NO. 07-09-00319-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
NOVEMBER 9, 2010
DAVID TULIO RODRIGUEZ, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 84TH DISTRICT COURT OF HUTCHINSON COUNTY;
NO. 10,257; HONORABLE WILLIAM D. SMITH, JUDGE
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, David Tulio Rodriguez, was convicted of aggravated assault1 of a
public servant.2 The jury assessed appellant’s punishment at confinement in the
Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ) for 50 years
and a fine of $10,000. Appellant appeals contending that the evidence is insufficient to
sustain the judgment and that the trial court committed reversible error by not reading
1
See TEX. PENAL CODE ANN. § 22.01(a)(2), § 22.02(a)(2) (Vernon Supp. 2010).
2
See id. § 22.02(b)(2)(B) (Vernon Supp. 2010).
the enhancement paragraphs to the jury and/or by failing to have appellant enter a plea
to the enhancements. Disagreeing with appellant, we affirm.
Factual and Procedural Background
On November 9, 2008, Sergeant Josh Akins of the Fritch Police Department was
on duty conducting traffic patrol in Fritch, Texas. Akins’s attention was drawn to the
Taylor Mart where he observed a male carrying a trash can to the front of the store.
Since it was 12:30 a.m. and the store was closed, Akins found this to be suspicious
conduct. As Akins continued to observe the store, he observed another male throw
something through the door, and then the first male went into the store. Realizing that
he was observing a burglary in progress, Akins called for a backup unit and proceeded
without any emergency lights or siren to go to the front of the store. As Akins pulled up
to the front of the store, both individuals began running away. Akins proceeded to
pursue them on foot while giving verbal commands for them to stop. Akins later
identified the first man as the co-defendant, Jose Martinez. The second male, the one
who entered the store, was eventually identified as appellant. He eventually stopped
Martinez by telling him to stop or he would “taze” him. As Akins was putting the hand-
cuffs on Martinez, he observed appellant go around the corner toward the back of the
store.
While continuing to attempt to get the hand-cuffs on Martinez, Akins noticed a
vehicle, later identified as a golden-colored Pontiac Firebird. Akins realized that the
dome light in the interior of the vehicle was on. That struck him as unusual, and he
decided that, after cuffing Martinez, he would approach the vehicle. Akins observed
2
appellant run from the back of the store to the vehicle and begin searching through the
car. Fearing appellant was looking for a weapon and knowing Martinez did not have
any weapons on him, Akins approached the vehicle. Akins began drawing his weapon
as he approached the vehicle. While approaching the vehicle, Akins told appellant not
to move. Akins ended up in front of the driver’s side of the car looking directly at
appellant. Akins testified that the uniform he was wearing at trial was the same uniform
he had been wearing during the encounter with appellant.
At the moment Akins was in front of the car, appellant “gunned” the car. Akins
testified that the car spun its tires, and he jumped to the side to avoid the vehicle. The
rear of the car came directly at Akins, and he had to again step out of the way. Akins
testified that he was afraid that the car was going to hit him. As the car left, Akins fired
one round from his service revolver at the rear tire. Appellant escaped and was not
identified and captured until several days later. Appellant was charged with aggravated
3
assault on a public servant.
During the State’s presentation of evidence, co-defendant Martinez was called as
a witness. Martinez testified that, after he had handed the trash can to appellant inside
the store, he stayed outside to act as a lookout. Martinez observed Akins driving toward
the store and told appellant, “There is a cop behind us.” It was at this time that both
Martinez and appellant tried to flee.
3
The original indictment contained a second count of burglary. However, the trial
court granted a motion for directed verdict against the State at the conclusion of the
State’s case.
3
Prior to the trial, the State filed a notice to seek enhancement of felony
punishment range of the aggravated assault on a public servant count in the indictment.
In the notice, the State alleges that appellant has three prior felony convictions. After
the jury found appellant guilty of aggravated assault on a public servant, the State
offered evidence to prove up the three prior felony convictions. However, the prior
felony convictions were not read to the jury, nor did appellant enter any type of plea to
these prior convictions, before the State offered proof of the priors. The Court’s Charge
on Punishment did contain the allegations of the three prior felony convictions and an
application paragraph as to those prior convictions. The jury subsequently returned a
verdict of confinement in the ID-TDCJ for 50 years with a fine of $10,000.
Appellant has appealed contending that the evidence is both factually and legally
insufficient to support the judgment. Specifically, appellant contends that the
evidentiary insufficiency goes to the element of appellant’s knowledge that Akins was a
public servant. Additionally, appellant contends that the failure of the trial court to
require the enhancement paragraphs to be read and to obtain a plea from appellant
render the judgments reversible. We disagree and affirm.
Evidentiary Sufficiency
As an initial consideration, we observe that appellant’s appeal contends that the
evidence is both legally and factually insufficient. Appellant’s brief was prepared and
filed before the Texas Court of Criminal Appeals issued its opinion in Brooks v. State,
No. PD-0210-99, 2010 Tex.Crim.App. LEXIS 1240 *25-*26 (Tex.Crim.App. Oct. 6,
2010), wherein the court ruled that there is no distinction between a claim of legal as
4
opposed to factual insufficiency of the evidence. Further, the court expressly overruled
Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996), and its purported application to
factual sufficiency questions. Id. at *55. What the court appears to do is to urge the
reviewing court to apply a more rigorous application of the sufficiency test set forth in
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Id. at *58.
Therefore, we will review appellant’s claims of evidentiary sufficiency under the
standard of review set forth in Jackson. See 443 U.S. at 319.
Standard of Review
In assessing the sufficiency of the evidence, we review all the evidence in the
light most favorable to the verdict to determine whether any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt. Jackson,
443 U.S. at 319; Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). We
measure the legal sufficiency of the evidence against a hypothetically correct jury
charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). Finally, when
reviewing all of the evidence under the Jackson standard of review, the ultimate
question is whether the jury’s finding of guilt was a rational finding. See Brooks, 2010
Tex.Crim.App. LEXIS 1240 at *37 (discussing Judge Cochran’s dissent in Watson v.
State, 204 S.W.3d 404, 448-50 (Tex.Crim.App. 2006) as outlining the proper application
of a single evidentiary standard of review).4
4
We note that this Court has at times quoted Moreno v. State, 755 S.W.2d 866,
867 (Tex.Crim.App. 1988) for the proposition that we had to uphold the verdict of the
jury unless it was irrational or unsupported by more than a mere modicum of evidence.
We view such a statement, insofar as a modicum of evidence being sufficient evidence,
5
Analysis
To prove the offense of aggravated assault on a public servant by use of a
deadly weapon, as alleged in the indictment, the State must prove:
1) On or about November 9, 2010
2) appellant
3) intentionally and knowingly used a deadly weapon,
4) an automobile, that in the manner of its use and intended use was
capable of causing serious bodily injury or death,
5) and appellant did then and there, threaten Josh Akins
6) with imminent bodily injury or death
7) and that appellant knew that Josh Akins was a public servant,
8) attempting to lawfully discharge an official duty,
9) attempting to detain appellant.
See TEX. PENAL CODE ANN. §§ 22.01(a)(2), 22.02(a)(2), 22.02(b)(2)(B); Malik, 953
S.W.2d at 240. Appellant’s evidentiary sufficiency argument is focused on whether he
had knowledge that Akins was a public servant. Therefore, we will review the record for
evidence of that element.
The record shows that on the night in question Akins was on duty as a Fritch
Police Department Sergeant. Akins was driving a vehicle that had emergency lights
and equipment on it when he observed the burglary in progress and proceeded to the
as contrary to a rigorous application of the Jackson standard of review urged by the
Court in Brooks.
6
Taylor store without activating his emergency equipment. Akins testified that he was
wearing the same uniform on the night in question that he wore on the day he testified.
That uniform was observed by the jury. The co-defendant, Martinez, testified that, while
acting as lookout, he saw Akins’s car approaching the Taylor store and stated to
appellant, “There is a cop behind us.” At that precise moment, appellant and Martinez
fled the store. While pursuing the two fleeing burglars, Akins yelled, “Stop or I will taze
you.” At that instance, Martinez, who was closer to Akins, stopped and went to the
ground. After attempting to secure Martinez, Akins saw appellant in the vehicle and
went toward him. Akins, while wearing his uniform, stood directly in front of the vehicle
being driven by appellant. Further, Akins testified that he made direct eye contact with
appellant while standing in front of the vehicle. The jury also saw the video of burglary
from the security camera in the store. During the examination of Martinez, the DVD was
played, and Martinez identified the officer getting out of his patrol vehicle. The jury also
observed this.
In light of this record, when viewed in the light most favorable to the verdict, was
the jury acting rationally when it found appellant guilty beyond a reasonable doubt?
Jackson, 443 U.S. at 319; Ross, 133 S.W.3d at 620. We think so, and, thus, overrule
appellant’s issue regarding the sufficiency of the evidence.
Enhancement Allegations
Appellant’s final point is that the trial court committed reversible error when the
punishment phase of the trial commenced without the reading of the enhancement
paragraphs and by failing to require appellant to enter a plea to those allegations.
7
Appellant defines his issue within the framework of article 36.01(a)(1) Texas Code of
Criminal Procedure.5 For purposes of our analysis, we will assume, arguendo, that the
trial court erred in not having the enhancement document read and in not receiving
appellant’s pleas to the allegations prior to commencing the punishment portion of the
trial.
Standard of Review
Appellant contends, at least by implication, that we must review the actions of the
trial court under an abuse of discretion standard of review. According to appellant’s
reasoning, the Texas Court of Criminal Appeals decision in Turner v. State, 897 S.W.2d
786 (Tex.Crim.App. 1995), controls the outcome of the case before the court. Turner
concerned a charge of driving while license suspended with a prior conviction for the
same offense alleged in the information to raise the punishment range from a Class B
misdemeanor to a Class A misdemeanor. Id. at 787. In Turner, as in the case before
this Court, the trial court did not have any enhancement allegation read, nor did the trial
court receive the defendant’s plea to the enhancement allegation. Ultimately, the court
in Turner found that the trial court’s action was error, and that the error was not subject
to a harm analysis. Id. at 789. Appellant asks us to apply the same reasoning.
The State counters that, because the enhancement allegations were not read to
the jury and no pleas were entered, the issues involved in the enhancements were
never joined. See Warren v. State, 693 S.W.2d 414, 415 (Tex.Crim.App. 1985).
5
Further reference to the Texas Code of Criminal Procedure will be by reference
to “article _____.”
8
Further, the State contends since the appellant was punished within the range of a first-
degree felony, the applicable range for the offense appellant was convicted of, there
was simply no error. Id.
We find that appellant’s reliance on Turner is misplaced. First, Turner involved a
fact scenario not present in our case, that is the enhancement allegations were
contained in a paragraph within the charging instrument. Second, since Turner was
handed down, the Texas Court of Criminal Appeals has determined that enhancement
allegations do not need to be contained within the body of the primary charging
document. See Brooks v. State, 957 S.W.2d 30 (Tex.Crim.App. 1997). This decision
implicates the basic underpinnings of Turner: that the trial court was required to strictly
comply with the terms of article 36.01, and that such compliance was not subject to any
harm analysis under Texas Rule of Appellate Procedure 81(b)(2).6 Finally, under the
provisions of Rule 44.2, we are instructed to review alleged error, constitutional or
nonconstitutional, for harmlessness. See TEX. R. APP. P. 44.2.7
We, likewise, do not apply the principles of Warren because the factual scenario
does not support the same conclusion in our case. See 693 S.W.2d 414, 415. In
Warren, the defendant objected to the failure to read the enhancement paragraphs after
the jury punishment verdict was received but before sentence was pronounced. Id.
The trial court crossed out the references to the enhancements out of the judgment and
6
Texas Rules of Appellate Procedure were amended effective September 1,
1997, and the current rule 44.2(b) was enacted.
7
Further reference to the Texas Rules of Appellate Procedure will be by
reference to “Rule ___” or “rule ___.”
9
sentence and took the position that the issue was not properly raised. Id. However, the
Texas Court of Criminal Appeals said the issue was preserved, reversed the judgment
and sentence, and sent the case back to the trial court. Id. In our case, there is no
question about the fact that the issue now complained of by appellant was not raised by
objection or motion for new trial.
The proper standard for review of this case is as a charge error. See Marshall v.
State, 185 S.W. 3d 899, 903 (Tex.Crim.App. 2006). As in Marshall, the jury charge
contained specific paragraphs referencing the specific allegations of prior convictions
and the application of each to a punishment verdict. Yet, appellant did not object that
there had been no enhancement allegations read to the jury and that he had not
pleaded to any enhancement allegations. Finally, there was a motion for new trial filed
in this case, yet the motion makes no reference to the enhancement allegations.
Therefore, we find ourselves reviewing the alleged charge error pursuant to the
egregious harm standard set forth in Almanza v. State, 686 S.W.2d 157, 171
(Tex.Crim.App. 1984). Id.
Analysis
When evaluating harm, we assess the harm in light of the entire record. Id. Any
error caused will be considered egregious error if it affects the very basis of the case
and deprived the defendant of a valuable right or vitally affected a defensive theory.
Drury v. State, 225 S.W.3d 491, 504 (Tex.Crim.App. 2007) (citing Hutch v. State, 922
S.W.2d 166, 171 (Tex.Crim.App. 1996)).
10
During the presentation of the State’s case on punishment, the only witness was
the fingerprint expert. The only exhibits were the “pen packets,” introduced to prove up
appellant’s prior convictions. When appellant testified during the punishment phase, he
acknowledged the prior convictions and, very importantly, he acknowledged that if the
jury found the allegations of the prior convictions true he would be facing a minimum
sentence of 25 years incarceration in the ID-TDCJ. However, the thrust of appellant’s
testimony was that he had always been convicted of burglary but had never been a
violent offender. When the charge was prepared the jury was advised of the three
priors alleged in the State’s filing of the notice of intent to seek enhancement of
punishment pursuant to § 12.42(d). Further, the jury was advised about the application
of each factual scenario, a finding of true as to one, two, or all three of the prior felony
convictions. Finally, during the argument of the punishment phase, appellant argued he
had never been a violent person and the amount of time he would have to serve if the
jury found that appellant had committed all three prior felonies. Essentially, this case
demonstrates that the core or ultimate issue before the jury was the appropriate amount
of prison time to which appellant would be sentenced. The State and appellant each
had a theory of how the jury was to arrive at that term. The failure to read the
enhancement paragraphs or receive a plea to those paragraphs did nothing to alter this
determination. Any supposed harm we could outline would be theoretical and,
therefore, not the actual harm required to be shown. See Dickey v. State, 22 S.W.3d
490, 492 (Tex.Crim.App. 1999). There being no egregious harm shown, we overrule
appellant’s last issue.
11
Conclusion
Having overruled appellant’s issues, we affirm the trial court judgment.
Mackey K. Hancock
Justice
Do not publish.
Pirtle, J., concurring.
12
David Tulio Rodriguez v. State
Combined Opinion