NO. 07-09-0025-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
OCTOBER 15, 2009
______________________________
BRIAN GARZA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 426TH DISTRICT COURT OF BELL COUNTY;
NO. 63,030; HONORABLE FANCY H. JEZEK, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
OPINION
Appellant, Brian Garza, was convicted by a jury of evading arrest by use of a motor
vehicle,1 a state jail felony punishable as a third degree felony by virtue of a deadly weapon
1
See Tex. Penal Code Ann. § 38.04(a), (b)(1) (Vernon 2003).
finding.2 During the punishment phase of the trial, Appellant pled true to an enhancement
allegation3 and the jury sentenced him to seventeen years confinement. Appellant asserts
three issues asking whether: (1) the result of the proceeding would have been different had
he received effective assistance from his counsel; (2) the trial court committed error by
charging the jury with a deadly weapon instruction when evidence of actual endangerment
was factually insufficient to justify a finding that the motor vehicle was used as a deadly
weapon; and (3) the trial court’s judgment of conviction should be modified to reflect the
correct offense level.
Originally appealed to the 3rd Court of Appeals, this case was transferred to this
Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex.
Gov’t Code Ann. § 73.001 (Vernon 2005). We are unaware of any conflict between
precedent of the 3rd Court of Appeals and that of this Court on any relevant issue. See
Tex. R. App. P. 41.3. We modify the trial court’s judgment and affirm as modified.
Background
In May 2008, Appellant was indicted by a Bell County Grand Jury for evading arrest
by use of a motor vehicle. The indictment alleged an offense occurring on or about April
17, 2008. The indictment also alleged Appellant used and exhibited his vehicle as a
2
See Tex. Penal Code Ann. 12.35(c) (Vernon Supp. 2008).
3
See Tex. Penal Code Ann. 12.42(a)(3) (Vernon 2003).
2
deadly weapon during the commission of the offense and it contained an enhancement
paragraph describing a prior felony conviction.4
I. Pretrial Proceedings
On August 21, 2008, Appellant requested notice of the State’s intention to use
extraneous offenses at trial. The State responded that, among other offenses, the State
intended to present evidence that Appellant was driving while intoxicated when he was
arrested on the instant offense.5
On November 3, 2008, the trial court held a hearing on Appellant’s motion seeking
to prevent the State from offering any evidence of intoxication. Appellant asserted the
evidence was irrelevant and, if relevant, more prejudicial than probative. The State
countered that evidence of intoxication was relevant to its allegation that, in the course of
evading arrest, Appellant was operating a motor vehicle as a deadly weapon. The State
also asserted that Appellant’s breath test and his throwing beer containers from the car
while fleeing was the same transaction, contextual evidence. The State indicated there
would also be testimony by officers who believed Appellant’s physical appearance at the
time he was arrested indicated he was intoxicated, a technical supervisor of breath testing,
and the person who administered the breath test. The trial court overruled Appellant’s
4
Specifically, the indictm ent asserted that Appellant had previously been convicted of the felony
offense of burglary of a vehicle.
5
Appellant was charged with driving while intoxicated in a separate proceeding.
3
objection to evidence of him throwing beer containers from his car during the chase and
withheld its ruling on the remaining objections until the State intended to proffer evidence
of Appellant’s intoxication. Prior to trial, the State filed a witness list naming Elmer Weber,
a Department of Public Safety technical supervisor over breath testing and analysis.
II. Trial
The following evidence was adduced at a jury trial held November 4 through 5. On
April 17, 2008, at approximately 3:20 a.m., Officer Bradford Hunt first observed Appellant
driving his vehicle very slowly. He ran Appellant’s license plate and discovered it had
expired four months earlier. In preparation for a traffic stop, he turned on the red and blue
lights atop his patrol car. Appellant continued to drive. Officer Hunt then intermittently
beeped his siren to no avail.
Appellant stopped at a traffic light. And, when the light turned green, Appellant
remained at the intersection. Believing Appellant had finally come to a stop, Officer Hunt
turned his spotlight on Appellant’s car, called for assistance, and stood outside his vehicle
behind the driver’s door. Through the public address system mounted on the front of the
car, he commanded Appellant to: “Stay right there, don’t move or you are going to jail.”
Appellant reacted by speeding away. Officer Hunt turned on his siren and
alternating high beam headlights in addition to the red and blue lights atop his patrol car
4
and initiated pursuit.6 In the next thirty minutes, Appellant engaged numerous police
officers in an eighteen mile car chase. During the pursuit, Appellant’s behavior included
speeding as fast as fifteen to twenty miles per hour over the speed limit(s) through a
residential neighborhood, road construction zone, and over highways; running stop signs;
swerving within a traffic lane; throwing beer cans from his car; driving at speeds of forty to
fifty miles per hour on deflated tires that were smoking with sparks flying from the bare
rims; and, driving on the wrong side of a highway in the direction of oncoming traffic while
crossing blind hills with very little visibility.
The car chase ended in a trailer park where Appellant was arrested. When his car
was searched, the officers found an empty can of beer and a twenty-four pack of beer
containing three unopened cans. Officer Shawana Neely, who drove the second patrol car
in pursuit behind Officer Hunt, testified that, at the time of his arrest, Appellant’s speech
was slurred, his eyes were red and glassy, he staggered when he walked, and he smelled
strongly of alcoholic beverage.7
Officer Joshua Moore testified that, after he obtained Appellant’s consent, he
administered two breath tests, one at 4:30 a.m. and a second test at 4:41 a.m. Weber,
6
At one point during the pursuit, there were three such vehicles in pursuit of Appellant.
7
Prior to testim ony related to Appellant’s intoxication, a hearing was held outside the presence of the
jury. The State asserted that evidence of Appellant’s intoxication was relevant to its deadly weapon allegation,
i.e., a person consum ing large quantities of alcoholic beverage would be less likely to control their car than
som eone who had not been drinking. Appellant asserted he did not receive proper notice that such evidence
would be presented in the guilt/innocence phase and asked for a continuance to obtain an expert to counter
the State’s evidence related to Appellant’s breath test. The trial court overruled Appellant’s objection to
adm ission of the evidence and denied Appellant’s m otion to continue.
5
technical supervisor for DPS’s breath testing program, testified that the legal limit, or point
in which all individuals are deemed intoxicated, for a breath test in Texas was .080.
Appellant’s results were .084 and .087, respectively.8
Following the testimony, the jury found Appellant guilty of evading arrest while using
his automobile as a deadly weapon. During the punishment stage of the trial, Appellant
pled “true” to a prior felony conviction alleged in the indictment9 and the trial court
instructed the jury that the maximum sentence of confinement was a term not more than
twenty years or less than two years. Thereafter, the jury sentenced Appellant to
confinement for seventeen years. The trial court issued its judgment of conviction and this
appeal followed.
Discussion
Appellant contends his counsel was ineffective because, although his counsel had
received notice the State intended to offer evidence of his intoxication at trial, his counsel
8
Appellant’s counsel cross-exam ined W eber on issues related to the design of Breathalyzer
m achines, the reaction of acetate to alcohol, degrees of m achine error, the effect of m outh alcohol from
belching or burping prior to, or during, a test and the absence of a blood sam ple. After establishing that
W eber did not know, or was not privy, to certain inform ation, he obtained W eber’s testim ony that he could not
tell the jury based on a lack of the inform ation whether the breathalyzer results were accurate regarding the
tim e of the car chase.
9
Neither party put on any witnesses during the punishm ent stage. The State offered evidence of
various judgm ents and pleas by Appellant including three guilty pleas to the offense of evading arrest on
Novem ber 19, 1992, March 11, 1994, and March 5, 1999. Although § 38.04(b)(2) of the Penal Code, perm its
an offense of evading arrest to be punished as a third degree felony if the person “uses a vehicle while [he]
is in flight and [he] has been previously convicted [of evading arrest],” this provision is inapplicable here
because the State did not offer evidence of these prior convictions during the guilt phase of Appellant’s trial.
See Calton v. State, 176 S.W .3d 231, 234, 236 (Tex.Crim .App. 2005).
6
was not prepared to counter the State’s evidence. Appellant next contends the trial court
erred by charging the jury with a deadly weapon instruction when there was insufficient
evidence to justify a jury finding on the issue. Lastly, Appellant asserts the trial court’s
judgment of conviction should be modified because he was convicted of a second degree
felony offense rather than a third degree felony offense as stated in the judgment.
I. Ineffective Assistance of Counsel
We examine ineffective assistance of counsel claims by the standard enunciated
in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex.Crim.App. 1986).
Appellant has the burden to show by a preponderance of evidence (1) trial counsel’s
performance was deficient, i.e., fell below the prevailing professional norms, and (2) the
deficiency prejudiced the defense; that is, but for the deficiency, there is a reasonable
probability that the result of the proceeding would have been different. See Thompson v.
State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). We examine the totality of counsel’s
representation to determine whether Appellant received effective assistance but do not
judge counsel’s strategic decisions in hindsight. Id. at 813. Rather, counsel’s conduct is
viewed with great deference. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App.
2005). Any allegation of ineffectiveness must be firmly founded in the record, and the
record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d
at 812.
7
In the usual case in which an ineffective assistance claim is made, “the record on
direct appeal will not be sufficient to show that counsel’s representation was so deficient
and so lacking in tactical or strategic decisionmaking as to overcome the presumption that
counsel’s conduct was reasonable and professional.” Bone v. State, 77 S.W.3d 828, 833
(Tex.Crim.App. 2002). This is generally the case because a silent record provides no
explanation for counsel’s actions and therefore will not overcome the strong presumption
of reasonable assistance. Freeman v. State, 125 S.W.3d 505, 506 (Tex.Crim.App. 2003);
Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003).
This case demonstrates the “inadequacies inherent in evaluating ineffective
assistance claims on direct appeal.” Patterson v. State, 46 S.W.3d 294, 306
(Tex.App.–Fort Worth 2001, no pet.).10 Appellant did not file a motion for new trial, the trial
court did not hold a hearing to determine whether Appellant’s complaints of ineffective
assistance involved actions that may, or may not, have been grounded in sound trial
strategy and the record does not reflect counsel’s reasons for doing, or failing to do, the
things of which Appellant complains.
That said, the record reflects that Appellant’s counsel had notice of the State’s
intention to use evidence of Appellant’s intoxication at trial as early as August 2008, nearly
three months before trial. The hearing transcript for November 3 indicates Appellant’s
10
The m ost effective procedure for raising a claim of ineffective assistance is alm ost always habeas
corpus. Aldrich v. State, 104 S.W .3d 890, 896 (Tex.Crim .App.2003).
8
counsel had adopted a strategy to keep such evidence from being admitted at trial. Prior
to the admission of the evidence on November 4, Appellant’s counsel again argued against
its admission but failed. Thereafter, having been unsuccessful in persuading the trial court
that the evidence should be excluded, Appellant’s counsel thoroughly and ably cross-
examined the State’s primary witness regarding the reliability of breathalyzer tests and
Appellant’s breath test. Based on this record, we cannot say that Appellant’s legal
representation fell below prevailing professional norms.
Appellant also complains that his trial counsel was ill-prepared because he failed
to procure an expert on intoxication in advance of trial to counter the State’s evidence.
Trial counsel’s failure to call an expert is irrelevant absent a showing that an expert witness
was available to testify on this issue and the expert’s testimony would have benefitted
Appellant. See King v. State, 649 S.W.2d 42, 44 (Tex.Crim.App. 1983). Appellant makes
no such showing.
On this record, to find Appellant’s counsel ineffective, we would have to engage in
prohibited speculation. See Stafford v. State, 101 S.W.3d 611, 613-14 (Tex.App.–Houston
[1st Dist.] 2003, pet. ref’d). Absent evidence of counsel’s strategy, we cannot denounce
counsel’s actions as ineffective nor can we determine that there is a reasonable probability
that the outcome would have been different. For this reason, Appellant has not met either
prong of the Strickland test. Accordingly, Appellant’s first issue is overruled.
9
II. Jury Charge
An appellate court reviews a trial court’s submission, or omission, of a jury
instruction under an abuse of discretion standard. See Wesbrook v. State, 29 S.W.3d 103,
122 (Tex.Crim.App. 2000); Slott v. State, 148 S.W.3d 624, 632 (Tex.App.–Houston 2004
[14th Dist.], pet. ref’d). When applying this standard, we may not substitute our judgment
for that of the trial court but simply determine whether the trial court’s ruling was arbitrary
or unreasonable. See Salazar v. State, 38 S.W.3d 141, 148 (Tex.Crim.App. 2001).
To establish a deadly weapon finding, the State must demonstrate that: (1) the
object meets the statutory definition of a dangerous weapon,11 (2) the deadly weapon was
used or exhibited “during the transaction from which” the felony conviction was obtained;
Ex parte Jones, 957 S.W.2d 849, 851 (Tex.Crim.App. 1997); and (3) that people were
actually endangered, as opposed to a mere hypothetical potential for danger if others had
been present. Cates v. State, 102 S.W.3d 735, 738 (Tex.Crim.App. 2003).
Objects that are not usually considered dangerous weapons may become so,
depending on the manner in which they are used during the commission of an offense.
Thomas v. State, 821 S.W.2d 616, 620 (Tex.Crim.App. 1991). A motor vehicle may
become a deadly weapon if the manner of its use is capable of causing death or serious
bodily injury. Ex parte McKithan, 838 S.W.2d 560 (Tex.Crim.App. 1992). Specific intent
11
“Deadly weapon” m eans “anything that in the m anner of its use or intended use is capable of
causing death or serious bodily injury.” Tex. Penal Code Ann. § 1.07(a)(17)(B) (Vernon Supp. 2008).
10
to use a motor vehicle as a deadly weapon is not required. McCain v. State, 22 S.W.3d
497, 503 (Tex.Crim.App. 2000); Walker v. State, 897 S.W.2d 812, 814 (Tex.Crim.App.
1995).
The State’s evidence at trial indicated that, during Officer Hunt’s pursuit, Appellant
exceeded the speed limit driving through a residential area, construction zone, and over
highways and streets by as much as twenty miles per hour. He was intoxicated and
weaved within, and without, his driving lane. After his tires were deflated, he drove his
disabled vehicle on the deflated tires creating a thick smoke from burning rubber and, when
he no longer had tires, created a stream of sparks where the rim’s metal met the pavement
at speeds of forty to fifty miles per hour. He crossed the center line of a highway and drove
in the direction of approaching traffic over blind hills with limited visibility to determine
whether cars were approaching the hill’s crest from the opposite direction. He passed
vehicles at intersections where cross traffic was blocked by police officers and cars pulled
off the roadway to avoid his oncoming vehicle. At the very least, these facts raise an issue
whether the manner in which Appellant used his vehicle made it capable of causing death
or serious bodily injury.12 See Sierra v. State, 280 S.W.3d 250, 255 (Tex.Crim.App. 2009);
Drichas v. State, 175 S.W.3d 795, 798 (Tex.Crim.App. 2005).
12
The Code of Crim inal Procedure directs the trial court to subm it to the jury any issue that is raised
by the facts; Tex. Code Crim . Proc. Ann. art. 36.14 (Vernon 2007), and, when charging the jury upon an issue
adverse to the defendant, the trial court errs in issuing the instruction only if the issue is not suggested or
raised by the facts. Cannon v. State, 84 Tex. Crim . 504, 208 S.W . 339, 341 (1918) (on reh’g).
11
Appellant asserts this evidence is insufficient to raise a fact issue because it only
establishes a mere hypothetical potential for danger if others had been present. Here,
Appellant’s driving endangered not only the officers in pursuit of his vehicle but the public,
i.e., drivers who would have likely crossed his path in the absence of police intervention
at intersections and those drivers who actually pulled onto the shoulder to avoid Appellant’s
oncoming vehicle. See Sierra, 280 S.W.3d at 254-56 [collected cases cited therein];
Drichas, 175 S.W.3d at 798 (where defendant, in the course of evading detention with a
vehicle, led law enforcement officers on a fifteen-mile high-speed chase during which he
disregarded traffic signs and signals, drove erratically, wove between and within lanes,
turned abruptly into a construction zone, and drove on the wrong side of the highway,
Court of Criminal appeals held that his use of a motor vehicle “posed a danger to pursuing
officers and other motorists that was more than simply hypothetical”); Mann v. State, 13
S.W.3d 89, 92 (Tex.App.–Austin 2000), aff’d, 58 S.W.3d 132 (Tex.Crim.App. 2001)
(evidence is sufficient if it raises a fact issue whether “others were endangered”).
We find that the State’s evidence was sufficient to create a fact issue whether
Appellant’s manner of using his car posed a danger to pursuing officers and the public that
was more than hypothetical. Accordingly, the trial court did not abuse its discretion by
issuing a deadly weapon charge to the jury. Appellant’s second issue is overruled.
12
III. Judgment of Conviction
The trial court’s Judgment of Conviction indicates Appellant was convicted of
evading arrest with a motor vehicle, a third degree felony. Appellant contends the trial
court mischaracterized his offense as a third degree felony because he was sentenced
under the punishment range applicable to a second degree felony and the sentence
actually imposed was greater than that allowed for a third degree felony.
As previously noted, Appellant was indicted for evading arrest while using a motor
vehicle, a state jail felony, under section 38.04(b)(1) of the Penal Code. In addition, the
indictment alleged the use of a motor vehicle as a deadly weapon in the commission of the
offense, making the offense punishable as a third degree felony.13 Still further, the
indictment alleged a prior felony conviction, making the offense punishable as a second
degree felony.14
At the guilt/innocence stage of the trial, the trial court submitted to the jury the
primary offense under section 38.04(a), the use of a motor vehicle under section
38.04(b)(1), and a special issue as to whether Appellant used that vehicle as a deadly
weapon under section 12.35(c)(1). The jury found Appellant guilty and answered the
special issue in the affirmative. The trial then proceeded to the punishment phase where
the prior felony conviction came into play.
13
See fn. 2, supra.
14
See fn. 3, supra.
13
The punishment range for convictions of state jail felonies are set forth in section
12.35 of the Texas Penal Code. The statute specifies the punishment for regular or non-
aggravated state jail felonies in section 12.35(a) and (b), and for aggravated state jail
felonies in section 12.35(c).
Here, Appellant was convicted of evading arrest under section 38.04(b)(1), a state
jail felony. The nature of the offense never changed but, because of the jury’s affirmative
finding of the use of a deadly weapon during the commission of the offense, the offense
became an aggravated state jail felony punishable under section 12.35(c) as a third degree
felony. The state jail felony of which Appellant was convicted did not, however, become
a third degree felony.
During the penalty phase, that part of the indictment alleging the prior felony
conviction was read to the jury and Appellant pled “true” to these allegations. In its jury
charge, the trial court authorized the jury to assess a sentence of confinement for a term
not more than twenty years or less than two years–the sentence applicable to a second
degree felony offense; pursuant to section 12.42(a)(3) of the Penal Code. Aggravated
state jail felonies, punishable under the provisions of section 12.35(c), are subject to the
habitual criminal provisions of section 12.42(a). State v. Mancuso, 919 S.W.2d 86, 90
(Tex.Crim.App. 1996). See Bunton v. State, 136 S.W.3d 355, 363 (Tex.App.–Austin 2004,
pet. ref’d).
14
Although Appellant was punished within the proper, applicable punishment range
based on this crime and his criminal history, he was, nonetheless, convicted of only a state
jail felony. The notation on the trial court’s judgment indicating Appellant was convicted
of a third degree felony is a clerical error, not the product of judicial reasoning.15 Thus, we
are authorized to reform the trial court’s judgment so that it may speak the truth. See
French v. State, 830 S.W.2d 607, 609 (Tex.Crim.App. 1992); Smith v. State, 223 S.W.3d
690, 696-97 (Tex.App.–Texarkana 2007, no pet.). This Court has the authority to modify
an incorrect judgment when it has the information and evidence necessary to do so. See
Tex. R. App. P. 43.2(b); Figueroa v. State, 250 S.W.3d 490, 518 (Tex.App.–Austin 2008,
pet. ref’d), cert. denied, 129 S.Ct. 1340, 173 L.Ed.2d 609 (2009).
We therefore reform the trial court’s judgment to reflect Appellant was convicted by
a jury of evading arrest, a state jail felony, aggravated by a finding that Appellant used and
exhibited a deadly weapon in the commission of the offense, enhanced by a prior felony
conviction. Although we sustain Appellant’s third issue as to modification of the trial court’s
judgment, we overrule his issue in so far as it asserts that the sentence imposed was
greater than that allowed by law.
15
Likewise, the failure of the Judgment of Conviction to reflect that the offense was enhanced by a
prior felony conviction is a clerical error.
15
Conclusion
We modify the judgment of the trial court to indicate Appellant was convicted of a
state jail felony, aggravated by the use of a deadly weapon, enhanced by a prior felony
conviction. As modified, the trial court’s judgment is affirmed.
Patrick A. Pirtle
Justice
Publish.
16