ACCEPTED 13-14-00594-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 4/16/2015 10:12:32 PM DORIAN RAMIREZ CLERK
13-14-00594-CR
IN THE COURT OF APPEALS FILED IN 13th COURT OF APPEALS THIRTEENTH JUDICIAL DISTRICT CORPUS CHRISTI/EDINBURG, TEXAS CORPUS CHRISTI, TEXAS 4/16/2015 10:12:32 PM __________________________ DORIAN E. RAMIREZ ELENILSON FLORES RODRIGUEZ, Clerk Appellant VS. THE STATE OF TEXAS, Appellee ___________________________ ON APPEAL FROM THE 389TH DISTRICT COURT OF HIDALGO COUNTY, TEXAS CAUSE NUMBER CR-4560-13-H ____________________________ FIRST AMENDED BRIEF FOR THE APPELLANT ELENILSON FLORES RODRIGUEZ ____________________________
ROBERT D. PUENTE LAW OFFICE OF ROBERT D. PUENTE 1315 W. POLK, STE 24 PHARR, TEXAS 78577 TEL.956- 502-5258 FAX.956-618-9904 SBN 24013359 robpuente@msn.com
ORAL ARGUMENT REQUESTED ATTORNEY FOR APPELLANT
1 TABLE OF INTERESTED PARTIES
Ms. Hope Palacios State’s Trial Counsel Assistant District Attorney 100 N. Closner Edinburg, Texas, 78539
Mr. Eloy I. Hernandez Trial Counsel Palacios & Associates 2724 W. Canton Rd. Edinburg, Texas 78539
Hon. Leticia Lopez Trial Court Judge Judge Presiding 389th District Court Hidalgo County, Texas
Robert D. Puente Appellant’s Counsel 1315 W. Polk, Ste 24 Pharr, Texas 78577
Theodore C. Hake Appellee’s Counsel Assistant District Attorney 100 N. Closner Edinburg, Texas 78539
2 TABLE OF CONTENTS PAGE(S)
Table of Interested Parties…………………………….………………………………….…….2 Table of Contents……………………………………………………………………3 Table of Authorities…………………………………………………….… 4 Statement of the Case……………..………………………………………………….………7 Issues Presented…………………………………………………………….8
Summary of the Argument…………………………………………………………………...9 Appellant’s First Point of Error…………………………………………………………………..……9 Appellant’s Second Point of Error…………………………………………………………………..…..13 Appellant’s Third Point of Error…………………………………………………………………..…..19 Appellant’s Fourth Point of Error…………………………………………………………………..……25 Conclusion and Prayer……………………………………………………………….……..30 Certificate of Service……………………………………………………………….…….31 Certificate of Compliance………………………………..………………………….…….31
3 TABLE OF AUTHORITIES STATE CASES PAGE
Alvarado v. State, 853 S.W.2d 17, 20 (Tex. Crim. App. 1993)………25,26
Bokor v. State, 114 S.W.3d 558, 560 (Tex. App.-Fort Worth 2002, no pet.)………………………………………………………………………17 Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)…………17
Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011)………..20-22
Clayton v. State, 235 S.W.3d 772, 778 (Tex Crim. App. 2007)……………………………………………………………………16
Davis v. State 947 S.W.2d 240, 245 (Tex. Crim. App. 1997)…………24-25
De La Paz v. State, 279 S.W.3d 336, 343-344, (Tex. Crim. App. 2003)..28
Earl v. State, 514 S.W.2d 273 (Tex. Cr. App., 1974)……………….17,22
Flores v. State, 888 S.W.2d 187, Tex. App.-Houston [1 Dist], 1994)…18
Griffin v. State, 614 S.W.2d 155 (Tex.Crim.App., 1981)………………..18
Hawkins v. State, 214 S.W.3d 668, 670 (Texas App.-Waco, 2007, no pet.)………………………………………………………………………18
Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007)………..24
Hill v. State, 633 S.W.2d 520, 521 (Tex.Crim App. 1981)…………18,19
Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed 2d 560 (1979)……………………………………………………………….16,20
Joseph v. State 865 SW2d 100, 102 (Tex. App-Corpus Christi, 1993) pet. ref’d……………………………………………………………………25
Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996)……………30
4 Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)….20
Mann v. State, 642 S.W.2d 53, Tex.App. 6 Dist.,1982)…………22
Martinez v. State, 272 S.W.3d 615 (Tex. Crim. App 2008)….26-27
Montgomery v. State, 810 S.W.2d 372, 391(Tex. Crim. App.1990)…28
Moore v. State, 700 S.W.2d 193, 201 (Tex. Crim. App. 1985), cert. denied, 474 U.S. 1113,106 S.Ct 1167 (1986)…………………………………….30
Nolen v. State, 872 S.W.2d 807, 812 (Tex. App.-Fort Worth 1994), pet.ref’d, 897 S.W.2d 789 (Tex. Crim. App. 1995)…………………………..29-30
Parks v. State, 746S.W.2d 738, 740 (Tex. Crim. App. 1987)…….30
Patrick v. State, 906 S. W. 2d 481, 487 (Tex. Crim. App. 1995)……18
Plante v. State 692 S.W.2d 487,491-92 (Tex. Crim. App.1985)……30
Rankin v. State, 974 S.W.2d 707, 709 (Tex. Crim. App. 1996)……..29
Rowland v. State 744 S.W.2d 610, (Tex. Crim App. 1988)……………18
Santellan v. State, 939 S.W.2d 155, 168-69 (Tex. Crim. App. 1997)…..29
Smith v. State, 507 S.W.2d 779, 781 (Tex. Crim. App. 1974)………..27
State v. Avila, 910 S.W.2d 505, 508 (Tex. App.-El Paso 1994, pet.ref”d).25
State v. Ortiz, 346 S.W.3d 127, (Tex.App.–Amarillo, 2011)……….25-26
State v. Ross, 32 S.W.3d 853,856, (Tex. Crim App. 2000)……………23
Temple v. State, 390 S.W.3d 341, 360( Tex. App. 2013)……………………………………………………….…………16
Turner v. State, 715 S.W.2d 847, 852 (Tex. App-Houston [14th Dist.], 1986, pet.ref”d)……………………………………………………………….29
5 Vasquez v. State, 67 S.W.3d 229, 239-40 (Tex. Crim. App. 2002)….29
Villarreal v. State, 61 S.W.3d 673, (Tex.App.–Corpus Christi, 2001)….26
Ward v. State, 657 S.W.2d 133, 136 (Tex. Crim. App 1983)………….27
Williams v. State, 948 S.W.2d 954, 956 (Tex. App.-Waco 1997, pet. ref”d)…………………………………………………………………...29
RULES
Tex. Penal Code Ann, section 31.01(2)(A)…………………………..17
Texas Penal Code 31.03 (a)………………………………………….17
Texas Rule of Evidence 404(b)……………………………………….28
Texas Rule of Evidence 403………………………………………….29
Texas Code of Criminal Procedure 38.22…………………………26-27
6 NO. 13-14-00594-CR
ELENILSON FLORES RODRIGUEZ, § IN THE COURT OF Appellant § APPEALS, 13TH v. § JUDICIAL DISTRICT THE STATE OF TEXAS, § CORPUS CHRISTI, TEXAS Appellee
STATEMENT OF THE CASE
To the Honorable Thirteenth Court of Appeals:
Now Comes, Elenilson Flores Rodriguez, appellant in the case herein, by
and through Robert D. Puente, and Attorney-at-Law, and files this brief in
cause number 13-14-00594-CR. The appellant was charged by way of an
indictment with the offense of Aggravated Robbery in cause number CR-
4560-13-H. Following a jury trial in 389th District Court, Hidalgo County
the appellant was found guilty of the offense as charged in the indictment.
The jury assessed punishment at twenty five (25) years of confinement in the
institutional division of the Texas Department of Corrections. Notice of
appeal was filed and this appeal, alleging four points of error, has followed.
7 ISSUES PRESENTED
APPELLANTS FIRST POINT OF ERROR
The trial court erred in not granting Appellant’s motion for directed
verdict as there was no evidence, or legally and factually insufficient
evidence, to meet the elements of aggravated robbery as stated in the
indictment, because no rational trier of fact could have found the substantive
elements of the underlying theft offense beyond a reasonable doubt.
APPELLANTS SECOND POINT OF ERROR
The trial court erred in not granting Appellant’s motion for directed
verdict as there was no evidence, or legally and factually insufficient
evidence, to meet the elements of aggravated robbery as stated in the
indictment, because no rational trier of fact could have found the substantive
elements of the underlying theft offense beyond a reasonable doubt, as the
correct owner of the property was never identified.
APPELLANTS THIRD POINT OF ERROR
The trial court erred in not granting Appellant’s motion to suppress
statements made by the accused, as there was no evidence, or legally and
factually insufficient evidence, that Appellant was not in custody and his
statements were a result of custodial interrogation made without benefit of
Miranda warnings and such statements resulted in harmful error.
8 APPELLANTS FOURTH POINT OF ERROR
The trial court erred in not granting Appellant’s objection to allow
testimony concerning Defendant’s statement of false identity as this
statement did not fall under a Texas Rule of Evidence 404(b) exception and
such statement resulted in harmful error.
9 SUMMARY OF ARGUMENT
Appellant contends that the State presented legally and factually
insufficient evidence of aggravated robbery. The Court erred in not granting
Appellant’s motion for directed as a jury could not find beyond a reasonable
doubt the elements of theft that form the gravamen of aggravated robbery.
The Court also erred in not granting Appellant’s motion for directed verdict
as the State never presented legally and factually sufficient evidence of the
owner of the property in the aggravated robbery. The Court erred in
improperly admitting statements that were the result of custodial
interrogation without benefit of the warnings of Texas Code of Criminal
Procedure 38.22 and improperly admitted evidence of a statement of a false
identity by the Appellant.
STATEMENT OF FACTS
Jessica Jasso, the victim, testified that Appellant tapped the door of the truck
she sat in with his gun and said open the door. CR Vol 16, p 189 line 7-16.
When the State asked what the Appellant said with reference to the vehicle,
she stated:
Q. Did he make any comments to you in reference to the vehicle?
A. He just kept telling me to open the door and I said, No.
10 CR Vol 16, p.189, lines 13-16. The victim continued her testimony that the
Appellant attempted to pull the car door, but was distracted momentarily, at
which the victim backed the vehicle away. CR Vol 16, p. 189, lines 17-25;p.
190 lines 1-4. As the victim was backing the vehicle away, she stated that
the Appellant fired at her with his weapon. CR Vol 16, p.190, lines 4-5. The
victim later reaffirmed that the Appellant had stated to open the door,
without adding more. CR Vol 16, p.204, lines 3-7.
Officer Manuel Flores, the McAllen Police officer who first
responded to the incident, stated that the call was “about a female stating
that somebody shot at her” CR Vol 16, p.19, lines 14-15. He provided no
further testimony concerning any theft, or what property was to be stolen.
The State’s other witnesses testified primarily about the victim’s
identification of Appellant and where the handgun allegedly used by
Appellant was found.
The indictment in the instant case read, in part:
“that Elenilson Flores-Rodriguez, herein after styled defendant, on or about the 26th dayof October A.D. 2013, and before the presentment of this indictment in Hidalgo County, Texas did then and there while in the course of committing theft of property and with intent to obtain or maintain control of said property, intentionally and knowingly threatened or placed Jessica Jasso in fear of imminent bodily injury or death. And the defendant did then and there use or exhibit a deadly weapon, to wit: A firearm. Against the peace and dignity of the State, signed by the foreperson of the grand jury.”
11 CR Vol 16, p.9, lines 13-24.
The State asked the victim, Jessica Jasso, several questions that assumed an
ownership. For example,
Q. Did you drive yourself to that location? A. Yes, I did.
Q. What type of vehicle were you driving? A. A 2006 Dodge Ram.
Q. What color was that vehicle? A. White. Q. Was anyone else with you in the vehicle? A. No.
Q. Now, do you remember about what time, more or less, you arrived at London's? A. A little bit before midnight.
Q. And where, specifically, did you park your vehicle? A. It was on the north side of the building, which is the back.
CR Vol 16, p.182, lines 24-25; p.183, lines 1-13. Jessica Jasso never
testified that she was the owner of the vehicle. The remainder of her
testimony concerned her encounter with the assailant, her description and
purported identification of the assailant, and her whereabouts before the
incident. CR Vol 16, pp.182-208. None of the McAllen Police officers and
Investigators called as witnesses testified that they ran a vehicle check on the
12 truck purportedly driven by the victim to confirm the ownership of the
vehicle. CR Vol 16, pp.171-81 (Investigator Ismael Cruz); CR Vol 16,
pp.150-171(Sgt. Agapito Gonzalez) CR Vol 16, pp.15-38 (Off. Manuel
Flores); CR Vol 16, pp.63-105 (Off. Josue Mendez).
Officer Josue Mendez, the first police officer to identify Appellant as
he was found near the scene of the incident, placed Appellant in handcuffs,
first for officer safety, then for investigative purposes. CR Vol 16, p.45, lines
12-20; p.46, lines 1-4. Officer Mendez stated that after he was handcuffed,
Appellant was not free to leave. CR Vol 16, p.45, lines 12-20. Appellant was
not read any warnings found in Texas Code of Criminal Procedure 38.22.Id.
Off. Mendez asked Appellant where he was coming from, to which
Appellant replied from a bar where he was drinking with an unnamed friend.
CR Vol 16, p.42, lines 12-25. Off. Mendez stated that before Appellant was
placed under arrest, he told Appellant he was under investigation for an
aggravated robbery. CR Vol 16, p.46, lines 1-15. Off. Mendez told
Appellant before the victim arrived that Appellant fit the description of the
assailant. CR Vol 16, p.46, lines 10-14. All of appellant’s statements were
made after he was handcuffed. CR Vol 16, p.47, lines 21-24. No Miranda
warnings were given to Appellant while in handcuffs.
13 Appellant was placed under arrest after the victim identified him at
the scene as the assailant, at which the following exchange occurred:
Q. Okay. So as he was advised that, he was placed under arrest. Did the defendant say anything at that time? A. Yes, ma'am.
Q. Can you tell the Court specifically what the defendant said? A. Yeah, he quoted, How am I getting arrested if I didn't have a gun?
Q. Was that in response to any type of questioning? A. No. I mean, I never mentioned a gun or anything
CR Vol 16, p.44, lines 4-13. The Court admitted Appellant’s
statement concerning the handgun, reasoning it was a voluntary statement
CR Vol 16, p.57, lines 20-27.
Appellant was alleged to have given Officer Mendez a false name
when this officer encountered Appellant and handcuffed him. At trial,
Appellant objected to the false identity statement, under Texas Rules of
Evidence 404(b) and 403. CR Vol 16, p.54, lines 17-25; p.55, lines 1-16.
The court allowed the statement, reasoning that Appellant was not in
custody and was asked for identification. CR Vol 16, p.56, lines 25-26; p.57,
lines 1-4. The Court stated that the State would not be allowed to raise the
issue of Appellant’s arrest for false identity. Id. The Court suggested that a
14 limiting instruction could be read regarding the false identity, allowing its
use to prove motive, opportunity, intent, and identity. CR Vol 16, p.61, lines
1-5. The Court read the aforementioned limiting instruction following the
latter testimony of Officer Josue Mendez. CR Vol 16, p.84, lines 11-21.
Q. Okay. And can you tell the jury, did you ask him his name and date of birth? A. Yes, ma'am. Q. And what did he tell you his name was? A. Okay. The first thing he identified himself as Carlos Humberto Rodriguez, his date of birth, 11-25-69. CR Vol 16, p.79, lines 18-23.
Q. (By Mrs. Palacios) During the course of the investigation, Officer, was it determined that Carlos Humberto Rodriguez was not the defendant's name? A. Yes, ma'am. Q. And can you tell the jury what his true and correct name was or is? A. It's Elenilson Flores-Rodriguez; date of birth, 11-25-69. CR Vol 16, p.84, lines 3-10.
15 ARGUMENT
The trial court erred in not granting Appellant’s motion for directed
verdict as there was no evidence, or legally and factually insufficient
evidence, to meet the elements of aggravated robbery as stated in the
indictment, because no rational trier of fact could have found the substantive
elements of the underlying theft offense beyond a reasonable doubt.
STANDARD OF REVIEW
When reviewing the legal sufficiency of the evidence, an appellate court
must ask “whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed 2d 560 (1979). See Temple v. State,
390 S.W.3d 341, 360( Tex. App. 2013).This review standard requires an
examination of all the evidence, both properly and improperly admitted, to
determine whether the cumulative force of all the evidence (direct,
circumstantial, or both) supports the verdict when such evidence is viewed
in the light most favorable to that verdict. Clayton v. State, 235 S.W.3d 772,
778 (Tex Crim. App. 2007). A single standard applies to both legal and 16 factual sufficiency. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App.
2010).
ARGUMENT AND AUTHORITIES
While the indictment for an aggravated robbery need not include
specifically the elements of theft, the proof will involve proving up a theft or
attempted theft. Earl v. State, 514 S.W.2d 273, 274 (Tex. Crim App. 1974)
A person commits theft “if he unlawfully appropriates property with intent
to deprive the owner of property.” Tex. Penal Code Ann, section 31.03(a). In
a theft case, the State must prove that (1) a person (2) with intent to deprive
the owner (3) unlawfully appropriated (4) property. Id.;Bokor v. State, 114
S.W.3d 558, 560 (Tex. App.-Fort Worth 2002, no pet.). In the theft statute,
"'[a]ppropriate' means . . . to acquire or otherwise exercise control over
property other than real property." "'Deprive' means . . . to withhold property
from the owner permanently or for so extended a period of time that a major
portion of the value or enjoyment of the property is lost to the owner”. Tex.
Penal Code Ann, section 31.01(2)(A) (West Supp. 2012). Only the intent to
deprive, not the actual deprivation, must be proven to establish theft.
Hawkins v. State, 214 S.W.3d 668, 670 (Texas App.-Waco, 2007, no
pet.)(citing Tex. Penal Code Ann. § 31.01(4)(B)). A jury may infer an
17 individual's intent from his conduct. Patrick v. State, 906 S. W. 2d 481, 487
(Tex. Crim. App. 1995).
In cases where intent to deprive was found, the defendant would
appropriate the property temporarily and the property would be later found
abandoned. See Griffin v. State, 614 S.W.2d 155 (Tex.Crim.App., 1981)(
intent inferred where defendant ordered taxi cab driver out of car and then
drove car and later abandoned the car); Rowland v. State 744 S.W.2d 610,
(Tex. Crim App. 1988)( intent inferred where defendant borrowed a truck
from victim and promised to return it in three days, but never did): Hill v.
State, 633 S.W.2d 520, 521 (Tex.Crim App. 1981)( intent inferred where
defendant handled pistol at gun store and placed it under his shirt, before
leaving the gun and running out of the gun store). Conversely, where the
vehicle was returned quickly, robbery was not found, as the elements would
support an unauthorized use of vehicle charge. But see, Flores v. State, 888
S.W.2d 187, Tex. App.-Houston [1 Dist], 1994) (No intent to deprive of
motor vehicle where it was returned 3 hours later, damaged).
The State failed to provide legally sufficient evidence that Appellant
intended to steal the vehicle driven by the victim, Jessica Jasso There was no
further evidence of what Appellant unlawfully appropriated nor what
property he intended to deprive. Moreover, the victim was never directly
18 asked if she was the owner or special owner of the vehicle she was driving,
nor does the indictment make reference to the property to be stolen or the
owner of said property. There was no testimony that Appellant ever
exercised any control over the vehicle. See Hill v State at 521. To be sure,
the testimony presented could be consistent with other charges, such as
attempted aggravated assault. As such, no rational trier of fact could infer an
intent to deprive the owner of property, where there is no evidence, direct or
circumstantial, that Appellant attempted a carjacking. Therefore the
conviction should be reversed and rendered.
The trial court erred in not granting Appellant’s motion for directed verdict
as there was no evidence, or legally and factually insufficient evidence, to
meet the elements of aggravated robbery as stated in the indictment, because
no rational trier of fact could have found the substantive elements of the
underlying theft offense beyond a reasonable doubt, as the correct owner of
the property was never identified.
Appellant incorporates the standard of review applied in Point of
Error 1, supra.
19 ARGUMENT AND AUTHORITIES
The Texas Court of Criminal Appeals considered a case where the
indictment read that the owner of the property stolen in a theft case was
named as Mike Morales, but the true owner in this shoplifting case was
Walmart. Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011). The Court
reasoned as follows:
“In Jackson v. Virginia, supra, the Supreme Court held that federal due process requires that the State prove, beyond a reasonable doubt, every element of the crime charged. The Due Process Clause protects a person from conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’ But the Court also stated that this constitutional standard “must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law.” Thus, the “elements” or “facts necessary” to constitute a particular crime are determined by state law. Under Texas state law, we measure the sufficiency of the evidence “by the elements of the offense as defined by the hypothetically correct jury charge for the case.” Such a charge is one that “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.” Thus, we apply the Jackson standard of review to the hypothetically correct jury charge. But sometimes the words in the indictment do not perfectly match the proof at trial. Byrd at 246 (citing Jackson v. Virginia, 443U.S.307, 316 (1979); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)
The Court in Byrd made a distinction between a variance, which is
where the name of the owner would be somewhat different than the owner
20 proved a trial, but where the defendant had substantive notice, and where the
name is completely distinct. Id. At 247. The court compared the substance of
the charge and the indictment as: “the materiality of defects in indictments
and jury charges has been analyzed by looking to the essential elements of
the particular criminal offense— the gravamen of that offense— and the
hypothetically correct jury charge under the specific indictment or
information. In turn, the sufficiency of the evidence has been measured in
the same manner. Id at 247.
Finding that the gravamen of theft included correctly naming the
owner of the property, the Court in Byrd declined to consider the State’s
argument of no harm inasmuch as everyone at the trial knew Walmart was
the correct owner of the property from the Walmart store, stating:
“But is the State correct? " What's in a name? That which we call a rose/By any other name would smell as sweet." No matter what we call it, this flower is still a rose. But a rose does not smell like a pickle. Are roses and pickles interchangeable? Is the evidence legally sufficient under Jackson, Malik, and Fuller if everyone knew that it was really Wal-Mart who owned the stolen property, so it just did not matter who was alleged as the owner in the information and jury charge? The information could have alleged " Simon Legree," " Carnac the Magnificent," or " Macy's" for all we care, because it was undisputed at trial that Wal-Mart owned the property. No. The parties, the court, and the jury must know the identity of the owner, regardless of how the State names him”. Byrd at 253-254.
21 While other cases have been sustained, where the victim of an
aggravated robbery is implied in the indictment, in no other case identified
where the property owner is not named in either the indictment or in the case
in chief has the case been sustained. See e.g. Mann v. State, 642 S.W.2d 53,
Tex.App. 6 Dist.,1982 (Aggravated robbery indictment was not deficient on
ground that it failed to state who was owner of the stolen property, where it
recited that on a specified date the defendant while in the course of
committing theft and with intent to obtain motor vehicle from named
individual without effective consent of that individual and with intent to
deprive that individual of the property did intentionally and knowingly cause
serious bodily injury to the named individual by kicking him); Earl v. State,
514 S.W.2d 273 (Tex. Cr. App., 1974) (where indictment read “while in the
course of committing theft of Three hundred, twenty-eight dollars ($328.00)
current money of the United States of America, hereinafter called 'the
property' from Jack Hamblett”, court held sufficient notice of property and
person to sustain conviction).
In the instant case, the owner is never confirmed through admissible
evidence. Like the property in Byrd, all witnesses assumed ownership of the
vehicle, but no testimony from the victim established ownership, nor did the
police corroborate ownership. Moreover, assuming arguendo that the
22 allusions and assumptions peppered in the questions asked by the state
provide defendant with notice of ownership, the indictment does not name
the property that was allegedly stolen, nor does it state with sufficient
specificity that the property was owned by the victim. Therefore, there is
legally and factually insufficient evidence to sustain a conviction for
aggravated robbery. The case should be reversed and remanded to the trial
court for a new trial.
The trial court erred in not granting Appellant’s motion to suppress
statements made by the accused, as there was no evidence, or legally and
factually insufficient evidence, that Appellant was not in custody and his
statements were a result of custodial interrogation made without benefit of
Miranda warnings and such statements resulted in harmful error.
In reviewing a trial court's ruling on a motion to suppress, we afford
almost total deference to the trial court's determination of the historical facts
that the record supports, especially when the trial court's findings turn on
evaluating a witness's credibility and demeanor. State v. Ross, 32 S.W.3d
23 853,856, (Tex. Crim App. 2000). We afford the same amount of deference to
the trial court's ruling on “application of law to fact questions,” also known
as “mixed questions of law and fact,” if resolving those ultimate questions
turns on evaluating credibility and demeanor. Ross at 856. However, we
review de novo questions of law and “mixed questions of law and fact” that
do not turn on an evaluation of credibility and demeanor. Id. At 856 With
reference to a determination of whether the defendant was in custody at the
time the statements were made, more specifically, a trial court's ultimate
“custody” determination “presents a ‘mixed question of law and fact.’ ”
Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). Therefore,
we afford almost total deference to a trial court's “custody” determination
when the questions of historical fact turn on credibility and demeanor. Id. at
527. Conversely, when the questions of historical fact do not turn on
credibility and demeanor, we will review a trial judge's “custody”
determination de novo. Id.
Investigative stops must be temporary and last no longer than is
necessary to effectuate the purpose of the stop, and the investigative
methods employed should be the least intrusive means reasonably available
to verify or dispel the officer's suspicion in a short period of time. Davis v. 24 State 947 S.W.2d 240, 245 (Tex. Crim. App. 1997). The constitutional
considerations for post-stop investigations are whether the detention was too
long in duration, whether police officers diligently pursued means of
investigation that were likely to confirm or dispel their suspicions quickly,
and whether police officers were unreasonable in recognizing less intrusive
alternative means by which their objectives might have been accomplished.
Joseph v. State 865 SW2d 100, 102 (Tex. App-Corpus Christi, 1993) pet.
ref’d. Where no findings of fact are filed by the trial court, “we view the
evidence in the light most favorable to the trial court's ruling and assume
that the trial court made implicit findings of fact that support its ruling as
long as those findings are supported by the record.” Ross at 855. If the trial
judge's ruling on a motion to suppress is correct on any theory of the law
applicable to the case, we will sustain it. State v. Avila, 910 S.W.2d 505, 508
(Tex. App.-El Paso 1994, pet.ref”d).
If defendant is stopped and handcuffed, it’s a detention for Miranda
purposes. State v. Ortiz, 346 S.W.3d 127, (Tex.App.–Amarillo, 2011).
The prosecution may not use statements stemming from custodial
interrogation of a defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-incrimination.
Alvarado v. State, 853 S.W.2d 17, 20 (Tex. Crim. App. 1993). Limited
25 statements made by a defendant post arrest may be admissible. Where the
defendant provides statements that directly lead to the discovery of
corroborating evidence, then the statement may be admissible,
notwithstanding the failure to meet the requirements of Texas Code of
Criminal Procedure 38.22. Villarreal v. State, 61 S.W.3d 673, (Tex.App.–
Corpus Christi, 2001).
The statements provided by Appellant subsequent to his handcuffing
were made while in custody, without benefit of Texas Code of Criminal
Procedure 38.22 warnings. The Court erred in finding these statements
admissible, as Appellant was detained and not free to go. CR Vol 16, p.58,
lines 13-19. The answers Appellant provided were clearly responses to
questions posed by the police. As the court reasoned in Ortiz, where the
defendant is handcuffed and not free to go, as he was in the instant case, he
is detained for Miranda purposes. Ortiz at 127.
But, as noted above, the police had already begun interrogating
Appellant before the formal arrest, even going as far as stating that
Appellant fit the description of the assailant. As such, given the totality of
circumstances, the “voluntariness” of the statement cannot be sustained, as it
was in reaction to prior interrogation. See Martinez v. State, 272 S.W.3d 615
26 (Tex. Crim. App 2008)( pre arrest interrogation considered in determination
of voluntariness of post arrest, post Miranda statements)
Moreover, the statement has no bearing on the credibility of the
accused as a witness, as required by Section 5 of Texas Code of Criminal
Procedure 38.22. Appellant did not testify, nor did Appellant offer any
statements he made previously into the record.
To the extent the Court may have reasoned that the statement
concerning the firearm was res gestae of the arrest, there was no evidence
presented regarding the context of the statement. The record must show that
“the declarant was excited or emotionally stimulated or in the grip of a
shocking event so as to render the statement a spontaneous utterance.” Ward
v. State, 657 S.W.2d 133, 136 (Tex. Crim. App 1983). When determining
whether a statement is admissible as res gestae, the first concern is whether
Miranda requires its exclusion. Smith v. State, 507 S.W.2d 779, 781 (Tex.
Crim. App. 1974). In the instant case, there is no record of whether the
statement was made emotionally or in the grip of a shocking event. It is clear
that Appellant was not read his Miranda rights before the statement was
made. Therefore, the statement should be suppressed, the conviction
reversed, and the case remanded for a new trial.
27 APPELLANTS FOURTH POINT OF ERROR
The trial court erred in not granting Appellant’s objection to allow testimony
concerning Defendant’s statement of false identity as this statement did not
fall under a Texas Rule of Evidence 404(b) exception and such statement
resulted in harmful error.
We review the trial court's determination of admissibility for purposes
other than character conformity under an abuse of discretion standard.
Montgomery v. State, 810 S.W.2d 372, 391(Tex. Crim. App.1990).
As long as the trial court's ruling is within the "zone of reasonable
disagreement," there is no abuse of discretion, and the trial court's ruling will
be upheld. De La Paz v. State, 279 S.W.3d 336, 343-344, (Tex. Crim. App.
2003) A trial court's ruling is generally within this zone if the evidence
shows that 1) an extraneous transaction is relevant to a material, non-
propensity issue, and 2) the probative value of that evidence is not
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading of the jury. Id at 344. Proponent of the bad character
evidence must persuade Court that evidence “tends to establish some
elemental fact, such as motive, opportunity, or preparation, leading
inferentially to an elemental fact; or that it rebuts a defensive theory by 28 showing, e.g. absence of mistake or accident” Santellan v. State, 939 S.W.2d
155, 168-69 (Tex. Crim. App. 1997). The introduction of such evidence also
depends on its relevancy to a fact of consequence i.e. an elemental fact or an
evidentiary fact. Relevancy is implied in the rule. Rankin v. State, 974
S.W.2d 707, 709 (Tex. Crim. App. 1996).
Courts have held extraneous offenses may be admissible in proving
motive to commit the charged offense. Turner v. State, 715 S.W.2d 847, 852
(Tex. App-Houston [14th Dist.], 1986, pet.ref”d). See e.g. Vasquez v. State,
67 S.W.3d 229, 239-40 (Tex. Crim. App. 2002) (evidence of membership in
a gang admissible to show motive of a gang-related crime).
Extraneous acts used to prove opportunity may be introduced to show
that the Defendant had the opportunity to commit the charged act, such as
evidence that Defendant had access to the crime scene, or possessed special
skills that were used in the commission of the crime. See Williams v. State,
948 S.W.2d 954, 956 (Tex. App.-Waco 1997, pet. ref”d)( defendant prior
two burglaries of the same home, where he entered without opening doors
used to prove opportunity where the same home was burned from the inside
without the doors being opened). The nexus between the extraneous offense
to knowledge or opportunity in the charged offense must be direct. Nolen v. 29 State, 872 S.W.2d 807, 812 (Tex. App.-Fort Worth 1994), pet.ref’d, 897
S.W.2d 789 (Tex. Crim. App. 1995)( evidence of prior burglary conviction
where glassware was stolen too indirect to prove opportunity or knowledge
that drugs were manufactured in charged offense).
Extraneous offense evidence is offered prove intent when intent
cannot be easily inferred by the conduct itself. Plante v. State 692 S.W.2d
487,491-92 (Tex. Crim. App.1985). The intent goes to the charged offense.
Parks v. State, 746S.W.2d 738, 740 (Tex. Crim. App. 1987)
Identity and the rebuttal of defenses are both valid purposes for
admitting evidence under Rule 404(b). Id. At 388. An extraneous offense
may be admissible to show identity only when identity is an issue in the
case. Moore v. State, 700 S.W.2d 193, 201 (Tex. Crim. App. 1985), cert.
denied, 474 U.S. 1113,106 S.Ct 1167 (1986). Identity must be a disputed
issue. Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996)
The false identity evidence did not meet any of the exceptions found
in the limiting instructions from the court. No evidence showing that
Appellant was motivated by secreting his name in the commission of an
aggravated robbery was offered. Here, hypothetical evidence of the assailant
being involved in a fight that night in another bar, or a fight with someone
who gave him a ride, would go to motive. The false identity could be given 30 by someone who is avoiding a warrant or does not have legal status in the
United States- reasons far removed from a motive to commit aggravated
robbery. Nor does the provision of a false name prove opportunity to commit
aggravated robbery, as the statement sheds no probative light on whether, for
example, the Appellant had access to the crime scene, or possessed special
skills or characteristics unique to charged offense. If the opportunity proof is
to show that Appellant’s false identity is consistent with theft, which is an
elemental issue of aggravated robbery, the nexus is too indirect and
muddled, so as to confuse the jury.
A false identity statement does nothing to prove an intent to commit
aggravated robbery. There is no reasonably direct connection between a
false name and the intent to rob someone with a gun. If the extraneous
offense had been a prior unauthorized use of vehicle, attempted carjacking,
or assault, then the inference of intent could be there, but not in the instant
case.
Identity is an issue in the instant case, but only as it involves a witness
identification and the circumstances around this identification. Appellant did
not provide an alibi defense, nor did Appellant directly raise at trial that the
indictment named the wrong defendant, or that the police arrested the
31 incorrectly named individual. As such, identity was not a disputed issue so
as to allow the admission of the aforementioned false name statement.
Officer Mendez’ false identification testimony unfairly prejudiced the
jury to believe that a detained man who gave a false name was trying to hide
something, to conceal an important issue. Its probative value of an element
of the charged crime, as stated above, is nonexistent, and is greatly
outweighed by the seeds planted in the mind of the jury that Appellant is a
liar with something to hide. And that impression is harmful error.
CONCLUSION AND PRAYER
The errors identified in this brief require a reversal of the verdict and
for the first point of error, a rendering of decision to dismiss this case. For
the latter points of error, the case should be remanded for a new trial.
32 CERTIFICATE OF SERVICE
I, Robert D. Puente, attorney for the appellant hereby certify that a true and correct copy of the instant brief was delivered to Theodore Hake, Assistant District Attorney, 100 N. Closner, Edinburg Texas, 78573, counsel for the appellee, by hand delivery the _7th day of April, 2015.
____/s/_____Robert D. Puente___ Robert Puente
CERTIFICATE OF COMPLIANCE
I, Robert D. Puente, hereby certify that the instant brief contains 4866 words.
_________/s/_____Robert D. Puente__________ Robert D.Puente