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NUMBER 13-01-553-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
___________________________________________________________________
RAUL AMAYA RIOS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
___________________________________________________________________
On appeal from the 275th District Court
of Hidalgo County, Texas.
__________________________________________________________________
O P I N I O N
Before Justices Dorsey, Hinojosa, and Rodriguez
Opinion by Justice Rodriguez
Appellant, Raul Amaya Rios, brings this appeal following a conviction for murder. By twelve issues, Rios generally contends the evidence was legally and factually insufficient, the trial court committed reversible error and he was denied effective assistance of counsel. We affirm.
I. Background
On October 12, 2000, after leaving his wife and children at his in-laws, Homero Sanchez went to the residence he shared with Efrain Gutierrez and Pedro Soto. Sanchez arrived drunk and carrying a rifle. When he noticed that Gutierrez was not there, Sanchez told Soto he wanted to kill Gutierrez.[1] Sanchez then left. Gutierrez and Rios then arrived at the house. Soto told Gutierrez that Sanchez was looking for him. Upon hearing this, Gutierrez stated he was going to beat Sanchez up. Gutierrez and Soto left to look for Sanchez. They took a rifle with them.
Later that evening, Gutierrez and Soto arrived at Sanchez=s in-law=s house looking for Sanchez. They left after Sanchez=s wife told them that Sanchez was not there. Soon thereafter, Sanchez arrived at his in-laws house and decided that, because he was drunk, he would not go in the house. His wife met him outside and they spoke for a little while. Sanchez=s wife then went back into her parent=s house and Sanchez went into his father-in-law=s vehicle and laid in the back seat. He had the rifle with him. Soon after Sanchez=s wife went inside the house, she heard two gun shots. Upon hearing the shots, she ran outside and, as it sped away, saw the tail-end of the vehicle Gutierrez and Soto had been in earlier that evening. Sanchez had been shot in the head while sleeping in the vehicle. Rios was eventually arrested for the murder of Sanchez.[2]
Rios was charged by indictment with one count of murder, to which he pleaded not guilty. Following a trial to the jury, Rios was convicted and sentenced to forty years imprisonment in the Institutional Division of the Texas Department of Criminal Justice. This appeal ensued.
II. Sufficiency of Evidence
By his first and second issues, Rios contends the evidence was both factually and legally insufficient to prove his identity as charged in the indictment.[3] We find it unnecessary to reach Rios=s contention because error, if any, was waived.
An indictment must state the name of the accused or state that his name is unknown and give a description of him. Tex. Code Crim. Proc. Ann. art. 21.02(4) (Vernon 1989). A defendant who fails to suggest his true name at the time of his arraignment waives his right to have his name corrected in the indictment. Id. art. 26.07 (Vernon 1989); Bowden v. State, 628 S.W.2d 782, 787 (Tex. Crim. App. 1982).
In this instance, Rios was read the indictment and made no objection that ARaul Amaya Rios@ was not his true and correct name. Rios has thus waived these contentions for our review. See Tex. Code Crim. Proc. Ann. art. 26.07; see also Tex. R. App. P. 33.1. Rios=s first and second issues are overruled.
III. Charge Error
By his third and ninth issue, Rios complains of charge error.
A. Standard
When an appellant alleges jury charge error on appeal, we first must determine whether there is any error in the charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996). If we conclude there is jury charge error, we must determine if the error caused sufficient harm to warrant reversal. See Ovalle v. State, 13 S.W.3d 774, 786 (Tex. Crim. App. 2000). The extent of harm requiring reversal is dictated by whether the error was preserved. See id.; Escobar v. State, 28 S.W.3d 767, 777 (Tex. App.BCorpus Christi 2000, pet. ref=d). If the error in the charge was the subject of a timely objection, then reversal is required if the error is calculated to injure the rights of the defendant. Ovalle, 13 S.W.3d at 786; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985); Escobar, 28 S.W.3d at 777. Where the defendant failed to object to the error at trial, as in this case, we may reverse only if the record shows that the error was so egregiously harmful that the defendant was denied a fair and impartial trial. See Ovalle, 13 S.W.3d at 786; Almanza, 686 S.W.2d at 171; Escobar, 28 S.W.3d at 777.
B. Reasonable Doubt Definition
By his third issue, Rios contends the trial court erred in submitting the Geesa instruction defining reasonable doubt in the jury charge. See Geesa v. State, 820 S.W.2d 154, 162 (Tex. Crim. App. 1991). In Geesa, the court of criminal appeals held that the following definition of reasonable doubt shall be submitted to the jury in all criminal cases:
A Areasonable doubt@ is a doubt based on reason and common sense after a careful and impartial consideration of all the evidence in the case. It is the kind of doubt that would make a reasonable person hesitate to act in the most important of his own affairs.
Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.
Id. However, in Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000), the court of criminal appeals overruled Geesa to the extent that it required trial courts to instruct juries on the definition of reasonable doubt. Id. at 573. The court held that the better practice is to not give a definition of reasonable doubt at all to the jury. Id. Alternatively, the court went on to hold that if both the State and the defendant Awere to agree to give the Geesa instruction to the jury, it would not constitute reversible error for the trial court to acquiesce to their agreement.@ Id.; cf. Colbert v. State, 56 S.W.3d 857, 860 (Tex. App.BCorpus Christi 2001, pet. granted) (A[I]f the State and defendant do not agree to the Geesa instruction, it constitutes reversible error for the trial court to submit the definitional instruction.@).
In this instance, the trial court allowed both the State and Rios to look over the proposed jury charge and to make any additions or objections. The Geesa definition of reasonable doubt was included in the charge. The State did not have any objections to the charge. Rios made particular objections to the jury charge, but did not object to the reasonable doubt definition. Moreover, during his closing argument, Rios read the definition to the jury. He then repeated part of the definition several times, stating Ayou must be willing to rely and act upon it without hesitation in the most important of your own affairs,@ and told the jury to Akeep that phrase in mind because it=s important.@ Based on his actions, Rios cannot now claim that he disagreed with the inclusion of the definition merely because he did not affirmatively agree with its inclusion. We conclude that the silence with respect to this portion of the charge and Rios=s later application of the definition infer both parties= agreement to the inclusion of the reasonable doubt definition. Because both parties agreed to the inclusion of the definition, the trial court did not err in allowing the definition to remain in the charge. See Paulson, 28 S.W.3d at 573; see also Hutch, 922 S.W.2d at 170. Rios=s third issue is overruled.
C. Reasonable Doubt Instruction for Extraneous Offenses
By his ninth issue, Rios contends the trial court erred in not including a reasonable doubt instruction concerning extraneous offenses in the punishment charge.
Although it is not clear from his brief, we assume Rios is referring to evidence of extraneous offenses as testified to by Rios=s juvenile probation officer. This evidence included: (1) misdemeanor theft and criminal trespass, for which he received one year probation; (2) burglary of a vehicle and two burglaries of a habitation, for which he received a one year suspended sentence of imprisonment; and (3) indecency with a child, for which Rios received one year probation.
The State concedes, and we agree, that the trial court erred by failing to charge the jury as to the reasonable doubt standard for these extraneous offenses. See Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a)(1) (Vernon Supp. 2002); Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000). However, because this error derives from a statutory violation and is a charge error, we apply the Almanza harm analysis. Huizar, 12 S.W.3d at 484; see Almanza, 686 S.W.2d at 171-72.
In this instance, Rios did not object to the omission of the reasonable doubt instruction in the punishment charge. Thus, Rios must show he was egregiously harmed by its omission; i.e., that it caused him to not receive a fair and impartial trial. See Ovalle, 13 S.W.3d at 786; Almanza, 686 S.W.2d at 171; Escobar, 28 S.W.3d at 777. Looking at the record as a whole, there is ample evidence that Rios willingly participated in Sanchez=s murder. It also reveals that Rios had twice been convicted of burglary as an adult, and the jury was properly given a reasonable doubt instruction as to these offenses. Moreover, Rios could have received fifteen years to life, plus a fine of up to $10,000, if the jury found the enhancement allegations true. See Tex. Pen. Code Ann. 12.42(c)(1) (Vernon Supp. 2002). The State pleaded with the jury to give Rios a life sentence. However, the jury sentenced Rios to forty years imprisonment. Considering the record as a whole, we conclude Rios did not suffer egregious harm as a result of the trial court=s failure to include a reasonable doubt instruction as to Rios=s extraneous juvenile offenses. Rios=s ninth issue is overruled.
IV. Evidence of an Extraneous Bad Act
By his fourth issue and first supplemental issue, Rios contends the trial court committed reversible error in admitting evidence of an extraneous bad act. Specifically, Rios argues the trial court erred by admitting a copy of his statement to the police without redacting Rios=s representation that he had just been released from imprisonment on a burglary conviction. We find it unnecessary to reach Rios=s contention because error, if any, was waived.
It is fundamental that to preserve error for our review, a timely and specific objection must be made and followed by an adverse ruling. See Tex. R. App. P. 33.1. More specifically to this case, when evidence of an extraneous act or offense is offered, the opponent must timely and properly object in order to preserve error. Guerra v. State, 942 S.W.2d 28, 33 (Tex. App.BCorpus Christi 1996, pet. ref=d); McLellan v. Benson, 877 S.W.2d 454, 457 (Tex. App.BHouston [1st Dist.] 1994, no pet.). In this instance, the record does not reflect any objections made by Rios when the State offered Rios=s statement. Because Rios did not timely object when the evidence was offered, error, if any, has been waived. Rios=s fourth and first supplemental issues are overruled.
V. Motion for Continuance
By his fifth issue, Rios contends the trial court erred in not granting his motion for continuance. Specifically, Rios contends the trial court erred in denying his motion because Rios was trying to locate a material witness. We find it unnecessary to reach Rios=s contention because error, if any, was waived.
To preserve error and challenge a trial court=s refusal of a motion for continuance made because of an absent witness, an appellant must file a sworn motion for new trial stating the testimony he expected to present by the witness, Ashcraft v. State, 900 S.W.2d 817, 834 (Tex. App.BCorpus Christi 1995, pet. ref=d), and must show how the witness=s testimony would have been material. Gentry v. State, 770 S.W.2d 780, 787 (Tex. Crim. App. 1988). A mere recitation that the appellant expects to prove certain things by the witness is not sufficient. Id. at 788 (citing Parsons v. State, 160 Tex. Crim. 387, 271 S.W.2d 643 (1954)). Additionally, a showing under oath by means of an affidavit of the missing witness or other source as to what the witness would testify must accompany the motion for new trial. Ashcraft, 900 S.W.2d at 834.
In his motion for continuance, Rios stated that he expected to prove by the witness that the defendant Awas with her on the date and time of the commission of the murder.@ However, this statement was not sworn to and is not sufficient to show materiality. See Gentry, 770 S.W.2d at 788. In his verified amended motion for new trial, Rios stated, A[t]he defendant was denied a continuance which would have enabled him to present the testimony of an alibi witness in violation of his right to Due Process. . . .@ However, Rios did not file a sworn affidavit with his motion for new trial giving detail as to what the witness would testify to. Ashcraft, 900 S.W.2d at 834. Thus, Rios did not preserve error. Id. Rios=s fifth issue is overruled.
VI. Hearing on a Motion for New Trial
By his sixth issue, Rios contends the trial court erred by failing to grant a hearing on Rios=s motion for new trial.
AWhen an accused presents a motion for new trial raising matters not determinable from the record, which could entitle him to relief, the trial judge abuses his discretion in failing to hold a hearing.@ Martinez v. State, 74 S.W.3d 19, 21 (Tex. Crim. App. 2002) (citing King v. State, 29 S.W.3d 556, 569 (Tex. Crim. App. 2000)). The purpose of the hearing is to fully develop the issues raised in the motion. Id. As a prerequisite to obtaining a hearing, the motion must be supported by an affidavit specifically showing the truth of the grounds for attack. Id.; King, 29 S.W.3d at 569. The affidavit does not need to reflect each and every component legally required to establish relief, but rather must reflect that reasonable grounds exist for holding that such relief could be granted. Martinez, 74 S.W.3d at 22; Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993).
Rios=s verified amended motion for new trial only stated that the continuance Awould have enabled him to present the testimony of an alibi witness. . . .@ This is insufficient to trigger a mandatory hearing. See King, 29 S.W.3d at 569 (no hearing required where defendant did not allege identity of witness, or demonstrate how alibi defense could have been persuasive); Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994) (supporting affidavit insufficient to require hearing where it did not specify supporting facts of what witness would testify to); see also Alcott v. State, 26 S.W.3d 1, 4-5 (Tex. App.BWaco 1999), aff=d, 51 S.W.3d 596 (Tex. Crim. App. 2001) (verification of counsel that he prepared motion for new trial, that he had personal knowledge of facts presented and that they were true and correct, was insufficient to show truth of grounds asserted). Rios did not put the trial court on notice that reasonable grounds for relief existed to require the hearing.[4] See Martinez, 74 S.W.3d at 21; Jordan, 883 S.W.2d at 665. Rios=s sixth issue is overruled.
VII. Jury Argument
By his seventh issue, Rios contends the trial court erred by not granting a mistrial due to improper jury arguments by the State.
Proper jury argument must fall within one of the following categories: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answers to arguments by opposing counsel; and (4) pleas for law enforcement. Ponce v. State, No. 13-01-264-CR, 2002 Tex. App. LEXIS 6450, *24-*25 (Corpus Christi Aug. 30, 2002, no pet.) (citing Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999)). To determine whether a party=s argument properly falls within one of these categories, we must consider the argument in light of the record as a whole. Id. at *25 (citing Wilson v. State, 938 S.W.2d 57, 61 (Tex. Crim. App. 1996)).
Even when arguments exceed the boundaries of these permissible areas, jury argument will not constitute reversible error, unless the arguments are manifestly improper, violate a mandatory statute, or inject new, harmful facts into the case. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). Additionally, the remarks must have been a willful and calculated effort on the part of the State to deprive appellant of a fair and impartial trial. Id. In most instances, an instruction to disregard the remarks will cure the error. Id. Only offensive or flagrant error warrants reversal when there has been an instruction to disregard. Id. at 116.
In this instance, the State argued, AWe submit to you that what happened was the drug deal had gone bad. . . . Gutierrez knew that they were about to get busted. He knew that he was about to get busted and get sent back to prison.@ The trial court sustained Rios=s objection that this argument was outside the record, and instructed the jury to disregard the comment.[5]
Looking at the record, it is clear that this argument was a reasonable deduction of the evidence. See Ponce, 2002 Tex. App. LEXIS 6450, at *24-*25. By his own statement to the police, there was evidence that: (1) Rios had been to prison before; (2) Sanchez was trying to sell some of Rios=s drugs; and (3) Rios and Gutierrez were aware that Sanchez may be dealing with undercover police agents. Based on this evidence, it was a reasonable deduction for the State to argue that Rios participated in Sanchez=s murder in an effort to avoid being arrested for selling drugs. See Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988) (ACounsel is allowed wide latitude without limitation in drawing inferences from the evidence as long as they are reasonable, fair, and offered in good faith.@). Rios=s seventh issue is overruled.
VIII. Motion for New Trial
By his eighth issue, Rios contends the trial court erred in denying his motion for new trial.
A. Standard
A trial court=s ruling denying a defendant=s motion for new trial is reviewed under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). A trial court abuses its discretion when it acts without reference to any guiding rules or principles, or, in other words, when the court acts arbitrarily or unreasonably. Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993).
B. Analysis
Rios argues his constitutional rights were violated after the trial court included an instruction for good time credit in the jury charge during the punishment phase. Specifically, Rios argues that because he is ineligible for good conduct time, the instruction was misleading to the jury and, thus, the trial court erred by not granting his motion for a new trial.
The court of criminal appeals has recently considered and rejected this argument. See generally Luquis v. State, 72 S.W.3d 355 (Tex. Crim. App. 2002). In Luquis, the court held that it is not error for the trial court to give an instruction that, although statutorily required, does not specifically apply to the case at hand. Id. at 363. The court went on to hold that an appellant has the burden to show there is a reasonable likelihood the instruction caused the jury to unconstitutionally misapply the concept of Agood conduct time@ in assessing the appellant a higher sentence. Id. at 368.
In this case, the trial court was statutorily required to read the good conduct time instruction even though it did not apply to Rios. See Tex. Code Crim. Proc. Ann. art. 37.07, ' 4(a) (Vernon Supp. 2002). Thus, there was no error for the trial court to give the parole law instruction. See Luquis, 72 S.W.3d at 363. Moreover, Rios failed to show any violation of his due process rights. See id. at 368. He merely argues the instruction was misleading and untrue as it applies to him. Rios did not make the required showing as to the likelihood the jury unconstitutionally misapplied the instruction in giving him a higher sentence. See id. Thus, we cannot conclude the instruction is unconstitutional as applied to him. Rios=s eighth issue is overruled.
IX. Motion to Suppress
By his tenth issue, Rios contends the trial court erred in denying his motion to suppress.
A. Standard
The typical motion to suppress case will be reviewed with a bifurcated standard of review giving almost total deference to a trial court=s express or implied determinations of fact, and review de novo the court=s application of the law of search and seizure to those facts. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). Mixed questions of law and fact that turn on the credibility and demeanor of a witness are reviewed under a total deference standard. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Mixed questions of law and fact which do not turn on the credibility and demeanor of a witness are reviewed de novo. Id. When, as here, the trial court does not make findings of fact, we view the evidence in the light most favorable to the trial court=s ruling and assume the trial court made implicit findings of fact that support its ruling so long as those findings are supported by the record. See Maxwell, 73 S.W.3d at 281; Ross, 32 S.W.3d at 855. If the decision is correct under any theory of law applicable to the case, the ruling will be sustained. Roquemore v. State, 60 S.W.3d 862, 866 (Tex. Crim. App. 2001).
B. Analysis
The State contends Rios waived his illegal arrest argument because he did not make an oral argument concerning the arrest at the suppression hearing. However, in Eisenhauer v. State, 754 S.W.2d 159 (Tex. Crim. App. 1988), overruled on other grounds, Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991), the court of criminal appeals held that Aa motion to suppress will be sufficient to preserve and allege error where the oral argument covers some, but not all, of the grounds raised in the motion.@ Id. at 161; see Vicknair v. State, 670 S.W.2d 286, 288 (Tex. App.BHouston [1st Dist] 1983), rev=d on other grounds, 751 S.W.2d 180 (Tex. Crim. App. 1986). At the suppression hearing, Rios argued that evidence was illegally seized from his vehicle without a warrant. Thus, argument was made regarding Asome@ grounds raised in the motion. See Eisenhauer, 754 S.W.2d at 161. Moreover, because it is the State=s burden to prove the validity of a warrantless arrest or search, we find it unnecessary for Rios to argue all grounds raised in the written motion because the issue is before the trial court. See Vicknair, 670 S.W.2d at 681. Thus, we will address Rios=s illegal arrest argument.
1. Illegal Arrest
Generally, an arrest without a valid arrest warrant is unreasonable. See Wilson v. State, 621 S.W.2d 799, 803-04 (Tex. Crim. App. 1981). An exception to this rule allows a police officer to arrest a suspect without a warrant when the State shows: (1) the officer had constitutional probable cause; and (2) the arrest falls within one of the statutory exceptions to the warrant requirement specified in articles 14.01 through 14.04 of the Texas Code of Criminal Procedure. Stull v. State, 772 S.W.2d 449, 451 (Tex. Crim. App. 1989).
Probable cause for a warrantless arrest exists when a police officer has reasonably trustworthy information, considered as a whole, that is sufficient to cause a reasonable person to believe that a particular person has committed or is committing an offense. Hughes v. State, 24 S.W.3d 833, 838 (Tex. Crim. App. 2000). The determination of probable cause at the time of the questioned action is viewed from the Atotality of the circumstances.@ State v. Lopez, 763 S.W.2d 939, 943 (Tex. App.BHouston [1st. Dist.] 1989, pet. ref=d). Article 14.01(b) of the Texas Code of Criminal Procedure provides a police officer may arrest an individual without a warrant for any offense committed in his presence or view. Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 1977). Driving without a valid inspection sticker is an offense. Tex. Transp. Code Ann. ' 548.602(a)(1) (Vernon Supp. 2002).
In this instance, Officer Victor Valdez testified that he personally observed Rios operating a vehicle with an expired inspection sticker. Id. He further testified that he stopped Rios=s vehicle, in part, because of the invalid inspection sticker. See id. ' 548.602(b) (Vernon Supp. 2002). Based on this evidence, we find Officer Valdez had both probable cause to believe Rios was committing an offense, and statutory authority to arrest Rios without a warrant. See Stull, 772 S.W.2d at 451; see also Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (AIf an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, . . . arrest the offender.@). The trial court did not err in denying Rios=s motion to suppress on this basis.
2. Search and Seizure
Rios argues that the search and seizure of the vehicle was unlawful because the officers did not have a warrant and did not have consent to search. An inventory search is permissible under the federal and state constitutions if conducted pursuant to a lawful impoundment. Mayberry v. State, 830 S.W.2d 176, 179 (Tex. App.BDallas 1992, pet. ref=d) (citing South Dakota v. Opperman, 428 U.S. 364, 375-76 (1976); Benavides v. State, 600 S.W.2d 809, 810 (Tex. Crim. App. [Panel Op.] 1980)). For an impoundment to be lawful, the seizure of the automobile must be reasonable under the Fourth Amendment. Benavides, 600 S.W.2d at 811. Courts have considered several factors in determining the reasonableness of the impoundment: (1) the availability of someone at the scene of the arrest to whom the officers could have given possession of the vehicle; (2) whether the vehicle was impeding the flow of traffic or was a danger to public safety; (3) whether the vehicle was locked; (4) whether the detention of the arrestee would likely be of such duration to require the police to take protective measures; (5) whether there was a reasonable connection between the arrest and the vehicle; and (6) whether the vehicle was used in the commission of a crime. Mayberry, 830 S.W.2d at 180. It is the State=s burden to prove lawful impoundment. Id. (citing Delgado v. State, 718 S.W.2d 718, 721 (Tex. Crim. App. 1986)).
In this instance, evidence showed that the officers knew that: (1) the vehicle Rios was driving matched the description of the suspect vehicle involved in Sanchez=s murder; (2) Rios matched the description of one of the suspects involved in Sanchez=s murder; and (3) the vehicle had been seen leaving the residence of Rios=s accomplice, Gutierrez. See id. (whether vehicle was used in commission of crime). Moreover, there was no one at the scene to take possession of the vehicle because at the time Rios was arrested, the passenger in the vehicle was transported to the Sheriff=s office to give a statement. See id. (availability of someone at scene of arrest to whom officers could have given possession of vehicle). In addition, there was evidence that Rios was committing an offense in the vehicle by driving it without a valid inspection sticker. See id. ( whether vehicle was used in commission of crime). Based on all of this evidence, we conclude the State satisfied their burden to show the impoundment of the vehicle was reasonable.
Rios next argues that the inventory search was only a ruse to discover incriminating evidence, and that there was insufficient evidence that the officers conducted an inventory search pursuant to established police department policy. Officer Carlos Cruz testified that he had the vehicle impounded because A[i]t=s procedure to . . . when the driver of the vehicle is being detained or arrested, we impound the vehicle for safekeeping. . . .@ As part of this process, Officer Cruz testified that an inventory search is conducted to protect the Aofficer, . . . the wrecker driver and the Sheriff=s Office.@ Officer Cruz went on to state that Awe inventory anything that has value or any legal documents and stuff like that.@ In the inventory report, Officer Cruz listed: (1) mens= and womens= clothing; (2) a twelve pack of cola; and (3) legal paperwork. Officer Cruz explained that Alegal paperwork@ constituted items such as: (1) a birth certificate; (2) receipts; (3) money transfer receipts; and (4) a business card holder. We cannot agree that this evidence is insufficient to show a valid inventory search as opposed to a search for evidence. We conclude that this testimony is sufficient to show that an inventory search policy existed, that the policy was followed and the search was a valid inventory search. The trial court did not err in denying Rios=s motion to suppress on this basis.
3. Search Warrant
Rios finally argues that the warrant and the items recovered pursuant to the warrant were fruits of an illegal arrest. However, we have already held that Rios was not illegally arrested. Rios was arrested after having been witnessed driving a vehicle with an invalid inspection sticker. See Tex. Transp. Code Ann. ' 548.602(a)(1); Atwater, 532 U.S. 318 at 354. The warrant and subsequent search were not fruits of an illegal arrest. We conclude this argument has no merit. Rios=s tenth issue is overruled.
X. Ineffectiveness of Counsel
By his eleventh issue, Rios contends his trial counsel was ineffective at all stages of trial, including: (1) jury selection; (2) hearing on motion to suppress; (3) trial on the merits; and (4) the punishment phase.[6]
The United States Supreme Court and the Texas Court of Criminal Appeals have promulgated a two-prong test to determine whether representation was so inadequate that it violated a defendant=s sixth amendment right to counsel. See, e.g., Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 54-55 (Tex. Crim. App. 1986); Munoz v. State, 24 S.W.3d 427, 433 (Tex. App.BCorpus Christi 2000, no pet.). To establish ineffective assistance of counsel, appellant must show: (1) his attorney=s representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for his attorney=s errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687; Stone v. State, 17 S.W.3d 348, 349-50 (Tex. App.BCorpus Christi 2000, pet. ref=d). Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. See Munoz, 24 S.W.3d at 434; Stone, 17 S.W.3d at 350. An allegation of ineffective assistance of counsel will only be sustained if it is firmly founded and the record affirmatively demonstrates counsel=s alleged ineffectiveness. Guzman v. State, 923 S.W.2d 792, 797 (Tex. App.BCorpus Christi 1996, no pet.). In assessing a claim of ineffective assistance of counsel, there is a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Also, in the absence of evidence of counsel=s reasons for the challenged conduct, an appellate court will assume a strategic motivation and will not conclude that the conduct was deficient unless the conduct was so outrageous that no competent attorney would have engaged in it. See id.; Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).
A. Trial on the Merits
Rios argues his trial counsel was ineffective during the trial on the merits by: (1) not requesting a suppression instruction; (2) not requesting an instruction on self-defense; (3) and not objecting to hearsay.[7]
1. Suppression Instruction
Rios contends there was a disputed factual issue concerning the existence of an Aexpired@ inspection sticker on the vehicle and whether that was the reason the officers stopped Rios. He relies on article 38.23 of the code of criminal procedure to support his argument that his trial counsel was ineffective in failing to request a suppression instruction. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon Supp. 2002). This instruction is needed only if the trial evidence raised a factual issue concerning whether the evidence was obtained in violation of the federal or State constitution, or any of its laws. Bell v. State, 938 S.W.2d 35, 48 (Tex. Crim. App. 1996).
In this instance, Officer Valdez testified that he stopped Rios=s vehicle because it had an expired inspection sticker. However, during cross-examination Officer Valdez stated that he decided to stop Rios not because of the invalid inspection sticker, but because the vehicle he was driving matched the description of a suspect vehicle. We agree with Rios that this creates a factual issue, however, we do not agree that a reasonable doubt instruction is warranted in this instance. See id.
Law enforcement officers may stop and briefly detain persons suspected of criminal activity on less information than is constitutionally required for probable cause to arrest. Hadnot v. State, 945 S.W.2d 278, 284 (Tex. App.BBeaumont 1997, no pet.) (citing United States v. Brignoni-Ponce, 422 U.S. 873, 880 (1975); Terry v. Ohio, 392 U.S. 1, 30 (1968)). The reasonableness of a stop depends on the totality of the circumstances presented in each case. Davis v. State, 794 S.W.2d 123, 125 (Tex. App.BAustin 1990, pet. ref=d). Officer Valdez testified that he had a description of a suspect vehicle involved in Sanchez=s murder and a description of a suspect involved in the shooting. He further testified he saw Rios leave Gutierrez=s residence in a vehicle that matched the suspect vehicle, and that Gutierrez was another suspect involved in Sanchez=s murder. Because Rios matched the description of a suspect, the vehicle matched the description of the suspect vehicle, and Rios was seen leaving the residence of another suspect thought to be involved in the shooting, we conclude that, based on the totality of circumstances, Officer Valdez lawfully stopped Rios. See Terry, 392 U.S. at 30; Hadnot, 945 S.W.2d at 284; Davis, 794 S.W.2d at 125. Moreover, if Officer Valdez stopped Rios solely because Rios was driving a vehicle with an invalid inspection sticker, the stop would be lawful. See McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App. 1993) (if an actual violation of law is observed, there is probable cause for traffic stop); see also Tex. Transp. Code Ann. ' 548.602(a)(1). Because the traffic stop was lawful under either scenario given by Officer Valdez, there is no fact issue concerning whether the evidence was obtained in violation of a law or constitution. See Bell, 938 S.W.2d at 48. Thus, Rios=s counsel was not deficient in failing to request a 38.23 reasonable doubt instruction as to the reason for the traffic stop. See Tex. Code Crim. Proc. Ann. art. 38.23(a).
2. Self-Defense Instruction
Rios next argues his trial counsel was ineffective by failing to request an instruction on self-defense.
A defendant is entitled to an instruction on self-defense if the issue is raised by the evidence, whether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense. Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001). An instruction on self-defense is required when the evidence shows that the defendant reasonably believed that deadly force was immediately necessary to protect himself against deadly force, and if a reasonable person in his situation would not have retreated. See Tex. Pen. Code Ann. ' 9.32 (Vernon 1994 & Supp. 2002). However, before the accused is entitled to an instruction on a defensive issue such as self-defense, he must admit to the commission of the offense and present evidence which would justify or excuse his actions under the applicable defense. See Sanders v. State, 707 S.W.2d 78, 81 (Tex. Crim. App. 1986).
In this instance, Rios=s defensive theory throughout the case was that Rios did not participate in the murder because he was at a bar when the crime occurred. Thus, Rios=s counsel was not deficient in failing to request a self-defense instruction because the trial court would properly have denied such an instruction. See id. Rios failed to establish ineffective assistance of counsel during his trial on the merits. See Strickland, 466 U.S. at 687; Stone, 17 S.W.3d at 349-50.
B. Punishment Phase
Rios first argues that his trial counsel failed to object to the punishment charge on the basis that it instructed the jury not to consider the effect of Agood conduct@ on appellant=s sentence. As we have already held, the trial court was statutorily required to read the good conduct time instruction even though it did not apply to Rios. See Tex. Code Crim. Proc. Ann. art. 37.07, ' 4(a). Even had Rios=s counsel objected to the instruction, the trial court would have properly overruled the objection. See Luquis, 72 S.W.3d at 363. Moreover, the trial court instructed the jury not to consider how the Agood conduct@ time may be applied to Rios. We must presume the jury followed that instruction. Id. at 366. Thus, Rios has failed to show his counsel was ineffective. See Strickland, 466 U.S. at 687; Stone, 17 S.W.3d at 349-50.
Rios next argues his trial counsel should have objected: (1) to the introduction of a Apen packet@ because it was not properly linked to Rios; and (2) to the introduction of extraneous offenses by the testimony of a juvenile probation officer. He also argues his trial counsel was ineffective by not requesting a reasonable doubt instruction on the extraneous offenses. However, in all three arguments, Rios does not explain how he was harmed. We conclude Rios has failed to satisfy the second prong of Strickland; i.e., there is a reasonable probability that, but for his attorney=s errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687. Rios=s eleventh issue is overruled.
XI. Hearsay
By his twelfth issue, Rios contends the trial court erred by admitting documents containing hearsay. However, in accordance with rule 38.1(h) of the Texas Rules of Appellate Procedure, we will only consider contentions that are supported by clear and concise arguments with appropriate citations to authorities. Tex. R. App. P. 38.1(h). We find this issue to be inadequately briefed. See Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000). Rios=s twelfth issue is overruled.
Accordingly, we affirm the trial court=s judgment.
NELDA V. RODRIGUEZ
Justice
Do not publish.
Tex. R. App. P. 47.3.
Opinion delivered and filed this
27th day of November, 2002.
[1]Sanchez was angry because Gutierrez had stolen cocaine from him that Sanchez intended to sell.
[2]Gutierrez remains at-large.
[3]By issues two and three in a supplemental brief, Rios contends the evidence was legally and factually insufficient to support his conviction. However, these contentions were not raised in his original brief, and were made without obtaining leave of court. See Rochelle v. State, 791 S.W.2d 121, 124 (Tex. Crim. App. 1990). Points of error raised by an appellant in a supplemental brief which were not raised in the original brief are not properly presented for appellate review. Hagens v. State, 979 S.W.2d 788, 791 (Tex. App.BHouston [14th Dist.] 1998, pet. ref=d); Ontiveros v. State, 890 S.W.2d 919, 931 (Tex. App.BEl Paso 1994, no pet.); Emerson v. State, 756 S.W.2d 364, 370 (Tex. App.BHouston [14th Dist.] 1988, pet. ref=d). Rios=s second and third supplemental issues are overruled.
[4]We note that Rios filed a request for a hearing on his amended motion for new trial wherein he stated that, Aa hearing is needed to develop the testimony of Irene Palacios, an alibi witness, who can place [Rios] at a bar during the night in question.@ This statement, however, was not made in an affidavit and the request was neither sworn to, nor verified. See Martinez v. State, 74 S.W.3d 19, 21 (Tex. Crim. App. 2002). The request also did not have any language incorporating it into the previously filed amended motion for new trial. Thus, Rios=s reliance on the request is without merit. See id.
[5]Rios also complains about a subsequent remark by the State. However, even though Rios objected to this remark, he did not request either a limiting instruction or a mistrial. In order to preserve jury argument error, a defendant must: (1) make an objection; (2) request an instruction to disregard; and (3) make a motion for a mistrial. Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993). Because Rios did not obtain an adverse ruling, he has failed to preserve error as to this complaint. See id.
[6]In accordance with rule 38.1(h) of the Texas Rules of Appellate Procedure, we will only consider contentions that are supported by clear and concise arguments with appropriate citations to authorities. Tex. R. App. P. 38.1(h). Thus, we will not address Rios=s arguments contending his trial counsel was ineffective during jury selection and the hearing on his motion to suppress because they were not adequately briefed.
[7]Because Rios failed to cite any authority, we will not address Rios=s arguments contending his trial counsel was ineffective by failing to object to hearsay. See id.