Eric Christopher Gonzalez A/K/A Eric Christobal Gonzalez v. State

NUMBER 13-13-00427-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ERIC CHRISTOPHER GONZALEZ
A/K/A ERIC CHRISTOBAL GONZALEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 107th District Court
of Cameron County, Texas.
OPINION
Before Chief Justice Valdez and Justices Rodriguez and Longoria
Opinion by Justice Longoria
By thirteen issues, appellant Eric Christopher Gonzalez a/k/a Eric Christobal
Gonzalez challenges his convictions for felony murder (Count I), aggravated assault
(Count II), evading arrest (Count III), and possession of a controlled substance
(marijuana) (Count IV). See TEX. PENAL CODE ANN. §§ 19.02(b)(3), 22.02(a), 38.04(a)
(West, Westlaw through 2013 3d C.S.); TEX. HEALTH & SAFETY CODE ANN. § 481.112
(West, Westlaw through 2013 3d C.S.). We affirm.
I. BACKGROUND
The Harlingen Police Department (HPD) learned from an anonymous phone call
that a light-skinned male driving a light blue pickup truck was buying packing materials
several times a week at a storage center. The caller believed that the frequency of the
purchases indicated that the buyer could be shipping narcotics. HPD Officer Jose Garcia
ran a check on the license plate number supplied by the caller and found an address in
Rio Hondo, Texas associated with the vehicle. Officer Garcia and several colleagues first
drove to the storage center in an unmarked car, but after finding the center closed, they
began the drive to the Rio Hondo address. While stopped at a traffic light, the officers
noticed a light blue pickup truck also waiting at the light in the lane going the opposite
direction. The police verified that the license plate number matched the one provided by
the informant, turned around, and followed the vehicle to an apartment building in San
Benito, Texas. Less than ten minutes later, appellant exited the apartment building and
entered the truck accompanied by a woman later identified as his wife. Officer Garcia
testified that appellant appeared to be hiding something under his shirt as he exited. The
police followed the truck onto the freeway and allegedly observed the truck change three
lanes without signaling, before exiting onto the frontage road, and traveling over to the
right lane without signaling.
At that point, Officer Garcia contacted the HPD gang unit to make a traffic stop of
the truck. An officer of the gang unit in a marked police car activated the lights on his car
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and attempted to pull appellant’s truck over. Officer Garcia testified that the truck “slows
a little bit like it’s going to pull over and . . . it just pulls over a little bit, and then it takes off
at a high rate of speed.” A vehicle chase ensued in which two marked police cars as well
as the unmarked car pursued appellant, with the marked cars in the lead. During the
chase, the police observed the truck drive past two stop signs without stopping. The
chase ended when the truck struck an oncoming car at the intersection of Ed Carey Road
and the Frontage Road and resulted in the death of the passenger in the vehicle, Marie
de La Luz.
The police arrested appellant and his wife and performed a search of the truck.
Officer Tim Flores’s search disclosed a .22 caliber pistol and two baggies of marijuana in
a compartment hidden in the truck’s center console. A separate group of police went to
the apartment of Francina Flores, a friend of appellant’s wife, who lived in the same
building that police earlier observed appellant and his wife exit. Flores signed a consent-
to-search form, and the police discovered “packaging for a large shipping scale, plastic
bags, gloves, cellophane wrap, [and] marijuana” in her apartment. The police also found
“Mr. Gonzalez’s wife’s I.D. in one of the bags with some marijuana.”
The State indicted appellant with felony murder in the death of the passenger of
the vehicle he struck with the predicate offense of evading arrest (Count I), aggravated
assault in the injuries sustained by the driver of the vehicle he struck (Count II), a separate
charge of evading arrest that contained the same conduct as the predicate offense
alleged in Count I (Count III), two counts of possession of a controlled substance (Counts
IV and V), and possession of a firearm by a felon (Count VI). See TEX. PENAL CODE ANN.
§§ 19.02(b)(3), 22.02(a), 38.04(a); TEX. HEALTH & SAFETY CODE ANN. § 481.112; TEX.
3
PENAL CODE ANN. § 46.04(a) (West, Westlaw through 2013 3d C.S.). On appellant’s
motion, the trial court struck Count V and severed Count VI into a separate proceeding
that is not before us. Appellant plead not guilty to Counts I - IV, and a jury returned a
verdict of guilty on all four counts. The trial court assessed punishment at fifty years’
imprisonment on Count I, twenty years’ imprisonment on Count II with an affirmative
deadly weapon finding, twenty years’ imprisonment on Count III, and two years’
imprisonment on Count IV. The trial court ordered the sentences to run concurrently.
Appellant filed a timely motion for new trial alleging that he received ineffective
assistance of counsel and cited seven different instances where he alleged that his
counsel failed to provide reasonable professional assistance.1 The trial court set the
motion for a hearing on August 26, 2013. On August 9, appellant filed a motion requesting
to be personally present at the hearing. Shortly after the State filed a response, the trial
court rescinded its order setting a hearing on the motion for new trial and denied both
motions.
II. HEARING ON MOTION FOR NEW TRIAL & APPELLANT’S RIGHT TO BE PRESENT
By his first two issues, appellant argues that the trial court erred in not holding an
evidentiary hearing on his motion for new trial and in denying his motion to be physically
1 Appellant alleged that his original trial counsel performed deficiently by failing to: (1) object to an
allegedly erroneous jury charge that did not properly restrict the culpable mental state to the “result” of
appellant’s conduct; (2) request a jury instruction on the defense of mistake of fact; (3) request an
extraneous-offense instruction in the jury charge; (4) request a mid-trial instruction regarding the same
issue; (5) preserve error by making a sufficiently specific objection to the admission of marijuana from
Flores’ apartment under Texas Rules of Evidence 404(b) and 403, see TEX. R. EVID. 403, 404(b); (6) make
a motion in limine requesting that the State or any of its witnesses be prevented from referring to the
complainants as “victims”; and (7) provide timely notice of his intent to call a mental health expert, Dr.
Tomas Gonzalez, M.D., resulting in the court’s decision to strike the expert and preventing the expert from
presenting mitigating evidence during the punishment phase of the trial.
4
present during the hearing. We will only discuss the issue of the evidentiary hearing
because it is dispositive of both issues. See TEX. R. APP. P. 47.1.
A. Standard of Review and Applicable Law
The trial court has a duty to hold an evidentiary hearing on a defendant’s motion
for new trial if the motion and accompanying affidavit raise an issue (1) that is not
determinable from the record, and (2) on which the defendant could be granted relief.
Lucero v. State, 246 S.W.3d 86, 94 (Tex. Crim. App. 2008). Even if the motion raises
matters that are not determinable from the record, to prevent “fishing expeditions,” the
motion must be supported by an affidavit that explicitly sets out the factual basis for the
claim. Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009). The affidavit does
not need to establish a prima facie case or even reflect every component to obtain relief
on the claim, but must merely reflect “reasonable grounds” for a court to hold that relief
could be granted. Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003). Where
a defendant asserts that he is entitled to a hearing on a motion for new trial raising
ineffective assistance of counsel, the motion and affidavit “must allege sufficient facts
from which a trial court could reasonably conclude both that counsel failed to act as a
reasonably competent attorney and that, but for counsel's failure, there is a reasonable
likelihood that the outcome of his trial would have been different.” Smith, 286 S.W.3d at
341 (emphasis in original).
We review the trial court’s decision on whether to hold a hearing on a defendant’s
motion for new trial for abuse of discretion. Lucero, 246 S.W.3d at 94. A trial court abuses
its discretion only when its decision lies outside the zone of reasonable disagreement.
Smith, 286 S.W.3d at 339. In this context, our review is limited to the trial court’s
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determination of whether defendant raised an issue that is not determinable from the
record and provided reasonable grounds for a court to hold that relief could be granted.
Id. The trial judge has no discretion not to hold a hearing if the defendant meets both
criteria. Id.
B. Analysis
In his motion for new trial, appellant alleged seven instances of deficient
performance by his original counsel and attached an affidavit from that counsel affirming
that none of the instances were the result of his trial strategy. Appellant argues that the
trial court abused its discretion by not holding an evidentiary hearing because the motion
and the attached affidavit: (1) raised an issue that is not determinable from the record,
and (2) demonstrated sufficient facts to put the trial court on notice that there might be
reasonable grounds to grant relief.
The State does not contest appellant’s first point, but argues that the affidavit itself
is insufficient because it does not address the prejudice prong of the Strickland analysis
for claims of ineffective assistance of counsel. The standard for a claim of ineffective
assistance of counsel requires a defendant to “demonstrate that counsel's performance
was so deficient that it fell below an objective standard of reasonableness” and to also
“show that there is a reasonable probability that the final result would have been different
but for counsel's errors.” Foley v. State, 327 S.W.3d 907, 913 (Tex. App.—Corpus Christi
2010, pet. ref'd) (citing Thompson v. State, 9 S.W.3d 808, 812–13 (Tex. Crim. App.
1999)).
In this case, it is true that trial counsel filed an affidavit in which he asserted that
he did not have a trial strategy in all of the seven instances that appellant cited in the
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motion for new trial. However, the affidavit does not assert that the behavior was
constitutionally deficient, only that it was not the result of a trial strategy. The affidavit
also does not assert or mention prejudice at all regarding the first six issues. With regard
to the exclusion of the punishment witness, the affidavit states: “I believe that Dr.
Gonzalez would have provided evidence in mitigation of punishment that would have
benefited [appellant].”2 The State argues that the motion and affidavit are insufficient
because they do not explain how the allegedly deficient performance could have affected
the result of the trial, and the statement regarding the testimony Dr. Gonzalez would have
given is conclusory. Appellant responds that the State’s interpretation of the motion and
affidavit is “myopic” because the allegedly deficient representation could conceivably
have resulted in prejudice and that was the only showing the law requires him to make.
We, however, agree with the State.
The affidavit supporting appellant’s motion was not required to make even a prima
facie case for ineffective assistance of counsel, but it was required to demonstrate
reasonable grounds to show that appellant could establish both prongs of the Strickland
analysis. Smith, 286 S.W.3d at 341–42. Appellant characterizes the State’s response as
quibbling over the specific phrases used in the affidavit and asserts that he was not
required to use magic words to establish reasonable grounds for the prejudice prong. We
agree that no “magic words” such as “prejudice” are required, but case law is consistent
that the motion must also put the trial court on notice that there are “reasonable grounds”
to believe that the allegedly deficient representation could have altered the result of the
trial. See id. at 342 (“In addressing the prejudice prong, the appellant's motion merely
2 Counsel’s affidavit also explains why he believed that he successfully preserved error in the
admission of evidence from Francina Flores’ apartment, an issue that we discuss below.
7
alleged that ‘the information about which he would have testified may well have resulted
in a different outcome.’ He made no attempt to explain how this might be so.”); Buerger
v. State, 60 S.W.3d 358, 363 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd)
(“[Appellant] failed to explain or demonstrate how these actions [of trial counsel], if true,
were deficient or how they harmed him.”); see also King v. State, 29 S.W.3d 556, 569
(Tex. Crim. App. 2000) (en banc) (finding that a hearing was not warranted on a motion
that alleged, among other things, that a witness was threatened by the State because the
“motion and affidavit explain neither who threatened [the witness] nor what [the witness’s]
testimony would have been”).
Appellant relies on a series of cases which he correctly states found reasonable
grounds where the motion and affidavit did not directly allege prejudice. However, the
motion and affidavit in those cases nevertheless demonstrated how the allegedly deficient
conduct could have affected the result of the trial. In Barnett v. State, for example, Barnett
alleged that his counsel was ineffective for failing to call a particular witness to testify
despite knowing she was available. 338 S.W.3d 680, 685 (Tex. App.—Texarkana 2011,
pet. ref’d) (per curiam). Barnett was able to demonstrate, via the would-be witness’s
original statement to police, that the witness’s testimony would have contradicted the
testimony of other witnesses that the defendant used a knife during an assault. Id.
Barnett also alleged that his trial counsel failed to investigate the possibility of introducing
mitigating evidence at the punishment stage and specified the evidence: his long history
of mental illness. Id. at 686–87.3 In this case, by contrast, appellant has not attempted
3 The other cases appellant relies on are similar to Barnett:
In Rodriguez v. State, the defendant alleged that her counsel was deficient for failing to call a
specific medical expert as a witness and described how that expert’s testimony would have contradicted
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to show reasonable grounds that the six of the seven alleged acts of deficient
representation, if true, could have affected the result of the trial. See Smith, 286 S.W.3d
at 342; Buerger, 60 S.W.3d at 363; see also King, 29 S.W.3d at 569. For the seventh
instance, the affidavit only states that trial counsel believed the expert “would have
provided evidence in mitigation of punishment that would have benefited” appellant, but
this is the sort of conclusory statement regarding prejudice that courts have rejected as
insufficient to put the trial court on notice that there were reasonable grounds that relief
could be granted. See Smith, 286 S.W.3d at 342.
In sum, we hold that affidavit of appellant’s trial counsel was insufficient to put the
trial court on notice that there were reasonable grounds to believe that relief could be
granted. See id.; Cooks v. State, 240 S.W.3d 906, 912 (Tex. Crim. App. 2007) (finding
that deprivation of counsel during the thirty-day period after conviction was harmless
because allegations in the motion to abate that “trial counsel failed to call a named
material witness in his defense and failed to conduct the promised investigation” were
conclusory); Buerger, 60 S.W.3d at 363; see also King, 29 S.W.3d at 569. We must
emphasize that we are not holding that a motion for new trial and the accompanying
affidavit must use magic language, but only that they must provide reasonable grounds
the State’s theory of causation in her trial for the murder of her infant child. 82 S.W.3d 1, 3 (Tex. App.—
San Antonio 2001, pet. dism’d).
Similarly, in Mendoza v. State, the defendant alleged that she suffered prejudice from trial counsel’s
failure to object to the State’s “wide-open cross-examination” that resulted in her confessing to the offense
in open court. 935 S.W.2d 501, 503 (Tex. App.—Waco 1996, pet. ref’d). The only question was counsel’s
trial strategy or lack thereof in failing to object.
In Alvarado, an unpublished case, the defendant alleged his counsel was ineffective for not
conducting an independent investigation and was able to demonstrate some of the evidence his counsel
would have discovered if counsel had investigated. See Alvarado v. State, No. 04-03-00289-CR, 2004 WL
1102764, at *7 (Tex. App.—San Antonio May 19, 2004, no pet.) (mem. op., not designated for publication).
9
to put the trial court on notice that appellant could establish both prongs of the Strickland
test. See Smith, 286 S.W.3d at 342. We overrule appellant’s first issue.
We do not need to address appellant’s second issue, regarding whether he was
entitled to be present at the hearing, because we have concluded that the court did not
abuse its discretion in not holding an evidentiary hearing. See Jackson v. State, 379
S.W.2d 896, 896 (Tex. Crim. App. 1964) (setting out that reversal is required only if the
defendant desires to be present at the hearing, a hearing occurred, and the appellant was
denied the right to be present). We accordingly do not reach the merits of appellant’s
second issue. See TEX. R. APP. P. 47.1.
III. MOTION TO SUPPRESS
By his third issue, appellant argues that the trial court erred in denying his oral pre-
trial motion to suppress the traffic stop of appellant as unsupported by reasonable
suspicion.4
A. Standard of Review and Applicable Law
We review a trial court’s ruling on a motion to suppress under a bifurcated standard
of review. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). We give great
deference to the trial court’s findings of fact but we review de novo the trial court’s
application of the law of search and seizure to the facts of the case. Carmouche v. State,
10 S.W.3d 323, 328 (Tex. Crim. App. 2000). We will affirm the trial court’s decision if it
4Appellant filed two motions to suppress, one written and one oral. The written motion to suppress
asked the court to suppress post-arrest statements appellant made to law enforcement officers. Appellant’s
counsel told the trial court that he was under the mistaken impression that he filed a second motion seeking
suppression of the stop itself and all evidence the State obtained for it. Appellant never filed the second
motion, but the trial court judge and the State agreed to proceed on both motions in a single pre-trial
suppression hearing. The trial court judge explicitly denied both motions at the end of the hearing. On
appeal, appellant addresses only the matters he raised in the oral motion.
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has reasonable support in the record and is correct under any theory of law applicable to
the case. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013).
Under the Fourth Amendment, police officers have reasonable suspicion to detain
a citizen when they are aware of “specific, articulable facts which, when combined with
rational inferences from those facts, would lead the officer to conclude that a particular
person actually is, has been, or soon will be engaged in criminal activity.” Crain v. State,
315 S.W.3d 43, 52 (Tex. Crim. App. 2010). These facts must “amount to more than a
mere inarticulate hunch, suspicion, or good faith suspicion that a crime was in progress.”
Id. (citation and quotation marks omitted). A traffic stop is a detention for Fourth
Amendment purposes. Vasquez v. State, 324 S.W.3d 912, 919 (Tex. App.—Houston
[14th Dist.] 2010, pet. ref'd) (citing Davis v. State, 947 S.W.2d 240, 243–45 (Tex. Crim.
App. 1997)). In the context of a traffic stop, an officer may initiate a stop if the officer has
reasonable grounds for suspecting that a driver has committed a traffic violation. Id.
B. Discussion
At trial, the State offered three justifications as a reasonable basis for detaining
appellant through a traffic stop: (1) the officers allegedly witnessed appellant perform an
unsafe lane change; (2) the officers allegedly witnessed appellant fail to use a turn signal;
and (3) the windows on appellant’s truck were illegally tinted.5 See TEX. TRANSP. CODE
ANN. §§ 545.060(a), 545.104(a), 547.613 (West, Westlaw through 2013 3d C.S.).
Appellant contests all of these justifications, but we need not resolve this disagreement
over reasonable suspicion because we conclude that appellant was not detained until the
police arrested him after the crash. A seizure under the Fourth Amendment “entails the
5 The State abandoned the third justification and does not raise it on appeal.
11
use of physical force or submission to authority.” Johnson v. State, 912 S.W.2d 227, 234
(Tex. Crim. App. 1995) (en banc). However, a show of authority that does not involve the
application of physical force and to which a suspect does not yield is not a seizure for
purposes of the Fourth Amendment. Id.; see Blount v. State, 965 S.W.2d 53, 55 (Tex.
App.—Houston [1st Dist.] 1998, pet. ref'd). Here, the officers in the marked unit contacted
by Officer Garcia activated their emergency lights to begin a stop which, in these
circumstances, was a show of authority for Fourth Amendment purposes. See
Hernandez v. State, 963 S.W.2d 921, 924 (Tex. App.—San Antonio 1998, pet. ref'd).
Even though appellant briefly slowed down when the officers first activated the
emergency lights in the marked police cars, he did not yield to the show of authority and
instead began a high-speed chase. In these circumstances, the seizure was not complete
until the police physically limited appellant’s movements by arresting him after the crash.
See id. at 924–25 (holding that a defendant was not seized when he threw cocaine out of
his car after the officer activated his emergency lights because the defendant gave no
sign that he submitted to the show of authority until after he discarded the cocaine); see
also Villarreal v. State, No. 13-10-00605-CR, 2011 WL 6303252, at *3 (Tex. App.—
Corpus Christi Dec. 15, 2011, pet. ref'd) (mem. op., not designated for publication)
(holding that an officer did not seize a defendant when he activated his emergency lights
but the defendant instead “led the police on a high speed chase”). Appellant does not
challenge the validity of his arrest following the crash.6 We overrule appellant’s third
issue.
6
We note that the uncontested evidence also shows that the officers observed appellant drive past
two stop signs without stopping during the chase, giving the officers justification to detain him even before
the chase ended with a crash. See Vasquez v. State, 324 S.W.3d 912, 920 (Tex. App.—Houston [14th
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IV. DOUBLE JEOPARDY
By his fourth issue, appellant argues that the trial court erred in denying his motion
for a directed verdict on the grounds that convicting him for Count I (Felony Murder) and
Count III (evading arrest) violated constitutional protections against double jeopardy
because Count III is based on the same facts as the predicate offense in Count I.
A. Standard of Review and Applicable Law
The Double Jeopardy Clause provides three distinct protections: “First, protection
against a second prosecution for the same offense after acquittal. Second, protection
against a second prosecution for the same offense after conviction. Third, protection
against multiple punishments for the same offense.” Bigon v. State, 252 S.W.3d 360, 369
(Tex. Crim. App. 2008). Appellant’s argument involves a claim under the multiple
punishments protection, which can arise in two separate contexts: if one offense is a
lesser-included offense of the other, or if the two offenses are contained in separate
statutory provisions but the Legislature has made clear it only intended to impose one
punishment. Littrell v. State, 271 S.W.3d 273, 276 (Tex. Crim. App. 2008); Langs v. State,
183 S.W.3d 680, 685 (Tex. Crim. App. 2006).
As our starting point, we analyze whether the two offenses are the same under the
Blockburger test. Bigon, 252 S.W.3d at 370. “Under the Blockburger test, two offenses
are not the same if one requires proof of an element that the other does not.” Id.; see
Langs, 183 S.W.3d at 685. Under the Texas Court of Criminal Appeals’ cognate-
pleadings approach, a defendant may still make a double jeopardy claim if the indictment
alleges the same “facts required” for both offenses. Bigon, 252 S.W.3d at 370. We make
Dist.] 2010, pet. ref'd) (“It is well settled that a traffic violation committed in an officer's presence authorizes
an initial stop.” (quoting Armitage v. State, 637 S.W.2d 936, 939 (Tex. Crim. App. 1982)).
13
that determination as a matter of state law by comparing the elements of the greater and
lesser offenses as alleged in the indictment. Littrell, 271 S.W.3d at 276 (citing Hall v.
State, 225 S.W.3d 524, 525 (Tex. Crim. App. 2007)). If one offense is a lesser-included
offense of the other under this analysis, then we presume that the offenses are the “same”
for purposes of double jeopardy and that the accused may not be punished for both. Id.
at 276. If the two offenses are the same for these purposes, we must still determine
whether the legislature intended to allow courts to punish the same conduct under both
offenses. Bigon, 252 S.W.3d at 371; Littrell, 271 S.W.3d at 276 (observing that the
question is whether the legislature “has clearly expressed a contrary intention that the
accused should in fact be punished for both the greater and the lesser-included
offenses”); Garza v. State, 213 S.W.3d 338, 352 (Tex. Crim. App. 2007).
B. Analysis
Appellant argues that this case is identical to Littrell, where the Texas Court of
Criminal Appeals concluded that the State violated the protection against multiple
punishments by punishing the defendant for a count of felony murder, with the predicate
felony of aggravated robbery, and a separate count of aggravated robbery that contained
the same facts as the predicate felony alleged in the first count. 271 S.W.3d at 276–77.
The Littrell Court agreed that the two offenses were the same for these purposes because
for the State to prove the separate count of aggravated robbery, “the State need prove
no additional fact that is not already contained” in the felony murder count. Id. at 277.
Appellant argues that it is the same in this case, and we agree to the extent that the two
offenses are the same for multiple-punishment purposes. In order to prove felony murder
as alleged in Count I, the State needed to prove the evading-arrest offense in Count III
14
plus additional facts, but to prove the evading-arrest offense in Count III the State does
not need to prove any additional facts not already contained in Count I. Compare TEX.
PENAL CODE ANN. § 19.04(b)(3) (felony murder) with id. § 38.04(a) (evading arrest); see
Littrell, 271 S.W.3d at 277. Even though the two offenses are not the same under
Blockburger because Count I requires proof of an element Count III does not, we agree
with appellant that Count III is a lesser-included offense of Count I. See Littrell, 271
S.W.3d at 277. The two counts are thus the “same offense” for purposes of the protection
against multiple punishments. See id.
We now turn to question of whether the Legislature has clearly indicated that
appellant should nevertheless be punished for both offenses. Id. at 278; see Bigon, 252
S.W.3d at 371 (holding that the inquiry in the multiple punishments-protection context
“ultimately is whether the legislature intended to allow the same conduct to be punished
under both of the offenses”). The Texas Court of Criminal Appeals did not find any such
legislative intent in Littrell because there was nothing in the language of the felony murder
statute or the aggravated robbery statute to indicate that the Legislature intended to
authorize punishment under both statutes. Littrell, 271 S.W.3d at 278. It is here that this
case diverges from Littrell.
The Littrell Court pointed to section 22.04(h) of the penal code as an example of
the language the Legislature employs when it intends to authorize multiple punishments.
Id. Section 22.04(h) provides: “A person who is subject to prosecution under both this
section and another section of this code may be prosecuted under either or both sections.”
Id. (citing TEX. PENAL CODE ANN. § 22.04(h) (West, Westlaw through 2013 3d C.S.)). The
State argues that the Legislature expressed its intent to authorize multiple punishments
15
in the evading arrest statute by using similar language: “A person who is subject to
prosecution under both this section and another law may be prosecuted under either or
both this section and the other law.” TEX. PENAL CODE ANN. § 38.04(d) (West, Westlaw
through 2013 3d C.S.). This is an issue of first impression for the evading-arrest statute,
but the language in section 38.04(d) is not materially different from the language in section
22.04(h). We agree that section 38.04(d) indicates legislative intent to allow multiple
punishments under the evading arrest statute. See Littrell, 271 S.W.3d at 278; Ex parte
Pool, 71 S.W.3d 462, 468 (Tex. App.—Tyler 2002, no pet.) (reaching the same conclusion
with similar language in section 25.07 of the Texas Penal Code). Therefore, we conclude
that appellant’s double-jeopardy rights were not violated, and we overrule appellant’s
fourth issue.
V. ISSUES FIVE AND SIX: JURY INSTRUCTIONS
By his fifth and sixth issues, appellant argues that the trial court erred in denying
his requested jury instructions on: (1) Francina Flores’ consent to search his apartment;
and (2) the legality of the search of the vehicle that revealed the baggies of marijuana.
A. Standard of Review and Applicable Law
Generally, a trial court has a duty to submit a defensive issue to the jury if evidence
from any source raises the issue, and the defendant properly requests a jury instruction
on that issue. Mendoza v. State, 88 S.W.3d 236, 239 (Tex. Crim. App. 2002) (en banc).
If the defendant raises an issue of fact regarding how evidence is obtained and requests
an instruction, the trial court must instruct the jury to disregard any illegally-obtained
evidence. Id.; see TEX. CODE CRIM. PROC art. 38.23(a) (West, Westlaw through 2013 3d
C.S.). The evidence raising the issue of fact “may be strong, weak, contradicted,
16
unimpeached, or unbelievable.” Mendoza, 88 S.W.3d at 239 (quotation marks omitted).
The defendant must show three elements to merit an article 38.23(a) jury instruction: (1)
the jury heard evidence raising an issue of fact; (2) the evidence on that fact is
affirmatively contested; and (3) the contested factual issue is material to the lawfulness
of the challenged conduct in obtaining the evidence. Madden v. State, 242 S.W.3d 504,
510 (Tex. Crim. App. 2007). However, if there is no disputed issue of material fact, the
trial judge alone determines the legality of the conduct as a question of law. Id. at 511.
B. Discussion
1. Search of Flores’ Apartment
By his fifth issue, appellant argues that he was entitled to a jury instruction on
whether Francina Flores freely gave consent to search her apartment. Flores testified on
cross-examination that she was “pretty much forced to” sign the consent form because
an HPD officer allegedly threatened to have Child Protective Services remove Flores’s
children from her custody if she did not. Appellant argues that Flores’s testimony raised
an issue of material fact regarding whether Flores freely gave consent to search. We
must first consider the State’s argument, which it makes for the first time on appeal, that
appellant lacked standing to contest the validity of the search. See Kothe v. State, 152
S.W.3d 54, 59–60 (Tex. Crim. App. 2004) (standing is a question of law that we review
de novo and which may be raised by the State for the first time on appeal).
The Texas Court of Criminal Appeals has explained that the right to be free from
unreasonable searches and seizures is a personal right. State v. Betts, 397 S.W.3d 198,
203 (Tex. Crim. App. 2013) (citing Rakas v. Illinois, 439 U.S. 128, 139 (1978)). An
accused has standing to challenge the legality of a search or seizure only if he personally
17
had a “legitimate expectation of privacy in the place invaded.”7 To establish a legitimate
expectation of privacy, a defendant must show both that he “had a subjective expectation
of privacy in the place invaded and that society is prepared to recognize that expectation
of privacy as objectively reasonable.” Id. We consider the following non-exclusive list of
factors in making this determination:
(1) whether the accused had a property or possessory interest in the place
invaded; (2) whether he was legitimately in the place invaded; (3) whether
he had complete dominion or control and the right to exclude others; (4)
whether, before the intrusion, he took normal precautions customarily taken
by those seeking privacy; (5) whether he put the place to some private use;
and (6) whether his claim of privacy is consistent with historical notions of
privacy.
Id. at 203–04 (citing Granados v. State, 85 S.W.3d 217, 223 (Tex. Crim. App. 2002)). No
single factor is dispositive. Id. In Betts, the Texas Court of Criminal Appeals determined
that a defendant charged with animal cruelty had standing to contest a search that
revealed dogs that appellant kept in the backyard of a house owned by his aunt. Id. at
204. The defendant did not have any ownership interest in the property and did not live
there, but had explicit permission from his aunt to keep the dogs in the backyard and to
enter the premises on a daily basis to feed and water them. Id. The Texas Court of
Criminal Appeals recognized that appellant had no ownership interest in the property, but
held that ownership “is just one factor to consider and not a requirement for a person to
have standing to challenge improper police actions.” Id. The Court found that appellant
did have standing to contest the search because the dogs were his personal property, he
7 Put another way, a defendant seeking suppression “must prove that he was a ‘victim’ of the
unlawful search or seizure. He has no standing to complain about the invasion of someone else's personal
rights.” Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004).
18
had daily right of access, and he kept the dogs in permanent structures in the backyard.
Id. at 205.
Here, appellant agrees with the State that he had no ownership interest in the
apartment, but argues that he obviously had a subjective expectation of privacy in the
apartment because he would not have opted to store the marijuana there otherwise.
Appellant also argues that the expectation of privacy was objectively reasonable because
Flores “clearly permitted him the rights to ingress and egress” and consented to appellant
storing his marijuana in the apartment. Appellant also took steps to keep the marijuana
private by storing it in an opaque bag. We disagree: the record does not indicate that
appellant had a reasonable expectation of privacy in Flores’ apartment. Appellant argues
that Flores permitted “him the right of ingress and egress,” but the State specifically asked
Flores if appellant and his wife had the “freedom to walk in and out of your apartment,”
and Flores answered: “No, they didn’t. I answered the door [on the day of the chase] but
went back to bed.” The only private use to which appellant put the apartment was storing
the marijuana. Finally, it is uncontested that appellant did not have a possessory interest
over the apartment. See id. at 203–04.
Based on all of these factors, we conclude that appellant has not established that
he had standing to contest the validity of Flores’ consent to search. See id.; see also
Villarreal v. State, 935 S.W.2d 134, 139 (Tex. Crim. App. 1996) (en banc) (concluding
that a defendant who spent “one or two hours” in a house “in order to arrange a business
transaction,” and then returned later to avoid arrest, had no standing to contest police
entry into the residence). He was therefore not entitled to a jury instruction to that effect.
We overrule appellant’s fifth issue.
19
2. Search of the Vehicle
Appellant next argues that there is a material fact question about the legality of the
search of his vehicle that revealed the compartment with the baggies and the firearm.
Appellant asserts that the issue arises from an alleged contradiction between Officer Tim
Flores’s testimony at the pre-trial suppression hearing and during the trial on the merits
regarding how he discovered the firearm and marijuana. At the suppression hearing,
Officer Flores testified that he entered the vehicle from the driver’s side and when he
leaned on the center console of the car, the “insert” covering the hidden compartment slid
off in his hand. At the trial on the merits, Officer Flores viewed a video recording of the
search which showed him entering through the passenger compartment and admitted
that his pre-trial testimony was mistaken on that point. However, Officer Flores
consistently reiterated the remainder of his testimony from the suppression hearing,
despite cross-examination by appellant regarding how the insert could have come loose
when it was set several inches deep into the console. Appellant also questioned Officer
Flores regarding how he was able to pull up the insert when it was so well secured with
“snaps” that it would require tools to pull up and that the snaps in appellant’s truck were
broken.
The State responds that both of the alleged conflicts in his testimony are immaterial
because appellant does not explain why the side on which Flores entered the vehicle is
relevant, and Officer Flores never departed from his testimony that the center console
“easily opened” during the search. We agree with the State. Even if we agreed both that
Officer Flores contradicted his testimony at the suppression hearing and that he would
have needed tools to pull up the insert, appellant does not explain the significance of
20
either fact to the legality of the search. Appellant’s brief also does not cite to any authority
(beyond authority on an article 38.23 jury instruction in general) that might explain his
argument in this respect. See Madden, 242 S.W.3d at 511 (holding that the disputed fact
at issue “must be an essential one in deciding the lawfulness of the challenged conduct”).
Appellant’s brief must “must contain a clear and concise argument for the contentions
made, with appropriate citations to authorities and to the record.” TEX. R. APP. P. 38.1(i);
see Kuykendall v. State, 335 S.W.3d 429, 436 (Tex. App.—Beaumont 2011, pet. ref'd)
(“Given the lack of any discussion of law or citation to authorities in appellant's brief . . .
that argument is inadequately briefed and is therefore considered waived.”). As such,
appellant has not demonstrated that he was entitled to a jury instruction on this matter.
Accordingly, we overrule appellant’s sixth issue.
VI. ISSUES SEVEN THROUGH TWELVE: ADMISSION OF EVIDENCE
By his seventh through twelfth issues, which appellant discusses together,
appellant argues that the trial court erred in admitting the marijuana found in Francina
Flores’ apartment, as well as police photographs of it, because the evidence was
inadmissible under rules of evidence 401, 403, and 404(b). See TEX. R. EVID. 401, 403,
404(b). The State responds that: (1) Count IV actually referred to the marijuana in both
the truck and the apartment, or (2) the evidence from the apartment was properly admitted
as same transaction contextual evidence for Count IV. We will address appellant’s
arguments in turn.
A. Standard of Review and Applicable Law
We review a trial court judge’s decision on whether evidence is admissible for
abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). We
21
will not reverse so long as we find the judge’s decision lies within the zone of reasonable
disagreement. Id. We will uphold the ruling if it is correct under any applicable theory of
law, even if the trial court relied on an incorrect reason for reaching its decision. De La
Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
In Texas, relevant evidence is admissible unless excluded by Constitution, statute,
or rule. TEX. R. EVID. 402. Despite any relevancy it might have, “evidence of other crimes,
wrongs, or acts is not admissible to prove a person's character and/or to show that the
person acted in conformity with that character.” TEX. R. EVID. 404(b). The purpose of this
rule is to ensure that a defendant is tried only for the charged offense and not for any
criminal propensities he might possess. Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim.
App. 2003). However, evidence of extraneous offenses may be admissible for purposes
unrelated to proving criminal propensity, “such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” Berry v. State,
233 S.W.3d 847, 858 (Tex. Crim. App. 2007) (citing TEX. R. EVID. 404(b)). As part of this
exception, same transaction contextual evidence may be admissible in circumstances
“where several crimes are intermixed, or blended with one another, or connected so that
they form an indivisible criminal transaction, and full proof by testimony . . . of any one of
them cannot be given without showing the others.” Wyatt v. State, 23 S.W.3d 18, 25
(Tex. Crim. App. 2000); see Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011);
Trevino v. State, 228 S.W.3d 729, 734 (Tex. App.—Corpus Christi 2006, pet. ref'd)
(observing that “an offense is not tried in a vacuum”). But same transaction contextual
evidence is admissible only when the charged offense “would make little or no sense”
without also bringing in that evidence, and it is admissible only to the degree necessary
22
for the jury to understand the charged offense. Devoe, 354 S.W.3d at 469; Wyatt, 23
S.W.3d at 25.
B. Analysis
1. The Reach of Count IV
The State first asserts that the marijuana police found in Flores’ apartment was
admissible because Count IV actually encompassed both the marijuana found in the
apartment and the marijuana found in appellant’s truck. We disagree.
The State originally charged appellant with two counts of possession of marijuana,
Counts IV and V. Both counts were identically worded, including in the amount of
marijuana appellant allegedly possessed. The State successfully moved to amend Count
IV to include the county in which it allegedly took place but did not amend or seek to
amend Count V. Appellant filed a motion in limine covering extraneous offenses and
argued that the two counts referred to the same set of facts and should be brought
together. The State responded: “Count IV is dealing with the marijuana in the car; and
Count V is dealing with the marijuana at the house, at the apartment.” The trial court
judge granted “the motion in limine as to the marijuana at the apartment.” Appellant
immediately moved to strike Count V on the grounds that it was otherwise identical to
Count IV. Appellant asserted that the State impliedly admitted that the two charges were
identical because the State did not move to amend Count V when it amended the rest of
the indictment. The trial court granted appellant’s motion and struck Count V. Appellant’s
trial counsel asked the judge if he could now “assume that Count IV is dealing with the
drugs that we found in the vehicle; is that correct?” The trial judge responded: “As far as
I can interpret it, yes.” The State did not contest the trial court’s answer, but responded:
23
“the marijuana that came – that were found in the vehicle, the State’s contention is that
that came from the apartment. And I wish to bring in evidence to that effect. I will
approach the bench before I bring in that evidence, but that’s my intention.” We interpret
the State as meaning that it intended to introduce the marijuana from the apartment
because it was relevant to appellant’s guilt on possession of marijuana from the truck. In
other words, the State continued to assert that the two counts were separate.
During the trial on the merits, when the State was about to introduce the marijuana
found in the apartment, appellant’s trial counsel objected on the ground of relevancy,
among others, because appellant was “not being charged with” possessing that
marijuana. We interpret this to mean that appellant now took the position that Count IV
and Count V were not duplicative but referred to separate units of marijuana. The court
overruled appellant’s objection.
On appeal, the State now asserts:
[t]he facts as presented to the jury reveal that on the day in question,
Appellant was guilty not of two separate incidents of possession of
marijuana; but rather, he was guilty of a single continuing offense, which
encompassed the marijuana in his truck, as well as the marijuana in the
apartment.
However, the State cites to no authority supporting its argument that Count IV
encompassed the marijuana in both places, we can find none, and this position
contradicts the position it consistently took in the trial court. See Tong v. State, 25 S.W.3d
707, 710 (Tex. Crim. App. 2000) (en banc) (holding that if a party makes a novel argument
“for which there is no authority directly on point” the party “must ground his contention in
analogous case law or provide the Court with the relevant jurisprudential framework for
24
evaluating his claim”). We are not persuaded by this portion of the State’s argument.
See id.
2. Same Transaction Evidence
The State next argues that the evidence is appropriate same transaction
contextual evidence. The State’s argument is that the search of Francina Flores’s
apartment revealed that appellant was using the apartment as his “stash house” where
he kept marijuana and supplies to distribute it, and the “the jury was entitled to hear this
contextual evidence in order to properly evaluate all the evidence.” We are not convinced
by this argument because the State ignores that same transaction contextual evidence
“is admissible only when the offense would make little or no sense without also bringing
in the same transaction evidence.” McDonald v. State, 179 S.W.3d 571, 577 (Tex. Crim.
App. 2005) (quotation marks and footnote omitted); see Wyatt, 23 S.W.3d at 25. The
State does not explain why not knowing about the evidence police found in Flores’
apartment would impair the jury’s understanding of the offense of possession of the
marijuana in the automobile, and we do not see why the jury would need it to fully
understand Count IV. We conclude that the evidence from Flores’ apartment is not same
transaction contextual evidence and that the trial court abused its discretion in admitting
it. See McDonald, 179 S.W.3d at 577; Wyatt, 23 S.W.3d at 25; Devoe, 354 S.W.3d at
469; Carter v. State, 145 S.W.3d 702, 707–08 (Tex. App.—Dallas 2004, pet. ref'd)
(holding that when police arrested appellant for a previous cocaine sale to an undercover
officer, cocaine seized in the house at the time of the arrest was not same transaction
contextual evidence of the previous sale).
3. Harm
25
We must now analyze the record for harm.8 When evidence is erroneously
admitted, and the error is not constitutional, we apply the harmless error standard of Rule
44.2(b) where we disregard all errors that did not affect appellant’s substantial rights. See
TEX. R. APP. P. 44.2(b); VanNortrick v. State, 227 S.W.3d 706, 708 (Tex. Crim. App.
2007). We “must disregard the error if the court, after examining the record as a whole,
has fair assurance that the error did not influence the jury, or had but a slight effect.”
Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim. App. 2003) (quotations marks omitted).
The Texas Court of Criminal Appeals instructs us to consider factors such as testimony,
physical evidence, the jury charge, the theories of the State and defense, closing
arguments, voir dire, whether the erroneously-admitted evidence was cumulative,
whether the evidence was elicited from an expert, and whether the State emphasized the
evidence. Id.; see Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). Neither
party has the burden to establish or refute harm. Johnson v. State, 43 S.W.3d 1, 4 (Tex.
Crim. App. 2001). Instead, “it is the duty of the reviewing court to assess harm from the
context of the error.” Id.
8 Appellant also objected to the admission of the evidence from the apartment under Rules of
Evidence 401 and 403 and renewed those objections on appeal. See TEX. R. EVID. 401, 403. The State
did not respond to either issue, and appellant argues that we should treat the State’s failure to respond as
a confession of error. The State’s failure to respond, although certainly a factor in our analysis, does not
alter this Court’s duty to conduct an independent examination of the record for harm. See Johnson v. State,
43 S.W.3d 1, 4 (Tex. Crim. App. 2001). This remains true even if the State filed no brief at all. See Siverand
v. State, 89 S.W.3d 216, 221 (Tex. App.—Corpus Christi 2002, no pet.); see also Saldano v. State, 70
S.W.3d 873, 884 (Tex. Crim. App. 2002) (en banc) (“When presented with confessions of error, we have
agreed frequently that . . . error was presented. But we have always done so after an independent
examination of the merits of the claim of error.”).
The case appellant cites for the opposite proposition, Schaffer v. State, 777 S.W.2d 111, 115 (Tex.
Crim. App. 1989) (en banc), does not actually support his argument. In that case, the Texas Court of
Criminal Appeals noted that the State did not argue the error was harmless or challenge the court of
appeals’ decision to the contrary. Id. The Schaffer Court considered the State’s failure to respond as a
factor, but it also independently analyzed the record for harm. Id.
26
Appellant argues that admitting the evidence from Flores’ apartment affected his
substantial rights because one of the reasons that State gave for the jury to return a guilty
verdict on Count IV was the marijuana from the apartment showed that appellant was a
“drug dealer.” Appellant asserts that this made the State’s case “significantly more
persuasive and Appellant’s case significantly less so.” We disagree.
We have thoroughly reviewed the record to determine the magnitude of the harm
resulting from the erroneous admission of evidence. We agree that the evidence played
a large part in the State’s case. Appellant’s trial counsel pursued a strategy of calling into
question appellant’s connection to the marijuana found in the vehicle: he vigorously
cross-examined the officer who testified appellant was hiding something under his shirt
when he left the apartment and highlighted the lack of fingerprint evidence on the baggies
of marijuana found in the car. The State used the evidence from the apartment, including
the identification found in the bag with the marijuana, to counteract this strategy and
connect the marijuana in the car with appellant. Nevertheless, we conclude that the
admission of this evidence was harmless error given that the extent of the other evidence
for appellant’s guilt on Count IV. First, the State found the marijuana hidden in appellant’s
truck. Next, an officer observed appellant exit the apartment building appearing to hide
something under his shirt. Finally, appellant chose to lead police on a high-speech chase
instead of submitting to the traffic stop. See Bigby v. State, 892 S.W.2d 864, 883 (Tex.
Crim. App. 1994) (“Evidence of flight or escape is admissible as a circumstance from
which an inference of guilt may be drawn.”); see also Lockett v. State, No. 07-11-0212-
CR, 2012 WL 1191636, at *1 (Tex. App.—Amarillo Apr. 10, 2012, pet. ref'd) (per curiam)
(mem. op., not designated for publication) (finding that the defendant’s decision to flee
27
from a traffic stop initiated “for failing to have a front license plate” was “a significant factor
supporting [the defendant’s] guilt” for possession of cocaine). Based on all of the
foregoing, we have “fair assurance” that the evidence from Flores’s apartment did not
affect the verdict on Count IV or had only a slight effect. See Bagheri, 119 S.W.3d at 763.
We overrule appellant’s seventh through twelfth issues.
VII. ISSUE THIRTEEN: INEFFECTIVE ASSISTANCE OF COUNSEL
By his thirteenth issue, appellant argues that he received infective assistance of
counsel at the guilt-innocence stage because his trial counsel: (1) failed to object when
the jury charge “did not restrict any language dealing with Appellant’s culpable mental
state to the ‘result’ of his conduct”; (2) did not request a jury charge on the defense of
mistake of fact; and (3) did not file a motion in limine preventing the State or the witnesses
from referring to Marie de La Luz or Orsornio as “victims.” The affidavit of appellant’s trial
counsel, which we discussed in our analysis of appellant’s first issue, also asserts that he
did not have a trial strategy for failing to do these three things.
A. Standard of Review and Applicable Law
We evaluate claims of ineffective assistance of counsel under the strict standards
set forth by the United States Supreme Court in Strickland v. Washington. 466 U.S. 668,
687 (1984); see Foley, 327 S.W.3d at 913. Under the Strickland standard, appellant must
show by a preponderance of evidence that: (1) trial counsel’s representation fell below
an objective standard of reasonableness; and (2) there is a reasonable probability that
the result of the proceeding would have been different but for the attorney’s deficient
performance. Strickland, 466 U.S. at 687. We may address either prong first, and if an
appellant fails to prove one prong of the test, we need not address the other prong. Id.
28
When evaluating a claim of ineffective assistance, we look at the totality of the
representation and the particular circumstances of the case. Thompson, 9 S.W.3d at
813. Our review is highly deferential to trial counsel, avoiding the deleterious effects of
hindsight, and we strongly presume that the assistance counsel provided was within the
wide range of reasonable professional assistance. Id. Allegations of ineffectiveness must
therefore be “firmly founded in the record.” Id.
B. Discussion
Appellant’s first argument boils down to this: the State was required to prove that
appellant caused Marie de La Luz’s death with a particular culpable mental state, and
appellant’s trial counsel was ineffective for failing to hold the State to that requirement.
We disagree because the Texas Court of Criminal Appeals has affirmatively held that the
felony murder statute “plainly dispenses with a culpable mental state.” Lomax v. State,
233 S.W.3d 302, 305 (Tex. Crim. App. 2007); see Bigon, 252 S.W.3d at 365 (applying
Lomax); see also Threadgill v. State, 146 S.W.3d 654, 665 (Tex. Crim. App. 2004) (en
banc) (“Felony murder is an unintentional murder committed in the course of committing
a felony . . . .”).9 Accordingly, we conclude that trial counsel was not deficient for failing
to request the trial court to limit the culpable mental state language in the jury charge.
Appellant next asserts that his trial counsel was deficient for failing to request a
jury charge on mistake of fact, specifically that appellant believed that he was being
chased by criminals using “pseudo cop” cars who wanted to rob him instead of actual law
9 Appellant cites a case where a court of appeals concluded that felony murder is a “result of
conduct offense” for which “the culpable mental state for the act of murder is supplied by the mental state
accompanying the underlying committed or attempted felony giving rise to the act.” Cooper v. State, 842
S.W.2d 414, 421 (Tex. App.—Beaumont 1992, no pet.). However, Cooper relied on a 1977 case that the
Texas Court of Criminal Appeals later expressly overruled. See Rodriquez v. State, 548 S.W.2d 26, 28–
29 (Tex. Crim. App. 1977) overruled in relevant part by Lomax v. State, 233 S.W.3d 302, 307 (Tex. Crim.
App. 2007).
29
enforcement. The Texas Penal Code states that “it is a defense to prosecution that the
actor through mistake formed a reasonable belief about a matter of fact if his mistaken
belief negated the kind of culpability required for commission of the offense.” TEX. PENAL
CODE ANN. § 8.02(a) (West, Westlaw through 2013 3d C.S.); see Granger v. State, 3
S.W.3d 36, 41 (Tex. Crim. App. 1999). A defendant is not required to testify to merit an
instruction and may rely on other evidence introduced at trial. Lima v. State, 107 S.W.3d
774, 777 (Tex. App.—Corpus Christi 2003, no pet.). The evidence that raises the issue
may be “weak or strong, unimpeached or contradicted,” and the trial court judge’s views
on the credibility of the evidence that raises the issue are not relevant. Reyes v. State,
422 S.W.3d 18, 28–29 (Tex. App.—Waco 2013, pet. ref'd).
The State argues that appellant was not entitled to an instruction because
appellant did not testify and “made no claim that he was mistaken about any fact.” We
agree with appellant that he was not required to testify and make the claim himself, but
there still must be evidence that raises the issue that appellant was mistaken about
whether he was being chased by law enforcement officers. Appellant relies on Officer
Garcia’s answers on cross-examination, where Officer Garcia testified that sometimes
criminals use cars resembling police vehicles to pull people over and rob them and that
such a crime occurred in Harlingen in the past. But the officer did not testify as to whether
appellant was mistaken about the identity of the persons chasing him. Appellant points
us to no other evidence in the record raising the defense of mistake of fact, and we have
found none.
Appellant nevertheless argues that this case is “indistinguishable” from a Houston
case where the court of appeals reversed a defendant’s conviction because the trial court
30
erroneously denied the defendant’s request for an instruction on mistake of fact. See
Anderson v. State, 11 S.W.3d 369, 373 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).
We find Anderson distinguishable because there was evidence in that case that the
defendant did not know he was being chased by peace officers: he was first chased by
a campus police officer in civilian clothes driving an unmarked car who was later joined
by an uniformed campus officer who was not in the traditional blue police uniform and
driving a car that was not prominently marked. See id. There is no evidence in this case
that the officers who first attempted to stop appellant or any of the officers who joined the
chase were not wearing traditional police uniforms or driving anything other than well-
marked police units. We accordingly reject appellant’s argument that counsel acted
deficiently by not requesting a mistake of fact instruction. See Lima, 107 S.W.3d at 777
(counsel not ineffective for failing to request an instruction when the defendant did not
testify and there was no other evidence offered regarding the defendant’s mistaken
belief).
By his final argument, appellant asserts that trial counsel was deficient for not filing
a motion in limine to prevent the State and its witnesses from referring to Marie de La Luz
and Orsornio by the word “victim” without a specific ruling by the trial court. Appellant
cites to two cases where the trial court used phrases such as “victim” to refer to a
complainant and the courts of appeals held that was error because it constituted a judicial
comment on the weight of the evidence. See Veteto v. State, 8 S.W.3d 805, 817 (Tex.
App.—Waco 2000, pet. ref'd), abrogated on other grounds, State v. Crook, 248 S.W.3d
172, 176–77 (Tex. Crim. App. 2008); Talkington v. State, 682 S.W.2d 674, 675 (Tex.
App.—Eastland 1984, pet. ref'd). Appellant argues that references to complainants as
31
“victims” by witnesses and attorneys “is no less improper and unfairly prejudicial . . .
because the references suggest personal opinions that a crime has, in fact, occurred”
and that counsel’s failure to recognize this was deficient performance. But appellant does
not point us to any case law where a court deemed counsel’s failure to prevent the State
and its witnesses from referring to complainants as “victims” deficient performance, or
even that the State’s use of such terms is improper, and we have found none. We
accordingly reject appellant’s argument that his counsel performed deficiently by failing
to file this motion in limine. See Weatherly v. State, 283 S.W.3d 481, 486 (Tex. App.—
Beaumont 2009, pet. ref'd) (observing in dicta that “[w]hile use of the word ‘victim’
assumes a crime has been committed, the fact that a prosecutor is of that view would not
surprise a reasonable juror, nor would the prosecutor's use of the word . . . generally be
understood as anything other than the contention of the prosecution.”); see also Byler v.
State, No. 03-01-00012-CR, 2002 WL 347753, at *3 (Tex. App.—Austin Mar. 7, 2002,
pet. ref'd) (mem. op., not designated for publication) (rejecting argument that counsel was
ineffective “by allowing the State to use the word ‘victim’” and collecting cases where the
prosecution employed terms such as “this killer” and “butcher” to refer to the defendant).
We overrule appellant’s thirteenth issue.
VIII. CONCLUSION
We affirm the judgment of the trial court.
NORA L. LONGORIA
Justice
Publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
14th day of August, 2014.
32