Serge L. Hiden v. State

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
Nos. 04-18-00701-CR & 04-18-00702-CR
Serge L. HIDEN,
Appellant
v.
The STATE of Texas,
Appellee
From the 379th Judicial District Court, Bexar County, Texas
Trial Court Nos. 2017CR10972 & 2017CR10973
Honorable Dick Alcala, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Sandee Bryan Marion, Chief Justice
Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: January 15, 2020
AFFIRMED
Serge L. Hiden was convicted by a jury of two counts of aggravated assault with a deadly
weapon and one count of unlawful possession of a firearm by a felon. On appeal, Hiden contends
the trial court erred in admitting a detective’s opinion regarding whether Hiden acted in self-
defense and including an instruction on provoking the difficulty in the jury charge for the
aggravated assault offenses. Hiden also contends trial counsel rendered ineffective assistance of
counsel by failing to request an instruction on the defense of necessity in the jury charge for the
offense of unlawful possession of a firearm by a felon. We affirm the trial court’s judgment.
04-18-00701-CR & 04-18-00702-CR
BACKGROUND
The evidence at trial presented two versions of the events that transpired at Hiden’s house
on February 28, 2017. On that date, Hiden shot Edward Anthony in the mouth and also seriously
injured Anthony’s brother, Trinidad Sarabia. Others present during the altercation were Klarissa
Isabel Martinez (Anthony’s girlfriend), Brian Moseley, Lawrence Griffin (Hiden’s best friend),
Desiree Saenz (Griffin’s girlfriend), Victoria Guerra, and Chrystal Chavez. The testimony was
conflicting regarding whether Guerra was Hiden’s girlfriend or if he just provided her support and
a place to live while her mother was in prison. Chavez remained outside after she and Sarabia
drove to Hiden’s house in response to a phone call from Anthony. Anthony, Moseley, Guerra, and
Griffin were all living with Hiden in the house.
Sarabia and several of the witnesses were working for Hiden’s construction company. The
business office for the construction company was located inside the house, and Hiden had video
surveillance cameras installed inside and outside the house. Inside the house, the surveillance
cameras recorded the living room but not the kitchen, the office area behind the kitchen, or the
bedrooms. Outside the house, the surveillance cameras recorded the driveway and the side door
to the house which entered into the kitchen. The surveillance cameras captured portions of the
altercation but not Anthony’s shooting or the subsequent confrontation between Sarabia and Hiden
which occurred in the kitchen and entryway to Hiden’s office. Video recordings from the
surveillance cameras were admitted into evidence.
All of the witnesses consistently testified that Hiden arrived home and began arguing with
Anthony and Martinez and demanded that they leave the house. Hiden, Guerra, Griffin, and
Moseley testified Hiden was angry because he discovered Anthony was selling drugs from the
house. Their testimony was conflicting as to whether Hiden knew Anthony sold drugs. Anthony
testified he worked for Hiden selling drugs in exchange for Hiden providing him a place to live.
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The surveillance camera video shows Hiden, Anthony, and Martinez arguing inside the
house. At one point, the video shows Moseley stepping in front of Anthony and Martinez while
Griffin holds Hiden back from them. Eventually everyone exits the house, and the witnesses
testified the argument continued outside. It is not clear at what point Sarabia arrived during the
argument. The video also shows Guerra witnessing parts of the altercation. Shortly before the
shooting, the video shows Hiden entering the house followed by Griffin and Guerra. After they
walked to the back part of the house, the video shows Anthony and Sarabia entering the house
followed by Martinez and Moseley, and they also walk to the back part of the house.
Anthony, Martinez, and Sarabia testified that after Anthony and Sarabia were at the
entryway to Hiden’s office, Hiden retrieved a gun and ordered Sarabia to leave. Hiden, Griffin,
Guerra, and Moseley testified Hiden did not have a gun. The witnesses testified and the video
shows Moseley escorted Sarabia through the side door of the house before Anthony was shot.
Griffin testified that after Sarabia was escorted outside, Anthony returned to his bedroom and
retrieved a gun. Several witnesses testified Anthony owned guns and often carried a gun with him,
and photographs from the crime scene showed a rifle on top of Anthony’s bed. The video shows
Griffin entering the living room and watching Anthony and Martinez walking from Anthony’s
bedroom to the kitchen before the shooting. The video also shows Anthony and Martinez returning
to the kitchen prior to the shooting, and Griffin and Hiden testified Anthony was carrying a gun.
The poor quality of the video and the fact that it only showed Anthony’s right hand, however,
required the jury to decide if Anthony had a gun in his hand. Anthony and Martinez testified Hiden
shot Anthony with the gun Hiden was holding after Anthony entered the kitchen. Hiden, Griffin,
and Guerra testified Hiden struggled with Anthony over the gun in Anthony’s possession. The
video briefly shows Hiden in the living room in possession of the gun immediately before Anthony
enters the living room after being shot and exits the house through the front door. Around the
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same time Anthony exited, the video shows Sarabia entering the house and quickly walking into
the kitchen area followed by Anthony. Sarabia testified he struggled with Hiden over the gun, and
Hiden pistol-whipped him and fired the gun causing bullets to graze his head during the struggle.
Hiden admitted he used the gun to hit Sarabia but testified the gun did not discharge during his
struggle with Sarabia. The video then shows Sarabia stumbling away from the house. The video
also shows Anthony and Martinez entering and exiting the house a few times before EMS and
police arrived. Finally, the video shows Hiden exiting and entering the house a few times through
the side door and exiting the house through the front door before the police arrived.
After the altercation, Sarabia was missing a tooth and suffered a fractured cheek bone, a
dislocated shoulder and collar bone, and required staples to close two head wounds. Moseley and
Griffin drove away from the scene before law enforcement arrived and did not provide statements.
Additional evidence was introduced that challenged the credibility of Hiden’s testimony.
First, responding Officer Cathryn Pelkey testified Hiden kept looking away and trying to listen to
other people’s conversations while she questioned him. She described Hiden’s answers as very
conflicting and testified Hiden did not state he acted in self-defense, but did tell her he did not
know what happened. A video recording from Officer Pelkey’s body cam was admitted into
evidence. Officer Pelkey testified she did not observe any injuries to Hiden who is shown on the
video; however, a photograph of Hiden’s hand was admitted into evidence showing one of Hiden’s
fingers was injured and bleeding.
In addition to Officer Pelkey’s testimony, Saenz, who remained outside during the
altercation, is shown in the surveillance video walking down the driveway. Saenz testified she
walked down the driveway, tracking the progress of the altercation inside the house, and, through
the office window, she saw Hiden pointing the gun. Saenz testified she ran and hid behind a tree
in the backyard when she saw Hiden pointing the gun, and later saw Hiden hide the gun in the dirt
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behind an apartment that was adjacent to Hiden’s house. Law enforcement recovered the gun that
was used in the altercation from the area Saenz described. Hiden testified he gave the gun to
Martinez and Anthony when they asked for it after the shooting and denied hiding the gun.
Both Hiden and Sarabia tested positive for gunshot residue, but Anthony did not.
Furthermore, although Hiden invoked his right to counsel and was not interviewed by authorities,
portions of a video recording of phone calls Hiden made while in the interview room were admitted
into evidence. During the telephone conversations, Hiden stated the surveillance cameras would
show he did not have any weapons. Hiden also stated he had been tested for gunshot residue and
knew there was no gunshot residue on his hands.
Finally, two shell casings were recovered from the kitchen and photographs of bullet holes
in the walls were admitted into evidence. When confronted with the evidence of the shell casings,
Hiden testified that was not possible and stated people were in and out of the house before it was
searched.
Based on the evidence presented, the jury found Hiden guilty of two counts of aggravated
assault with a deadly weapon and of being a felon in unlawful possession of a firearm. The trial
court sentenced Hiden to twenty-five years’ imprisonment on each of the aggravated assault counts
and ten years’ imprisonment for the offense of unlawful possession of a firearm by a felon.
DETECTIVE LANDRUM’S OPINION
In his first issue, Hiden contends the trial court erred in allowing Detective Landrum to
testify regarding whether he believed Hiden was acting in self-defense. The State responds the
issue is not preserved for our review.
Detective Landrum testified he had been a detective for eight years and a patrol officer for
ten years before becoming detective. Detective Landrum later testified as follows:
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Q. Okay. Thank you.
So you made — did you make your determination to arrest Mr. Hiden based on
the interviews and on what you observed in the house?
A. I did.
Q. Okay, Now, you’ve been a detective for a long time. You’ve been an
officer for a long time. Have you dealt with cases of self-defense.
A. Yes.
Q. Okay. And can you tell me, in your experience, what do people who commit
self-defense typically do after the fact?
A. Normally, they’re very forthcoming. They —
[Defense counsel]: I’m going to object to relevance, Your Honor.
[Prosecutor]: Your Honor, this is —
THE COURT: Overruled.
Q. (By [prosecutor]) You can answer.
A. Normally, they are the ones that contact the police because they feel that
they need to get everything out in the open. They usually don’t hide — attempt to
hide any types of evidence.
Q. Oh, keep going. Is there anything else that you’ve observed them to
typically do?
A. I think that’s usually most of it.
Q. Okay. Do you know who called the police in this case?
A. I believe it was the — the victims.
Q. Okay. Now, you mentioned in your experience what people typically do
after they’ve committed a crime that they’re justified in using self-defense. And in
this case, why did you believe that self-defense was not justified?
A. Well, I — in this instance, I don’t believe that Mr. Hiden was in danger or
fear for his life. The victims were never indicated to have any weapons. It was a
shoving match. There was no serious bodily injury present on Mr. Hiden. It didn’t
appear that any serious bodily injury was — was gong to take it to that matter. He’s
the one that introduced the weapon into this — what was — before that argument
and the shoving match.
“Preservation of error is a systemic requirement on appeal.” Ford v. State, 305 S.W.3d
530, 532 (Tex. Crim. App. 2009). “If an issue has not been preserved for appeal, neither the court
of appeals nor [the Texas Court of Criminal Appeals] should address the merits of that issue.” Id.
“To preserve error for appellate review, the complaining party must make a specific
objection and obtain a ruling on the objection.” Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim.
App. 2002). In order to meet the specificity requirement, a party must “let the trial court know
what he wants and why he feels himself entitled to it clearly enough for the judge to understand
him.” Vasquez v. State, 483 S.W.3d 550, 554 (Tex. Crim. App. 2016). “[A] general or imprecise
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objection will not preserve error for appeal unless the legal basis for the objection is obvious to the
court and to opposing counsel.” Id. (internal quotation marks omitted). Finally, the issue on appeal
“must comport with the objection made at trial.” Wilson, 71 S.W.3d at 349. When the issue on
appeal does not comport with the trial objection, “nothing is presented for review.” Hallmark v.
State, 541 S.W.3d 167, 171 (Tex. Crim. App. 2017).
In this case, no objection was made to Detective Landrum’s testimony in response to his
opinion regarding the reasons he believed Hiden did not act in self-defense. Instead, the relevancy
objection was only made with regard to Detective Landrum’s testimony about actions taken after
an incident by those who act in self-defense. Accordingly, Hiden’s issue on appeal does not
comport with the objection made at trial and is not preserved for appellate review.
Even if the objection had been preserved, the admissibility of a lay witness’s opinion “is
within the discretion of the trial court and will not be reversed absent an abuse of discretion.”
Davis v. State, 313 S.W.3d 317, 349 (Tex. Crim. App. 2010). Under Rule 701, a lay witness may
testify to opinions which are “(a) rationally based on the witness’s perception; and (b) helpful to
clearly understanding the witness’s testimony or to determining a fact in issue.” TEX. R. EVID.
701. “The personal experience and knowledge of a lay witness may establish that he or she is
capable, without qualification as an expert, of expressing an opinion on a subject outside the realm
of common knowledge.” Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002). “[A]
police officer’s personal knowledge may come from his past experience.” See Roberson v. State,
100 S.W.3d 36, 39 (Tex. App.—Waco 2002, pet. ref’d).
Here, Detective Landrum testified he had been a detective for eight years and was
experienced in cases of self-defense. His opinion regarding whether Hiden acted in self-defense
was based on this experience, the information he obtained from interviewing several witnesses at
the scene, and his observations at the scene, including his search of Hiden’s house. Because
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Detective Landrum’s opinion was rationally based on his perceptions and his personal experience,
the trial court did not abuse its discretion in admitting the testimony. See James v. State, 335
S.W.3d 719, 726 (Tex. App.—Fort Worth 2011, no pet.) (question whether defendant’s self-
defense assertion made sense in light of police officer’s observations admissible under rule 701).
Hiden’s first issue is overruled.
PROVOKING THE DIFFICULTY
In his second issue, Hiden contends the trial court erred in including an instruction on
provoking the difficulty in the jury charge.
“[A] defendant may forfeit his right to self-defense if he provokes the attack.” Elizondo v.
State, 487 S.W.3d 185, 196 (Tex. Crim. App. 2016). “The rule of law is that if the defendant
provoked another to make an attack on him, so that the defendant would have a pretext for killing
the other under the guise of self-defense, the defendant forfeits his right of self-defense.” Id. at
196-97 (internal quotation marks omitted) An instruction on provoking the difficulty is required
when sufficient evidence is presented on the following three elements:
(1) that the defendant did some act or used some words that provoked the attack on
him,
(2) that such act or words were reasonably calculated to provoke the attack, and
(3) that the act was done or the words were used for the purpose and with the intent
that the defendant would have a pretext for inflicting harm upon the other.
Id. at 197. “This standard does not require the judge to encroach on the jury’s role as factfinder”
or “to assess the credibility or strength of the evidence.” Id. “It simply requires the judge to decide
whether evidence has been presented that could support a jury’s finding of all three elements of
provocation beyond a reasonable doubt.” Id.
Under the first element, “there must be some evidence from which a rational jury could
find beyond a reasonable doubt that some act or words of the defendant actually caused the attack
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on him.” Id. at 199. “In addition, acts or words directed at a third party may likewise provoke a
difficulty.” Id. In this case, the jury viewed a video showing the argument between Hiden,
Anthony, and Martinez, and Griffin physically restraining Hiden during part of the argument. The
jury also heard testimony about the altercation and Hiden’s aggression. The trial court could have
decided that this evidence could support a jury’s finding that Hiden’s acts or words provoked the
attack on him.
Under the second element, some evidence must show “the defendant’s actions or words
were reasonably calculated to provoke the attack.” Id. “[A]n act is reasonably calculated to cause
an attack if it is reasonably capable of causing an attack, or if it has a reasonable tendency to cause
an attack.” Id. (internal quotation marks omitted). “Moreover, words alone may provoke a
difficulty if they are clearly designed to do so.” Id. The trial court also could have decided that
the video and the witnesses’ testimony could support a jury’s finding that Hiden’s actions and
words were reasonably capable or had a reasonable tendency to cause an attack.
“The third element supporting a provoking-the-difficulty instruction requires that there be
some evidence from which a rational jury could find beyond a reasonable doubt that the act was
done, or the words were used, for the purpose and with the intent that the defendant would have a
pretext for killing the victim.” Id. at 200. “Even though a person does an act, even a wrongful act,
which does indeed provoke an attack by another, if he had no intent that the act would have such
an effect as part of a larger plan of doing the victim harm, he does not lose his right of self-defense.”
Id. (internal quotation marks omitted). “A defendant’s intentions can be determined from his
words, acts, and conduct, occurring before, during, or after the provocation.” Id. at 201. “The acts
of provocation alone can carry the inference of intent, and [the defendant’s] actions during or after
the provocation can illuminate his intent. Id. at 202. A defendant’s “prior acts can also give
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character to what he said or did at the time of the [offense], which can aid in both explaining [the
defendant’s] words or acts and determining his intent.” Id.
The trial court could have decided the jury could have inferred from the evidence that
Hiden entered the house after aggressively arguing with Anthony and Sarabia in an effort to lure
them to follow him, while he had the opportunity to retrieve his gun. The trial court could also
have decided the jury could have found that Hiden’s action in retrieving the gun upon entering the
house showed his intent to harm Anthony and Sarabia. The trial court could have further decided
the jury could have found Hiden retrieved the gun to provoke Anthony and Sarabia into attacking
him as a pretext for harming them. Finally, the trial court could have decided the jury could have
found Hiden’s intent was shown by his actions in hiding the gun. Accordingly, the trial court could
have decided the record contained some evidence from which a rational jury could have found
beyond a reasonable doubt that Hiden’s actions and words were intended to provoke Anthony and
Sarabia as a pretext for shooting them.
Hiden’s second issue is overruled.
INEFFECTIVE ASSISTANCE
In his third issue, Hiden contends trial counsel was ineffective in failing to request an
instruction on the defense of necessity in the jury charge for the offense of unlawful possession of
a firearm by a felon.
“To prevail on a claim of ineffective assistance of counsel, the [appellant] must show that
counsel’s performance was deficient and that the deficient performance prejudiced the defense.”
Prine v. State, 537 S.W.3d 113, 116 (Tex. Crim. App. 2017) (citing Strickland v. Washington, 466
U.S. 668, 687 (1984)). “Unless appellant can prove both prongs, an appellate court must not find
counsel’s representation to be ineffective.” Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App.
2011). “In order to satisfy the first prong, appellant must prove, by a preponderance of the
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evidence, that trial counsel’s performance fell below an objective standard of reasonableness under
the prevailing professional norms.” Id. “To prove prejudice, appellant must show that there is a
reasonable probability, or a probability sufficient to undermine confidence in the outcome, that the
result of the proceeding would have been different.” Id.
“An appellate court must make a strong presumption that counsel’s performance fell within
the wide range of reasonably professional assistance.” Id. (internal quotation marks omitted). “In
order for an appellate court to find that counsel was ineffective, counsel’s deficiency must be
affirmatively demonstrated in the trial record; the court must not engage in retrospective
speculation.” Id. “Trial counsel should generally be given an opportunity to explain his actions
before being found ineffective.” Prine, 537 S.W.3d at 117. “In the face of an undeveloped record,
counsel should be found ineffective only if his conduct was so outrageous that no competent
attorney would have engaged in it.” Id. (internal quotation marks omitted). The Texas Court of
Criminal Appeals “has repeatedly stated that claims of ineffective assistance of counsel are
generally not successful on direct appeal and are more appropriately urged in a hearing on an
application for a writ of habeas corpus.” Lopez, 343 S.W.3d at 143.
In this case, the record is silent as to the reason trial counsel did not request an instruction
on the defense of necessity. Given the conflicts in the state of the evidence, we cannot conclude
no competent attorney would have decided not to ask for the instruction. Because we presume
trial counsel’s actions were reasonable given the silent record, we need not decide whether the
record would support a finding of prejudice if trial counsel’s performance had been deficient.
Hiden’s third issue is overruled.
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CONCLUSION
The trial court’s judgment is affirmed.
Luz Elena D. Chapa, Justice
DO NOT PUBLISH
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