AFFIRMED; Opinion Filed December 15, 2016.
In The Court of Appeals Fifth District of Texas at Dallas No. 05-11-01061-CR No. 05-11-01062-CR
ARMANDO FERMIN SOTO, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1 Dallas County, Texas Trial Court Cause Nos. F10-19502-H & F10-19053-H
MEMORANDUM OPINION Before Justices Francis, Stoddart, and Schenck Opinion by Justice Stoddart A jury convicted Armando Fermin Soto of two counts of intoxication manslaughter and
sentenced him to twenty years’ confinement in each case. In six issues, Soto argues the trial
court violated his rights under the Confrontation Clause; the evidence is insufficient to support
his conviction; the trial court improperly commented on the weight of the evidence; the trial
court erred by admitting autopsy photographs; and his trial counsel provided ineffective
assistance. We affirm the trial court’s judgments.
FACTUAL BACKGROUND
Isaac Lozano was driving on an interstate highway in Dallas County at approximately
4:45 a.m. on September 6, 2010. He was driving faster than the 60 mile per hour speed limit. A
truck swerving from lane-to-lane passed him. He saw the truck collide with two cars: a Chrysler 300 and a Nissan Sentra. Lozano pulled over on the side of the highway and called 911. When
the firefighters arrived, they removed the top of the Nissan and pried open the doors to remove
people from the car. A woman and a baby, Tuong Le and Tri Khuu, died as a result of the
collision.
Lozano heard the driver of the truck screaming in pain and a second person laughing near
the truck. Claudia Rodriguez, the driver of the Chrysler, observed two people near the truck.
One was laughing while the other was yelling words to the effect of “don’t call the police.” She
testified that police arrested the man driving the truck who had a cut on his forehead. When
asked whether she could identify the man, she said: “I’m not sure, but I think he looks like that
man in black,” referring to appellant.
The jury saw photographs of the vehicles taken at the scene of the collision. The Nissan
was crumpled, and the front of the truck was badly damaged. The driver’s side airbag in the
truck was deployed and had blood on it. After obtaining a search warrant, the police collected
the airbag and a forensic biologist compared the blood on the airbag to appellant’s blood. She
testified “the partial DNA profile obtained from the sample was from a single male, and matched
the DNA profile of Armando Soto.” She concluded appellant was a “possible source” of the
DNA and there was a 1 in 15.9 billion chance that the DNA could be from someone other than
appellant.
Deputy A. Broadnax of the Dallas County Sheriff’s Department worked the accident
scene. At trial, Broadnax identified appellant as the driver of the truck. He testified that he
found appellant lying on the ground and his face “was scared [sic] up.” Appellant’s eyes were
red as though he had been drinking. He appeared “out of it” and he “didn’t know what
happened.” Broadnax saw appellant again after he was transported to the hospital and, based on
how he looked and smelled and his demeanor, Broadnax believed appellant was intoxicated.
–2– Appellant’s blood was drawn at the hospital. His blood-alcohol level was 0.19 grams of ethanol
for 100 milliliters of blood, indicating intoxication.
Data from the Airbag Control Module showed that five seconds before the airbag
deployed, the truck was traveling at 94 miles per hour and 100 percent throttle, meaning the
accelerator was pressed to the floor. One second before the airbag deployed, the truck was
traveling at 95 miles per hour and the throttle was at 18 percent, meaning pressure was removed
from the accelerator. However, the driver of the truck never braked.
Documents from the emergency room show that appellant told the medical staff he was
rear-ended while driving 55 miles per hour and he “blacked out.”
The jury heard a phone conversation between appellant and his mother, Yolunda
Gonzales.1 Appellant told his mother he probably fell asleep while driving with his foot on the
accelerator. He could not remember whether his airbag deployed. He said: “Who knows if I
didn’t hit them I probably would have [killed myself].” Gonzales replied that “it was an
accident, it was a terrible accident. . . . and in your heart you know that you didn’t mean to do it.
And God knows that. You couldn’t hurt a fly. You know, but this is God’s way of telling you
that you better change your life. Next time it will be you.” Later in the conversation she said:
“We already know you’re very remorseful. You didn’t mean to do it. But it happened. It was
just a bad accident. And it was them people’s [sic] time. You know, before we’re born, God
already knows when it’s our time and what’s going to happen.” At the end of the call, Gonzales
told appellant: “I love you. And don’t worry, mi hijo, it was an accident. God forgives you.
You just have to ask him for forgiveness because you didn’t mean to do it.”
1 The State played the recording of the conversation during the guilt/innocence phase and again at punishment. The conversation is between appellant and a woman. The woman’s voice was not identified as appellant’s mother’s until the punishment phase when she testified.
–3– LAW & ANALYSIS
A. Sufficiency of the Evidence
In his second and third issues, appellant challenges the sufficiency of the evidence to
support his conviction because the State failed to prove he drove the truck. We review a
challenge to the legal sufficiency of the evidence under the standard set out in Jackson v.
Virginia, 443 U.S. 307 (1979). Acosta v. State, 429 S.W.3d 621, 624 (Tex. Crim. App. 2014).
We review all of the evidence in the light most favorable to the verdict to determine whether any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011). The factfinder has a duty
to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)
(footnotes omitted). We presume the factfinder resolved conflicting inferences in the State’s
favor, and we defer to that determination. Id. A person commits the offense of intoxication
manslaughter if he operates a motor vehicle in a public place while intoxicated and, by reason of
that intoxication, causes the death of another by accident or mistake. TEX. PENAL CODE ANN.
49.08(a).
The evidence shows that a truck traveling 95 miles per hour on an interstate highway and
swerving from lane-to-lane collided with the Nissan Sentra. The front end of the truck was
damaged and the Nissan was crumpled. Two people riding in the Nissan died as a result of the
Although appellant challenges the sufficiency of the evidence identifying him as the
driver of the truck and argues a second, unidentified person may have been driving, the jury
heard ample evidence to establish appellant as the driver. While talking to his mother, appellant
admitted his foot was on the accelerator and he hit the Nissan. His mother responded that it was
–4– an accident and she knew appellant was remorseful. She suggested appellant ask God for
forgiveness. Appellant never told his mother he was not the driver or not responsible for the
Additionally, Broadnax testified without objection that appellant drove the truck. The
report generated from the Airbag Control Module showed no person was in the passenger seat of
the truck, and Rodriguez testified she thought the man who was arrested was the driver of the
truck and that man looked like appellant. The DNA obtained from the airbag matched
appellant’s DNA profile. Although appellant told hospital employees that he was rear-ended
while driving 55 miles per hour and two witnesses believed there were two men in the truck, the
jury could have concluded that appellant was the driver and he was intoxicated because his blood
alcohol level was 0.19.
Reviewing the evidence in the light most favorable to the verdict, we conclude a
reasonable jury could have found beyond a reasonable doubt that appellant drove the truck while
intoxicated and by reason of that intoxication, caused the deaths of Tuong Le and Tri Khuu. See
Adames, 353 S.W.3d at 860 (sufficiency review); TEX. PENAL CODE ANN. 49.08 (intoxication
manslaughter). We overrule appellant’s second and third issues.
B. Confrontation Clause
In his first issue, appellant asserts his constitutional right to confrontation was violated
when the trial court admitted State’s Exhibit 70, a reenactment of the crash based on information
from non-testifying witnesses and created by Detective Ernest Embry of the Dallas County
Sheriff’s Department. Embry, an accident reconstructionist, went to the wrecking yard where he
viewed and photographed the vehicles involved in the collision. Pursuant to a search warrant, he
extracted the Airbag Control Module, commonly referred to as a “black box,” from the truck.
Embry downloaded and analyzed information from the truck’s black box.
–5– Embry then created a video crash demonstration, State’s Exhibit 70. Although he was
not the accident investigator at the scene, he viewed the vehicles at the wrecking yard and
compared the wrecked Nissan to pictures showing how the Nissan should have looked. He also
reviewed photographs taken at the scene of the accident and admitted into evidence, and
reviewed reports from the deputies who worked the accident site and who testified at trial.
Embry explained that State’s Exhibit 70 depicts what he believed occurred, but the
demonstration was not to scale or based on specific measurements. The purpose of the exhibit
was to help the jury understand how the accident occurred.
Under the Confrontation Clause of the Sixth Amendment to the United States
Constitution, “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him.” U.S. CONST. amend. VI. The Supreme Court interpreted this
right to mean that “testimonial” evidence is inadmissible at trial unless the witness who made the
testimonial statement either takes the stand to be cross-examined or is unavailable and the
defendant had a prior opportunity to cross-examine him. Crawford v. Washington, 541 U.S. 36,
53–54 (2004); Burch v. State, 401 S.W.3d 634, 636 (Tex. Crim. App. 2013); see also Melendez–
Diaz v. Massachusetts, 557 U.S. 305, 309 (2009).
Error in admitting evidence in violation of a defendant’s right to confront the witnesses
against him is constitutional error, which requires reversal unless the reviewing court determines
beyond a reasonable doubt that the error did not contribute to the conviction or punishment.
TEX. R. APP. P. 44.2(a); Langham v. State, 305 S.W.3d 568, 582 (Tex. Crim. App. 2010). The
question is not whether the verdict was supported by the evidence. Langham, 305 S.W.3d at 582
(quoting Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim. App. 2007)). Rather, the question is
the likelihood that the constitutional error was actually a contributing factor in the jury’s
–6– deliberations in arriving at their decision, that is, whether the error adversely affected the
integrity of the process leading to the decision. Id.
When determining whether a Confrontation Clause error may be declared harmless
beyond a reasonable doubt, we consider: (1) how important the out-of-court statement was to the
State’s case; (2) whether the out-of-court statement was cumulative of other evidence; (3) the
presence or absence of evidence corroborating or contradicting the out-of-court statement on
material points; and (4) the overall strength of the prosecution’s case. Id. We also consider
other constitutional harm factors, if relevant, such as the nature of the error, whether or to what
extent it was emphasized by the State, probable implications of the error, and the weight a juror
would probably place on the error. Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim. App.
2011). “At bottom, an analysis for whether a particular constitutional error is harmless should
take into account any and every circumstance apparent in the record that logically informs an
appellate determination whether ‘beyond a reasonable doubt [that particular] error did not
contribute to the conviction or punishment.’” Id. (quoting TEX. R. APP. P. 44.2(a)). Ultimately,
after considering these various factors, the reviewing court must be able to declare itself
satisfied, to a level of confidence beyond a reasonable doubt, that the error did not contribute to
the conviction before it can affirm. Langham, 305 S.W.3d at 582
For purposes of our analysis, we will assume without deciding that State’s Exhibit 70 is
testimonial. However, we conclude appellant was not harmed by the admission of this evidence.
State’s Exhibit 70 is a series of short animations showing how Embry believed the
collision occurred. State’s Exhibit 70 is cumulative of other evidence in the record, including
information from the black box, testimony from Lozano and Rodriguez, photographs of the
accident scene and of the vehicles at the wrecking yard, and testimony from the officers who
arrived at the scene, and was not significant to the State’s case. The fact that the truck hit the
–7– Nissan, as shown in Exhibit 70, was corroborated by two eye-witnesses, Lozano and Rodriguez,
and by damage to the vehicles. The only contradictory evidence in the record is appellant’s
assertion to medical personnel that his truck was hit from behind. The State did not devote
substantial time to the exhibit and did not discuss the exhibit or Embry’s testimony during its
closing argument. Based on our review of the record, we do not believe a jury would have given
much weight to State’s Exhibit 70 in light of the other evidence in the record, including
appellant’s statement to his mother that his foot was on the accelerator and he caused the crash
and her response that it was an accident.
After reviewing the entire record, we conclude beyond a reasonable doubt that the
introduction of State’s Exhibit 70 did not materially affect the jury’s deliberations. Accordingly,
any error by the trial court in admitting this evidence was harmless. We overrule appellant’s first
issue.
C. Comment on the Evidence
In his fourth issue, appellant argues the trial court improperly commented on the weight
of the evidence by accusing a witnesses of lying. Yolunda Gonzales, appellant’s mother,
testified during the punishment phase of the trial that she spoke to appellant on the phone while
he was incarcerated. The State played the phone call discussed above and Gonzales confirmed
the voices are hers and appellant’s. During the call, Gonzales said: “We are going to get you that
really good lawyer. . . . and it will work out. . . it’s not going to be the full twenty or whatever
that lawyer told you. You know, getting a good lawyer, it helps, and this guy said that he knows
the judge, that they play golf together. You know in the United States you buy justice.”
The judge asked the State to stop the recording and the following exchange occurred:
THE COURT: That is not accurate. Okay. Just so we’re all clear about that. Okay. That is simply a lie. MR. JACKSON: What is a lie, Your Honor?
–8– THE COURT: I don’t play golf with you. That’s all I’m going to say, and you don’t need to say anything else. MR. JACKSON: Your Honor, I didn’t assume representation until 10/4. This whole conversation was 9/22. THE COURT: That’s fine. MR. JACKSON: I never said anything about playing golf with you. THE COURT: You don’t need to say a word. You guys don’t need to say a word. Just continue playing the tape. MR. JACKSON: Well, what I’m saying is that she’s not lying, Your Honor, and I object to the Court’s representation that she is. MR. ROBINIUS:2 Judge, they are talking about another lawyer that was appointed before we were involved, that’s what I wanted to say. THE COURT: Okay. That’s fine. Go ahead. I don’t play golf, by the way.
Gonzales confirmed that Jackson did not represent appellant when the phone call was recorded.
On appeal, appellant asserts the trial court improperly commented on the weight of the
evidence by accusing Gonzales of lying. The State responds that the judge corrected a false
impression of judicial impropriety created by Gonzales’s comments.
After reviewing the recorded phone call in conjunction with the judge’s comments and
conversation with the attorneys, it is clear that the judge did not accuse Gonzales of lying but
corrected the misimpression that he plays golf with appellant’s counsel and, therefore, appellant
could receive preferential treatment in court. Gonzales stated in the telephone call that she was
going to hire a lawyer who plays golf with the judge because “it helps” and “in the United States
you buy justice.” These statements could have created the appearance of impropriety, which the
trial judge sought to avoid by making the record clear that he does not play golf. Appellant’s
trial counsel even asked the court for clarification after the judge said “[t]hat is simply a lie,” and
the judge replied: “I don’t play golf with you. That’s all I’m going to say, and you don’t need to
say anything else.”
2 Both Jackson and Robinius represented appellant at trial.
–9– Even if the trial court’s comments were improper, we conclude appellant has not shown
he was harmed by any error. See TEX. R. APP. P. 44.2. In the jury’s presence, appellant’s
lawyers stated they became his counsel after the phone conversation. Gonzales confirmed
Jackson did not represent appellant when the phone call was recorded. Counsel’s and
Gonzales’s statements support the trial court’s effort to clarify the record about his relationship
with appellant’s counsel and show he was not calling Gonzales a liar.
We overrule appellant’s fourth issue.
D. Admission of Autopsy Photographs
In his fifth issue, appellant argues the trial court abused its discretion by admitting
autopsy photographs over his objection because they were more prejudicial than probative in
violation of Texas Rule of Evidence 403. Specifically, he complains about the admission of
three autopsy photos of Tuong Le, State’s Exhibits 4, 61 and 62, and three autopsy photos of Tri
Khuu, State’s Exhibits 5, 64, and 65.
Rule 403 allows for the exclusion of otherwise relevant evidence when its probative
value is substantially outweighed by the danger of unfair prejudice. See 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. Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App.
2007). A court may consider several factors when determining whether the probative value of
photographs is substantially outweighed by the danger of unfair prejudice, including but not
limited to, the number of exhibits offered, their gruesomeness, their detail, their size, whether
they are in black and white or color, whether they are close-up, and whether the body is depicted
naked or clothed. See id. The admissibility of a photograph is within the sound discretion of the
trial judge. See id.
–10– The autopsy photographs were admitted during the testimony of Janis Townsend-
Parchman, a Dallas County Medical Examiner who performed the autopsies on Tuong and Tri.
State’s Exhibit 4 shows Tuong’s face with a two-inch laceration above her left eyebrow and the
autopsy case number assigned to her. State’s Exhibits 61 and 62 are “overall photographs”
showing large portions of the front of Tuong’s body. The photos show some abrasions and
contusions to her body. State’s Exhibit 5 also is an autopsy identification photograph showing
Tri’s face and autopsy case number. State’s Exhibits 64 and 65 are full body photographs of the
front and back of Tri’s body after he died. The photos show some medical equipment that was
used to treat Tri before he died.
Townsend-Parchman used the autopsy photographs to describe the decedents’ injuries to
the jury. In her experience, people without extensive backgrounds in viewing pictures of injuries
struggle to envision them and they need to see photographs. The images also establish the
decedents’ identities and the case numbers assigned to them. Although the decedents’ bodies are
not clothed in the pictures, their genitals are fully covered, the bodies are clean, the external
injuries are not substantial, and there are no autopsy incisions to the bodies. The photographs are
relevant, took little time to develop during Townsend-Parchman’s testimony, and are not
gruesome. Under these circumstances, we conclude the probative value of the photographs is not
substantially outweighed by the danger of unfair prejudice. We conclude the trial court’s
decision to admit the photographs was within the zone of reasonable disagreement and was not
an abuse of discretion. We overrule appellant’s fifth issue.
E. Ineffective Assistance
In his sixth issue, appellant asserts his trial counsel provided ineffective assistance. To
successfully assert an ineffective assistance of counsel challenge on direct appeal, an appellant
must show that (1) counsel’s representation fell below an objective standard of reasonableness
–11– and (2) the deficient performance prejudiced him; that is, but for the deficiency, there is a
reasonable probability that the result of the proceeding would have been different. Rylander v.
State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). An ineffective assistance of counsel claim
must be “firmly founded in the record,” and the record must “affirmatively demonstrate” the
claim has merit. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). We
commonly assume a strategic motive if any can be imagined and find counsel’s performance
deficient only if the conduct was so outrageous that no competent attorney would have engaged
in it. Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).
The court of criminal appeals has made clear that, in most cases, a silent record which
provides no explanation for counsel’s actions will not overcome the strong presumption of
reasonable assistance. Rylander, 101 S.W.3d at 110. Further, counsel should ordinarily be
accorded the opportunity to explain his actions before being denounced as ineffective. Menefield
v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012). Because the reasonableness of trial
counsel’s choices often involve facts that do not appear in the appellate record, an application for
writ of habeas corpus is the more appropriate vehicle to raise ineffective assistance of counsel
claims. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).
Appellant argues his counsel was ineffective because he did not file a motion to suppress
or object to the admission of the blood-alcohol test results obtained as a result of a warrantless
blood draw and did not object to the admission of DNA evidence because there is no evidence he
consented to submitting to a blood sample for DNA analysis. As an initial matter, although
appellant filed a motion for new trial, he did not raise the issue of ineffective assistance of
counsel, and no evidentiary hearing was conducted on the issue. Thus, the record is silent about
counsel’s reasons for his actions so we do not know why appellant’s counsel did not file a
–12– motion to suppress or object to the admission of the DNA evidence about which appellant now
complains.
Further, in 2010 when the collision occurred and in 2011 when appellant’s case was tried,
the Texas Transportation Code required a peace officer to take a specimen of a person’s breath or
blood if the officer arrested a person for intoxicated manslaughter and the officer reasonably
believed the accident occurred as a result of the offense and an individual died or would die as a
direct result of the accident. See TEX. TRANSP. CODE ANN. §724.012(b) (West Supp. 2011). The
statute also stated the arrested person “is deemed to have consented” to the taking of the person’s
breath or blood to determine the alcohol concentration. See id. §724.011. The implied consent
law “expands on the State’s search capabilities by providing a framework for drawing DWI
suspects’ blood in the absence of a search warrant.” Beeman v. State, 86 S.W.3d 613, 616 (Tex.
Crim. App. 2002).
Broadnax testified that, based on appellant’s demeanor and because he smelled of
alcoholic beverages, Broadnax believed appellant was intoxicated. He also believed appellant’s
intoxicated state caused the collision that killed two people. Broadnax requested appellant’s
blood be drawn even though appellant did not consent. Based on this testimony and the statute
in effect at the time, appellant’s counsel could have concluded that filing a motion to suppress
evidence collected in accordance with the statute was without legal basis. See Jagaroo v. State,
180 S.W.3d 793, 800 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd) (“It is not ineffective
assistance for counsel to forego making frivolous arguments and objections.”).
Although the court of criminal appeals subsequently issued an opinion addressing
warrantless blood draws and rejecting the argument that the mandatory blood draw and implied
consent provisions of the transportation code “form a valid alternative to the Fourth Amendment
warrant requirement,” see State v. Villarreal, 475 S.W.3d 784,793 (Tex. Crim. App. 2014), that
–13– decision was issued years after this case proceeded to trial. We cannot say that appellant’s
counsel was ineffective for failing to file a motion to suppress or object to the admission of his
blood alcohol content or DNA evidence based on the law at the time of trial. We overrule
appellant’s sixth issue.
CONCLUSION
We affirm the trial court’s judgments.
/Craig Stoddart/ CRAIG STODDART JUSTICE
Do Not Publish TEX. R. APP. P. 47.2(b) 111061F.U05
–14– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ARMANDO FERMIN SOTO, Appellant On Appeal from the Criminal District Court No. 1, Dallas County, Texas No. 05-11-01061-CR V. Trial Court Cause No. F10-19502-H. Opinion delivered by Justice Stoddart. THE STATE OF TEXAS, Appellee Justices Francis and Schenck participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 15th day of December, 2016.
–15– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ARMANDO FERMIN SOTO, Appellant On Appeal from the Criminal District Court No. 1, Dallas County, Texas No. 05-11-01062-CR V. Trial Court Cause No. F10-19503-H. Opinion delivered by Justice Stoddart. THE STATE OF TEXAS, Appellee Justices Francis and Schenck participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
–16–