Opinion issued April 9, 2013
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-11-00479-CR ——————————— GIOVANY FLORES, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 240th District Court Fort Bend County, Texas Trial Court Case No. 09-DCR-052519
MEMORANDUM OPINION
A jury convicted appellant Giovany Flores of aggravated robbery and
sentenced him to 15 years in prison and a $10,000 fine. See TEX. PENAL CODE
ANN. § 29.03 (West 2011). On appeal, Flores challenges the sufficiency of the evidence, and he argues that the trial court abused its discretion by denying his
motion to suppress, refusing to allow defense witnesses to testify at an evidentiary
hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978), and
refusing his requested jury instructions. We affirm.
Background
Shakun Parti, who was 61 years old at the time, went to a small Indian
grocery store in Sugar Land, Texas early one summer evening. The store was on
the corner of a strip mall, and Parti parked across from the side entrance. When
she left the store approximately 15 minutes later, she walked toward her car. She
saw two young men running toward her, and she opened her car door and
attempted to get in. But the two men, later identified as Flores and Kye Jones,
grabbed her tightly by the arm and began hitting her about the head with a pistol.
At the time, Parti did not realize it was a gun; rather she knew only that it was
something heavy hitting her head on one side and causing the other side of her
head to strike her car. She was confused and disoriented, and she feared for her
life. At trial, Parti could not recall what the men looked like, except to say that
“one was black and the other was not black.” When asked if she could remember
which man had hit her on the head, Parti testified that she was too confused from
the blows to her head and the men were too close together to determine what each
did. Parti heard the men speak only once, when they demanded that she remove
2 her rings, but she did not know who spoke. The men tried to remove her rings by
force, at one point cutting her finger. Eventually, the men grabbed Parti’s purse
and ran away together. Bystanders rushed to Parti’s aid, and she was taken by
ambulance to a hospital. As a result of the robbery, Parti suffered a brain
hemorrhage and permanent disfigurement of her finger.
Robert Moore witnessed the robbery. Moore was driving down the alley
near the strip mall, taking a shortcut to another store. He saw two men standing
beside a dumpster outside of the Indian grocery store. He saw Parti leave the store,
and he continued down the alley. In his rearview mirror, Moore saw the two men
who had been standing beside the dumpster run over and jump into Parti’s car. He
testified that he initially thought he was witnessing a robbery or a carjacking. He
backed up and got out of his car to get a better look, but he got back inside when
the men began to run down the alley toward him. As the men ran past his car, he
saw one of them, a Hispanic man in his early twenties with a medium-thin build
and wearing a white and blue cap, later identified as Flores, run to a red car parked
in the alleyway. Moore testified the other man was a black man with dreadlocks in
his twenties, later identified to be Jones, who stopped about ten feet from where
Moore was parked. At this point, Moore saw that Jones was holding a gun. Moore
testified Jones shook his head and told him to go, at which point he drove forward
down the alley and called the police.
3 Another witness, Harjeev Satia, testified that he heard a woman scream and
saw two men running toward the alleyway. In his sworn affidavit given to Officer
K. Longtin on the day of the incident, Satia testified that he saw “a black guy” and
“a white guy.” However, at trial, Satia recalled seeing “a black guy” running with
a pistol and “a Mexican guy with blond hair.” In addition, the evidence showed
that the witnesses identified the two men who robbed Parti as a black man with
dreadlocks and either as a Hispanic or white man with blond or light colored hair.
Sugar Land Police Officer R. Garza, the lead detective on the case, learned
from patrol officers at the scene that two men matching the descriptions had been
seen at a pub in the same strip mall as the Indian grocery store, just before the
robbery. Fingerprints that were obtained from a coin machine inside the pub
matched Flores’s. Photos of the suspects inside the pub were obtained from
surveillance video and released to the media. Once the information was released,
Garza began to receive tips and information regarding the suspects, including an
address where Jones resided. After several witnesses, including Moore, identified
Jones in a photographic lineup, arrest warrants were issued for both Jones and
Flores.
Detectives searched Flores’s apartment and found a firearm in a dresser
drawer in a bedroom that Flores shared with his brother, Daniel. DNA testing
found Parti’s blood on the trigger of the gun.
4 Approximately a week after the arrest warrants were issued, Flores turned
himself in and requested to be interviewed because he had heard that Jones had
informed police that he was to blame for the robbery. Flores, who was 17 years
old at the time, told police that he and Jones had gone to the pub to play pool on
the night Parti was robbed. He said the bartender asked them to leave because he
was underage. As for the robbery, Flores denied that he and Jones had planned or
discussed robbing anyone. Flores said that he tried to pull Jones away from Parti
several times by pulling on his shirt, and that it was Jones who “pistol whipped”
Parti with his gun, held her from behind, tried to remove her rings, and took her
purse. Flores said he took the purse from Jones and ran with it. Flores said that
after the robbery they went to his apartment and that he agreed to keep the gun at
his house, stashing it in a dresser in a bedroom he shared with his brother Daniel.
In his first interview, he denied that Daniel was involved in the robbery at all, but
in a second recorded interview taken by Garza, Flores admitted that he had lied to
protect his brother and said that Daniel had driven the getaway car. Again, he said
that Jones had beaten Parti, that there was no agreement to commit the robbery,
and that he had taken the purse from Jones and ran away with it.
Before trial, Flores filed a “Motion for Hearing Pursuant to Franks v.
Delaware,” which requested “a hearing on the truthfulness of certain statements in
an affidavit of Rudy Garza.” The motion stated:
5 1. Defendant is indicted for the charge of Aggravated Robbery. On July 17, 2009, an arrest warrant was issued to authorize an arrest of Defendant, Giovany Flores. The warrant was based on the affidavit of Rudy Garza, a police investigator for Sugar Land Police Department. A certified copy of the warrant and affidavit are attached as Exhibit A and incorporated herein.
2. The allegations made by Affiant in the affidavit, to wit, were false statements and were made deliberately by Rudy Garza knowing that they were false, or were made with reckless disregard for the truth. There is insufficient probable cause to support the arrest warrant without such false statements.
Flores did not specifically identify which statements he contended were false or
provide any extrinsic evidence or affidavits to support his claim of falsehood. The
trial court denied this motion after a pre-trial hearing. The next day, after trial had
begun, Flores filed a motion to suppress evidence. Flores again argued that the
arrest warrant was illegal because the supporting affidavit was insufficient:
7. Defendant specifically shows that the arrest warrant at issue in this case, under which said evidence was seized, was in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, Article I, Sections 9, 10, and 19 of the Constitution of the State of Texas and under Article 38.23 of the Texas Code of Criminal Procedure, for the following reasons:
a. The warrant was illegally issued for the reason that the supporting affidavit does not reflect sufficient probable cause to justify the issuance of the arrest warrant, in that: several statements in the affidavit are not supported by any witness or evidence on the date the warrant was issued.
b. The warrant was illegally issued because the affidavit did not show probable cause sufficient to justify the issuance 6 of the arrest warrant, because the magistrate who issued the arrest warrant did not have a substantial basis for concluding that probable cause existed.
c. The arrest warrant was illegally issued because the issuing magistrate was misled by information in the affidavit that the affiant officer knew was false or would have known was false except for his reckless disregard for the truth.
Among other things, Flores asked the court to suppress all tangible evidence seized
by law enforcement officers in connection with his arrest and the statements he
gave to police.
At the hearing on the motion to suppress, the State argued that Flores was
attempting to obtain the same preliminary evidentiary hearing that was already
denied by the court in response his motion for a Franks v. Delaware hearing. The
trial court examined the affidavit, concluded it was sufficient to show probable
cause, and denied the motion.
During trial, Officer Garza testified about the interviews he conducted with
Flores’s brother Daniel, who told him that Flores had said he pulled the purse from
Parti and tried to pull the rings from her hands. Both interviews were admitted into
evidence and played for the jury at trial. Flores did not testify in his own defense.
On cross-examination, Garza testified about the warrant issued for Flores’s
arrest. As to statements that Flores assisted Jones by “continuing punching and
pulling at Mrs. Parti, trying to forcefully take her purse from her shoulder,” Garza
7 declined to characterize this as a false statement, but he could not identify who
provided that information. None of the witnesses, including Parti, specifically
mentioned Flores as the man who hit her. Instead, the witnesses observed Jones
and Flores running either toward or away from Parti.
Garza was also questioned about a statement that Moore advised him that he
“observed defendant.” He conceded this was statement was erroneous and that it
could have been written more clearly. He testified that Moore did not know that
the person he observed in the alley was Flores. Garza also testified that when he
made the affidavit he knew Moore was referring to Flores because of other
evidence, including the fingerprints and surveillance video from the pub.
At the charge conference, Flores objected to the proposed jury instructions,
which included the law of parties and that “[m]ere presence alone will not
constitute one a party to an offense.” He requested an additional instruction
regarding intent, and he also requested an instruction regarding lack of common
design and independent impulse of another. The trial court denied the requested
jury instructions, and the jury found Flores guilty. Flores appealed.
Analysis
I. Sufficiency of the evidence
In his first issue, Flores contends the evidence is legally insufficient to
establish that he intentionally or knowingly committed the offense of aggravated
8 robbery. Specifically, he argues the evidence showed only that he was present at
the scene, and not that he participated in the robbery.
In reviewing the sufficiency of the evidence to support a criminal
conviction, a court of appeals will determine “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, 2789 (1979). Our review of the
evidence includes evidence that was properly and improperly admitted. Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
As the exclusive judge of the facts, the jury may believe or disbelieve all or
any part of a witness’s testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex.
Crim. App. 1991). We presume that the fact finder resolved any conflicting
inferences in favor of the verdict, and we defer to that resolution. See Jackson, 443
U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778. On appeal we may not
re-evaluate the weight and credibility of the record evidence and thereby substitute
our own judgment for that of the fact finder. Williams v. State, 235 S.W.3d 742,
750 (Tex. Crim. App. 2007). In reviewing the evidence, circumstantial evidence is
as probative as direct evidence in establishing the guilt of an actor, and
circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
9 A person commits aggravated robbery when the person commits robbery
and uses or exhibits a deadly weapon. See TEX. PENAL CODE ANN. § 29.03(a)(2).
A person commits robbery if, in the course of committing theft, and with intent to
obtain or maintain control of property, the person intentionally or knowingly
places another in fear of imminent bodily injury or death. Id. § 29.02(a). Theft is
the unlawful appropriation of property with the intent to deprive the owner of the
property. Id. § 31.03(a) (West Supp. 2011). A firearm is considered a deadly
weapon. See id. § 1.07(a)(17)(A) (West 2011).
Under the law of parties, a person is criminally responsible for an offense
committed by the conduct of another if, acting with intent to promote or assist the
commission of the offense, he solicits, encourages, directs, aids, or attempts to aid
the other person to commit the offense. See id. § 7.02(a)(2). In determining
whether one has acted as a party in the commission of a criminal offense, the court
may look to events before, during, and after the commission of the offense. Powell
v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006). “Circumstantial evidence
alone may be used to prove that a person is a party to an offense.” Id. at 506.
“Participation in an enterprise may be inferred from the circumstances and need
not be shown by direct evidence.” Beardsley v. State, 738 S.W.2d 681, 684 (Tex.
Crim. App. 1987). Mere presence of the defendant at the scene is not sufficient to
10 support a conviction, however it may suffice to show defendant was a participant
when combined with other facts. Powell, 194 S.W.3d at 507–08.
Flores contends that although he was with Jones when the robbery occurred,
the evidence is insufficient to prove he intentionally or knowingly committed
aggravated robbery. He argues that none of the witnesses, including Parti, were
able to confirm his identity, adding that some witnesses gave conflicting testimony
regarding his description. Flores contends that the evidence was insufficient
because no eyewitness testified to seeing him using a gun or breaking Parti’s
finger. Flores also contends there is no evidence in the record to suggest he had
any involvement in the robbery besides his presence at the scene. He argues that
the record does not contain any evidence that he ever possessed the gun or
participated in the robbery.
Surveillance video from the pub and Flores’s admission in his recorded
statements showed that Flores and Jones were together before the robbery. Moore
testified that he saw the two men together standing by a dumpster just before the
robbery. Moore and Parti testified that two men ran up to her together. Parti said
the men were close together during the robbery and that they ran away together.
Moore and Satia also saw the two men run away together. In addition, Parti
testified, “[T]hey said, give me your rings.” Garza testified that Daniel said Flores
had admitted taking Parti’s purse and trying to pull the rings off her fingers. In his
11 recorded statements, Flores admitted that he took the purse from Jones and ran
away with it. He also admitted to taking and hiding the gun that was used in the
assault.
Based on the evidence in this trial, a rational finder of fact could have found
beyond a reasonable doubt that Flores caused Parti serious bodily injury while
stealing her purse or that he aided or assisted Jones in stealing Parti’s purse while
exhibiting a deadly weapon and causing serious bodily injury. Viewing the
evidence in the light most favorable to the prosecution, a rational trier of fact could
have found beyond a reasonable doubt that Flores was guilty of aggravated
robbery, acting alone or as a party to the offense. We hold that the evidence is
legally sufficient to support Flores’s conviction, and we overrule the first issue.
II. Motion to suppress
In his second issue, Flores argues the trial court erred in denying his motion
to suppress and in refusing to allow defense witnesses to testify at an evidentiary
hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978),
whereby he sought to void the search warrant and suppress all resulting evidence
based on his allegation that Garza’s affidavit contained false statements.
In Franks, the United States Supreme Court held that when “the defendant
makes a substantial preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was included by the affiant in
12 the warrant affidavit, and if the allegedly false statement is necessary to the finding
of probable cause, the Fourth Amendment requires that a hearing be held at the
defendant’s request.” Franks, 438 U.S. at 155–56, 98 S. Ct. at 2676. “An affidavit
supporting a search warrant begins with a presumption of validity; thus, the
defendant has the burden of making a preliminary showing of deliberate falsehoods
in that affidavit before he is entitled to a Franks hearing.” Cates v. State, 120
S.W.3d 352, 355 (Tex. Crim. App. 2003). The movant’s allegations “must be
more than conclusory and must be supported by more than a mere desire to cross-
examine.” Franks, 438 U.S. at 171, 98 S. Ct. at 2684. In order to obtain a Franks
hearing, a defendant must:
(1) allege deliberate falsehood or reckless disregard for the truth by the affiant, specifically pointing out the portion of the affidavit claimed to be false; (2) accompany these allegations with an offer of proof stating the supporting reasons; and (3) show that when the portion of the affidavit alleged to be false is excised from the affidavit, the remaining content is insufficient to support the issuance of the warrant.
Harris v. State, 227 S.W.3d 83, 85 (Tex. Crim. App. 2007). “Thus, specific
allegations and evidence must be apparent in the pleadings in order for a trial court
to even entertain a Franks proceeding.” Id.
We review a trial court’s ruling on a Franks motion and on a motion to
suppress under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d
323, 327 (Tex. Crim. App. 2000); Jones v. State, 338 S.W.3d 725, 739 (Tex. 13 App.—Houston [1st Dist.] 2011), aff’d, 364 S.W.3d 854 (Tex. Crim. App. 2012).
We give almost total deference to a trial court’s rulings on questions of historical
fact and application-of-law-to-fact questions that turn on an evaluation of
credibility and demeanor, while we review de novo application-of-law-to-fact
questions that do not turn upon credibility and demeanor. Jones, 338 S.W.3d at
739; see Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002) (citing
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).
Flores did not meet the requirements necessary to obtain a hearing under
Franks. He did not specifically point out the portion of the affidavit alleged to be
false. He did not provide an offer of proof to support his allegation of falsity. He
did not show that without the allegedly false statements, the affidavit was
insufficient to support the arrest warrant. We hold that the trial court did not err by
denying Flores’s Franks motion. See Harris, 227 S.W.3d at 85.
At the hearing regarding Flores’s pretrial motion, Flores orally specified the
parts of the affidavit he believed contained false statements, which stated:
The defendant stood by and assisted Kye Jones by attempting to pull the purse from Mrs. Parti as Kye Jones continued punching and pulling at Mrs. Parti, trying to forcefully take her purse from her shoulder.
The defendant and Kye Jones continued punching and pulling at Mrs. Parti, causing large lacerations on Mrs. Parti’s head and a broken finger and lacerations on her right hands. They were able to break the strap of the purse, giving them access to the purse.
14 Flores argued that the arrest warrant affidavit mentioned that Moore advised
Officer Garza that he “observed the defendant” even though Moore was never able
to positively identify Flores. Finally, Flores’s trial counsel argued that the affidavit
was too vague, and does not mention specifically which witnesses provided Garza
with certain information, only stating that his “investigation revealed,” and
“[Garza] learned from a witness.” These more specific oral allegations of falsity
likewise fail to raise a Franks issue because they are conclusory, suggest a mere
desire to cross-examine, and fail to provide any offer of proof to support an
allegation of falsity. See Franks, 438 U.S. at 171, 98 S. Ct. at 2684.
The motion to suppress was similarly conclusory, stating that “[t]he arrest
warrant was illegally issued because the issuing magistrate was misled by
information in the affidavit that the affiant officer knew was false or would have
known was false except for his reckless disregard for the truth.” The motion did
not specify which statements in the affidavit were allegedly false, provide an offer
of proof to support the allegation of falsity, or show how the affidavit would be
insufficient to support the warrant absent the allegedly false statements.
We hold that the trial court did not err by denying the motion to suppress,
and we overrule this issue.
15 III. Jury charge
a. Law of parties
In his third issue, Flores argues that the trial court erred when it refused his
requested additional jury instructions relating to the law of parties. Flores does not
provide argument or authority showing that the exclusion of his proposed
instructions was error.
We employ a two-step process to review allegations of jury-charge error.
First, we determine whether error exists in the charge. Ngo v. State, 175 S.W.3d
738, 744 (Tex. Crim. App. 2005). If there is error, we then proceed to review the
record to determine whether sufficient harm was caused by the error to require
reversal of conviction. Id.
The court’s charge included the following instructions pertinent to the law of
parties:
A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or both.
Each party to an offense may be charged with the commission of the offense.
A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.
Mere presence alone will not constitute one a party to an offense.
16 At the charge conference, Flores objected to the proposed jury instructions
and requested additional instructions to be added. First, Flores requested an
instruction regarding intent:
[I]n order to establish liability, as a party, based upon the illegal conduct of another, it must be proven that the accused maintain [sic] the specific intent to promote or assist the commission of the offense. The agreement must occur before or contemporaneous with the criminal event. The evidence must show that the parties were acting together, each doing some part of the execution of the common design. Acts committed after the offense is completed cannot make one a party to the offense.
Flores also requested an instruction regarding lack of common design and
independent impulse of another, so that:
[I]f there was no such common design and intent of all, including the defendant to commit the offense . . . if any, was committed by one or more acting independently of the defendant in doing so, and without participation by him, in the design and the intent to commit it, then the defendant is not guilty.
“As a general proposition, a jury charge that tracks the language of the
relevant statute is sufficient and therefore not erroneous.” Hernandez v. State, 340
S.W.3d 55, 61 (Tex. App.—Houston [1st Dist.] 2011, no pet.). Additionally, the
Court of Criminal Appeals has held that a defense that is not recognized by the
Legislature in the relevant statute as either a defense or as an affirmative defense
does not warrant a separate instruction. See Giesberg v. State, 984 S.W.2d 245,
246–47 (Tex. Crim. App. 1998).
17 The trial court’s charge tracks the language of the relevant statute, and
Flores’s proposed jury instructions are not listed as statutory defenses. See TEX.
PENAL CODE ANN. § 7.02. Rather, they seek to negate Flores’s intent, an essential
element of the State’s burden of proof. The charge given by the trial court
adequately instructed the jury regarding the specific elements of the offense and
the required intent needed to convict Flores. We hold that the trial court did not err
in denying his requests.
b. Article 38.23 instruction
Flores also contends he was entitled to an Article 38.23 jury instruction
regarding the legality of the arrest warrant affidavit signed by Garza. In relevant
part, Article 38.23 of the Texas Code of Criminal Procedure states:
No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.
TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005).
The Article 38.23 jury instruction referenced by Flores in his brief is not
included in the clerk’s record, but Flores raised the issue at the charge conference:
18 DEFENSE COUNSEL: Additionally, based upon the testimony of Detective Garza, however the Court wants to interpret his testimony regarding whether he could have typed it better, whether it was a false statement or whether it was a lie, perhaps, on the stand, would negate and would render this arrest warrant illegal. And thus, I believe that Mr. Flores is entitled to a . . . Code of Criminal Procedure, Article 38.23 instruction regarding the illegal arrest warrant issued and whether any evidence obtained therefrom—I can read it again into the record if you would like.
TRIAL COURT: I’ve read it. It’s not necessary that you read it.
DEFENSE COUNSEL: Okay. Maybe, just for the record, I want to make sure that the record is clear as to what I’m requesting. Based upon that, I believe . . . that Detective Garza’s . . . testimony would allow and should authorize the Court to grant a 38.23 instruction to be submitted to the jury. . . .
The trial court overruled the request for an Article 38.23 instruction. From the
context, it is apparent that Flores was again attempting to raise an issue pertaining
to the allegedly false statements in Garza’s arrest warrant affidavit.
Flores does not specify in his brief what factual dispute was before the jury
to resolve. Texas Rule of Appellate Procedure 38.1(i) requires the briefs to contain
“a clear and concise argument for the contentions made, with appropriate citations
to authorities and to the record.” TEX. R. APP. P. 38.1(i). Moreover, this Court
does not have an obligation to construct and compose Flores’s issues, facts, and
arguments with appropriate citations to authorities and to the record. See also
Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008). In failing to specify
what factual dispute was raised and how it was material to the lawfulness of any
19 evidence that was introduced at trial, Flores has waived his objections and presents
nothing for review. Moreover, Flores does not explain what evidence was
obtained in violation of the law, especially in light of the fact that the search of
Flores’s apartment was consensual, Flores voluntarily surrendered himself to the
police, denying any knowledge of an arrest warrant, and he voluntarily gave two
recorded statements, waiving his Miranda rights. See, e.g., Johnson v. State, 871
S.W.2d 744, 750–51 (Tex. Crim. App. 1994) (explaining relationship of
attenuation-of-the-taint doctrine to Article 38.23 instruction).
We overrule this issue.
Conclusion
We affirm the judgment of the trial court.
Michael Massengale Justice
Panel consists of Justices Keyes, Massengale, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).