Giovany Flores v. State

Opinion issued April 9, 2013

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-11-00479-CR
———————————
GIOVANY FLORES, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 240th District Court
Fort Bend County, Texas
Trial Court Case No. 09-DCR-052519

MEMORANDUM OPINION

A jury convicted appellant Giovany Flores of aggravated robbery and

sentenced him to 15 years in prison and a $10,000 fine. See TEX. PENAL CODE

ANN. § 29.03 (West 2011). On appeal, Flores challenges the sufficiency of the
evidence, and he argues that the trial court abused its discretion by denying his

motion to suppress, refusing to allow defense witnesses to testify at an evidentiary

hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978), and

refusing his requested jury instructions. We affirm.

Background

Shakun Parti, who was 61 years old at the time, went to a small Indian

grocery store in Sugar Land, Texas early one summer evening. The store was on

the corner of a strip mall, and Parti parked across from the side entrance. When

she left the store approximately 15 minutes later, she walked toward her car. She

saw two young men running toward her, and she opened her car door and

attempted to get in. But the two men, later identified as Flores and Kye Jones,

grabbed her tightly by the arm and began hitting her about the head with a pistol.

At the time, Parti did not realize it was a gun; rather she knew only that it was

something heavy hitting her head on one side and causing the other side of her

head to strike her car. She was confused and disoriented, and she feared for her

life. At trial, Parti could not recall what the men looked like, except to say that

“one was black and the other was not black.” When asked if she could remember

which man had hit her on the head, Parti testified that she was too confused from

the blows to her head and the men were too close together to determine what each

did. Parti heard the men speak only once, when they demanded that she remove

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her rings, but she did not know who spoke. The men tried to remove her rings by

force, at one point cutting her finger. Eventually, the men grabbed Parti’s purse

and ran away together. Bystanders rushed to Parti’s aid, and she was taken by

ambulance to a hospital. As a result of the robbery, Parti suffered a brain

hemorrhage and permanent disfigurement of her finger.

Robert Moore witnessed the robbery. Moore was driving down the alley

near the strip mall, taking a shortcut to another store. He saw two men standing

beside a dumpster outside of the Indian grocery store. He saw Parti leave the store,

and he continued down the alley. In his rearview mirror, Moore saw the two men

who had been standing beside the dumpster run over and jump into Parti’s car. He

testified that he initially thought he was witnessing a robbery or a carjacking. He

backed up and got out of his car to get a better look, but he got back inside when

the men began to run down the alley toward him. As the men ran past his car, he

saw one of them, a Hispanic man in his early twenties with a medium-thin build

and wearing a white and blue cap, later identified as Flores, run to a red car parked

in the alleyway. Moore testified the other man was a black man with dreadlocks in

his twenties, later identified to be Jones, who stopped about ten feet from where

Moore was parked. At this point, Moore saw that Jones was holding a gun. Moore

testified Jones shook his head and told him to go, at which point he drove forward

down the alley and called the police.

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 Another witness, Harjeev Satia, testified that he heard a woman scream and

saw two men running toward the alleyway. In his sworn affidavit given to Officer

K. Longtin on the day of the incident, Satia testified that he saw “a black guy” and

“a white guy.” However, at trial, Satia recalled seeing “a black guy” running with

a pistol and “a Mexican guy with blond hair.” In addition, the evidence showed

that the witnesses identified the two men who robbed Parti as a black man with

dreadlocks and either as a Hispanic or white man with blond or light colored hair.

Sugar Land Police Officer R. Garza, the lead detective on the case, learned

from patrol officers at the scene that two men matching the descriptions had been

seen at a pub in the same strip mall as the Indian grocery store, just before the

robbery. Fingerprints that were obtained from a coin machine inside the pub

matched Flores’s. Photos of the suspects inside the pub were obtained from

surveillance video and released to the media. Once the information was released,

Garza began to receive tips and information regarding the suspects, including an

address where Jones resided. After several witnesses, including Moore, identified

Jones in a photographic lineup, arrest warrants were issued for both Jones and

Flores.

Detectives searched Flores’s apartment and found a firearm in a dresser

drawer in a bedroom that Flores shared with his brother, Daniel. DNA testing

found Parti’s blood on the trigger of the gun.

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 Approximately a week after the arrest warrants were issued, Flores turned

himself in and requested to be interviewed because he had heard that Jones had

informed police that he was to blame for the robbery. Flores, who was 17 years

old at the time, told police that he and Jones had gone to the pub to play pool on

the night Parti was robbed. He said the bartender asked them to leave because he

was underage. As for the robbery, Flores denied that he and Jones had planned or

discussed robbing anyone. Flores said that he tried to pull Jones away from Parti

several times by pulling on his shirt, and that it was Jones who “pistol whipped”

Parti with his gun, held her from behind, tried to remove her rings, and took her

purse. Flores said he took the purse from Jones and ran with it. Flores said that

after the robbery they went to his apartment and that he agreed to keep the gun at

his house, stashing it in a dresser in a bedroom he shared with his brother Daniel.

In his first interview, he denied that Daniel was involved in the robbery at all, but

in a second recorded interview taken by Garza, Flores admitted that he had lied to

protect his brother and said that Daniel had driven the getaway car. Again, he said

that Jones had beaten Parti, that there was no agreement to commit the robbery,

and that he had taken the purse from Jones and ran away with it.

Before trial, Flores filed a “Motion for Hearing Pursuant to Franks v.

Delaware,” which requested “a hearing on the truthfulness of certain statements in

an affidavit of Rudy Garza.” The motion stated:

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 1. Defendant is indicted for the charge of Aggravated Robbery. On
July 17, 2009, an arrest warrant was issued to authorize an arrest of
Defendant, Giovany Flores. The warrant was based on the
affidavit of Rudy Garza, a police investigator for Sugar Land
Police Department. A certified copy of the warrant and affidavit
are attached as Exhibit A and incorporated herein.

2. The allegations made by Affiant in the affidavit, to wit, were false
statements and were made deliberately by Rudy Garza knowing
that they were false, or were made with reckless disregard for the
truth. There is insufficient probable cause to support the arrest
warrant without such false statements.

Flores did not specifically identify which statements he contended were false or

provide any extrinsic evidence or affidavits to support his claim of falsehood. The

trial court denied this motion after a pre-trial hearing. The next day, after trial had

begun, Flores filed a motion to suppress evidence. Flores again argued that the

arrest warrant was illegal because the supporting affidavit was insufficient:

7. Defendant specifically shows that the arrest warrant at issue in
this case, under which said evidence was seized, was in
violation of the Fourth, Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution, Article I,
Sections 9, 10, and 19 of the Constitution of the State of Texas
and under Article 38.23 of the Texas Code of Criminal
Procedure, for the following reasons:

a. The warrant was illegally issued for the reason that the
supporting affidavit does not reflect sufficient probable
cause to justify the issuance of the arrest warrant, in that:
several statements in the affidavit are not supported by
any witness or evidence on the date the warrant was
issued.

b. The warrant was illegally issued because the affidavit did
not show probable cause sufficient to justify the issuance
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 of the arrest warrant, because the magistrate who issued
the arrest warrant did not have a substantial basis for
concluding that probable cause existed.

c. The arrest warrant was illegally issued because the
issuing magistrate was misled by information in the
affidavit that the affiant officer knew was false or would
have known was false except for his reckless disregard
for the truth.

Among other things, Flores asked the court to suppress all tangible evidence seized

by law enforcement officers in connection with his arrest and the statements he

gave to police.

At the hearing on the motion to suppress, the State argued that Flores was

attempting to obtain the same preliminary evidentiary hearing that was already

denied by the court in response his motion for a Franks v. Delaware hearing. The

trial court examined the affidavit, concluded it was sufficient to show probable

cause, and denied the motion.

During trial, Officer Garza testified about the interviews he conducted with

Flores’s brother Daniel, who told him that Flores had said he pulled the purse from

Parti and tried to pull the rings from her hands. Both interviews were admitted into

evidence and played for the jury at trial. Flores did not testify in his own defense.

On cross-examination, Garza testified about the warrant issued for Flores’s

arrest. As to statements that Flores assisted Jones by “continuing punching and

pulling at Mrs. Parti, trying to forcefully take her purse from her shoulder,” Garza

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declined to characterize this as a false statement, but he could not identify who

provided that information. None of the witnesses, including Parti, specifically

mentioned Flores as the man who hit her. Instead, the witnesses observed Jones

and Flores running either toward or away from Parti.

Garza was also questioned about a statement that Moore advised him that he

“observed defendant.” He conceded this was statement was erroneous and that it

could have been written more clearly. He testified that Moore did not know that

the person he observed in the alley was Flores. Garza also testified that when he

made the affidavit he knew Moore was referring to Flores because of other

evidence, including the fingerprints and surveillance video from the pub.

At the charge conference, Flores objected to the proposed jury instructions,

which included the law of parties and that “[m]ere presence alone will not

constitute one a party to an offense.” He requested an additional instruction

regarding intent, and he also requested an instruction regarding lack of common

design and independent impulse of another. The trial court denied the requested

jury instructions, and the jury found Flores guilty. Flores appealed.

Analysis

I. Sufficiency of the evidence

In his first issue, Flores contends the evidence is legally insufficient to

establish that he intentionally or knowingly committed the offense of aggravated

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robbery. Specifically, he argues the evidence showed only that he was present at

the scene, and not that he participated in the robbery.

In reviewing the sufficiency of the evidence to support a criminal

conviction, a court of appeals will determine “whether, after viewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). Our review of the

evidence includes evidence that was properly and improperly admitted. Clayton v.

State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

As the exclusive judge of the facts, the jury may believe or disbelieve all or

any part of a witness’s testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex.

Crim. App. 1991). We presume that the fact finder resolved any conflicting

inferences in favor of the verdict, and we defer to that resolution. See Jackson, 443

U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778. On appeal we may not

re-evaluate the weight and credibility of the record evidence and thereby substitute

our own judgment for that of the fact finder. Williams v. State, 235 S.W.3d 742,

750 (Tex. Crim. App. 2007). In reviewing the evidence, circumstantial evidence is

as probative as direct evidence in establishing the guilt of an actor, and

circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State,

214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

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 A person commits aggravated robbery when the person commits robbery

and uses or exhibits a deadly weapon. See TEX. PENAL CODE ANN. § 29.03(a)(2).

A person commits robbery if, in the course of committing theft, and with intent to

obtain or maintain control of property, the person intentionally or knowingly

places another in fear of imminent bodily injury or death. Id. § 29.02(a). Theft is

the unlawful appropriation of property with the intent to deprive the owner of the

property. Id. § 31.03(a) (West Supp. 2011). A firearm is considered a deadly

weapon. See id. § 1.07(a)(17)(A) (West 2011).

Under the law of parties, a person is criminally responsible for an offense

committed by the conduct of another if, acting with intent to promote or assist the

commission of the offense, he solicits, encourages, directs, aids, or attempts to aid

the other person to commit the offense. See id. § 7.02(a)(2). In determining

whether one has acted as a party in the commission of a criminal offense, the court

may look to events before, during, and after the commission of the offense. Powell

v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006). “Circumstantial evidence

alone may be used to prove that a person is a party to an offense.” Id. at 506.

“Participation in an enterprise may be inferred from the circumstances and need

not be shown by direct evidence.” Beardsley v. State, 738 S.W.2d 681, 684 (Tex.

Crim. App. 1987). Mere presence of the defendant at the scene is not sufficient to

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support a conviction, however it may suffice to show defendant was a participant

when combined with other facts. Powell, 194 S.W.3d at 507–08.

Flores contends that although he was with Jones when the robbery occurred,

the evidence is insufficient to prove he intentionally or knowingly committed

aggravated robbery. He argues that none of the witnesses, including Parti, were

able to confirm his identity, adding that some witnesses gave conflicting testimony

regarding his description. Flores contends that the evidence was insufficient

because no eyewitness testified to seeing him using a gun or breaking Parti’s

finger. Flores also contends there is no evidence in the record to suggest he had

any involvement in the robbery besides his presence at the scene. He argues that

the record does not contain any evidence that he ever possessed the gun or

participated in the robbery.

Surveillance video from the pub and Flores’s admission in his recorded

statements showed that Flores and Jones were together before the robbery. Moore

testified that he saw the two men together standing by a dumpster just before the

robbery. Moore and Parti testified that two men ran up to her together. Parti said

the men were close together during the robbery and that they ran away together.

Moore and Satia also saw the two men run away together. In addition, Parti

testified, “[T]hey said, give me your rings.” Garza testified that Daniel said Flores

had admitted taking Parti’s purse and trying to pull the rings off her fingers. In his

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recorded statements, Flores admitted that he took the purse from Jones and ran

away with it. He also admitted to taking and hiding the gun that was used in the

assault.

Based on the evidence in this trial, a rational finder of fact could have found

beyond a reasonable doubt that Flores caused Parti serious bodily injury while

stealing her purse or that he aided or assisted Jones in stealing Parti’s purse while

exhibiting a deadly weapon and causing serious bodily injury. Viewing the

evidence in the light most favorable to the prosecution, a rational trier of fact could

have found beyond a reasonable doubt that Flores was guilty of aggravated

robbery, acting alone or as a party to the offense. We hold that the evidence is

legally sufficient to support Flores’s conviction, and we overrule the first issue.

II. Motion to suppress

In his second issue, Flores argues the trial court erred in denying his motion

to suppress and in refusing to allow defense witnesses to testify at an evidentiary

hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978),

whereby he sought to void the search warrant and suppress all resulting evidence

based on his allegation that Garza’s affidavit contained false statements.

In Franks, the United States Supreme Court held that when “the defendant

makes a substantial preliminary showing that a false statement knowingly and

intentionally, or with reckless disregard for the truth, was included by the affiant in

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the warrant affidavit, and if the allegedly false statement is necessary to the finding

of probable cause, the Fourth Amendment requires that a hearing be held at the

defendant’s request.” Franks, 438 U.S. at 155–56, 98 S. Ct. at 2676. “An affidavit

supporting a search warrant begins with a presumption of validity; thus, the

defendant has the burden of making a preliminary showing of deliberate falsehoods

in that affidavit before he is entitled to a Franks hearing.” Cates v. State, 120

S.W.3d 352, 355 (Tex. Crim. App. 2003). The movant’s allegations “must be

more than conclusory and must be supported by more than a mere desire to cross-

examine.” Franks, 438 U.S. at 171, 98 S. Ct. at 2684. In order to obtain a Franks

hearing, a defendant must:

(1) allege deliberate falsehood or reckless disregard for the truth by
the affiant, specifically pointing out the portion of the affidavit
claimed to be false;
(2) accompany these allegations with an offer of proof stating the
supporting reasons; and
(3) show that when the portion of the affidavit alleged to be false is
excised from the affidavit, the remaining content is insufficient to
support the issuance of the warrant.

Harris v. State, 227 S.W.3d 83, 85 (Tex. Crim. App. 2007). “Thus, specific

allegations and evidence must be apparent in the pleadings in order for a trial court

to even entertain a Franks proceeding.” Id.

We review a trial court’s ruling on a Franks motion and on a motion to

suppress under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d

323, 327 (Tex. Crim. App. 2000); Jones v. State, 338 S.W.3d 725, 739 (Tex.
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App.—Houston [1st Dist.] 2011), aff’d, 364 S.W.3d 854 (Tex. Crim. App. 2012).

We give almost total deference to a trial court’s rulings on questions of historical

fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor, while we review de novo application-of-law-to-fact

questions that do not turn upon credibility and demeanor. Jones, 338 S.W.3d at

739; see Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002) (citing

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).

Flores did not meet the requirements necessary to obtain a hearing under

Franks. He did not specifically point out the portion of the affidavit alleged to be

false. He did not provide an offer of proof to support his allegation of falsity. He

did not show that without the allegedly false statements, the affidavit was

insufficient to support the arrest warrant. We hold that the trial court did not err by

denying Flores’s Franks motion. See Harris, 227 S.W.3d at 85.

At the hearing regarding Flores’s pretrial motion, Flores orally specified the

parts of the affidavit he believed contained false statements, which stated:

The defendant stood by and assisted Kye Jones by attempting to pull
the purse from Mrs. Parti as Kye Jones continued punching and
pulling at Mrs. Parti, trying to forcefully take her purse from her
shoulder.

The defendant and Kye Jones continued punching and pulling at Mrs.
Parti, causing large lacerations on Mrs. Parti’s head and a broken
finger and lacerations on her right hands. They were able to break the
strap of the purse, giving them access to the purse.

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Flores argued that the arrest warrant affidavit mentioned that Moore advised

Officer Garza that he “observed the defendant” even though Moore was never able

to positively identify Flores. Finally, Flores’s trial counsel argued that the affidavit

was too vague, and does not mention specifically which witnesses provided Garza

with certain information, only stating that his “investigation revealed,” and

“[Garza] learned from a witness.” These more specific oral allegations of falsity

likewise fail to raise a Franks issue because they are conclusory, suggest a mere

desire to cross-examine, and fail to provide any offer of proof to support an

allegation of falsity. See Franks, 438 U.S. at 171, 98 S. Ct. at 2684.

The motion to suppress was similarly conclusory, stating that “[t]he arrest

warrant was illegally issued because the issuing magistrate was misled by

information in the affidavit that the affiant officer knew was false or would have

known was false except for his reckless disregard for the truth.” The motion did

not specify which statements in the affidavit were allegedly false, provide an offer

of proof to support the allegation of falsity, or show how the affidavit would be

insufficient to support the warrant absent the allegedly false statements.

We hold that the trial court did not err by denying the motion to suppress,

and we overrule this issue.

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III. Jury charge

a. Law of parties

In his third issue, Flores argues that the trial court erred when it refused his

requested additional jury instructions relating to the law of parties. Flores does not

provide argument or authority showing that the exclusion of his proposed

instructions was error.

We employ a two-step process to review allegations of jury-charge error.

First, we determine whether error exists in the charge. Ngo v. State, 175 S.W.3d

738, 744 (Tex. Crim. App. 2005). If there is error, we then proceed to review the

record to determine whether sufficient harm was caused by the error to require

reversal of conviction. Id.

The court’s charge included the following instructions pertinent to the law of

parties:

A person is criminally responsible as a party to an offense if the
offense is committed by his own conduct, by the conduct of another
for which he is criminally responsible, or both.

Each party to an offense may be charged with the commission of the
offense.

A person is criminally responsible for an offense committed by the
conduct of another if, acting with intent to promote or assist the
commission of the offense, he solicits, encourages, directs, aids, or
attempts to aid the other person to commit the offense.

Mere presence alone will not constitute one a party to an offense.

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 At the charge conference, Flores objected to the proposed jury instructions

and requested additional instructions to be added. First, Flores requested an

instruction regarding intent:

[I]n order to establish liability, as a party, based upon the illegal
conduct of another, it must be proven that the accused maintain [sic]
the specific intent to promote or assist the commission of the offense.
The agreement must occur before or contemporaneous with the
criminal event. The evidence must show that the parties were acting
together, each doing some part of the execution of the common
design. Acts committed after the offense is completed cannot make
one a party to the offense.

Flores also requested an instruction regarding lack of common design and

independent impulse of another, so that:

[I]f there was no such common design and intent of all, including the
defendant to commit the offense . . . if any, was committed by one or
more acting independently of the defendant in doing so, and without
participation by him, in the design and the intent to commit it, then the
defendant is not guilty.

“As a general proposition, a jury charge that tracks the language of the

relevant statute is sufficient and therefore not erroneous.” Hernandez v. State, 340

S.W.3d 55, 61 (Tex. App.—Houston [1st Dist.] 2011, no pet.). Additionally, the

Court of Criminal Appeals has held that a defense that is not recognized by the

Legislature in the relevant statute as either a defense or as an affirmative defense

does not warrant a separate instruction. See Giesberg v. State, 984 S.W.2d 245,

246–47 (Tex. Crim. App. 1998).

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 The trial court’s charge tracks the language of the relevant statute, and

Flores’s proposed jury instructions are not listed as statutory defenses. See TEX.

PENAL CODE ANN. § 7.02. Rather, they seek to negate Flores’s intent, an essential

element of the State’s burden of proof. The charge given by the trial court

adequately instructed the jury regarding the specific elements of the offense and

the required intent needed to convict Flores. We hold that the trial court did not err

in denying his requests.

b. Article 38.23 instruction

Flores also contends he was entitled to an Article 38.23 jury instruction

regarding the legality of the arrest warrant affidavit signed by Garza. In relevant

part, Article 38.23 of the Texas Code of Criminal Procedure states:

No evidence obtained by an officer or other person in violation of any
provisions of the Constitution or laws of the State of Texas, or of the
Constitution or laws of the United States of America, shall be
admitted in evidence against the accused on the trial of any criminal
case.

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) (West 2005).

The Article 38.23 jury instruction referenced by Flores in his brief is not

included in the clerk’s record, but Flores raised the issue at the charge conference:

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 DEFENSE COUNSEL: Additionally, based upon the testimony of
Detective Garza, however the Court wants to interpret his testimony
regarding whether he could have typed it better, whether it was a false
statement or whether it was a lie, perhaps, on the stand, would negate
and would render this arrest warrant illegal. And thus, I believe that
Mr. Flores is entitled to a . . . Code of Criminal Procedure,
Article 38.23 instruction regarding the illegal arrest warrant issued
and whether any evidence obtained therefrom—I can read it again into
the record if you would like.

TRIAL COURT: I’ve read it. It’s not necessary that you read it.

DEFENSE COUNSEL: Okay. Maybe, just for the record, I want to
make sure that the record is clear as to what I’m requesting. Based
upon that, I believe . . . that Detective Garza’s . . . testimony would
allow and should authorize the Court to grant a 38.23 instruction to be
submitted to the jury. . . .

The trial court overruled the request for an Article 38.23 instruction. From the

context, it is apparent that Flores was again attempting to raise an issue pertaining

to the allegedly false statements in Garza’s arrest warrant affidavit.

Flores does not specify in his brief what factual dispute was before the jury

to resolve. Texas Rule of Appellate Procedure 38.1(i) requires the briefs to 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). Moreover, this Court

does not have an obligation to construct and compose Flores’s issues, facts, and

arguments with appropriate citations to authorities and to the record. See also

Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008). In failing to specify

what factual dispute was raised and how it was material to the lawfulness of any

19
evidence that was introduced at trial, Flores has waived his objections and presents

nothing for review. Moreover, Flores does not explain what evidence was

obtained in violation of the law, especially in light of the fact that the search of

Flores’s apartment was consensual, Flores voluntarily surrendered himself to the

police, denying any knowledge of an arrest warrant, and he voluntarily gave two

recorded statements, waiving his Miranda rights. See, e.g., Johnson v. State, 871

S.W.2d 744, 750–51 (Tex. Crim. App. 1994) (explaining relationship of

attenuation-of-the-taint doctrine to Article 38.23 instruction).

We overrule this issue.

Conclusion

We affirm the judgment of the trial court.

Michael Massengale
Justice

Panel consists of Justices Keyes, Massengale, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).

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