Samuel Espinoza Rodriguez v. State

Opinion issued March 10, 2016
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00447-CR
NO. 01-13-00448-CR
———————————
SAMUEL ESPINOZA RODRIGUEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Case Nos. 1356098 & 1356099
O P I N I O N
A jury found appellant Samuel Espinoza Rodriguez guilty of felony evading
arrest and aggravated assault and assessed his punishment at confinement for life for
the aggravated assault charge and 50 years’ confinement for the evading arrest
charge, to run concurrently. On appeal, Rodriguez, acting pro se, raises 14 issues.
We affirm.
Background
In December 2011, complainant Jose Bribiescas was celebrating his fortieth
birthday with friends at a sports bar. Rodriguez approached one of Jose’s friends,
Claudia Atencio, and asked if he could buy her a drink. When she refused,
Rodriguez confronted Jose’s friend, Larry Hernandez, demanding to know whether
the two were dating. Jose told Rodriguez that they did not want any problems, which
led to a scuffle. After the fight was broken up, the bar’s manager asked Rodriguez
to leave.
Rodriguez left the bar, but later returned with a gun. He placed the gun against
Jose’s chest, shot him, and walked away. The bullet punctured Jose’s lung. Jose’s
friends dragged him underneath a pool table so that Rodriguez could not see that he
was still alive.
Corporal M. Davila of Harris County Constable Precinct 6 was dispatched to
the bar, and learned from witnesses that Rodriguez had left the bar in a white truck
with no tailgate. Corporal Davila located the truck and followed it while waiting for
backup. When backup arrived, the officers attempted to stop the truck by turning on
their lights and sirens. Rodriguez sped away from the officers, driving
approximately 90 miles per hour in a 35 mile per hour zone. After Rodriguez lost
2
control of the truck and crashed it, the officers directed him to show them his hands,
but Rodriguez jumped out of the truck and started running. The officers pursued
Rodriguez and eventually detained him, searched the truck, and found a gun. They
also returned to the bar with Rodriguez, where several witnesses identified him as
the shooter.
Rodriguez was charged by complaints with aggravated assault and felony
evading arrest.1 A few months later, Rodriguez was indicted for both offenses, and
on July 31, 2012, the State re-indicted him for both offenses.2 After the re-
indictment, Rodriguez moved to dismiss his appointed counsel and to have different
counsel appointed on the ground that his counsel failed to object to the re-indictment.
The trial court denied the request. Rodriguez later requested that he be permitted to
represent himself. The trial court permitted him to do so after holding a Faretta3
1
The complaints were filed in support of Rodriguez’s continued detention following
his initial arrest. See TEX. CODE CRIM. PROC. ANN. art. 15.04 (“The affidavit made
before the magistrate or district or county attorney is called a ‘complaint’ if it
charges the commission of an offense.”); Green v. State, 872 S.W.2d 717, 721 (Tex.
Crim. App. 1994) (when defendant arrested without warrant, State must obtain
probable cause determination from magistrate for continued detention).
2
One of the amended indictments, cause number 1356099, included both offenses
and two new enhancement paragraphs. A second amended indictment, cause
number 1356098, included only the evading arrest offense with enhancement
paragraphs identical to those in the 1356099 indictment.
3
In Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525 (1975), the United States
Supreme Court recognized that a criminal defendant has the right to the assistance
of counsel under the Sixth Amendment, as well as the right to waive counsel and
represent himself. Id. at 807, 95 S. Ct. at 2527. However, once the defendant asserts
his right to self-representation, a trial court judge must ascertain that he chooses to
waive the right to counsel knowingly and intelligently, and must warn the defendant
3
hearing at which Rodriguez’s court-appointed counsel was present, and the trial
court admonished Rodriguez regarding the dangers and disadvantages of self-
representation, and determined that Rodriguez’s waiver of counsel was competent,
knowing, intelligent, and voluntary. The trial court then appointed Rodriguez’s
previously-appointed counsel as standby counsel. Three months after the Faretta
hearing, the State abandoned the evading arrest paragraph in the indictment in cause
number 1356099, leaving only the aggravated assault charge in cause number
1356099 and only the evading arrest charge in cause number 1356098.
Pre-trial, Rodriguez moved to quash the indictments and to dismiss the
evading arrest charge on the grounds that the charges were invalid because valid
complaints and informations had not been filed. He also moved to quash the habitual
offender enhancement paragraphs. The trial court denied these motions.
Rodriguez also filed several pre-trial motions which were granted. These
included a “Motion for Court Reporter to Record All Proceedings,” and a “Motion
to have Written Rulings Made on All Motions Filed by the Defendant.”
Before trial, Rodriguez moved for a continuance, requesting that he be
permitted extra time in the law library. The trial court denied the motion.
of the dangers and disadvantages accompanying such a waiver. Id. at 835–36, 95
S. Ct. at 2541.
4
Rodriguez appeared at trial with standby counsel and represented himself.
After the jury rejected Rodriguez’s self-defense theory and found him guilty on both
charges, Rodriguez appealed.
Charging Instruments
In his first, ninth, and twelfth issues, Rodriguez challenges the trial court’s
jurisdiction and the validity of the State’s charging instruments. Rodriguez argues
that the trial court (1) lacked jurisdiction to hear the charges against him because
valid complaints were not filed, (2) erred in denying his motion to dismiss the felony
evading arrest charge, and (3) erred in denying his motions to quash the indictments.
Rodriguez contends that the trial court lacked jurisdiction to hear the charges against
him because the State failed to file informations supported by valid complaints.
A. Standard of Review and Applicable Law
The Texas Constitution guarantees to defendants the right to indictment by a
grand jury for all felony offenses. Riney v. State, 28 S.W.3d 561, 564 (Tex. Crim.
App. 2000). An indictment is a written instrument presented to a court by a grand
jury charging a person with the commission of an offense. Id. at 565. “An
indictment is returned by a grand jury after consideration of a charge provided by
the prosecutor.” Ferguson v. State, 335 S.W.3d 676, 681 (Tex. App.—Houston
[14th Dist.] 2011, no pet.) (citing TEX. CODE CRIM. PROC. ANN. art. 21.01–02). The
presentation of a valid indictment vests the trial court with jurisdiction to hear the
5
charges against the defendant. Ex parte Gibson, 800 S.W.2d 548, 551 (Tex. Crim.
App. 1990). “There is no statutory requirement for a prosecutor to file a complaint
before a grand jury issues an indictment.” Id. (citing TEX. CODE CRIM. PROC. ANN.
art. 21).
By contrast, an information, which “is a document filed by the prosecutor with
the court to charge a person with a crime,” does not require any court or grand jury
review before bringing the defendant to trial. Ferguson, 335 S.W.3d at 682 (citing
TEX. CODE CRIM. PROC. ANN. arts. 21.20, 21.22). Rather, “a sworn complaint must
be provided to justify an information.” Id. (citing TEX. CODE CRIM. PROC. ANN. art.
21.22). In Texas, only misdemeanors may be prosecuted by information. See Ex
parte Krarup, 422 S.W.2d 173, 174 (Tex. Crim. App. 1967). While a complaint
must be filed to justify an information, there are other reasons that complaints are
filed, unrelated to the filing of an information. Among other things, complaints may
be filed to obtain a finding regarding probable cause for a person’s arrest or
continued detention. See TEX. CODE CRIM. PROC. ANN. arts. 15.03 (magistrate may
issue warrant when, among other things, a person makes an oath before them that
another has committed some offense), 15.04 (“The affidavit made before the
magistrate or district or county attorney is called a “complaint” if it charges the
commission of an offense.”); Green v. State, 872 S.W.2d 717, 721 (Tex. Crim. App.
6
1994) (when defendant arrested without warrant, State must obtain probable cause
determination from magistrate for continued detention).
We review the denial of a motion to quash an indictment de novo when
reviewing a question of law. Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim.
App. 2007). Our analysis of a jurisdictional challenge is also de novo. Dixon v.
State, 455 S.W.3d 669, 674–75 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d).
B. Analysis
Rodriguez argues that informations and valid complaints stating “the time and
place of the commission of the offense as definitely as can be done by the affiant”
were required to vest the trial court with jurisdiction to proceed to trial on the charges
against him. Rodriguez contends that the State failed to file informations against
him; therefore, the trial court lacked jurisdiction to hear the charges against him. His
argument is based on the fact that complaints were initially filed against him; from
this, Rodriguez concludes that the State must have been required to prosecute him
by information. Because informations supported by valid complaints were not filed,
Rodriguez argues that the trial court lacked jurisdiction and both indictments should
have been quashed.
The charges against Rodriguez were both felony charges brought by
indictment, not by information. Because the charges against Rodriguez were
felonies, the State was required to prosecute Rodriguez by indictment. See Riney,
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28 S.W.3d at 564 (Texas Constitution guarantees right to indictment by grand jury
for all felonies); Ex parte Krarup, 422 S.W.2d at 174 (only misdemeanors may be
prosecuted by information). “There is no statutory requirement for a prosecutor to
file a complaint before a grand jury issues an indictment.” Ferguson, 335 S.W.3d
at 682 (citing TEX. CODE CRIM. PROC. ANN. art. 21). And, the filing of a complaint
does not necessitate the filing of an information, because a complaint may be filed
for other purposes. Although the State initially filed complaints in connection with
Rodriguez’s arrest and continued detention, it later obtained indictments, which
vested the trial court with jurisdiction over the felony charges. See Ex parte Gibson,
800 S.W.2d at 551. Rodriguez did not and does not challenge the indictments
themselves. Accordingly, we conclude that the trial court had jurisdiction to hear
the charges against Rodriguez and did not err in denying his motions to dismiss and
to quash the indictments. See id.
We overrule Rodriguez’s first, ninth, and twelfth issues.
Enhancements
In his tenth issue, Rodriguez contends that the trial court erred in denying his
motions to quash the enhancement paragraphs in the indictments without holding an
evidentiary hearing. He claims the enhancement paragraphs were invalid and void.
We review a trial court’s decision to rule on a motion to quash without an oral
hearing for an abuse of discretion. See Hicks v. State, 508 S.W.2d 400, 403 (Tex.
8
Crim. App. 1974) (citing TEX. CODE CRIM. PROC. ANN. art. 28.01). Generally, the
trial court is not required to hold a hearing on a motion to quash, and the decision to
hold such a hearing is left to the trial court’s sound discretion. See id. The defendant
bears the burden of proof on a motion to quash, and the trial court properly denies
the motion where the defendant offers no proof of the allegations contained in the
motion. Bell v. State, 814 S.W.2d 229, 231 (Tex. App.—Houston [1st Dist.] 1991,
writ ref’d). We review the denial of the motion itself de novo. Lawrence, 240
S.W.3d at 915.
When prior convictions used for enhancement purposes are collaterally
attacked, the judgments reflecting those prior convictions are presumed to be
regular. Swanson v. State, 722 S.W.2d 158, 164 (Tex. App.—Houston [14th Dist.]
1986, writ ref’d). The accused bears the burden of defeating that presumption. Id.
Here, Rodriguez moved to quash the enhancement paragraphs on the ground
that the prior convictions were invalid and void. But Rodriguez offered no evidence
to support this claim, nor did he request a hearing on the motions. And the trial court
was not required to hold a hearing on Rodriguez’s motions to quash the enhancement
paragraphs. See Hicks, 508 S.W.2d at 403 (trial court was not required to hold
hearing on motion to quash). Accordingly, we conclude that the trial court did not
abuse its discretion in ruling on the motions without holding a hearing. See id. And,
given Rodriguez’s failure to carry his burden in adducing evidence to support his
9
motions, we conclude that the trial court did not err in denying the motion to quash
because Rodriguez failed to meet his evidentiary burden. See id.
We overrule Rodriguez’s tenth issue.
Self-Representation
Rodriguez’s second, fourth, eleventh, and fourteenth issues relate to his
decision to waive his right to counsel and proceed pro se. He argues in his second
issue that the trial court erred by failing to properly admonish him regarding the
dangers and disadvantages of self-representation, and he argues in his fourteenth
issue that the trial court failed to properly admonish him regarding both charges. In
his fourth issue, he contends his standby counsel was ineffective because she had a
conflict of interest, and in his eleventh issue, he contends that the trial court erred in
denying his motion for continuance, which would have provided Rodriugez extra
law library time.
A. Propriety of Admonishments Regarding Self-Representation
In his second issue, Rodriguez argues that he was not properly admonished
regarding the dangers and disadvantages of self-representation and, in his fourteenth
issue, he argues that, even if he was properly admonished, he was only properly
admonished with respect to the aggravated assault charge, and not the evading arrest
10
charge. He contends, therefore, that he did not knowingly and intelligently waive
his right to counsel with respect to both charges.
1. Standard of Review and Applicable Law
The Sixth Amendment of the United States Constitution guarantees both the
right to counsel and the corresponding right to self-representation. See U.S. CONST.
amend. VI; Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 2533 (1975);
Hathorn v. State, 848 S.W.2d 101, 122–23 (Tex. Crim. App. 1992); see also Hatten
v. State, 71 S.W.3d 332, 334 (Tex. Crim. App. 2002) (noting that Faretta rights are
triggered when accused contests guilt); TEX. CODE CRIM. PROC. ANN. art. 1.05 (West
2005) (recognizing right of accused to be heard by himself, through counsel, or
both). In Faretta, the Supreme Court recognized that “[w]hen an accused manages
his own defense, he relinquishes . . . many of the traditional benefits associated with
the right to counsel.” 422 U.S. at 835, 95 S. Ct. at 2541. The Court concluded that
in order to represent himself, an “accused must ‘knowingly and intelligently’ forgo
those relinquished benefits.” Id. Thus, a defendant must make a decision to waive
counsel competently, voluntarily, knowingly and intelligently. Godinez v. Moran,
509 U.S. 389, 400, 113 S. Ct. 2680, 2687 (1993); Faretta, 422 U.S. at 835, 95 S. Ct.
at 2541.
“The decision to waive counsel and proceed pro se is made ‘knowingly and
intelligently’ if it is made with a full understanding of the right to counsel, which is
11
being abandoned, as well as the dangers and disadvantages of self-representation.”
Moore v. State, 999 S.W.2d 385, 396 n.5 (Tex. Crim. App. 1999); Cudjo v. State,
345 S.W.3d 177, 184 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). “If such
factors are not otherwise apparent from the record, a trial court’s inquiry regarding
the accused’s waiver of counsel should center on his background, age, experience,
and education.” Cudjo, 345 S.W.3d at 184 (citing Johnson v. State, 760 S.W.2d 277,
278 (Tex. Crim. App. 1988)). To be valid, a defendant’s waiver must also be made
with an apprehension of the nature of the charges against him. Blankenship v. State,
673 S.W.2d 578, 583 (Tex. Crim. App. 1984). “The trial court, however, need not
follow a formulaic questioning or particular script in ascertaining the knowing and
voluntary nature of an accused’s waiver of counsel, and a written waiver of the right
to counsel is not required.” Cudjo, 345 S.W.3d at 184 (citing Burgess v. State, 816
S.W.2d 424, 428–29 (Tex. Crim. App. 1991)). “The accused should be aware there
are technical rules of evidence and procedure and he will not be granted any special
consideration solely because he asserted his pro se rights.” Id. (citing Johnson, 760
S.W.2d at 279).
We review the factual issue of whether a defendant has clearly and
unequivocally invoked the right to self-representation for an abuse of discretion. See
DeGroot v. State, 24 S.W.3d 456, 457–58 (Tex. App.—Corpus Christi 2000, no
pet.). We view the evidence in the light most favorable to the trial court’s ruling,
12
and we imply any findings of fact supported by the record and necessary to affirm
the trial court’s ruling when the trial court did not make explicit findings. See
Chadwick v. State, 309 S.W.3d 558, 561 (Tex. Crim. App. 2010).
2. Analysis
a. Did the trial court adequately admonish Rodriguez of the
dangers and disadvantages of self-representation?
In his second issue, Rodriguez argues that he was not properly admonished
regarding the dangers and disadvantages of self-representation. We conclude that
the trial court did not abuse its discretion in finding that Rodriguez competently,
voluntarily, knowingly, and intelligently waived his right to counsel with respect to
both charges. The trial court first inquired into Rodriguez’s background, age,
experience, and education. See Johnson, 760 S.W.2d at 278. Rodriguez told the
trial court that he was born in Lubbock, had a G.E.D., could read and write English,
had no disabilities or handicaps, and that he had no legal training but had previously
argued a case before the Supreme Court of the United States. He also stated that he
was familiar with the Texas Penal Code and Code of Criminal Procedure.
The trial court next admonished Rodriguez regarding the dangers and
disadvantages of self-representation. Among other things, the trial court told
Rodriguez that by waiving the right to counsel, he would not be able to later claim
ineffective assistance of counsel. The trial court also told Rodriguez that he would
be expected to comply with all the evidentiary and procedural rules with which a
13
lawyer would be expected to comply and that he would not be granted any special
consideration because of his lack of formal legal training.
The trial court asked Rodriguez whether, having considered these
disadvantages of self-representation, he was waiving the right to counsel voluntarily,
and Rodriguez stated that he was. The trial court repeatedly reminded Rodriguez
that if he waived the right to counsel, he would not be able to blame anyone else for
any mistakes or failures at trial. The trial court also ensured that Rodriguez
understood that, with the enhancements alleged, the range of punishment was 25
years to life in prison. In light of the extensive colloquy related to self-
representation, we conclude that the trial court did not abuse its discretion in
concluding that Rodriguez was properly informed of the dangers and disadvantages
of self-representation and that his decision to waive counsel was competent,
knowing, voluntary, and intelligent. See, e.g., Cudjo, 345 S.W.3d at 185 (waiver
was voluntary, knowing, and intelligent after trial court inquired into appellant’s
background, education, and ability, admonished him that proceeding pro se was
dangerous and that he would be held to same standards as lawyer).
We overrule Rodriguez’s second issue.
b. Did Rodriguez properly waive counsel for both charges?
In his fourteenth issue, Rodriguez contends that, even if the trial court’s
admonishments were adequate, his waiver of counsel extended only to the
14
aggravated assault charge, because the trial court did not expressly mention the
evading arrest charge during the colloquy regarding self-representation.
At the Faretta hearing, the trial court asked Rodriguez if he understood the
charges against him and Rodriguez responded that he was not sure about which of
his four pending cases the State was prosecuting. The State responded that it was
proceeding on the indictment in cause number 1356099. At the time of the Faretta
hearing, that indictment charged Rodriguez with both the aggravated assault charge
and the evading arrest charge. The trial court directed the State to give Rodriguez
the entire case file and the State indicated that would give Rodriguez everything that
it had in all the pending cases.
The evading arrest charge had also been separately indicted in cause number
1356098 with enhancement paragraphs identical to those charged in cause number
1356099. After the Faretta hearing, the State struck the evading arrest charge from
the indictment in cause number 1356099 and proceeded with both the 1356098
(evading arrest) and 1356099 (aggravated assault) indictments, which were
substantively identical to what was charged in the 1356099 indictment at the time of
the Faretta hearing. Thus, although the State did not say at the Faretta hearing that
it was proceeding on the indictment in cause number 1356098, Rodriguez’s waiver
was valid as to evading arrest charged in 1356098 because, at the time of the Faretta
hearing, the substance of 1356098 was charged in 1356099. The clerk’s record also
15
shows that Rodriguez understood that he represented himself with respect to both
charges. After the Faretta hearing, Rodriguez filed numerous motions in both cases.
He also insisted on continuing self-representation after the State proceeded on both
charges. Accordingly, we conclude Rodriguez’s waiver was valid as to both
charges.
We overrule Rodriguez’s fourteenth issue.
B. Standby Counsel’s Alleged Conflict of Interest
In his fourth issue, Rodriguez contends that his standby trial counsel was
ineffective because she had a conflict of interest.
A lawyer may provide ineffective assistance of counsel if she has a conflict
of interest. See Odelugo v. State, 443 S.W.3d 131, 136 (Tex. Crim. App. 2014). The
appellant bears the burden of proof by a preponderance of the evidence on a claim
of conflict-of-interest ineffective assistance. Id. But “when a convicted defendant
has insisted upon self-representation, any subsequent claim of ineffective assistance
of counsel is not to be considered.” Perez v. State, 261 S.W.3d 760, 766 (Tex.
App.—Houston [14th Dist.] 2008, pet. ref’d) (citing Faretta, 422 U.S. at 834 n.46).
Rodriguez competently, knowingly, intelligently and voluntarily waived his
right to counsel. As the trial court admonished, a consequence of doing so is the
forfeiture of a subsequent ineffective assistance of counsel claim. Id. Accordingly,
16
Rodriguez cannot meet his burden on his conflict-of-interest ineffective assistance
claim. See id.
We overrule Rodriguez’s fourth issue.
C. Access to Law Library
In his eleventh issue, Rodriguez contends that the trial court abused its
discretion in denying his motion for a continuance which would have provided him
additional access to the law library.
We review a trial court’s ruling on a motion for continuance for abuse of
discretion. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007); Janecka v.
State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996). In Bounds v. Smith, 430 U.S.
817 (1977), “[t]he United States Supreme Court . . . recognized that the fundamental
constitutional right of access to the courts requires prison authorities to assist inmates
in the preparation and filing of meaningful legal papers by providing prisoners with
adequate law libraries or adequate assistance from persons trained in the law.”
Johnson v. State, 257 S.W.3d 778, 780 (Tex. App.—Texarkana 2008, pet. ref’d)
(citing Bounds v. Smith, 430 U.S. 817, 828 (1977), overruled in part on other
grounds by Lewis v. Casey, 518 U.S. 343 (1996) (disclaiming Bounds to the extent
that it suggests that the State must enable prisoners to discover grievances and
litigate effectively)). However, inmates do not have an “abstract, freestanding right
to a law library.” Lewis, 518 U.S. at 351. Moreover, numerous federal courts,
17
including the Fifth Circuit, “have held that a prisoner who knowingly and voluntarily
waives appointed representation by counsel in a criminal proceeding is not entitled
to access to a law library.” See Johnson, 257 S.W.3d at 780 (collecting cases); see
also Degrate v. Godwin, 84 F.3d 768, 769 (5th Cir. 1996) (“[H]aving rejected the
assistance of court-appointed counsel, [a defendant] had no constitutional right to
access a law library in preparing the pro se defense of his criminal trial.”). Thus, a
defendant who rejects the offer of appointed counsel and represents himself with the
assistance of standby counsel cannot complain about lack of law library access. See
Bright v. State, 585 S.W.2d 739, 744 (Tex. Crim. App. 1979) (rejecting appellant’s
claim regarding library access because “an attorney was appointed to represent
appellant, and even after appellant’s request to represent himself was granted, this
attorney was instructed by the trial court to continue as standby counsel”); Johnson,
257 S.W.3d at 781 (State was not obligated to provide appellant access to law library
after appellant elected to proceed pro se and trial court appointed standby counsel).
Here, the trial court appointed counsel for Rodriguez, but Rodriguez
competently, intelligently, knowingly, and voluntarily chose to waive his right to
counsel and represent himself. Before he made that choice, the trial court
admonished him regarding the dangers and disadvantages of self-representation.
The trial court expressly warned him that he would not be granted any special
consideration because of his lack of formal legal training. Knowing this, Rodriguez
18
refused the offer of appointed counsel and chose to represent himself; nevertheless,
the court appointed Rodriguez’s counsel as standby counsel, and she attended the
trial. Accordingly, we hold that the trial court did not abuse its discretion in denying
Rodriguez’s motion for continuance for additional access to the law library. See
Bright, 585 S.W.2d at 744; Johnson, 257 S.W.3d at 780; Degrate, 84 F.3d at 769.
We overrule Rodriguez’s eleventh issue.
Brady Complaint
In his fifth issue, Rodriguez argues that his convictions should be reversed
because the State violated Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–
97 (1963), by failing to preserve a surveillance video of the shooting.
A. Standard of Review and Applicable Law
The law distinguishes between the State’s suppression of material,
exculpatory evidence and the State’s failure to preserve potentially useful evidence.
If, after request, the State suppresses evidence material to guilt or punishment that is
favorable to an accused, this violates due process regardless of whether the State
acted in bad faith. Brady, 373 U.S. at 87, 83 S. Ct. at 1196–97. However, the State’s
failure to preserve potentially useful evidence does not violate due process unless
the defendant shows that the loss of the evidence resulted from “bad faith on the part
of the police.” Neal v. State, 256 S.W.3d 264, 280 (Tex. Crim. App. 2008) (quoting
Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 337 (1988)). “Bad faith
19
entails some sort of improper motive, such as personal animus against the defendant
or a desire to prevent the defendant from obtaining evidence that might be useful.”
Ex parte Napper, 322 S.W.3d 202, 238 (Tex. Crim. App. 2010).
B. Analysis
Rodriguez argues that he is entitled to a new trial because the surveillance
video of the shooting was not preserved. At trial, the owner of the sports bar testified
that the investigating officers asked him for a copy of the surveillance video from
the night of the shooting. He attempted to copy the video onto a thumb drive and
gave the drive to one of the investigating officers, Officer Caballero, believing that
he had successfully copied the video.
Caballero testified that he took the drive to the HPD property room where it
was tagged into evidence and stored. He testified that it was later discovered that
the video had not properly copied to the drive and that the drive was actually blank.
Caballero returned to the bar to get a new copy of the video, but the surveillance
system had recorded over the video by that time. Rodriguez contends that the video
might have exonerated him, making it potentially useful evidence. See Ramirez v.
State, 301 S.W.3d 410, 420 (Tex. App.—Austin 2009, no pet.) (destroyed videotape
was “potentially useful evidence,” not material, exculpatory evidence, because
defendant claimed only that tape might have exonerated him and no evidence
showed tape would have exonerated defendant). Thus, the State failed to preserve
20
potentially useful evidence. See id. Rodriguez therefore must demonstrate that the
State failed to preserve the video in bad faith.
Rodriguez contends that he has shown the State acted in bad faith because
once police officers established that a video of the shooting existed and tagged it into
evidence, it became the State’s duty to preserve evidence. But the mere fact that the
video was not preserved does not show that the State acted in bad faith. Indeed, the
only testimony regarding the loss of the video indicates that the failure to preserve
the video was inadvertent, and the error occurred before the video was tagged into
evidence, not afterwards. Accordingly, we hold that Rodriguez has not shown that
the failure to preserve the video violated his due process rights. See Neal, 256
S.W.3d at 280 (overruling appellant’s claim that State violated due process because
appellant presented no evidence that police acted in bad faith); Mahaffey v. State,
937 S.W.2d 51, 53 (Tex. App.—Houston [1st Dist.] 1996, no writ) (appellant did
not demonstrate State erased videotape in bad faith where only evidence in record
regarding erased videotape was that to best of officer’s knowledge, no one had
erased tape).
We overrule Rodriguez’s fifth issue.
21
Alleged False Testimony of Complainant
In his thirteenth issue, Rodriguez contends that the trial court erred by
permitting the State to adduce Jose’s false testimony regarding the medical treatment
he received after the shooting.
A. Standard of Review and Applicable Law
“The Due Process Clause of the Fourteenth Amendment can be violated when
the State uses false testimony to obtain a conviction, regardless of whether it does
so knowingly or unknowingly.” Ex parte Robbins, 360 S.W.3d 446, 459 (Tex. Crim.
App. 2011). “Testimony need not be perjured to constitute a due-process violation;
rather, ‘it is sufficient that the testimony was false.’” Ex parte Chavez, 371 S.W.3d
200, 208 (Tex. Crim. App. 2012) (quoting Ex parte Robbins, 360 S.W.3d at 459).
“The question is whether the testimony, taken as a whole, gives the jury a false
impression.” Id. (citing Ex parte Ghahremani, 332 S.W.3d 470, 477 (Tex. Crim.
App. 2011)). To constitute a due-process violation, the allegedly false testimony
must also be material. See Ex parte Chavez, 371 S.W.3d at 208. Materiality in this
context means that there must be a reasonable likelihood that the false testimony
affected the defendant’s conviction or sentence. See id.
B. Analysis
Rodriguez contends that Jose provided false testimony because his testimony
at trial regarding his condition and medical treatment after the shooting differed from
22
information contained in his medical records. Rodriguez complains that Jose’s
testimony conflicted with his medical records in the following ways:
 Jose testified that he blacked out, lost his breath and lost consciousness
after being shot, but the Houston Fire Department report stated that he
was walking around when they arrived.
 Jose testified that he believed he was taken to MD Anderson, but the
Houston Fire Department report states he was taken to Memorial
Hermann.
 Jose testified that he believed that he was in the hospital two and a half
to three weeks. Rodriguez contends that the medical records show that
he was in the hospital “maybe 1 week.”
 Jose testified that he was in intensive care for “about a week.”
Rodriguez contends that the records show that he was in intensive care
for three days.
 Jose testified that the last thing he remembered after the shooting was
being on Life Flight on the way to the hospital, but Rodriguez contends
the medical records show that he was transported by ambulance.
 Jose testified that he saw his son in the intensive care unit two days after
he was shot, but Rodriguez contends that a chaplain’s letter in the
medical records stated that the chaplain took Jose’s son to see him the
same day that he was shot.
Assuming that the discrepancies about which Rodriguez complains rise to the
level of false testimony, we conclude that the evidence fails to show a reasonable
likelihood that the complained-of testimony affected Rodriguez’s conviction or
sentence. See Ex parte Chavez, 371 S.W.3d at 208. Rodriguez disputes neither that
he shot Jose at point-blank range nor that Jose sustained serious bodily injury and
was hospitalized for days after the shooting. On this record, the alleged disparities
23
between Jose’s testimony and the medical records are not material and accordingly,
do not constitute a due process violation. See id.
We overrule Rodriguez’s thirteenth issue.
Impartiality of Trial Court
In his seventh issue, Rodriguez complains that the trial court deprived him of
a fair and impartial trial by appointing the same attorney who had previously been
appointed to represent Rodriguez after he was re-indicted. Rodriguez argues that
the trial court’s partiality is evident from the fact that the trial court re-appointed the
same counsel Rodriguez had previously sought to dismiss.
Absent a clear showing of bias, we presume a trial court’s actions were
impartial. Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006). To reverse
a judgment based on improper conduct by the judge, we must find (1) that judicial
impropriety occurred and (2) prejudice probably resulted. Id.; Luu v. State, 440
S.W.3d 123, 128–29 (Tex. App.—Houston [14th Dist.] 2013, no pet.). Only in the
rarest circumstances are judicial rulings demonstrative of the degree of favoritism or
antagonism required to show that a fair and impartial trial is impossible. Liteky, 510
U.S. at 555, 114 S. Ct. at 1157; see In re M.C.M., 57 S.W.3d 27, 33 (Tex. App.—
Houston [1st Dist.] 2001, pet. denied) (insufficient showing of antagonism in, for
example, judge’s refusal to permit attorney to read from documents in evidence).
Such rulings are generally best brought as grounds for appeal, not as evidence of
24
judicial bias. See Liteky, 510 U.S. at 555, 114 S. Ct. 1157; Grider v. Boston Co.,
773 S.W.2d 338, 346 (Tex. App.—Dallas 1989, writ denied) (“proper remedy was
to assign error on the basis of the adverse rulings”). Our review encompasses the
entire record. Luu, 440 S.W.3d at 129.
Rodriguez contends that the order appointing counsel improperly indicates
that he requested appointment of the same counsel and that this is evidence of
judicial impropriety. But the order about which Rodriguez complains does not say
so—it indicates only that he requested appointed counsel and that the trial court
appointed his previously-appointed counsel. A defendant does not have the right to
have his own choice of appointed counsel, and unless he waives his right to counsel
and chooses to represent himself, or shows adequate reason for appointment of new
counsel, he must accept the counsel appointed by the court. Thomas v. State, 550
S.W.2d 64, 68 (Tex. Crim. App. 1977); Garner v. State, 864 S.W.2d 92, 98 (Tex.
App.—Houston [1st Dist.] 1993 pet. ref’d). Rodriguez made no showing of a reason
for appointing new counsel.
Accordingly, we hold that Rodriguez has not demonstrated that the trial court
deprived him of a fair and impartial trial. See Brumit, 206 S.W.3d at 645.
We overrule Rodriguez’s seventh issue.
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Complaints Relating to Reporter’s Record
In his third issue, Rodriguez contends that he is entitled to a new trial because
the court reporter failed to record all the trial proceedings. The trial court granted
Rodriguez’s “Motion for Court Reporter to Record All Proceedings,” which
requested that the reporter record all proceedings, including bench conferences.
However, Rodriguez contends that the court reporter failed to record bench
conferences and that the record contains other omissions, such as missing words and
unclear notations.
A. Failure to Record Bench Conferences
Government Code section 52.046 requires an official court reporter, on
request, to attend all sessions of court and furnish a transcript of the reported
evidence or other proceedings. TEX. GOV’T CODE ANN. § 52.046(a). The Court of
Criminal Appeals has held that a defendant must object to the court reporter’s failure
to record a portion of the trial proceedings to preserve error. See Valle v. State, 109
S.W.3d 500, 508–09 (Tex. Crim. App. 2003). In particular, to the extent that a
defendant complains that the court reporter failed to record bench conferences, the
defendant waives the issue if he does not object at trial to the reporter’s failure to
record conferences, even if the trial court has granted a motion to record conferences.
See Moore v. State, 999 S.W.2d 385, 398 (Tex. Crim. App. 1999); see also Velazquez
v. State, 222 S.W.3d 551, 556–57 (Tex. App.—Houston [14th Dist.] 2007, no pet.)
26
(holding that complaint that court reporter failed to record bench conferences was
not preserved for appellate review because defendant did not object to lack of court
reporter’s presence at conferences). To be entitled to a new trial based on a lost or
destroyed reporter’s record, the appellant must demonstrate that the omitted portions
are necessary to the appeal’s resolution. See TEX. R. APP. P. 34.6(f).
Rodriguez did not object at trial to the reporter’s failure to record bench
conferences. Accordingly, his argument regarding the reporter’s failure to record
bench conferences is waived. See Moore, 999 S.W.2d at 398; see also Velazquez,
222 S.W.3d at 556–57.
B. Other Errors and Omissions
The State argues that Rodriguez has also waived his argument that the record
contains other errors and omissions because Rodriguez failed to raise these issues
before filing his brief to permit the record to be corrected, if necessary, before his
brief was filed. Rodriguez responds that he did raise his complaints before he filed
his brief, but the motions he points to raised only the issue of whether the reporter
had filed copies of the pretrial hearing in which Rodriguez was admonished
regarding the dangers and disadvantages of self-representation. The reporter has
filed those volumes.
If a dispute arises after the reporter’s record has been filed in the appellate
court, we may submit the dispute to the trial court for resolution, but we are not
27
required to do so. See TEX. R. APP. P. 34.6(e)(3) (appellate court may submit dispute
regarding reporter’s record to trial court). Here, Rodriguez did not request that we
abate the case to the trial court for correction under Texas Rule of Appellate
Procedure 34.6(e). Nor did he raise his claims about allegedly missing words and
unclear notations in the reporter’s record before his brief was filed. Instead, he
argues in his brief that these alleged errors and omissions entitle him to a new trial.
See id. 34.6(f)(3).
Although Rodriguez alleges that various words are missing and certain
notations in the record are unclear, he does not explain how, if at all, any of these
alleged errors or omissions bear on any issue he has raised or could have raised in
this appeal, nor does he demonstrate that there is anything missing that is necessary
to the appeal’s resolution. Id. (appellant entitled to new trial only if reporter’s record
is lost or destroyed and missing portion is “necessary to the appeal’s resolution”).
He argues only that the alleged errors and omissions violate the trial court’s order
granting his motion for the reporter to record all of the proceedings. Because
Rodriguez fails to demonstrate how he was harmed by any error or omission in the
record, we overrule Rodriguez’s third issue. See TEX. R. APP. P. 34.6(e), (f).
Admissibility of 911 Recording
In his sixth issue, Rodriguez contends that the trial court erred in admitting
State’s Exhibit 17, an audio recording of a witness’s 911 call, because the version of
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the recording filed pre-trial was on a CD of a brand different than that of the CD
admitted at trial and included in the reporter’s record on appeal. Rodriguez does not
allege that the recording contained on the CD in the appellate record is different than
the recording that was played and admitted at trial.
We may not determine whether a trial court erred in the admission of
evidence, unless error is preserved by a proper objection and a ruling on that
objection. See Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003); Martinez
v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003). A proper objection is one that
is timely and specific. See TEX. R. APP. P. 33.1; Martinez, 98 S.W.3d at 193.
Here, Rodriguez made the following objection to the admission of State’s
Exhibit 17: “The copy I was given says there is no audio since the past six months,
and I object to it because I never received a copy of it.” But on appeal, Rodriguez
does not complain that he never received a copy of the recording, and acknowledges
that the trial court overruled his objection because the recording had been in the
clerk’s file, to which Rodriguez had access, for about a year before trial. Instead,
Rodriguez argues that the copy of the recording that was filed pre-trial was on a
different brand of CD than the copy admitted at trial and included in the reporter’s
record on appeal.
However, Rodriguez did not object to the admission of the recording at trial
on the ground that the brand of CD which contained the recording differed from the
29
brand of CD in the clerk’s file. Accordingly, we hold that Rodriguez failed to
preserve the complaint he advances on appeal. See TEX. R. APP. P. 33.1; Martinez,
98 S.W.3d at 193.
Moreover, and to the extent that Rodriguez is attempting to raise any other
complaint regarding the admission of the 911 recording, he does not explain how the
admission of the call had a substantial and injurious effect or influence in
determining the jury’s verdict. See TEX. R. APP. P. 44.2(b) (non-constitutional error
must be disregarded unless it affects substantial rights of defendant); Motilla v. State,
78 S.W.3d 352, 355 (Tex. Crim. App. 2002) (substantial rights are not affected by
erroneous admission of evidence unless error had substantial and injurious effect or
influence in determining jury’s verdict); Potier v. State, 68 S.W.3d 657, 666 (Tex.
Crim. App. 2002) (error in admission of evidence is non-constitutional and therefore,
subject to harm analysis under Rule 44.2(b) of the Texas Rules of Appellate
Procedure). Thus, we conclude any error in admitting State’s Exhibit 17 was
harmless. See TEX. R. APP. P. 44.2(b); Motilla, 78 S.W.3d at 355; Potier v. State, 68
S.W.3d at 666.
We overrule Rodriguez’s sixth issue.
Failure of Trial Court to Enter Written Rulings on Rodriguez’s Motions
In his eighth issue, Rodriguez contends that the trial court erred by not issuing
written rulings on every motion Rodriguez filed.
30
Rodriguez filed a “Motion to have Written Rulings Made on All Motions Filed
by the Defendant,” and the trial court granted the motion on the first day of trial. On
appeal, Rodriguez complains that the trial court did not actually enter written rulings
on all of his motions, and points to a number of motions in the record that were not
disposed of by written order. Rodriguez contends that the failure to enter written
rulings on all motions “prejudiced” his appeal.
Even if the trial court erred in failing to enter written rulings on these motions,
we would disregard these errors unless they affected Rodriguez’s substantial rights.
See TEX. R. APP. P. 44.2(b). “A substantial right is affected when the error had a
substantial and injurious effect or influence in determining the jury’s verdict.” King
v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Rodriguez contends that the
failure to enter written rulings “prejudiced” his appeal, but he does not explain how,
if at all, the failure to enter written rulings affected his substantial rights.
Accordingly, the trial court’s failure to enter written rulings on every motion filed
by Rodriguez does not entitle Rodriguez to reversal of his convictions. See TEX. R.
APP. P. 44.2(b).
We overrule Rodriguez’s eighth issue.
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Conclusion
We affirm the judgments of the trial court.
Rebeca Huddle
Justice
Panel consists of Justices Keyes, Huddle, and Lloyd.
Publish. TEX. R. APP. P. 47.2(b).
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