Opinion issued February 27, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-00464-CR
NO. 01-11-00465-CR
———————————
DIETER HEINZ WERNER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Case Nos. 1262894 & 1270826
MEMORANDUM OPINION
Appellant, Dieter Heinz Werner, was charged with stalking in two separate
indictments. 1 Appellant pleaded not guilty. After the jury found appellant guilty
1
See TEX. PENAL CODE ANN. § 42.072(a) (Vernon Supp. 2013).
on both offenses, the trial court assessed punishment at 10 years’ confinement on
each offense, to run concurrently. On appeal, appellant argued (1) the trial court
erred by denying his motion to have the two indictments severed and tried
separately; (2) the trial court erred by denying his motion to suppress statements he
made to a police officer; (3) the trial court improperly admitted certain evidence
and improperly excluded other evidence; (4) the trial court abused its discretion by
denying his request for a jury instruction; (5) the trial court abused its discretion by
denying his request to charge the jury on lesser included offenses; (6) the evidence
in support of the first indictment was factually insufficient; and (7) the evidence in
support of the second indictment was legally and factually insufficient.
On original submission, we overruled appellant’s sixth and seventh issues
but sustained appellant’s first issue. Werner v. State, Nos. 01-11-00464-CR, 01-
11-00465-CR, 2013 WL 824040, *8, *12–*13 (Tex. App.—Houston [1st Dist.]
February 21, 2013, pet. granted). For the first issue, we held that it was error for
the trial court to deny appellant’s motion to sever the trial for the two offenses. Id.
at *4. We further determined that we could not hold that the error did not affect
appellant’s substantial rights. Id. at *8. Accordingly, we reversed and remanded
for a new trial. Id. at *13. We did not reach appellant’s second through fifth
issues.
2
The Court of Criminal Appeals granted the State’s petition for review in
each case. Werner v. State, 412 S.W.3d 542, 543 (Tex. Crim. App. 2013). The
court reversed the portion of our opinion concerning the severance, holding that the
error was harmless. Id. at 552. It reversed our judgments in each case and has
remanded the appeals for us to consider the remaining issues.
We affirm both causes.
Background
Appellant and the complainant, Donna Daffern, dated for a little more than
one year from late 2008 to January 2010. After he broke up with Daffern,
appellant continued to text and call her. Many of appellant’s texts indicated
appellant knew where Daffern or her daughter were at various times of the day.
On one occasion, while en route to the rodeo from work, she received a text
from appellant stating, “I think you should go to the rodeo.” Daffern knew her
friend, Sergeant C. Montemayor, would be at the rodeo. Sergeant Montemayor
works for the Harris County Sherriff’s department. At the particular time, he was
overseeing security at the rodeo as extra employment. Upset, Daffern told
Sergeant Montemayor about the text and requested that he search her car for a
tracking device. He did so and quickly found one attached to her car. Sergeant
Montemayor gave the tracking device to Daffern, recommending that she file a
police report.
3
Despite removing the tracking device from her car, Daffern continued to
receive texts from appellant demonstrating a knowledge of Daffern’s whereabouts.
A little more than a month after the first tracking device was found on Daffern’s
car, Daffern’s daughter and a friend returned to the car after watching a movie and
found someone had slashed three of the tires on her car. Daffern went to the movie
theater, where she told Officer L. Romero, the police officer on the scene, that
there was probably another tracking device on the car. She found the second
tracker in the same location as the first. Daffern kept the tracking device.
Some time after the second tracking device was found, Daffern went to the
police, seeking to bring charges against appellant. She turned the tracking devices
over to the police. Detective J. Latham later obtained the devices from the
property room and used them to conduct an investigation to determine the owner of
the devices. In his investigation, Detective Latham obtained invoices from
BrickHouse Security showing that appellant had bought three tracking devices, one
of which was purchased the day after Daffern pulled the first tracking device off
her car. The invoices also showed appellant paying for a monthly service for a
website. The website is maintained by U.S. Fleet. Detective Latham sent a
subpoena for documents to U.S. Fleet, but they did not comply. Detective Latham
testified at trial that, instead, U.S. Fleet orally provided him with a user name and
password associated with the documents he sought to obtain. Detective Latham
4
then printed out the documents relevant to the case. The documents showed the
location and speed of what was alleged to be the tracking devices on Daffern’s car
and times relevant to the first offense of stalking. The documents matched certain
locations Daffern testified she was at on certain dates as well as the texts from
appellant indicating his knowledge of her whereabouts.
After appellant was charged for the first offense of stalking, a magistrate
judge issued a temporary restraining order against appellant, requiring him to stay
away from Daffern’s home and workplace for 60 days. On the 61st day after the
order was issued, Daffern drove to her bank early in the morning. She saw
appellant’s car parked across the street. The car was parked at a drive-through
window that was no longer operating. Daffern saw a police car parked at a gas
station next to the bank. Daffern went to the gas station, walked inside, and told
the police officer, Officer V. Werner, about seeing appellant’s car. Daffern was
panicked and emotional when she approached Officer Werner.
Officer Werner drove across the street and approached appellant. When
Officer Werner asked appellant why he was there, appellant stated he was waiting
for the nearby Home Depot to open. It was already open, however. Next,
appellant stated that he was getting gas, even though he was parked across the
street from the gas station and had a full tank of gas. Appellant then said he was
there to get a cappuccino at the gas station. Finally, appellant asserted that he had
5
pulled into the parking lot to jot down some notes. The notepads appellant had
with him were blank.
Appellant admitted to having been arrested before. Believing the magistrate
judge’s order to still be in effect and believing appellant to be in violation of the
order, Officer Werner arrested appellant. After the arrest, Daffern told Officer
Werner about the times she and her daughter had recently seen appellant drive past
them. Appellant was subsequently charged under a second indictment for stalking.
At trial, the State relied on the testimony of Daffern to authenticate the
tracking devices offered into evidence as the ones she found on her car. Daffern
said she was not sure, but believed one of them was the first one pulled from her
car and the other was the second pulled from her car. She testified that the first
device pulled from her car was dirtier than the second one and that the first device
had an Allan wrench in it and the second one did not. Appellant objected to the
admission of the tracking devices based on improper authentication. The trial
court overruled the objection.
The State relied on Detective Latham to authenticate the U.S. Fleet
documents. Detective Latham admitted that he was not the custodian of records
for U.S. Fleet. The State argued that Detective Latham could authenticate the
documents because he was the one who printed them out. Appellant objected to
6
the admission of the documents based on improper authentication. The trial court
overruled the objection.
During the charge conference, appellant requested a jury instruction
explaining that the temporary restraining order had expired the day before Officer
Werner arrested him for the second offense of stalking. The trial court denied the
request. Appellant also requested jury instructions on what he claims are lesser-
included offenses of installation of a tracking device, harassment, and criminal
mischief. The trial court denied those requests as well.
Motion to Suppress
In his second issue, appellant argues the trial court abused its discretion by
denying his motions to suppress his statements to an officer before his arrest for
the second offense of stalking.
A. Standard of Review
We review a trial court’s denial of a motion to suppress under a bifurcated
standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App.
2013). We review the trial court’s factual findings for abuse of discretion and
review the trial court’s application of the law to the facts de novo. Id. Almost total
deference should be given to a trial court’s determination of historical facts,
especially those based on an evaluation of witness credibility or demeanor.
Gonzales v. State, 369 S.W.3d 851, 854 (Tex. Crim. App. 2012). At a suppression
7
hearing, the trial court is the sole and exclusive trier of fact and judge of the
witnesses’ credibility and may choose to believe or disbelieve all or any part of the
witnesses’ testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App.
2002); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Where, as here,
a trial judge does not make explicit findings of fact, we review the evidence in the
light most favorable to the trial court’s ruling. Walter v. State, 28 S.W.3d 538, 540
(Tex. Crim. App. 2000). We will defer to the trial court’s fact findings and not
disturb the findings on appeal unless the trial court abused its discretion in making
a finding not supported by the record. Cantu v. State, 817 S.W.2d 74, 77 (Tex.
Crim. App. 1991).
B. Analysis
Appellant argues in his second issue that the police officer lacked probable
cause to arrest him for his second offense of stalking. Because the officer lacked
probable cause, appellant argues the trial court should have granted his motion to
suppress his statements to the officer before his arrest. In order to understand
appellant’s grounds for asserting error, it is necessary to consider appellant’s
argument for harm.
Appellant argues that he was harmed by his illegal arrest because (1) it
caused the State to file a motion to revoke his bond for the bail set on his first
charged offense, (2) “it formed the basis for the State to seek the second
8
indictment” for stalking, and (3) the jury was allowed to hear the officer’s
testimony concerning appellant’s varying explanations for why he was parked at
that location.
The first claim of harm is not relevant to a motion to suppress. A motion to
suppress is “a specialized objection to the admissibility of evidence.” Porath v.
State, 148 S.W.3d 402, 413 (Tex. App.—Houston [14th Dist.] 2004, no pet.). The
appropriateness of the State’s seeking to revoke bond before trial has no bearing on
the admissibility of evidence at trial relating to appellant’s arrest. Accordingly,
this cannot be a basis for reversing the trial court’s ruling.
For the second claim of harm, the illegal arrest being the basis for the State’s
seeking the second indictment, it is not the arrest that formed the basis of
appellant’s second indictment. Appellant’s presence near Daffern after having
been charged with stalking along with two prior incidents that appellant had driven
past Daffern at locations where he would know her to be formed the basis of
appellant’s second indictment. These events occurred before and independent of
appellant’s arrest. Arrest is not a prerequisite to being charged with an offense.
See, e.g., TEX. CODE CRIM. PROC. ANN. arts. 15.02 (Vernon 2005) (establishing
requirements for arrest warrant, including naming offense defendant is accused of
committing), 15.05 (Vernon 2005) (establishing requirements for complaint).
9
For the final claim of harm, that the jury was allowed to hear the officer’s
testimony concerning appellant’s varying explanations for why he was parked at
that location, there could only be error related to this alleged harm if appellant was
under arrest at the time he made the statements and the arrest was unlawful. See
State v. Iduarte, 268 S.W.3d 544, 550 (Tex. Crim. App. 2008) (holding evidence
obtained from illegal arrest must be suppressed only when evidence was obtained
“by exploitation of that illegality”). It is established that appellant was not
formally arrested until after he gave his varying explanations for why he was at
that location. Given this basis for harm, then, we conduct an error analysis to
determine whether the conduct between appellant and the officer elevated the
interaction to the level of an arrest.
Generally speaking, “there are three distinct types of interactions between
police and citizens: (1) consensual encounters, which require no objective
justification; (2) investigatory detentions, which require reasonable suspicion; and
(3) arrests, which require probable cause.” State v. Castleberry, 332 S.W.3d 460,
466 (Tex. Crim. App. 2011). For consensual encounters, “[a]n officer is just as
free as anyone to stop and question a fellow citizen,” and the citizen is free to
terminate the encounter at any time. Id. An officer does not need reasonable
suspicion to request identification and general information such as why the person
is at that location. Id. at 466, 468.
10
For investigatory detentions, the officer must have reasonable suspicion in
order to detain the person. Id. at 466. The officer has reasonable suspicion if he
“has specific, articulable facts that, combined with rational inferences from those
facts, would lead him to reasonably conclude that the person detained is, has been,
or soon will be engaged in criminal activity.” State v. Kerwick, 393 S.W.3d 270,
273 (Tex. Crim. App. 2013). Such a conclusion is justified when the officer
observes “unusual activity.” Id. “These facts must show unusual activity, some
evidence that connects the detainee to the unusual activity, and some indication
that the unusual activity is related to crime.” Id. The facts observed do not need to
be criminal in nature themselves. Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim.
App. 1997). They just need to lead to a reasonable conclusion that the person is,
has been, or soon will be engaged in criminal activity. Kerwick, 393 S.W.3d at
273.
Whether an investigatory detention elevates to an arrest depends on the facts
and circumstances surrounding the detention. Amores v. State, 816 S.W.2d 407,
412 (Tex. Crim. App. 1991); Goldberg v. State, 95 S.W.3d 345, 360 (Tex. App.—
Houston [1st Dist.] 2002, pet. ref’d). We look to the reasonableness of the
officer’s actions, which is to be judged from the perspective of a reasonable officer
at the scene, rather than with the advantage of hindsight. Rhodes v. State, 945
S.W.2d 115, 118 (Tex. Crim. App. 1997). “Whether a person is under arrest or
11
subject to a temporary investigative detention is a matter of degree and depends
upon the length of the detention, the amount of force employed, and whether the
officer actually conducts an investigation.” Mount v. State, 217 S.W.3d 716, 724
(Tex. App.—Houston [14th Dist.] 2007, no pet.).
Officer Werner testified at the hearing on the motion to suppress. He
testified that, on July 16, 2010, Daffern approached him with a copy of the
temporary restraining order entered against appellant. On the very first morning
after the restraining order had expired, appellant was parked at a location near
Daffern.
Officer Werner approached appellant, who was sitting in his car. Appellant
was not doing anything except sitting in his car. He asked appellant what he was
doing at that location. Appellant responded that he was waiting for a nearby Home
Depot to open. The Home Depot was already open, so Officer Werner again asked
him why he was there. Appellant then claimed he was there to get gas, even
though he was not parked at the gas station. Officer Werner asked appellant to
turn on his car. Appellant complied, and the gauge showed appellant’s gas tank to
be full. Appellant then claimed he was at the gas station to get a cappuccino.
Finally, appellant claimed he was parked there so he could take notes. Appellant
had two note pads in his car. Officer Werner asked to see the note pads. Appellant
complied, and Officer Werner saw they were blank. Officer Werner then asked
12
appellant if he had been arrested before. Appellant admitted to being charged with
stalking a couple of months earlier, identifying Daffern as the complainant.
Asking appellant why he was at that location does not require reasonable
suspicion. See Castleberry, 332 S.W.3d at 466. Even presuming that repeatedly
asking the question after each response proves doubtful raises the encounter to an
investigatory detention, Officer Werner certainly had reasonable suspicion. He
knew appellant was parked near Daffern the first morning after the restraining
order had expired. Appellant’s giving doubtful and inconsistent reasons for being
parked at that location added to the “unusual activity” Officer Werner was
observing. See Kerwick, 393 S.W.3d at 273 (requiring show of unusual activity,
connection between detainee and unusual activity, and some indication that
unusual activity is related to crime). Appellant argues, “Even though [appellant]
was entitled to be there, these different explanations and the officer’s statements
that he felt Werner was lying to him, could not help but cause the jury to also
believe Werner was lying and that [appellant] was stalking Daffern.” We agree.
Likewise, these same facts also establish that Officer Werner could reasonably
reach the same conclusion. See Jackson v. State, 745 S.W.2d 4, 9 (Tex. Crim.
App. 1988) (holding contradictory and implausible responses to officer’s
questioning exacerbates officer’s suspicions). Accordingly, we hold Officer
Werner had reasonable suspicion to conduct an investigatory detention.
13
In contrast, we find no basis for determining that appellant was under arrest
in the time he made the relevant statements to the officer. Officer Werner was
actively conducting an investigation, the period of questioning did not last long;
and Officer Werner did not employ any force or physical restraint during the
conversation. See Mount, 217 S.W.3d at 724 (holding considerations for
determining arrest are length of the detention, amount of force employed, and
whether officer actually conducts investigation).
We overrule appellant’s second issue.
Admission of Evidence
In his third issue, appellant argues the trial court abused its discretion by
admitting and excluding certain evidence. Appellant devotes most of this issue to
identifying a series of objections he made in the course of the trial. For almost all
of the identified objections, however, appellant provides no legal authority for the
basis of the objection or why it would have been error for the trial court to overrule
the objection. “The brief must contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record.” TEX.
R. APP. P. 38.1(i). Failure to cite to legal authority and to provide accompanying
legal analysis results in waiver. Cardenas v. State, 30 S.W.3d 384, 393 (Tex.
Crim. App. 2000). Accordingly, we will only review the evidentiary objections to
which appellant has provided legal authority and analysis, which we identify as
14
objections to (1) the authentication of the tracking devices, including proof of their
chain of custody, and (2) the authentication of documents pertaining to the tracking
devices.
A. Standard of Review
We review a trial court’s decision to admit or exclude evidence for abuse of
discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A
trial court abuses its discretion only if its decision is “so clearly wrong as to lie
outside the zone within which reasonable people might disagree.” Taylor v. State,
268 S.W.3d 571, 579 (Tex. Crim. App. 2008). A trial court does not abuse its
discretion if some evidence supports its decision. Osbourn v. State, 92 S.W.3d
531, 538 (Tex. Crim. App. 2002). We uphold a trial court’s evidentiary ruling if it
was correct on any theory of law applicable to the case. De La Paz v. State, 279
S.W.3d 336, 344 (Tex. Crim. App. 2009).
B. Analysis
Appellant raises two complaints about the admissibility of the physical
tracking devices admitted at trial, arguing the evidence is insufficient to establish
that they were the devices pulled off of Daffern’s car. He also raises a complaint
about certain documents relating to the tracking devices that were admitted at trial.
The documents purportedly came from a company called U.S. Fleet. They were
print outs of a website identifying the location and traveling speed of a tracking
15
device over a period of time. Appellant argues that the U.S. Fleet documents were
not properly authenticated. We do not need to reach whether it was error for the
trial court to have admitted the tracking devices and the records from U.S. Fleet
because we hold that any error in the erroneous admission of the devices and
records is harmless.
Whether the error requires reversal is controlled by rule 44.2(b) of the Texas
Rules of Appellate Procedure. TEX. R. APP. P. 44.2(b) (requiring any
nonconstitutional error that does not affect substantial rights to be disregarded);
Jabari v. State, 273 S.W.3d 745, 754 (Tex. App.—Houston [1st Dist.] 2008, no
pet.) (holding error in admission of evidence is nonconstitutional error).
Accordingly, we must determine whether the error affected a substantial right of
appellant’s. TEX. R. APP. P. 44.2(b). A substantial right is affected when the error
had a substantial and injurious effect or influence in determining the jury’s verdict.
Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000) (quoting King v.
State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)).
Appellate courts should not overturn a criminal conviction for
nonconstitutional error if the court, after examining the record as a whole, has fair
assurance that the error did not influence the jury, or had but slight effect. See
Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). In assessing
whether the error had a substantial and injurious effect on the jury’s verdict, the
16
court of appeals must consider the entire record, including overwhelming evidence
of guilt, whether the State emphasized the error, defensive theories, jury
instructions, and closing arguments. See Motilla v. State, 78 S.W.3d 352, 355–56
(Tex. Crim. App. 2002).
Both the tracking devices and the records from U.S. Fleet relate to the first
offense of stalking. As contained in the indictment and reflected in the jury
charge, the State alleged that appellant
on or about March 11, 2010 and April 3, 2010 through April 15, 2010,
did then and there unlawfully, and pursuant to the same scheme and
course of conduct directed specifically at [the Complainant], did
knowingly engage in conduct that the defendant knew and reasonably
believed that the Complainant would regard as threatening the
infliction of bodily injury and death upon the Complainant, namely,
by tracking the Complainant’s vehicle with one or more tracking
devices, sending the complainant messages on the Complainant’s
phone, and damaging the complainant’s tires; and said conduct would
cause a reasonable person to fear and did cause the Complainant to be
in fear of, the infliction of bodily injury or death upon the
Complainant.
See TEX. PENAL CODE ANN. § 42.072(a) (Vernon Supp. 2013).
The focus on the statute for stalking, as it relates to appellant, is placing the
complainant in fear of infliction of bodily injury or death. See id. In this case, part
of the State’s basis for establishing fear of infliction of bodily injury or death was
proving that appellant was tracking Dafffern’s vehicle with a tracking device.
Daffern testified that appellant demonstrated a knowledge of her whereabouts that
could not be achieved by simply knowing Daffern’s general routine and interests.
17
Appellant sent Daffern numerous texts demonstrating that he knew her exact
whereabouts at specific times, even when Daffern was going places that were not
part of her regular routine. Daffern testified that she found a tracking device on
her car, removed it, and later found another one in the same place on her car.
Records from BrickHouse Security show that appellant purchased three tracking
devices and that one of the purchases was purchased the day after Daffern pulled
the first tracking device off of her car.
All of this evidence firmly establishes that appellant was tracking Daffern’s
car. It is from this evidence that the jury could determine that appellant was
knowingly engaging in conduct that he knew and reasonably believed that Daffern
would regard as threatening the infliction of bodily injury and death upon her. See
id. The physical tracking devices and records purporting to show the location of
the tracking devices over the relevant times bolster the claim that appellant was
tracking Daffern; however, they do little themselves to further establish that
appellant was engaging in conduct to place Daffern in fear of harm.
Considering the remainder of the record does not suggest that appellant’s
substantial rights were affected. Much of the evidence relating to the first charge
of stalking came from Daffern explaining her dating relationship with appellant;
the subsequent texts, letters, and calls; her discovery of the tracking devices; and
the fear appellant’s actions placed in her. There was also the testimony of Sergeant
18
Montemayor, who found the first tracking devices on Daffern’s car, and Officer
Romero, who responded to the call about Daffern’s slashed tires. None of these
officers’ testimony was predicated on the admissibility of the tracking devices or
the U.S. Fleet records.
Other than Daffern’s brief testimony concerning identifying the tracking
devices, the only testimony based on the admitted tracking devices and U.S. Fleet
records came from Detective Latham. His testimony concerned the investigation
he did concerning the tracking devices, the U.S. Fleet records, the BrickHouse
Security records, and the text messages on Daffern’s phone.
The State did not emphasize the physical tracking devices and the U.S. Fleet
records in its voir dire, opening statements, or closing statements. In fact, the U.S.
Fleet records were not mentioned at all at any of these points.
After examining the record as a whole, we hold that any error concerning the
admission of the physical tracking devices and the U.S. Fleet records has not
affected appellant’s substantial rights. See Morales, 32 S.W.3d at 867. We
overrule appellant’s third issue.
Jury Instruction
In his fourth issue, appellant argues he was entitled to a jury instruction on
the expiration of the temporary protective order.
19
A. Standard of Review
When reviewing jury-charge error, we first determine if error actually exists
in the jury charge. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005);
Johnson v. State, 227 S.W.3d 180, 182 (Tex. App.—Houston [1st Dist.] 2007, pet.
ref’d). If we find error, we then determine whether it harmed the appellant. Ngo,
175 S.W.3d at 743.
The degree of harm requiring reversal depends upon whether an objection
was raised to the error at trial. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim.
App. 1986). If appellant did not make a proper objection at trial, appellant “will
obtain a reversal only if the error is so egregious and created such harm that he has
not had a fair and impartial trial.” Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim. App. 1984). If appellant made a proper objection, the error must be reversed
“as long as the error is not harmless.” Hutch v. State, 922 S.W.2d 166, 171 (Tex.
Crim. App. 1996) (citing Almanza, 686 S.W.2d at 171).
We do not review a trial court’s ruling on a request for a defensive
instruction with the usual deference. Instead, “we view the evidence in the light
most favorable to the defendant’s requested submission.” Bufkin v. State, 207
S.W.3d 779, 782 (Tex. Crim. App. 2006).
20
B. Analysis
Appellant argues that he was entitled to a defensive instruction explaining
that the temporary restraining order had expired the day before Officer Werner
arrested him for the second offense of stalking. As the State acknowledges, if
there is a fact issue regarding the legality of a defendant’s detention or subsequent
arrest, the defendant is entitled to a jury instruction on the matter. Holmes v. State,
248 S.W.3d 194, 199–200 (Tex. Crim. App. 2008) (citing TEX. CODE CRIM. PROC.
ANN. art. 38.23 (Vernon 2005)). Article 38.23 of the Texas Code of Criminal
Procedure provides,
In any case where the legal evidence raises an issue hereunder, the
jury shall be instructed that if it believes, or has a reasonable doubt,
that the evidence was obtained in violation of the provisions of this
Article, then and in such event, the jury shall disregard any such
evidence so obtained.
TEX. CODE CRIM. PROC. ANN. art. 38.23(a). As the State points out, however, such
an instruction was included in the charge. The jury charge instructed, “If you
believe or have a reasonable doubt that the evidence was obtained in violation of
any provision of the Constitution or laws of the State of Texas, or of the
Constitution or laws of the United States of America, then in such event, you shall
disregard such evidence so obtained.”
Appellant’s complaint on appeal is that the trial court erred by denying a
further instruction, explaining that the temporary restraining order had expired.
21
When a requested instruction recites specific facts and calls attention to a specific
piece of evidence, the instruction constitutes a comment on the weight of the
evidence. Mendoza v. State, 88 S.W.3d 236, 240 (Tex. Crim. App. 2002).
Comments on the weight of the evidence are not permissible. See TEX. CODE
CRIM. PROC. ANN. art. 36.14 (Vernon 2007); Mendoza, 88 S.W.3d at 240 n.5
(citing article 36.14).
We overrule appellant’s fourth issue.
Lesser-Included Offenses
In his fifth issue, appellant argues he was entitled to a jury instruction on
what he claims are lesser-included offenses of installation of a tracking device,
harassment, and criminal mischief.
A. Standard of Review
A defendant is entitled to an instruction on an offense if (1) the offense is a
lesser-included offense of the charged offense and (2) there is some evidence in the
record that would permit a jury rationally to find that if the defendant is guilty, he
is guilty only of the lesser offense. Guzman v. State, 188 S.W.3d 185, 188–89
(Tex. Crim. App. 2006).
The analysis of the first requirement is a question of law. Hall v. State, 225
S.W.3d 524, 535 (Tex. Crim. App. 2007). Under prong one, to be considered a
lesser-included offense, the offense must be included within the proof necessary to
22
establish the offense charged. Campbell v. State, 149 S.W.3d 149, 152 (Tex. Crim.
App. 2004).
If the first prong is satisfied, we then determine, in prong two, if there is
some evidence in the record from which a jury could rationally find that, if the
defendant is guilty, he is guilty only of the lesser offense. See id. An instruction
on a lesser-included offense is not required solely because “the jury may disbelieve
crucial evidence pertaining to the greater offense, but rather, there must be some
evidence directly germane to the lesser-included offense for the finder of fact to
consider before an instruction on a lesser-included offense is warranted.”
Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003). We consider all
evidence presented at trial in determining whether an instruction on a lesser-
included offense would have been warranted. Goad v. State, 354 S.W.3d 443, 446
(Tex. Crim. App. 2011). If both of the prongs are met, the defendant is entitled to
a charge on the lesser-included offense. Guzman, 188 S.W.3d at 189.
B. Analysis
Appellant was charged with stalking. As it pertains to him, the State was
required to establish that appellant
(a) . . . on more than one occasion and pursuant to the same scheme
or course of conduct that is directed specifically at another
person, knowingly engages in conduct that:
(1) . . . the actor knows or reasonably should know the other
person will regard as threatening:
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(A) bodily injury or death for the other person.
TEX. PENAL CODE ANN. § 42.072(a)(1)(A).
Article 37.09 of the Code of Criminal Procedure provides,
An offense is a lesser included offense if:
(1) it is established by proof of the same or less than all the facts
required to establish the commission of the offense charged;
(2) it differs from the offense charged only in the respect that a less
serious injury or risk of injury to the same person, property, or
public interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect that a less
culpable mental state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an
otherwise included offense.
TEX. CODE CRIM. PROC. ANN. art. 37.09 (Vernon 2006).
The first offense appellant claims is a lesser-included offense is unlawful
installation of a tracking device. The pertinent statute provides, “A person
commits an offense if the person knowingly installs an electronic or mechanical
tracking device on a motor vehicle owned or leased by another person.” TEX.
PENAL CODE ANN. § 16.06(b) (Vernon 2011). The offense is a Class A
misdemeanor. Id. § 16.06(c).
Unlawful installation of a tracking device does not satisfy any of the
definitions of a lesser-included offense for stalking. See TEX. CODE CRIM. PROC.
ANN. art. 37.09. Appellant argues the installation of the tracking device is
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included within the proof necessary to establish the first stalking offense. We find
no support for this. While the State relied on the installation of the tracking device
to establish stalking, we are concerned about whether the elements for unlawful
installation of a tracking device are included with the elements for stalking, not
whether the facts relied on by the State would also meet the elements for a separate
offense. See Jacob v. State, 892 S.W.2d 905, 908 (Tex. Crim. App. 1995) (holding
“facts required” under first definition of lesser-included offense means evidence
legally required to prove elements, not evidence actually presented by State in
individual case). The actual elements of stalking as charged in the indictment and
the actual elements of unlawful installation of a tracking device have almost no
overlap. Accordingly, unlawful installation of a tracking device is not a lesser-
included offense of stalking.
The same is true for appellant’s claim that criminal mischief if a lesser-
included offense of stalking. As it pertains to appellant’s argument, a person
commits criminal mischief if, “without the effective consent of the owner . . . he
intentionally or knowingly damages or destroys the tangible property of the
owner.” TEX. PENAL CODE ANN. § 28.03(a)(1) (Vernon 2011). The amount of the
pecuniary loss sets the level of the offense. Id. § 28.03(b). Appellant argues that
criminal mischief is a lesser-included offense because the State alleged as a basis
for establishing stalking that appellant slashed Daffern’s tires. This is not the
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relevant inquiry. See Jacob, 892 S.W.2d at 908. Because criminal mischief
requires proof of a pecuniary loss and stalking does not, criminal mischief is not a
lesser-included offense of stalking. See Prejean v. State, 704 S.W.2d 119, 123
(Tex. App.—Houston [1st Dist.] 1986, no pet.) (holding criminal mischief is not a
lesser-included offense of arson because criminal mischief requires showing of
amount of pecuniary loss).
The final offense appellant claims is a lesser-included offense is harassment.
Appellant argues that the jury could have found him not guilty of stalking but
guilty of harassment under both charged offenses by determining “that he did not
act pursuant to ‘the same scheme or course of conduct,’ or that he did so without
the requisite mental intent to cause Daffern fear of bodily injury or death.”
Appellant provides no explanation for this argument, however. It is not enough to
claim a jury could have disbelieved some evidence in order to be entitled to a
lesser-included instruction. Hampton, 109 S.W.3d at 441. Instead, “there must be
some evidence directly germane to the lesser-included offense for the finder of fact
to consider.” Id. Appellant has failed to establish what evidence the jury could
have relied on to conclude that appellant was not acting in the same scheme or
course of conduct or that he was not acting with the requisite intent for stalking.
See TEX. R. APP. P. 38.1(i) (requiring appellant to provide concise argument for
contentions made with appropriate citations to authorities and record).
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We overrule appellant’s fifth issue.
Conclusion
We affirm the judgment of the trial court for both appellate causes.
Laura Carter Higley
Justice
Panel consists of Justices Jennings, Higley, and Sharp.
Do not publish. TEX. R. APP. P. 47.2(b).
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