IN THE TENTH COURT OF APPEALS
No. 10-20-00097-CR
ALEJO VARGAS, Appellant v.
THE STATE OF TEXAS, Appellee
From the 413th District Court Johnson County, Texas Trial Court No. DC-F201900792
MEMORANDUM OPINION
In four issues, appellant, Alejo Vargas, challenges his conviction for evading arrest
or detention with a vehicle. See TEX. PENAL CODE ANN. § 38.04. We affirm.
I. THE RIGHT TO REMAIN SILENT
In his first issue, Vargas argues that the trial court should have excluded a video
recording of his oral statements made to police because he did not make a knowing,
intelligent, and voluntary waiver of his statutory and constitutional right to remain silent. See TEX. CODE CRIM. PROC. ANN. art. 38.22; see also Miranda v. Arizona, 384 U.S. 436, 86 S.
Ct. 1602, 16 L. Ed. 2d 694 (1966). We disagree.
A. Standard of Review
In reviewing a Miranda-violation claim, an appellate court conducts a bifurcated
review: (1) if affords almost total deference to the trial court’s rulings on questions of
historical fact and on application-of-law-to-fact questions that turn upon credibility and
demeanor; and (2) it reviews de novo the trial court’s rulings on application-of-law-to-
fact questions that do not turn upon credibility and demeanor. Alford v. State, 358 S.W.3d
647, 652-53 (Tex. Crim. App. 2012) (citing Ripkowski v. State, 61 S.W.3d 378, 381-82 (Tex.
Crim. App. 2001); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). We view
the record in the light most favorable to the trial court’s conclusion and reverse the
judgment only if it is outside the zone of reasonable disagreement. State v. Dixon, 206
S.W.3d 587, 590 (Tex. Crim. App. 2006).
B. Applicable Law
Under article 38.22 of the Code of Criminal Procedure, no oral statement of an
accused made as a result of custodial interrogation shall be admissible against an accused
in a criminal proceeding unless: (1) the statement was recorded; and (2) prior to the
statement but during the recording, the accused was warned of his rights and knowingly,
intelligently, and voluntarily waived those rights. TEX. CODE CRIM. PROC. ANN. art. 38.22,
§ 3(a); Joseph v. State, 309 S.W.3d 20, 23-24 (Tex. Crim. App. 2010). The warnings required
Vargas v. State Page 2 by article 38.22 include those articulated in Miranda, as well as a warning that the accused
“has the right to terminate the interview at any time.” TEX. CODE CRIM. PROC. ANN. art.
38.22, §§ 2(a), 3(a)(2); Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007).
The State bears the burden of establishing a knowing, intelligent, and voluntary
waiver of one’s rights under article 38.22 and Miranda. See Leza v. State, 351 S.W.3d 344,
349, 351 (Tex. Crim. App. 2011); Joseph, 309 S.W.3d at 24. A waiver must be proven by a
preponderance of the evidence. Leza, 351 S.W.3d at 349; Joseph, 309 S.W.3d at 24. Without
a valid waiver, a defendant’s statement is generally inadmissible. TEX. CODE CRIM. PROC.
ANN. art. 38.22, § 3(a); see Berghuis v. Thompkins, 560 U.S. 370, 381-82, 130 S. Ct. 2250, 2260,
176 L. Ed. 1098 (2010); see also Joseph, 309 S.W.3d at 24. In determining whether there was
a valid waiver of Vargas’s rights, we must look to the totality of the circumstances,
“including the background, experience, and conduct of the accused.” North Carolina v.
Butler, 441 U.S. 369, 374-75, 99 S. Ct. 1755, 1758-59, 60 L. Ed. 2d 286 (1979); see Leza, 351
S.W.3d at 349; Joseph, 309 S.W.3d at 25.
A waiver can be expressly made or implied by the accused’s conduct. Berghuis,
560 U.S. at 383, 130 S. Ct. at 2261; Joseph, 309 S.W.3d at 24. An implied waiver of one’s
rights is established upon a showing that the accused: (1) was given the proper warnings;
(2) understood the warnings and their consequences; and (3) made an uncoerced
statement. Berghuis, 560 U.S. at 381-85, 130 S. Ct. at 2260-62; see Moran v. Burbine, 475 U.S.
412, 422-23, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986); Leza, 351 S.W.3d at 349. “As a general
Vargas v. State Page 3 proposition, the law can presume that an individual who, with a full understanding of
his or her rights, acts in a manner inconsistent with their exercise has made a deliberate
choice to relinquish the protection those rights afford.” Berghuis, 560 U.S. at 385, 130 S.
Ct. at 2262.
While it is true that a waiver cannot be presumed from an accused’s silence or the
fact that a confession was made after warnings were provided, “the general rule is that
neither a written nor an oral express waiver is required.” Watson v. State, 762 S.W.2d 591,
601 (Tex. Crim. App. 1988) (en banc). Simply making a statement is often the kind of
conduct viewed as indicative of one’s intention to waive his rights. See Berghuis, 560 U.S.
at 385, 130 S. Ct. at 2262; Leza, 351 S.W.3d at 348; Joseph, 309 S.W.3d at 25 n.7. The reason
for the relatively low threshold is because “[t]he main purpose of Miranda is to ensure
that an accused is advised of and understands the right to remain silent and the right to
counsel.” Berghuis, 560 U.S. at 383, 130 S. Ct. at 2261.
C. Discussion
The record demonstrates that Vargas was apprehended after leading Texas
Department of Public Safety Trooper Brendan Helton on a seventeen-mile long pursuit
that culminated with Vargas driving through the front yard of a residence and being
trapped by a dead end. After drawing his service weapon, Trooper Helton ordered
Vargas to exit his vehicle and lay on the ground. Subsequently, Vargas was handcuffed.
Trooper Helton asked Vargas several questions before he advised Vargas of his rights
Vargas v. State Page 4 under Texas Code of Criminal Procedure 38.22 and Miranda. The record demonstrates
that Vargas was advised that: (1) he had the right to remain silent and make no statement
at all; (2) any statement that he did make could be used as evidence against him at trial;
(3) he had a right to have a lawyer present to advise him prior to and during any
questioning; (4) if he could not afford a lawyer, he had the right to have one appointed to
advise him prior to and during any questioning; and (5) he had the right to terminate the
interview at any time. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2(a). Trooper Helton
then asked Vargas: “Do you understand your rights, sir?” Vargas responded, “yes, sir,”
and then proceeded to speak with Trooper Helton for approximately ninety seconds.
On appeal, Vargas argues that the evidence outlined above does not demonstrate
that he expressly waived his constitutional rights. The trial court sustained Vargas’s
objection to the questions and answers provided prior to the Miranda warnings, but
overruled Vargas’s objection to the statements made after the Miranda warnings were
provided on the basis of an implied waiver.
Viewing the totality of the circumstances in the light most favorable to the trial
court’s ruling, we hold that the trial court’s determination that Vargas impliedly waived
his rights was not erroneous based on the fact that Vargas freely engaged with Trooper
Helton after receiving and indicating that he understood his article 38.22 and Miranda
warnings. See Berghuis, 560 U.S. at 381-85; 130 S. Ct. at 2261-62; Leza, 351 S.W.3d at 348;
Joseph, 309 S.W.3d at 24, 25 n.7. Accordingly, we cannot say that the trial court abused its
Vargas v. State Page 5 discretion by admitting Vargas’s oral statements made to Trooper Helton after receiving
article 38.22 and Miranda warnings. See Alford, 358 S.W.3d at 652-53; Ripkowski, 61 S.W.3d
at 381-82; Guzman, 955 S.W.2d at 89; see also Dixon, 206 S.W.3d at 590. We overrule
Vargas’s first issue.
II. VARGAS’S PRIOR CONVICTIONS FOR EVADING ARREST OR DETENTION WITH A VEHICLE
In his second issue, Vargas argues that the trial court erred by admitting evidence
of his two prior convictions for evading arrest or detention with a vehicle during the
guilt-innocence phase of trial. Specifically, Vargas challenges the admissibility of the
evidence under Texas Rules of Evidence 403 and 404(b). See TEX. R. EVID. 403, 404(b).
A. Applicable Law
Evidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith. Id. at R. 404(b). It may,
however, be admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident. Id. “The
exceptions listed under Rule 404(b) are neither mutually exclusive nor collectively
exhaustive.” De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). “Rule 404(b)
is a rule of inclusion rather than exclusion.” Id. (internal quotation & citation omitted).
“The rule excludes only that evidence that is offered (or will be used) solely for the
Vargas v. State Page 6 purpose of proving bad character and hence conduct in conformity with that bad
character.” Id. (citing Rankin v. State, 974 S.W.2d 707, 709 (Tex. Crim. App. 1996)).
Rebuttal of a defensive theory is one of the permissible purposes for which
extraneous-offense evidence may be admitted. See Moses v. State, 105 S.W.3d 622, 626
(Tex. Crim. App. 2003). Further, defensive theories presented in the defendant’s opening
statement can open the door for admission of evidence of an extraneous offense as
rebuttal evidence during the State’s case-in-chief. Hinojosa v. State, 554 S.W.3d 795, 798
(Tex. App.—Waco 2018, no pet.) (citing Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App.
2008)); see De La Paz, 279 S.W.3d at 343 (noting that admitting evidence of extraneous
offenses is permissible “to rebut a defensive issue that negates one of the elements of the
offense”).
B. Discussion
In his opening statement, Vargas raised the defensive theory that he did not
intentionally evade Trooper Helton to avoid arrest or detention. Specifically, Vargas
argued the following in his opening statement:
I think the evidence will be: There was a question about why the police wanted to stop Mr. Vargas, in his mind. Minority, Latino, isolated, two- lane country road, driving properly. From his position behind the wheel, is he being profiled? Is he being stopped with no reason?[1] Is this a police
1 Trooper Helton testified that the vehicle Vargas was driving did not have a front license plate, as required by the Texas Transportation Code. See TEX. TRANSP. CODE ANN. § 504.943(a); see also 43 TEX. ADMIN. CODE § 217.27(b)(1). After activating the overheard lights on his vehicle, Trooper Helton observed the following regarding the initial attempt to stop Vargas:
Vargas v. State Page 7 officer that’s going to be confrontational? I think those are all things that are the state of mind of the Defendant, Mr. Vargas. He let his wife get out of the car. She was pregnant. He did that in an effort to allow her release. He wanted to find an area where there would be people, observers, citizens who might observe if there was a confrontation, where is a safe place to stop. He’s in the country.
So the two issues I think at the conclusion are: The state of mind of Mr. Vargas. Certainly it’s an issue. It’s part of the indictment allegation. And was he lawfully stopped. Was there a profile stop.
Prior to trial, the State filed a notice of intent to offer evidence of extraneous crimes,
acts, and wrongs committed by Vargas, including Vargas’s two prior convictions for
evading arrest or detention with a vehicle. In response to Vargas’s opening statement,
the State offered the pen packets from Vargas’s two prior convictions for evading arrest
or detention with a vehicle. Vargas objected, but the State argued that the evidence
rebutted Vargas’s opening statement that he did not intentionally evade arrest or
detention, but rather was concerned about racial profiling or a confrontation. The
complained-of extraneous-offense evidence rebutted Vargas’s argument that he may
have been mistaken, that the traffic stop was racially motivated, or an attempt to avoid
The vehicle [Vargas’s vehicle] immediately hit his flashers, pumped his brakes. Whenever he hit his brakes, I saw it also had a defective brake light. Drove on to the improved shoulder. It looked like it might be about to pull over and then continued to accelerate forward, drove at a sustained speed, lower speeds for a minute, crossed the bridge, and assumed the vehicle might be trying to find a safe place to pull over, which is understandable because the bridge is a narrow spot. I’m all about safety. But then we passed by the first place to pull over, vehicle continues to drive. Activate my overhead emergency audible sirens so they can clearly see lights and sirens, hey, this is a traffic stop, trying to get you to move over. Vehicle continues to drive. Ends up accelerating, and we pass over a dozen areas to pull over safely too. Vargas v. State Page 8 confrontation. This evidence shows that Vargas knew exactly what he was doing when
he evaded Trooper Helton, as he had done the same thing twice before. We therefore
conclude that the trial court did not abuse its discretion by admitting the extraneous-
offense evidence of Vargas’s two prior convictions for evading arrest or detention with a
vehicle under Rule 404(b) because the evidence rebutted Vargas’s defensive theory raised
in his opening statement. See TEX. R. EVID. 404(b); De La Paz, 279 S.W.3d at 343; Bass, 270
S.W.3d at 563; Hinojosa, 554 S.W.3d at 798; see also Martinez, 327 S.W.3d at 736; Manning,
114 S.W.3d at 926; Montgomery, 810 S.W.2d at 380, 391.
Next, Vargas complains that this extraneous-offense evidence should have been
excluded under Texas Rule of Evidence 403 because the probative value of the evidence
is substantially outweighed by the danger of unfair prejudice. We disagree.
“Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice.” TEX. R. EVID. 403. Rule 403
favors the admission of relevant evidence and carries a presumption that relevant
evidence will be more probative than prejudicial. Allen v. State, 108 S.W.3d 281, 284 (Tex.
Crim. App. 2003); Jones v. State, 944 S.W.2d 642, 652-53 (Tex. Crim. App. 1996). When
considering a Rule 403 objection, the trial court must balance (1) the inherent probative
force of the proffered item of evidence along with (2) the proponent’s need for that
evidence against (3) any tendency of the evidence to suggest a decision on an improper
basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues,
Vargas v. State Page 9 (5) any tendency of the evidence to be given undue weight by a jury that has not been
equipped to evaluate the probative force of the evidence, and (6) the likelihood that
presentation of the evidence will consume an inordinate amount of time or merely repeat
evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App.
2006).
The trial court has broad discretion in conducting a Rule 403 balancing test, and
we will not lightly disturb its decision. Allen, 108 S.W.3d at 284. All testimony and
physical evidence will likely be prejudicial to one party or the other. Jones, 944 S.W.2d at
653. It is only when there exists a clear disparity between the degree of prejudice of the
offered evidence and its probative value that the evidence is considered unfairly
prejudicial and in violation of Rule 403. Id.; see Montgomery, 810 S.W.2d at 389.
As stated above, evidence of Vargas’s two prior convictions for evading arrest or
detention with a vehicle was probative to rebut Vargas’s defensive theory raised in his
opening statement. Furthermore, the trial court could have reasonably concluded that
the State’s need for the evidence was “considerable” given that there was no other way
to rebut Vargas’s defensive theory that he was being racially profiled, that he was
mistaken about the traffic stop, or that he was trying to avoid a confrontation.
Additionally, the danger of unfair prejudice was counterbalanced by the trial
court’s limiting instructions contained in the jury charge. Specifically, the charge
instructed the jury as follows:
Vargas v. State Page 10 The Defendant is on trial solely on the charges contained in the indictment. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. However, such evidence may be admissible for other purposes, such as intent, preparation, plan, absence of mistake or accident, or to rebut a defensive theory.
The State has introduced evidence of extraneous matters other than the offenses charged in the indictment in this case. You are instructed that said evidence was admitted only for the purpose of showing intent, preparation, plan, absence of mistake or accident, or to rebut a defensive theory, if it does. You are further charged that is there is any evidence before you in this case tending to show that the Defendant committed the extraneous transaction, you cannot consider said evidence for any purpose unless you first find and believe beyond a reasonable doubt, that the Defendant committed said extraneous transaction. If you find and believe beyond a reasonable doubt, from such testimony that the Defendant committed the extraneous transaction, you may then consider the same for the purpose for which it was introduced, namely as evidence of intent, preparation, plan, absence of mistake or accident, or to rebut a defensive theory, if any, and for no other purpose.
Next, we note that the complained-of extraneous-offense evidence was neither
confusing nor highly technical such that the jury was ill-equipped to evaluate the
probative force of the evidence. Moreover, the evidence was contextual and relevant to
rebut Vargas’s defensive theory challenging the intent element of the offense. As such,
we cannot say that the evidence had a tendency to distract the jury or be given undue
weight by the jury.
Finally, with regard to the final factor, a review of the record shows that the
presentation of the evidence did not consume an inordinate amount of time or merely
repeat evidence already admitted. Therefore, based on the foregoing, we cannot say that
Vargas v. State Page 11 there is a “clear disparity” between the danger of unfair prejudice posed by the
extraneous-offense evidence and its probative value. Accordingly, we conclude that the
trial court did not abuse its discretion by overruling Vargas’s Rule 403 objection. See TEX.
R. EVID. 403; Gigliobianco, 210 S.W.3d at 641-42; Allen, 108 S.W.3d at 284; Jones, 944 S.W.2d
at 653; Montgomery, 810 S.W.3d at 389; see also Martinez, 327 S.W.3d at 736; Manning, 114
S.W.3d at 926. We overrule Vargas’s second issue.
III. THE JURY CHARGE
In his third and fourth issues, Vargas complains about the jury charge. In
particular, Vargas asserts that the trial court erred by failing to limit the definition of
“intentionally” to the relevant conduct elements of the offense alleged in the indictment
and by failing to include a statutory definition of “knowingly” in the charge.
In reviewing a jury-charge issue, an appellate court’s first duty is to determine
whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.
App. 1996). If error is found, the appellate court must analyze that error for harm.
Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). If an error was properly
preserved by objection, reversal will be necessary if the error is not harmless. Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Conversely, if error was not preserved
at trial by a proper objection, as is the case here, a reversal will be granted only if the error
presents egregious harm, meaning Vargas did not receive a fair and impartial trial. Id.
Vargas v. State Page 12 To obtain a reversal for jury-charge error, Vargas must have suffered actual harm and not
merely theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012);
Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986).
In determining whether charge error has resulted in egregious harm, we consider:
(1) the entire jury charge; (2) the state of the evidence, including the contested issues and
the weight of the probative evidence; (3) the arguments of the parties; and (4) any other
relevant information revealed by the trial as a whole. Allen v. State, 253 S.W.3d 260, 264
(Tex. Crim. App. 2008). Jury-charge error is egregiously harmful if it affects the very basis
of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.
Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d
117, 121 (Tex. Crim. App. 2006).
The culpable mental states in the penal code encompass three possible conduct
elements that may be involved in an offense: (1) nature of the conduct; (2) result of the
conduct; and (3) circumstances surrounding the conduct. TEX. PENAL CODE ANN. § 6.03;
McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). Stated differently, some
crimes are defined in terms of the result, and some are defined in terms of conduct or
circumstances. When an offense is specifically delineated as to the type of conduct, the
trial court should limit the statutory definitions in the jury charge to the culpable mental
state required. See Price v. State, 457 S.W.3d 437, 441 (Tex. Crim. App. 2015); see also Cook
Vargas v. State Page 13 v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994); Murray v. State, 804 S.W.2d 279, 281
(Tex. App.—Fort Worth 1991, pet. ref’d).
The abstract portion of the charge provides the following regarding the definition
for “intentionally,” which tracks the definition provided in section 6.03(a) of the Texas
Penal Code: “A person acts intentionally, or with intent, with respect to the nature of his
conduct or to a result of his conduct when it is his conscious objective or desire to engage
in the conduct or cause the result.” See TEX. PENAL CODE ANN. § 6.03(a). Vargas alleges
that the charge improperly included “result of conduct” language in the definition of
“intentionally” in the abstract portion of the charge.
However, in the application portion of the charge, the trial court correctly tailored
the culpable mental states to the charged offense of evading arrest or detention with a
vehicle. See id. § 38.04(a) (“A person commits an offense [of evading arrest or detention]
if he intentionally flees from a person he knows is a peace office or federal special
investigator attempting lawfully to arrest or detain him.”). Specifically, the application
portion of the charge provided the following, in pertinent part:
Now with respect to Count One of the indictment and bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt, that the Defendant, Alejo Vargas, on or about the [sic] March 26, 2019[,] in Johnson County, Texas, did then and there while using a vehicle, intentionally flee from B. Helton, a person the Defendant knew was a peace officer who was attempting to lawfully arrest or detain the Defendant, you will find the Defendant guilty of the offense of Evading Arrest or Detention with a Vehicle and so say by your verdict, but if you do Vargas v. State Page 14 not so believe or if you have a reasonable doubt thereof, you will acquit the Defendant of the offense of Evading Arrest or Detention in a Vehicle and say by your verdict “not guilty.”
The Court of Criminal Appeals has held that “[w]here the application portion
correctly instructs the jury, an error in the abstract instruction is not egregious.” Medina
v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999); see Plata v. State, 926 S.W.2d 300, 302-03
(Tex. Crim. App. 1996), overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex.
Crim. App. 1997) (holding that the inclusion of a merely superfluous abstraction never
produces reversible error in the court’s charge because it has no effect on the jury’s ability
to implement fairly and accurately the commands of the application paragraph or
paragraphs). Moreover, abstract statements of the law that go beyond the allegations in
the indictment will not present reversible error when the trial court’s application of the
law to the facts effectively restricts the jury’s deliberation to the allegations in the
indictment. Grady v. State, 614 S.W.2d 830, 831 (Tex. Crim. App. 1981).
Therefore, assuming, without deciding, that the abstract portion of the charge
contained error, we cannot conclude that the purported error regarding the definition of
“intentionally” was egregious because the application paragraph correctly limited the
culpable mental state as charged in the indictment. See TEX. PENAL CODE ANN. § 38.04(a);
see also Medina, 7 S.W.3d at 640; Plata, 926 S.W.2d at 302-03; Grady, 614 S.W.2d at 831.
Indeed, the application paragraph tracked the indictment, which tracked section 38.04(a)
of the Texas Penal Code. See Martinez v. State, 924 S.W.2d 693, 699 (Tex. Crim. App. 1996)
Vargas v. State Page 15 (holding that a jury instruction that tracks statutory language “will not be deemed error
on the part of a trial judge”). Accordingly, the charge as a whole does not weigh in favor
of egregious harm.
Regarding the second Allen factor to be considered, the “state of the evidence,”
Vargas argued at trial that he did not intentionally evade Trooper Helton, but rather,
attempted to avoid confrontation and because he purportedly believed that he was being
racially profiled. Though Vargas does not raise a sufficiency issue in this appeal, there is
legally sufficient evidence for a rational jury to find that Vargas intentionally evaded
Trooper Helton, especially in light of evidence showing that: (1) Trooper Helton
activated his emergency flashers and signaled for Vargas to stop; (2) Vargas fled from
Trooper Helton, circling his trailer park and stopping twice—once to allow his pregnant
wife to exit the vehicle; and (3) Vargas evaded for another seventeen miles at speeds up
to ninety miles per hour. This factor does not suggest Vargas was egregiously harmed.
As to the third Allen factor, “arguments of counsel,” Vargas argued, as mentioned
above, that he did not intentionally evade Trooper Helton. Rather, Vargas emphasized
that he was the victim of racial profiling and that he was attempting to avoid conflict.
The State emphasized that Vargas intentionally fled from Trooper Helton and was fully
aware that Trooper Helton was a peace officer attempting to arrest or detain Vargas. In
other words, the State did not erroneously argue the culpable mental state necessary for
Vargas v. State Page 16 the offense of evading arrest or detention in a motor vehicle. As such, we find nothing in
the arguments to indicate that Vargas was egregiously harmed.
Finally, with respect to the fourth Allen factor, we are not aware of “any other
relevant information revealed by the record of the trial as a whole” that we should
consider. See Allen, 253 S.W.3d at 264.
Therefore, given that none of the Allen factors weigh in favor of a finding of
egregious harm, we conclude that any error in the abstract portion of the charge
regarding the definition of the culpable mental state of “intentional” was not calculated
to injure Vargas’s rights or deprived him of a fair and impartial trial. See Allen, 253 S.W.3d
at 264; Almanza, 686 S.W.2d at 171; see also Stuhler, 218 S.W.3d at 719; Sanchez, 209 S.W.3d
at 121.
In addition to the foregoing, Vargas also complains about the absence of a
definition in the charge for the culpable mental state of “knowing,” which is also
applicable to the charge of evading arrest or detention with a vehicle. See TEX. PENAL
CODE ANN. § 38.04(a). The absence of this definition from the charge is erroneous. See
TEX. PENAL CODE ANN. § 38.04(a) (“A person commits an offense if he intentionally flees
from a person he knows is a peace officer . . . attempting lawfully to arrest or detain him.”
(emphasis added)); Villarreal v. State, 286 S.W.3d 321, 329 (Tex. Crim. App. 2009) (noting
that the trial court is obligated to include in the jury charge statutory definitions that
affect the meaning of elements of the crime); Smith v. State, 959 S.W.2d 1, 25 (Tex. App.—
Vargas v. State Page 17 Waco 1997, pet. ref’d) (“‘The trial court should provide the statutory definition for any
term that is statutorily defined.’” (quoting Nguyen v. State, 811 S.W.2d 165, 167 (Tex.
App.—Houston [1st Dist.] 1991, pet. ref’d))). However, after reviewing the Allen factors,
we cannot say that Vargas was egregiously harmed.
Specifically, neither the State nor Vargas argued that Vargas was unaware that a
peace officer was attempting to arrest or detain him. Instead, Vargas emphasized that he
did not intentionally evade arrest. He argued that he avoided Trooper Helton because
he felt he was being racially profiled, and because he was trying to avoid conflict.
Additionally, when cross-examined by the State, Vargas admitted that he saw Trooper
Helton behind him, that he saw the red and blue emergency lights on Trooper Helton’s
vehicle, and that he heard the audible siren from Trooper Helton’s vehicle. Vargas also
acknowledged that he was aware of other law-enforcement officers in front of his vehicle.
It was these officers that deployed spikes in an effort to stop Vargas’s vehicle. Further,
during argument, the State offered no improper argument to the jury that they need not
find beyond a reasonable doubt that Vargas knew a peace officer was attempting to arrest
or detain him. And during his argument, defense counsel reiterated his contentions that
Vargas did not intentionally evade. A review of the record reveals that the State’s
evidence and the entirety of Vargas’s defensive theory did not place whether Vargas
knew he was evading from a peace officer at issue. Accordingly, after reviewing the
various Allen factors, we cannot conclude that Vargas was egregiously harmed by the
Vargas v. State Page 18 absence of a definition in the charge for the culpable mental state of “knowing.” See Allen,
253 S.W.3d at 264; Almanza, 686 S.W.2d at 171; see also Stuhler, 218 S.W.3d at 719; Sanchez,
209 S.W.3d at 121. We therefore overrule Vargas’s third and fourth issues.
IV. CONCLUSION
Having overruled all of Vargas’s issues on appeal, we affirm the judgment of the
trial court.
JOHN E. NEILL Justice
Before Chief Justice Gray Justice Neill, and Justice Johnson Affirmed Opinion delivered and filed January 27, 2021 Do not publish [CR25]
Vargas v. State Page 19