Diaz, Daniel

PD-0035-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 2/12/2015 4:02:02 PM Accepted 2/13/2015 9:18:45 AM ABEL ACOSTA No. PD-0035-15 CLERK ln the Court of Criminal Appeals DANIEL DIAZ, APPELLANT VIIRSUS Tue Srnra oF TEXAS, APPELLDE ON AppEAL FRoM THE 253RD Julrcu.L DISTRICT couRT LIBERTY COUNTY, TEXAS TRIAL COURT CAUSE NO. 1259853 AND THE COURT OF.APPtrALS FOR THE NINTH JUDICIAL DISTRICT OF TEXAS BEAUMONT, TEXAS No. 09-I3-00104-CR APPELLANT,S PETITION FoR DISCRETIONARY REVIEW wENDRT-r- A. Onorrr Jn. TEXAs BAR # i5208500 440 I-oursrANA Sr., SrE 200 I IousToN, TExAS 77002 (713)223-ss7s (713)224-28rs lrnxl February 13, 2015 ATToRNEY FoR Arne II,IN I)ANIEL DIAZ IORAL ARGUMENT RrquEsrEo] IDENTITIES oF PARTItrS AND COUNSEL Daniel Diaz Appellant State of Texas Appellee Honorable Susan Baker Trial Courl Judge PO Box 3937 253'd District Court Galveston,'l exas 77 552 Liberty Counly, TX Wendell A. Odom, Jr. Appellate Counsel 440 Louisiana St., Ste 200 for PDR I Iouston, Texas 77002 Richard Burroughs Appellate Counsel P.O. Box 1676 in Courl of Appeals Cleveland, Texas 77328 Paul Aman Trial Counsel 7l 2 Westcotl St. Houston, 'Iexas 77007 Logan Pickett District Attorney 1923 Sam Houston, Ste 112 on Appeal I-iberty, Texas77575 Anne Streit Assistant District 1923 Sam Houston, Ste 112 Attorney at Trial Liberty, Texas77575 TABLE oF CONTENTS PAGE IDDNTITIES oF PARTIES, COUNSELS AND JUDGE ..........., .........,.................i TABLE oF CONTENTS ............ .................... ii INDEX oF AurHoRrrrtrs ........................... iii STATEMENT REGARDTNG ORAL ARGUMENT ..............,....1 STATEMENT oF THE CasE'............... ...........2 STATDMENT oF PROCEDURAL HrsroRy... ........................2 STATEMENT oF FAcrs.......... ......................3 GROUNDS FoR REvrtrw ..............................5 I. _ ISSUE I DID THE COURT oF APPEALS RULE INCOII.RECTLY WHEN THtrY FOUND THAT THE EVIDENCT] WAS SUF'FICIENT TO SUSTAIN THE CONVICTION? il. ISSUD II _ DID THE COURT oF APPDALS RULD INCORRECTLY WHEN THEY FOUND THAT MR. DIAZ wAS PROVIDED EFFECTIVE ITEPRESENTATION uNDER ,srflcrzlND AND TI{E 6t " AMENDMENT To rHE UNTTED STATDS CONSTITUTION? ARGUMENT AND AurHoRrrIES ..................... ....................5 I. IssuE I...................... ...................5 A. HYPOTHETICALLY CORRECT JURY CHARGD......... ............6 B. ARGUMENT ............................7 I IssuE II........... ...........................10 A. DEFrcrtrNT PERFORMANCD..................... ...........................11 B. HARM RESULTED FROM DEFrcrENcy...... .........................13 PRAYER FoR R8LrEF.............. ..................,14 CERTTFTCATn oF SERvrcE .......................15 II INDEX oF AurHoRrrrEs CASES Ex Parte Lal-lood,401 S.W.3d 45 (Tex. Crim. App. 2013) Fuller v. State,73 S.W.3d 250 (Tex. Crim. App. 2002)........ Garcia v, State,827 S.W.2d 937 (Tex. C[im. App.1992) Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001)....... 6 I'lorton v. State,4l8l LEXIS I (Tex. App. Houslon[14th Disl.] 2010) 1 Statutes Tcx. Trans. ('odc Antt. $ 545.1 5b ...9 lll NO. PD-0035-15 In The Court of Crjrninal Appeals DANItrL DIAZ, APPDLLANT VERSUS TH E STATE oF TEXAS, APPELLEE On Appeal from the 253'd Judicial District Court Liberty County, Texas Trial Court Cause No. CR-29411 And The Court of Appeals for thc Ninth Judicial District of Texas Beaumont, Texas No. 09-13-00104-CR APPELLANT'S PETITION FOR DISCRETIONARY REVIEW TO THE HONORABLE COURT OF CRIMINAL APPEALS: Comes Now, Daniel Diaz, Petitioner, in the above styled and nurnbered cause and respectfully urges this Court to grant discretionary revierv of 1he above named cause, pursuant to the rules of appellate procedures STATEMENT REGARDING ORAL ARGUMENT Petitioner requests oral argument. Tltis case presents tlte irnportanl issue of whether lhe lower courl inconectly ruled that th.e evidence was sfficient to maintain a convictionfor official oppression when it is un.disputed fi'otn tlte record tltat probable couse existed for lhe detention All of the issues presented require discussiol of the facts, and are issues that require a look at the correct application of the lau, to the facts in this case. Oral argument would be helpful to the Coutt and to the parties because the issues in this case are fact-intensive and oral argument would allow the parties 1o respond 10 any concerns or questions of this Court. STATEMENT OF THE CASE Appellanl was charged with official opprcssion in violation of Texas Penal Code $ 39.03(a)(1) in Liberty County, Texas. On February 28,2013, he was convicted subsequent to a trial by iury, and sentenced to the maximum of one year in the Liberty County Jail. The Court of Appeals for the Ninth Judicial District of Texas affinned his conviction, holding that the evidence was sufficient to sustain a conviction and that Appellant was not denied his 6tl' arnendment right to effective representation. STATEMENT OF PROCEDURAL HISTORY The Courl o1'Appeals for the Ninth Judicial District of Texas affinled the trial court's judgment on October 22,2014 in an unpublished opinion. Di.az v. State, Appellate Number 09-13-00104-CR. A rnotion for rehearing was filed on Novernber 2I,2014. 'l-his rnotion was overuuled by the Court of Appeals on December I0,2014. This petition for discretionary review is tirnely if filed by February 9,2015. See Tex. R.App.P. 68.2(a), (c).1 ' A Motion to Extend has been filed with this Petition for Discretionary l{eview. That Motion is requesting an additional two (2) days to file the Petition for Discretionarf Review. 2 STATtrMENT OF FACTS Daniel Diaz ("Mr. Diaz") worked for Texas Parks and Wiidlife of "fexas as an acling garne warden. RR6-7.2 As a peace officer, Mr. Diaz was responsible for enforcing all of the laws in the State of Texas including those relating 1o Texas fish and garne. RR4-27. Throughout his tirnc as a galne warden, Mr. Diaz had cone into conlact with rnany people in Liberty County, Texas. One person that he liad contacted on more than one occasion was James David McCorrnick ("Mr. McCorrnick"), the cornplaining witness in this case. See RR2, RR3-6. As a result of these contacts, Mr. McCorrnick had filed official complaints against Mr. Diaz for various allegations of harassment while Mr. Diaz was acting in his capacity as a garne warden. See RR2. These cornplaints against Mr. Diaz took place prior to 201 1. Mr. McCormick had also beerl charged with assaulting Mr. Diaz in 2006 after an altercation at Mr. Diaz's horne. RR3-12-13. On the rlorning of Novenber 13,2011, Mr. Diaz was scheduled to be on patrol as a gane warden for Texas Parks and Wildlife. Mr. Diaz got into his state issued garne warden vehicle at around 6:20 that morning. 511.3 As he sat in his driveway, Mr. Diaz observed a Ford F-350 truck corning down his slreet with no head lights on. S11. Further, Mr. Diaz noted that the car seemed to be traveling in 2 RR will refer to the Repoder's Record in the record on appeal. The number foJlowing the RRwill refer to the volurne number, and the number afler the dash refers to the page number within that volurno. For exarnple. RR6-7 refers to Volurne 6 oftl)e Reporter's Record at page 7. ' S will refer to State's Exhibits iD the trial. The numbel after the S will refer to the exhibit number. S1 I is state's exhibit I L 3 clear excess of the 30 MPH posted speed lirrit for his neighborhood. S 11. The Ford F-350 was being driven by Mr. McCorrnick. Mr. Diaz pulled out of his driveway and began to follow Mr. McCorrnick RR3- I 80. Shortly thereafter, Mr. Diaz lurned on his emergency lights in an atternpt to pull the vehicle over, and lalk to Mr. McColnick. RR3-180. Mr McCorrnick failed 1o respond to Mr. Diaz's emergency lights. RR3-180-187. Instead of pulling over, Mr. McCormick called 911 for advice, noting that he was concerned about Mr. Diaz's inlentions in pulling hiur over that rnorning. Id. AlTer close to a rnile, Mr. McCorrnick decided to subrnit to Mr. Diaz and pulled his car over to the side of Minglewood road outside of Mr. Diaz's neighborhood. RR3- 209 Mr. Diaz asked Mr. McCormick for his license and proof ol insurance. RR3-211. The two men had a few words back and forth, and Mr. McCormick was placed in handcuffs for officer safety. RR3-275-217. Shortly after Mr McCormick was placed in handcuffs, two officers with the City of Liberty Police Departrnent arrived on the scene. RR3-221. Mr. Diaz and the two officers discussed the natter, and Mr. Diaz decided that he would let Mr. McCormick go with a verbal warning. S 10 Mr. McCorrnick filed an official complaint with the internal affairs division of Texas Parks and Wildlife in Austin, Texas. RR4-55. After an investigation, the Liberty County District Attorney's Office accepted charges of Official Oppression against Mr. Diaz for his actions on Novernber 13, 2011. RR4-112. 4 GROUNDS FOR REVIEW 1. DID THE COURT OF APPEALS RULE INCORRECTLY WHEN THEY FOUND THAT THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE CONVICTION? 2. DID THE COURT OF APPEALS RULE INCORRECTLY WHEN THEY FOUND THAT MR. DIAZ WAS PROVIDED EFFECTIVE REPRESENTATION UNDER,STRIC&IND AND THE 6TIT AMENDMENT OF THE UNITED STATES CONSTITUTION? ARGUMENT I The 9th Court of Appeals rulcd incorrectly when they found that the evidence was sufficicnt to support a conviction in light of the undisputed testimony that Mr. Diaz had probablc cause that Mr. McCormick had violated Texas Transportation Code, Title 1 Subchapter C S 545.156 prior to his detention. A. The Rule of Law In reviewing the evidence for sufficiency, the court uust consider 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 crime beyond a reasonable doubt. Jackson v. Virginia,443 U.S. 307, 318-19 (1979); Brooks v. State, 323 S.W.3d 893, 898 (Tex. Crini. App. 2010). Evidence can be held to be insufficient under 1he Jackson standard in two circumstances: 11,) the record contains no evidence, or merely a "rnodicum" of evidence, probative of an element of the offense, or (2) the evidence conclusively establishes a reasonable doubt. See Jackson,443 U.S. at 314,318 n. 1l;see also Lasterv. State,275 S.W.3d 512,518 (Tex. Crirn. App. 2009); Williams v. State,235 S.W.3d 742,750 (Tex. Crim. App 2007). 5 The sufficiency-of-the-evidence standard allocates to the fact-finder the responsibility to lesolve conflicts in the lestimony, to weigh the evidence, and tro draw reasonable inferences frorn basic facts to ultiurate facts. See Jackson,443 U.S. at 319; Claytonv. State,235 S.W.3d 772,778 (Tex. Crirn. App.2007). There is a presurnption that the fact-finder resolved any conflicts in the evidence in favor of the verdict and review of legal sufficiency defers to that resolution, provided that the resolution is rational. See Jackson,443U.S. a|326 Legal sufficiency in a case is measured against the elements of the offense as defined by a hypolhetically correct jury charge for the case. Malik v. State,953 5.W.2d234,240 (Tex. Crim. App. 1997). A hypolhetically correct jury charge is one that "accurately sets out the law, is authorized by the indictrnent, does not unnecessarily increase the State's burden ofproof or necessarily restrict the State's theories of iiability, and adequately describes the parlicular offense for which the defendant was tried." Id. A hypothelically coruect jury charge would no1 simply quote fronr the controlling statute. Gollihar v. State,46 S.W.3d 243,254 (Tex. Crim. App. 2001). Its scope is limited by "the statutory elernents of the offense as nrodified by the charging instrument." Fuller v. State, 13 S.W.3d 250,254 (Tex. Crinr. App.2002) (Keller, P.J., concurring); Cuty v. State,30 S.W.3d 394, 404 (Tex. Crim. App. 2000). B. Hvpotheticallv Correct Jurv Charge Under Texas Penal Code $ 39.03 (a)(1), the State has to prove that Mr Diaz, while acting under color of his office, intentionally subjected the 6 colnplainant to a detention that he knew was criminal, tortious, or both. Palacios v. State, 2014 WL 37'71870 (Tex. App.-Corpus Christi 2014). In order for a delendant to know that the detention is unlawful under the official oppression statule, the detention rnust be in fact, unlawful. State v. Edmond,933 S.W.2d 120, 127 (Tex. Crirn. App. 1996). Otherwise a defendant's 'rnislake of law' as to the illegality of his own act would create liability where none before existed. 1d A detention under the 4th amendment does not take place until i ) the officer makes a showing of his authority and 2) there is a subrnission to that authority. Johnsonv. State,912 S.W.3d 221 ,234 (Tex. Crirn. App. 1995). Atraffic stop is a detention once the person submits to the officer's authority by stopping his vehicle. Id. A peace of.ficer may lawfully detain a rnotorist rvho commits a traffic violation when the officer has probable cause to believe a traffic violation has occuned. Garcia v. State,827 S.w.2d 937,944 (Tex. Crim. App. 1992). Probable cause exists where police have reasonably trustworthy infonnation sufficient to warrant a reasonable person to believe that a particular person has cornrnitted or is cornrnitting an offense. McGee v. State, 105 S.W.3d 609, 614 (Tex. Crirn. App. 2003). The test for probable cause is objective and does not take into account the subjective thoughts or rnotives of the officer. Amador v. Slate 275 S.W.3d 872,878 (Tex. Crirn. App. 2009). Further, a peace officer rnay rnake a warrantless arresl of any person who commits a traffic violation in his presence. Horton v. State, 4187 LEXIS 1, 7-8 (Tex. App.-Houston [14th Dist.] 2010). C. Argument 1 The facts in this case are such that no reasonable juror could have found the element of an unlawful detention beyond a reasonable doubt. Given the facts in this case, there are three different sets of facts which could have given Mr. Diaz the requisite probable cause to lawfully detain Mr. McConlick: 1. Mr. Diaz's statement that Mr. McCormick's lights were off while traveling through his neighborhood before the sun rose. S I 1. 2. Mr. Diaz's statenent that Mr. McCorrnick appeared to be lraveling well over the 30 MPII speed lirnit posted in his neighborhood. S11 3. The undisputed fact that Mr. McCorrnick failed to pull to the side of the road and stop when confronted with an ernergency vehicle. S11, RR3-180- r 87. The Court of Appeals was corect in their analysis that the first two sets of facts were not strong enough for a successful challenge to the sufficiency of the evidence under ,Iackson The hrst reasons for probable cause detailed above, regarding the speed of Mr. McCorrnick and whether his lights were on, were heavily disputed in the record on appeal. Testirnony was delivered by Mr. McCorrnick that he was traveling 28 MPH when he saw Mr. Diaz and his lights were "on" when he passed Mr. Diaz's house. RR3-178, RR3-176. The jury weighs the credibility of all of the witnesses, and they were within their power to choose to believe Mr. McCorrnick during trial. For that reason, a reasonable juror could have found the elernent of an unlawful detention beyond a reasonable doubl if they were given just the first two sels of facts 8 However, the objective standard set out under our 4rl' amendrnent jurisprudence only requires thal the facts of the case show one set of fhcts that provide probable cause for a lawful detention. In other words, the Court of Appeals for the Ninth Judicial District needed to view the merits of the third ground for probable cause standing on its own rvithout referring to other facts Mr. Diaz need not prove he had probable cause that three violations occurred in order to show it was a lawful detention. If the evidence shows an undisputed set of facts that would provide probable cause for the traffic stop then the dctention is lawful without any need to defer to the iury's province of weighing the wilness's credibility. In this case, it is undisputed that Mr. McCormick violated Texas Transportation Code, Title 7 Subtitle C $ 545.156 - Vehicle Approached by Authorized Emergency Vehicle. This section of the Transportation Code requires that on the immediale approach of an authorized ernergency vehicle using audible and visual signals, a driver shall 1) yield the right-of-way; 2) immediately drive to a position parallel to and as close as possible to the right-hand edge or curb ofthe roadway clear of any intersection; and (3) stop and rernain standing until the authorized energellcy vehicle has passed. Under any version of the facts that the jury chose to believe, Mr McCormick violated this statute when he 1) saw Mr. Diaz behind hitn with his emergency lights activated and sirens audible, 2) failed to yield the right-of-way, and 3) continued driving for-ward instead of stopping and remaining still until Mr. 9 Diaz had an opportunity to pass. A vierv of Mr. McCormick's or Mr. Diaz's statements in the record on appeal will establish these baseline facts to suppod a lawful detention. There is no difference in their testin.ronies. S 11, RR3-180-187. Furlher, the other evidence in the case presented by the State corroborates their teslirnonies that Mr. McCorrnick did not pull over rvhen confronted with an emergency vehicle. See RR. These undisputed facts provided Mr. Diaz the probable cause necessary to effectuate a lawful traffic stop (detention) on Mr McCorrnick. I-Iis subjective intent or pasl dealings with Mr. McCormick are iruelevant to the analysis of whether the detention was in fact unlawful. With conclusive evidence that Mr. McCorrnick violated a traffic law in the presence of Mr. Diaz, the evidence at trial was insufficient to suppoft a reasonable juror in finding that the element of an unlawful detention was met. The Courl of Appeals for the Ninth Judicial District ofTexas tnade an incorrect application of the law to the facts in this case rvhen they found the evidence sufficient to support the conviction for Official Oppression on direct appeal. 2 The Court of Appcals ruled incorrectly when they ftrund that Mr. Diaz's Trial Counsel was not ineffective under Stricklarrl and the 6tr' amendment of the United States Constitution. A. Rule of Law To prevail on a claim for ineffective assistance of counsel, an appellant must prove two elements by the preponderance of the evidence: 1) trial counsel's performance was deficient; and 2) harrn resulted fron-r that deficiency sufficient 1o undermine the confidence in the outcome of the trial. Strickland v. Washittgton, 10 466 U.S. 668,687,69a (1984); Ex Parte LaHood,40l S.W.3d 45, 49-50 (Tex Crirn. App. 2013). A clairn for ineffective assistance of counsel must be firlnly rooted in the record such that the record affirrnatively demonstrales the meritorious nature of the clairn. Menefield v. Stale, 363 S.W.3d 59i, 592 (Tex Crim. App. 2012). When trial counsel fails to object to questiolts or testitnony during trial, the Appellant must show that the trial court judge would have comrnitted error by overruling those objections in order to establish deficient performance. B. Deficient Performance from Trial Counsel a Texas Rule of Evidence 404(b) The State in this case must prove beyond a reasonable doubt that Mr. Diaz knew that the deterrtion o1'Mr. McCormick was unlawful. In order to meet this elernent, the State brought in six separate instances of "run-ins" beflveen Mr. Diaz and Mr. McCorrnick in the guilt innocence phase of trial. These instances involved: l) a 2004 incident when Mr. Diaz advised Mr. McCormick to not drive his foul wheeler in the neighborhood bayou, 2) a 2006 incident where Mr. Diaz gave Mr. McCormick a verbal warning for throwing fish heads over the neighbor's fence, 3) a 2006 incident where Mr. McConnick wenl 1o Mr. Diaz's horne and an altercation broke out resulting in assault charges against Mr McCormick, 4) an incident around 2010 where Mr. Diaz tried to block Mr McCorrnick's path dorvn a street in their neighborhood with his car, 5) an incidenl where Mr. Diaz flashed his energency lights behind Mr. McCorrnick on I{ighway 11 146, and 6) an incident where Mr. Diaz followed Mr. McCorrnick down Minglewood outside of their neighborhood for a short tirne. RR3-187-207. Trial Counsel in this case argued the inadrnissibility oI these acts in his nrotion in limine prior to trial. See RR2. Trial Counsel argued that these instances were improper extraneous evidence as the standard for an unlawful stop was objective and not subjective. See RR2, RR3-43. When the Trial Court denied his urotion in lirnine, Trial Counsel asked for a running objection on that ground RR3-43. This was the last time that Trial Counsel obiected to thc admission of the past incident testimony At no point in the trial did Trial Counsel obiect to the admission of this line of testirnony as it came into evidence befbre the jury. Trial Counsel understood the vaiue of the testimony enough to have a hearing on a motion in limine prior to trial, but nonetheless, decided that objecting to the adrnission ofthe testimony to preserve error and provide the jury with limiting instructions was unneeded. If Trial Counsel had obiected to the adrnission of these incidenls into the record, the Trial Courl would have erred if they adrnitted the evidence without a limiting instruction in line with Texas Rule of Evidence 404(b). These past "bad ac1s" or dealings with Mr. McCorrnick could not be used for confonnity purposes, but rather, may only be used by the State to go towards Mr. Diaz's knora4edge of the unlarvfulness of the detention. It is incumbent on the Trial Courl to provide a limiting instruction on that matter when prompted by Trial Counsel. The Trial 12 Court thus would have erred by allowing the evidence 10 come in without a limiting instruction that it could only go towards a proper purpose. The Trial Court did not nake those limiting instructions in this case because Trial Counsel failed to object upon the subrnission of these pieces of testimony before the jury. RR3-187-207. There is no trial strategy that could justify Trial Counsel's failure to object in lhis case. This evidence was the center piece of the State's case, and allowing the jury to hear this evidence without an appropriate lirniting instruction serves no purpose other than to harm Mr. Diaz. Trial Counsel's inability to obj ect 10 these key pieces of evidence in the tlial was deficient, and no competent attorney would have failed to rnake these appropriate obiections. C. Harm Resulted frorn the Deficiency The State's case from starl to finish rested on the prior relationship between Mr. Diaz and Mr. McCormick. The State spent a large porlion of their case-in- chief building up the prior relationships between Mr. Diaz and Mr. McCormick. See RRs. When arguing the casc in closing argumenl the State added that Mr McCorrnick wouldn't lie because all he wanted was to "stop the harasstnent." ,See RR3, 4, 5-52. In order to meet the eletnents of official oppression, the State needed more than controverted testirnony about the validity of the detention. They needed to use the prior encounters between the two men to shorv that this case was outside the realm of appropriate police work, and thus, Mr. Diaz knew that his treatment of Mr. McCorrnick was unlawful. It is hard to irnagine a scenario where 13 the State obtains a conviction under these facts without the prior history between Mr. McCornrick and Mr. Diaz. The value of the prior incidenl teslimony cannot be overstated, and the conl'rdence in this trial was undermined by Trial Counsel's inability to appropriately object to these incidents as they came into evidence. Without the proper limiting instructions, the jury was free to use the evidence as they deerned fit throughout the trial. It was crucial thal the prior incident testirnony be handled cornpetently to insure that Mr. Diaz received a fair trial. In this case, Trial Counsel was entirely incompetent in this area, and harnr resulted frorn this deficiency. The Courl of Appeals for the Ninth Judicial District of Texas ruled incorrectly when they found that Mr. Diaz's trial counsel was not ineffective under the Strickland standard and the 6tl'amendrnent of the United States Constitution. PRAYER F'OR RELIEF For the reasons herein alleged, Petitioner respectfully requests this Court grant discretionary review ofthe lower court's opinion and grant oral argument. Respectfully subrnitted, NDELL A OM, JR State Bar No. 15208500 440 Louisiana Streel, Suite 200 I Iouston, Texas 77002 (713) 223-5s7s (713) 224-2815 fax 14 CERTIFICATE OF COMPLIANCE WITH TRAP 9.4 I hereby certi$ that this Petition for Discretionary Review cornplies with Texas Rule of Appellate Procedure 9.4 in that it is written in 14 point font, Tirnes New Roman, and contains 3,539 words. ELL DOM, JR CERTIF'ICATE OF SERVICE I hereby certify that a lrue and colrect copy of the foregoing Petition for Discretionary Review was served on the Assistant Crirninal District Attorney and the State Attorney by electronic transmission on February 12,2015 . EL OM, JR. 15 APPENDIX In The Court of Appeals Ninth District of Texas ot Beflumont NO. 09-13-00104-cR DANIEL DIAZ, Appellant v THE STATE OF TEXAS, Appellee On Appeal from the 253rd District Court Liberty County, Texas Trial Cause No. CR29411 MEMORANDUM OPINION Appellant Daniel Diaz was indicted for official oppression under section 39.03 of the Texas Penal Code. See Tex. Penal Code Ann. $ 39.03 (West Supp. 2014).' The indictment alleged that on or about November 13, 2011, Diaz "intentionally subject[ed] James David McCormick to detention that [Diaz] knew was unlawful, and [Diaz] was then and there acting under color of his employment lBecause the amendments do not affect this case, we cite to the current version of the statutes. 1 as a public servantl namely, Game Warden." A jury found Diaz guilty and the trial court sentence d Diaz to one year confinement in the Liberty County Jail and assessed a $4,000 fne.Diaz appeals. On appeal, Diaz argues that ( 1 ) the evidence is legally and factually insufficient to sustain the jury's verdict; (2) the trial court abused its discretion by admitting irrelevant and prejudicial evidence from a series of alleged extraneous acts in violation of Rules 401 , 403, and 404(b) of the Texas Rules of Evidence; (3) he was "denied his [c]onstitutionally protected and guaranteed right to effectrve assistance ofcounsel[;]" and (4) that if the decision of the trial court is upheld by this Courl, "it will create a level of unceftainty that will have a chilling effect on every traffic stop conducted by law enforcement officers within the State of Texas." We overrule his issues and affirm the judgment Guilt/Innocence Evidence The testimony at trial indicated that Diaz and McCormick had a "prior history" that preceded the incident of November 13,, 2011. In 2006, Diaz confronted McCorrnick about some "fish heads" McCormick allegedly threw over the fence and into his neighbor's pasture. Diaz drove up in his "game warden truck" while McCormick was throwing out the fish and asked McCormick why he was thlowing fish heads onto the neighbor's property. McCormick told him "I 2 always throw thern back here." Diaz asked to see McCormick's fishing license and continued to question McCormick. Based upon Diaz's tone of voice, McCormick called the Liberty Police Department and asked them to send an officer to the scene. McCormick testified that as soon as Diaz noticed the Liberty police officer pulling into McCormick's driveway, Diaz "handed [McCormick his] fishing license and said I'm going to give you a warning this time. Don't throw fish heads over here no more unless you get permission frorn [the neighbor]." A day or two later, and after he obtained permission from the neighbor, McCormick drove over to Diaz's home to let him know that the neighbor had given McCormick permission to throw the fish heads over onto her property. According to McCormick, Diaz then told McCormick he knew that McCormick had "called the law" on him and he stated to McCormick, "you better not ever call the law on me again and you better watch your back." McCormick testified he totd Diaz he was not there to argue, and Diaz told McCormick that he was arresting him and "[he] was going to jail" for trespassing. When McCormick proceeded to walk to his truck, Diaz grabbed McCormick's wrist and held it up in the air and began screaming at McCormick telling him he was going to jail. McCormick went to jail and was charged with "assault" on Diaz. The assault case went to trial in 2010, and the jury found McCormick not guilty. J McCormick testified that while McCormick was waiting to go to trial on the 2006 assault charge, Diaz followed him on more than one occasion' One evening Diaz blocked the path of McCormick's vehicle with his personal truck and when McCormick drove around Diaz to pull into McCormick's driveway, Diaz followed him and "stayed parked" in front of McCormick's house for fifteen minutes. Right after the jury found McCormick not guilty on the 2006 assault charge, Diaz again foltowed McCormick, and Diaz flashed his lights at McCormick but did not stop him. McCorrnick notified the police department that Diaz was "harassing" him but he did not make a formal report. McCormick indicated at trial that the police department personnel told him there was "pretty much nothing they [could] do." McCorrnick testified that on another occasion, prior to being stopped by Diaz in November 2011, while McCormick was driving on Highway 146,Diaz followed McCormick. McCormick also told the jury that prior to November 2011, he spoke to law enforcement about getting a restraining order against Diaz and they told him he needed to hire an attorney. According to McCormick, on November 13,2011, around 6:20 a.m., he was driving his vehicle on Minglewoo d (a/W a Mizell) Road, on his way to work, and he drove past the driveway to Diaz's home. McCormick had to drive past Diaz's home to exit his subdivision. McCormick testified he had his headlights on because 4 it was still dark outside. He stated that he knew he was not going over 30 m.p.h., "[b]ecause I always make sure I'm going under 30 when I pass . . . Mr. Diaz's house[,] . . . to try to avoid any trouble that I might have as I pass by his house." As he approached Diaz's driveway, he noticed Diaz's game warden truck parked in the driveway. Diaz's vehicle had its headlights on and as McCormick approached Diaz's driveway, Diaz turned his game warden truck "red and blue lights on." After McCormick's vehicle got into the first curve past Diaz's driveway, McCormick then noticed that Diaz pulled out onto the roadway behind McCormick. McCormick testified that he was "afraid for [his] safety" because of their "past history" and that is why he did not immediately pull over. McCormick stated, I yielded for [Diaz] to go around because I thought rnaybe that he had a call that he was going to, so I yielded. . . . I also yielded for [Diaz] to go around while I was on [the] phone with 911, but [Diaz] stayed behind me. Then [Diaz] started getting close to rny vehicle, so at that point, I knew [Diaz] must have been pulling me ovef. McCormick testified that "[t]here was no other cars on the road, so at that point I called 911 because I wasn't really sure what to do. I was afraid for my safety at that time." McCormick pulled over and stopped while he was talking to the 91 l operator. 5 After stopping,Diaztold McCormick to get out of his truck and McCormick cornplied. Diaz asked to see McCormick's driver's license and proof of insurance. Diaz told McCormick to put his driver's license on the hood of Diaz's truck, and McCormick did what he asked. Then Diaz told McCormick to put his hands behind his back andDiaz handcuffed McCormick, and told hirr he was arresting him for "speeding." McCormick testified thatDiaz also "got right in [McCormick's] face" and asked McCormick, "[D]id you get satisfaction out of us going to court[?]" McCormick replied, "[D]amn right. I enjoyed every minute of it, especially when you got up on the stand and lied . . . you made a fool out of yourself." McCormick told Diaz that he had called 91 1 . Diaz then called someone and said "I have James McCormick pulled over and I have him handcuffed for my protection." Diaz never had his citation book out or with him, and none of the officers issued McCormick a citation for anflhing. The Liberty Police officers responded to a call to assist. When they arrived, they took Diaz over in front of their vehicle and they had a discussion with Diaz. McCormick testified that the male officer came back and told McCormick "Mr. Diaz [is] going to set [you] free," and the officer told Diaz to take the cuffs off of McCormick. Before McCormick left to go to work, Diaz told McCormick he was "going to get a warrant" to arrest McCormick for evading arrest. McCormick 6 turned to the male officer and said, "[C]an he do that?" McCormick told the jury the officer looked at McCormick "and winked" and told McCormick to contact an attorney. Officer Cedric McDuffie, a Deputy with the Liberty County Constable's Office and formerly a police officer with the Liberty Police Department, testified that he and his partner, Officer Elizabeth Polasek, responded to a call on November 13,2011, to assist at the scene of a traffic stop. McDuffie had over twenty years in law enforcement at the time of trial. McDuffie testified that when they arrived McCormick was in handcuffs standing on the side of the road over by the Game Warden's truck. McDuffie got out of his vehicle and walked over to speak with Diaz. According to McDuffi e, Diaz indicated that McCormick was speeding and Diaz stated he had observed McCorrnick driving by Diaz's residence at "maybe about 30 miles per hour." Diaz also said "possibly" McCormick did not have his headlights on. At that time, the subject of evading arrest never came up. Officer McDuffie testified that the City of Liberty requires a radar to determine speed, and he would never recommend that an officer try to enforce a traffic law for speeding without getting a radar and special training to enforce speeding laws.2 At one point 'McDrffie explained that the Liberty Police use radar to document the speed of a vehicle, but indicated that you can also use "[r]adar pacing and ciocking[.]" According to McDuffie, radar pacing is where the officer follows behind someone 7 at the scene, Diaz admitted to McDuffie that he had no reason to give Mr. McCormick a ticket. At trial, McDuffie acknowledged on direct examination that it was "fair to say that [Diaz] had no reason to give [McCormick] aticket[']" The video captured by the Liberty Police Deparlment dash camera was also introduced into evidence at trial and played for the jury without any objection from Diaz. The video (with audio) depicts the arrival of the Liberty police officers to the scene, and the conversations of Diaz with the officers about the situation. On the video, Diaz can be heard making the following statement, "No, I don't have a reason to give him a ticket . . . I really wasn't going to give him a ticket." Diaz can also be heard telling the Liberty officers that "McCormick got out of . . . an assault on me . . ,," and "he calls 9-1-1." The State introduced the audio recording and a transcript of the 911 call made by McCormick, and there were also records of two calls made by Diaz on the non-emergency line. Dispatcher Mary Jackson testified that McCormick's 911 call came in at 6'.27 a.m., and it was the first call she received. Later, she also received and determines their speed frorn the speed on the officer's speedometer. And, "clocking" is timing a vehicle from one point to another and then using the exact distance to extrapolate a speed. Officer McDuffie said he "never felt comfoftable" using clocking and that only the State of California uses it. McDuffie testified that, while you can sometimes just "eyeball" a car to determine if it is speeding, it is more difficult and deceptive, especially around a curve. 8 two calls from Diaz on the non-emergency line. The time lapse between the start of McCormick's 9i I call and then the beginning of Diaz's first call was about two minutes. As McCormick hung up with the 91 1 dispatcher, Diaz called the dispatcher in his first call and then followed up with another call several minutes later. Rod Ousley, a Captain with Texas Parks and Witdlife, and Diaz's supervisor at the time of the 2011 incident, testified thatDiaz came to his office the day after Diaz stopped McCormick in November of 201 1. Ousley explained to the jury that Diaz brought in Diaz's handwritten statement about the stop and informed Ousley that Oustey probably needed to notiff internal affairs because he thought the stop could potentially generate a complaint. Diaz explained in his statement that he obserued "a black truck with no lights, headlights or parking lights" that "appear[ed] to be exceeding the posted speed limit" and that he recognized that the truck belonged to McCormick ,who he had "had a run-in with in the past." Ousley testified he notihed Diaz on J anuary 9,2012, that the Internal Affairs investigation resulted in a letter of intent to take corrective action. The next day, Diaz "put in" for retilement, and therefore no corrective action was taken. McCormick spoke with an attorney and decided to file a complaint with Texas Parks and Wildlife against Diaz. Texas Parks and Wildlife investigated the 9 matter and referred it to Internal Affairs who then sent it to the District Attorney' The transcript of Diaz's testimony before the grand jury was admitted into evidence, as well as Diaz's handwritten statement about the incident. According to the transcript of Diaz's grand jury testimony, Diaz testified that before sunrise on November 13,2011, he was leaving in his patrol vehicle and saw a truck "50 feet 100 feet something like that" away with no lights on. He recognized the truck belonged to McCormick as the truck went by, and he pulls behind him and "turns on his red and blue lights cause I'm going to stop him, he had no lights and I allege he's speeding." He saw McCormick apply his brakes but not pull over' Diaz contacted the police department to inform them the vehicle would not pull over, and the dispatcher said McCorrnick was on the 911 line and was repofting that Diaz was harassing him. Diaz asked for assistance. According to Diaz, McCormick pulled over, and when he got out of his truck "he didn't come out very friendly he said I called the real police and you're in trouble[.]" Diaz made McCormick get behind his truck and cuffed him because McCormick was talking "in an elevated voice" and Diaz believed there was going to be "another scuffle" and he "didn't want to take any chances[.]" The grand jury indicted Diaz. Irma Sanchez, custodian of records for Texas Parks and Wildlife, testified that she performed a search for traffic citations and warnings issued by Diaz from 10 2008 thlough 2011. According to Sanchez, her search revealed that during that time period Diaz did not write any warnings or citations for traffic offenses' Dorothy Drennan, Cify of Liberty Municipal Court Clerk, testified that she performed a search of the traffic citation issued by Diaz going back to 1993. According to Drennan, Diaz had only issued one traffic citation since 1993, and that was for cutting through a parking lot at an intersection. Punishment Evidence At the punishment phase, Special Ranger Jimmy Belt with the Texas Department of Public Safety, testified he had several "run-ins" with Diaz dating back to 1986 wherein Diaz tried to intimidate hirn. On at least one occasion, Belt filed a complaint with Texas Parks and Wildlife regarding Diaz. Belt testified that Diaz has a reputation for bullying members of the public and members of law enforcement. John Feist, a former Chambers County Game Warden, also testified at the punishment phase. Feist said he has known Diaz for "[p]robably 25 years" and that Diaz has a reputation for being unprofessional. Similarly, Highway Patrol Sergeant Steve Holloway, formerly a Liberly County DPS officer from 1989 to 1998, stated that he had witnessed Diaz threaten another law enforcement officer. Gary Cain, a retired game warden who had previously worked in Hardin County, acknowledged 1l that he had people complain to him about Diaz "using his badge to bully the public[,]" and that he heard complaints about Diaz from private citizens as well as law enforcement. Captain Ousley, Diaz's forrner supervisor, testified about an incident in 2011 where Diaz violated Texas Parks and wildlife policies when he discharged a weapon "to get [a] guy's attention." ln Captain Ousley's opinion, Diaz engaged in vindictiveness as a game warden. Private citizens also testified about confrontations they had with Diaz. In contrast, Game Warden Vu Nguyen, who has known Diaz for eight years and worked with Diaz on "[m]any occasions[,]" testified that Diaz's behavior was ,,[a]lways professional and courteous." Nine other character witnesses testified that they have known Diaz for a long time and all of them had good experiences dealing with Diaz while he was working in his capacity as a game warden. Diaz's wife testified that they have been married twenty-two years. She testified that Diaz "is a good man" and a Vietnam veteran. Lee al and Factual Insufficiencv Challenee In his first issue, Diaz contends that the evidence is legally and factually insufficient to sustain the jury's verdict. We construe appellant's first point of error as a challenge to the legal sufficiency of the evidence. See Brooks v State,323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (there is no longer any meaningful 12 distinction between a legal and factual sufficiency standard when reviewing sufficiency of evidence to sustain a criminal conviction). We review the sufficiency of the evidence establishing the elements of a criminal offense for which the State has the burden of proof under the single sufficiency standard set out in Jackson v. Virginia,443 U.S. 307,319 (1979)' Brooks,323 S.W.3d at 912. Under that standard, we view all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson,443 U.S. at319; Brool