz, the assault
charge that was brought against him by Diaz, and the other instances of Diaz
harassing him before this incident. Such detail directly related to the intent and
motive of Diaz in detaining McCormick, furlher explained the conduct of the
parties on the date in question, established a pattern of conduct on the part of Diaz,
and demonstrated intentional and knowing conduct.
To the extent Diaz complains on appeal of the admission of certain
testimony during the punishment phase,3 Diaz did not preserve error because he
failed to make any objection. Even if Diaz had preserved error, evidence may be
offered during the punishment phase as to any matter the court deems relevant to
sentencing, including but not limited to the prior criminal record of the defendant,
3Diaz
complains that the trial court erroneously admitted the "prejudicial"
testimony of Diaz's bad acts by "Daniel McCormick, Jimmy Belt, John Feist,
Steve Holloway, Gary Cain, Taylor Webb, Henry Dietz, Patsy Dubois, and Rod
Ousley[,]" but Diaz fails to give record references regarding the specific testimony
of which he cornplains. We note that, of these witnesses, Ousley testified during
both guilt and punishment phases, McCorrnick testified during the guilt phase only,
and the remainder testified only at punishment.
20
his general reputation, his character, the circurnstances of the offense for which he
is being tried, and any other evidence of extraneous crime or bad act that is shown
beyond a reasonable doubt by evidence to have been committed by the defendant
for which he could be held criminally responsible. SeeTex. Code Crim. Proc. Ann.
afi. 37.07, $ 3(a)(l) (West Supp. 2014). The testimony during the punishment
phase about which Diaz complains was relevant to sentencing because it was
character evidence. See id. Therefore, we overrule issue two.
Ineffective Assistance of Counsel
In his third issue Diaz contends that he was "denied his [c]onstitutionally
protected and guaranteed right to effective assistance of counsel." To prevail on a
claim of ineffective assistance ofcounsel, an appellant must prove two elements by
a preponderance of the evidence: (1) trial counsel's performance was deficient; and
(2) harm resulted from that deficiency sufficient to undermine confidence in the
outcome of the trial. Strickland v. Washington, 466 U.S. 668, 687 , 694 (1984); Ex
parte LaHood, 401 S.W.3d 45, 49-50 (Tex. Crim. App. 2013). An ineffective
assistance ofcounsel claim "must be 'firmly founded in the record' and'the record
must affirmatively demonstrate' the meritorious nature of the claim." Menefield v.
State,363 S.W.3d 591,592 (Tex. Crim. App.2012) (quoting Thompsonv. State,9
S.W.3d 808, 8i3-14 (Tex. Crim. App. 1999)).
21
In evaluating the effectiveness of counsel undel the first prong of strickland,
we look to the totality ofthe representation and the particular circumstances of the
case. Thompsor, 9 S.W.3d at 813. Review of counsel's representation is highly
deferential, and the reviewing court indulges a strong presumption that counsel's
conduct fell within a wide range of reasonable representation. Mallett v. State,, 65
S.W.3d 59, 63 (Tex. Crim. App. 2011).
The Texas Court of Criminal Appeals has explained that "trial counsel
should ordinarily be afforded an opportunity to explain his actions before being
denounced as ineffective." Rylander v. State., 101 S.W.3d 107,lli (Tex' Crim'
App.2003) (citingBone v. State,77 S.W.3d 828,836 (Tex. Crim' App' 2002))'
Direct appeal is usually inadequate to make an ineffectiveness claim because the
record is frequently undeveloped in this respect . Goodspeed v. State, 187 S.W.3d
390,392 (Tex. Crim. App.2005); see also Cox,389 S.W.3d 817' 819 n.11 (Tex'
Crim. App. 2012) (observing that "[a] reviewing court will rarely be in a position
on direct appeal to fairly evaluate the merits of an ineffective-assistance claim").
Without evidence of trial counsel's strategy, "an appellate court will assume a
strategic motivation and will not conclude that the challenged conduct was
deficient unless it was so outrageous no competent attorney would have engaged in
it." Ozuna v. State, 199 S.W.3d 601, 612 (Tex. App.-Corpus Christi 2006, no
22
pet.) (citing Garcia v. State,57 S.W.3d 436,440 (Tex. Crim. App' 2001)). It is not
appropriate for an appellate court to simply infer ineffective assistance of counsel.
Matav. State,226 S.w.3d 425,432 (Tex. Crim. App.2007).
Diaz contends that his trial attorney rendered ineffective assistance in both
phases of his trial, and that the failure of his attorney to "make a single objection
during the punishment phase of the trial and during the guilt/innocence phase of
trial, other than the alleged running objections made outside the presence of the
.jury and which arguably did not preserve error in any form' can in no way be
classified as 'trial strategy'." Diaz argues "countless objections" could have been
raised during the trial and were not, that Diaz's counsel failed to object to leading
questions, inflammatory statements, unfounded evidence and conclusions, and
failed to familiarize himself with the pfoper legal standards. Diaz points to no
specific record references, but he argues that the extraneous evidence of prior bad
acts as contained in his earlier issue would be a specific example.
Regarding the alleged omissions of his attorney to object to questions or
testimony, Diaz has not established the trial court judge would have committed
error in overruling the objections if they had been made. Vaughn v. State, 931
S.W.2d 564, 566 (Tex. Crim. App. 1996) (holding that "in order to argue
successfully that her trial counsel's failure to object" amounted to ineffective
23
assistance, appellant "must show that the trial judge would have committed error in
overruling such an objection"). To the extent Diaz implies that his trial counsel
should have called more witnesses in his favor, he has not established that he
would have benefited from the testimony of any other unspecified witnesses he
argues his counsel should have called to testify. "'[F]ailure to call witnesses at the
guilt-innocence and punishment stages is irrelevant absent a showing that such
witnesses were available and appellant would benefit from their testimony."' Perez
v. state,310 s.w.3d 890, 894 (Tex. Crim. App. 2010) (quoting King v. state,649
S.W.2d 42,44 (Tex. Crim. App. 1983)). Additionally, he must demonstrate that
there is a reasonable probability that the witnesses' testimony would have affected
the result of the trial. Id. we conclude that the record in this case does not
affirmatively demonstrate ineffective assistance of counsel. The record is
undeveloped and does not adequately reflect the motives behind trial counsel's
actions. We cannot simply infer that trial counsel lacked a trial strategy in failing to
lodge objections. We therefore overrule this issue.
Chillins Effect
In his fourth and final issue, Diaz argues that if the decision of the trial court
is upheld by this Court, "it will create a level of uncertainty that will have a
chilling effect on every traffic stop conducted by law enforcement officers within
24
the State of Texas." Diaz cites no legal authority for his argument. The State
argues that the official oppression statute as drafted by the Legislature avoids any
,..chilling effect, on Law Enforcement" personnel because it tells officers what
they should not do.
As already stated, a temporary detention such as a traffic stop is generally
justified when the officer has "reasonable suspicion" to believe that an individual
is violating the law. see Ford,158 S.W.3d at 492. "Reasonable suspicion" exists if
the officer has specific articulable facts that, when combined with rational
inferences from those facts, would lead him to reasonably suspect that a person has
engaged, is engaging, or soon will be engaging in criminal activity' Abney, 394
s.w.3d at 548. Our ruling today does not in any way restrict, alter, or amend the
,.reasonable suspicion" standard as applied by law enforcement personnel in the
exercise ofa lawful discharge of their duties. This case does not involve a "lawful
discharge" of ofhcial duties by an officer or public servant in making a traffic stop
,.reasonable suspicion." Rather, the jury found Diaz guilty of official
based upon
oppression. Diaz is not charged with the "lawful discharge" of his official duties in
conducting a traffrc stop, but rather with the "unlawful discharge" of his duties.
The jury determined that Diaz engaged in a detention of another person which
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violated the law and constituted "official oppression." Accordingly, we overrule
his issue.
Having overruled all of Diaz's issues, we affirm the judgment.
AFFIRMED.
LEANNE JOHNSON
Justice
Submitted on August 11,2014
Opinion Delivered December 10, 2014
Do Not Publish
Before McKeithen, C.J., Kreger and Johnson, JJ.
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