PD-0705-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 8/14/2015 8:49:30 PM
Accepted 8/17/2015 2:34:18 PM
ABEL ACOSTA
No. PD-0705-15 CLERK
__________________________________________
IN THE TEXAS COURT OF CRIMINAL APPEALS
_______________________________________
SAMMY VIDALES
Appellant,
v.
THE STATE OF TEXAS
Appellee.
_______________________________________
On Review from the Seventh Court of Appeals at Amarillo, Texas
_______________________________________________________
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
_______________________________________________________
Frank Sellers
Texas Bar No. 24080305
HURLEY, GUINN & SELLERS
1805 13th Street
Lubbock, Texas 79401
August 17, 2015 P: 806.771.0700
F: 806.763.8199
frank@hurleyguinn.com
Attorney for Appellant
ORAL ARGUMENT REQUESTED
I DENTITY OF J UDGE , P ARTIES , AND C OUNSEL
Trial Court Judge
Honorable John McClendon
137th District Court
Defendant/Appellant Trial and Appellate Counsel
Sammy Vidales Frank Sellers
HURLEY, GUINN & SELLERS
1805 13th Street
Lubbock, Texas 79401
P: (806) 771-0700
F: (806) 763-8199
E: frank@hurleyguinn.com
The State of Texas Appellate Counsel
Jeff Ford
LUBBOCK COUNTY DISTRICT ATTORNEY’S OFFICE
P.O. Box 10536
Lubbock, Texas 79408-3536
Trial Counsel
Robert Withers and Clay Kimbrough
LUBBOCK COUNTY DISTRICT ATTORNEY’S OFFICE
P.O. Box 10536
Lubbock, Texas 79408-3536
i
T ABLE OF C ONTENTS
Identity of Judge, Parties, and Counsel .....................................................................i
Table of Contents .....................................................................................................ii
Index of Authorities ................................................................................................ iv
Statement Regarding Oral Argument ....................................................................... 1
Statement of the Case ..............................................................................................2
Statement of Procedural History .............................................................................. 3
Grounds for Review .................................................................................................4
Statement of Facts.................................................................................................... 5
Argument & Reasons for Review ............................................................................. 9
I. The court of appeals rendered the rules meaningless when it abandoned its
judicial role and assumed the role of an advocate to raise and decide an issue not
briefed, argued, or addressed by either party at any time. .................................... 9
A. By advancing an argument on an issue not actually before it, the court of
appeals disregarded decisions of this Court and numerous courts of appeal .... 9
B. Whether a court of appeals may adopt and advance its own legal theory of
the case even though it was not argued to the jury or contemplated at any
point in the trial court is an issue of first impression. ..................................... 13
C. By re-framing the issue and advancing a brand new theory never argued or
adopted by either party at any point, the court of appeals misconstrued the
rules. ............................................................................................................... 14
D. The constitutional implications involved necessitate this Court’s exercise
of its supervisory power.................................................................................. 14
II. The court of appeals erred when it held Vidales’s two encounters with
Officer Anderson could have constituted three possible units of prosecution. .... 17
ii
III. The court of appeals erred when it failed to cite, analyze, or apply
controlling caselaw cited by both the State and Vidales. .................................... 19
IV. The court of appeals erred when, despite trial counsel’s affidavit confessing
ineffective assistance, it claimed the record was insufficiently developed to
decide the issue. ................................................................................................. 21
Prayer for Relief .....................................................................................................24
Certificate of Service .............................................................................................. 25
Certificate of Compliance ...................................................................................... 25
iii
I NDEX OF A UTHORITIES
Cases
Callaway v. State, 743 S.W.2d 645, 651–52 (Tex. Crim. App. 1988). ..................... 10
Commerce Comm'n v. Louisville & Nashville R.R. Co., 227 U.S. 88 (1913). .............. 16
Cosio v. State, 353 S.W.3d 766 (Tex. Crim. App. 2011). ......................................... 21
Ex parte Varelas, 45 S.W.3d 627 (Tex. Crim. App. 2001). ................................ 22, 24
Freeman v. State, 125 S.W.3d 505 (Tex. Crim. App. 2003)..................................... 23
Hammock v. State, 211 S.W.3d 874, 879 (Tex. App.—Texarkana 2006, no pet.). .. 11
Hobbs v. State, 175 S.W.3d 777 (Tex. Crim. App. 2005). ................................... 17, 18
In re Winship, 397 U.S. 358 (1970). ......................................................................... 14
Lopez v. State, 343 S.W.3d 137, (Tex. Crim. App. 2011). ........................................ 23
Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005) .................................... 21
Pena v. State, 191 S.W.3d 133, 136 (Tex. Crim. App. 2006)............................... 11, 12
Robinson v. State, 377 S.W.3d 712 (Tex. Crim. App. 2012). .................................... 16
Rylander v. State, 101 S.W.3d 107 (Tex. Crim. App. 2003). ................................... 23
Salinas v. State, 163 S.W.3d 734 (Tex. Crim. App. 2005).......................................22
Sanchez v. State, 182 S.W.3d 34, 63 (Tex. App.—San Antonio 2005), aff'd, 209
S.W.3d 117 (Tex. Crim. App. 2006) ................................................................... 15
Sedani v. State, 848 S.W.2d 314 (Tex. App.—Houston [1st Dist.] 1993, pet. ref'd).
........................................................................................................................... 11
See State v. Gonzales, 850 S.W.2d 672 (Tex. App.—San Antonio 1993, no pet.). .. 11
Shanklin v. State, 190 S.W.3d 154 (Tex. App.—Houston [1st Dist.] 2005, pet.
granted). ............................................................................................................. 23
Sims v. State, 99 S.W.3d 600 (Tex. Crim. App. 2003). .......................................... 19
Skelton v. State, 655 S.W.2d 302 (Tex. App.—Tyler 1983, pet. ref'd, untimely
filed). .................................................................................................................. 11
State v. Bailey, 201 S.W.3d 739, 744 (Tex. Crim. App. 2006). ......................... 12, 14
State v. Esparza, 413 S.W.3d 81, 89 (Tex. Crim. App. 2013). ................................. 10
iv
State v. Mercado, 972 S.W.2d 75, 77–78 (Tex. Crim. App. 1998) ............................ 10
Steagald v. United States, 451 U.S. 204, 209 (1981). ............................................... 12
Thomason v. State, 892 S.W.2d 8 (Tex. Crim. App. 1994). .....................................20
Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999)............................... 23
Vidales v. State, 07-13-00286-CR, 2015 WL 4116140 (Tex. App.—Amarillo July 7,
2015).................................................................................................. 15, 18, 20, 22
Wilson v. State, 692 S.W.2d 661, 663 (Tex. Crim. App. 1984)................................ 10
Statutes
TEX. CODE CRIM. P. art. 38.23 ................................................................................ 17
Rules
TEX. R. APP. P. 66.3 .....................................................................................14, 21, 24
TEX. R. APP. P. 68.1 .................................................................................................. 1
TEX. R. APP. P. 9.5 .................................................................................................. 25
v
No. PD-0705-15
__________________________________________
IN THE TEXAS COURT OF CRIMINAL APPEALS
_______________________________________
SAMMY VIDALES
Appellant,
v.
THE STATE OF TEXAS
Appellee.
_______________________________________
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW APPELLANT, SAMMY VIDALES, by and through his counsel and
pursuant to TEX. R. APP. P. 68.1, presents this Petition for Discretionary Review,
and would show this Honorable Court the following:
S TATEMENT R EGARDING O RAL A RGUMENT
Oral argument would be of significant assistance to this Court because of the
legal and factual complexities of the case and the grounds presented for review.
1
S TATEMENT OF THE C ASE
Vidales was charged with a single count of evading detention in a vehicle.
The State’s theory of the case was that, even though it presented two instances
where Vidales evaded detention, each separated by five hours, the facts presented
constituted only one evading detention. Vidales’s defensive theory was that his
initial attempted detention was unlawful, making the evidence insufficient for
conviction. Although it rejected the deadly weapon special issue, (CR 79), the jury
convicted Vidales. (CR 77). Finding two enhancements paragraphs true, the jury
imposed punishment at 62 years confinement. (CR 88). The State confessed error
on appeal, explaining that the evidence was insufficient because the initial
attempted detention of Vidales was unlawful.
2
S TATEMENT OF P ROCEDURAL H ISTORY
On May 15, 2015, the Seventh Court of Appeals issued its first opinion
upholding Vidales’s conviction but reversing and remanding for a new punishment
trial. Vidales v. State, ___ S.W.3d ___, No. 07-13-00286-CR 2015 Tex. App.
LEXIS 5033 (Tex. App.—Amarillo 2015, pet. filed). On June 10, 2015, Vidales filed
a pro se motion requesting additional time to file a petition for discretionary review.
This Court granted Vidales’s pro se motion. On June 12, 2015, the State filed its
own petition for discretionary review contesting whether a new punishment trial
was appropriate. The same day, Vidales, through undersigned counsel, filed a
motion to extend time to file a motion for rehearing in the court of appeals. (App.
2). The court of appeals denied the motion to extend time without explanation. On
July 7, 2015, the court of appeals withdrew its original opinion and issued a
substitute opinion. Vidales v. State, __ S.W.3d __, No. 07-13-00286-CR, 2015 Tex.
App. LEXIS 5033 (Tex. App.—Amarillo 2015) (substitute) (App.2).1 Pursuant to
this Court’s order granting Vidales’s pro se motion to extend time, this petition for
discretionary review is timely if filed on August 14, 2015.
1
Hereinafter “Slip op.”
2
See Slip Op. at 2, n.2 (“On June 15, 2015, Appellant did file a motion for rehearing; however,
that motion was not timely filed.”).
3
G ROUNDS FOR R EVIEW
1. In a single prosecution for evading detention in a vehicle, where the State
concedes that the evidence is insufficient to support that an initial attempted
detention was lawful, can a court of appeals sidestep the State’s confession of error
to uphold the conviction by, instead, raising and deciding a separate point of error
not briefed, argued, or addressed by either party, including at trial and on appeal?
2. When a citizen flees from the same officer, two distinct times, from two
distinct places, with the encounters separated by five hours in which the officer is
no longer attempting to arrest or detain the citizen, does this support one, two, or
three units of prosecution for evading?
3. Does it violate Rule 47.1 and run afoul of Sims if a court of appeals
summarily decides points of error without discussing the leading authorities (and in
one point of error the only authority) cited by both parties in their briefs?
4. When trial counsel files an affidavit confessing ineffective assistance,
specifically claiming certain decisions were mistakes (and not strategic), can a court
of appeals claim the record is inadequate on direct appeal and altogether refuse to
discuss or decide an ineffective assistance claim?
5. Appellants typically have up to 30 days after an opinion to file a motion to
extend time to request rehearing in the court of appeals. Here, the court of appeals
issued its original opinion on May 15, 2015. On June 12 — 28 days later — Vidales
filed a proper motion to extend time requesting until June 15, 2015 to file his
request for rehearing, which he ultimately filed on that date. If it denies the motion
to extend time and claims the motion for rehearing is untimely, does a court of
appeals violate Rules 4.1, 10.5, and 49.8, as well as deprive appellants of the right to
rehearing and en banc consideration?2 [unbriefed]
2
See Slip Op. at 2, n.2 (“On June 15, 2015, Appellant did file a motion for rehearing; however,
that motion was not timely filed.”).
4
S TATEMENT OF F ACTS
Shortly after midnight on October 7, 2012, Officer Justin Anderson of the
Lubbock Police Department was dispatched in response to a domestic disturbance
call at an apartment complex. (4 RR 26). The caller described the suspect as,
“Black male, unknown clothing description.” (4 RR 27). When Anderson arrived
eleven minutes later, he learned the suspect had already left. (4 RR 37).
While walking back to his vehicle, Anderson noticed an SUV driving through
the apartment parking lot without headlights on. (4 RR 39). Anderson shined his
flashlight at the driver and ordered him to stop. The driver, Vidales, was obviously
a Hispanic male. Even though Anderson knew Vidales was not the suspect he was
searching for, Anderson demanded the keys to Vidales’s vehicle. (4 RR 43; 91; 94).
Vidales refused and drove away. Instead of chasing Vidales or calling for other
officers, Anderson went on tending to other calls and other unrelated matters. (4
RR 48).
About five hours later, while on normal patrol, Anderson noticed Vidales’s
SUV, so he stopped the vehicle. The SUV pulled in and stopped in a motel parking
lot. (4 RR 49). Anderson ordered the driver out at gunpoint. After some difficulty
handcuffing him, Vidales ran back to his vehicle, backed out, and sped away. A
chase, both in the vehicle and on foot, followed. Importantly, the only reason for
5
this second stop was “the suspicion of being the vehicle involved in evading five
hours earlier.” (4 RR 113).
The trial court instructed the jury on one count of evading detention in a
vehicle. While deliberating, the jury asked multiple questions indicating it was
unsure about the court’s charge and what it was to consider for conviction. (CR
Supp. 7 [asking which of the two encounters it was to consider for conviction]).
The jury ultimately convicted Vidales of the single charged evading detention it
was asked to consider.
Following his conviction, Vidales filed a motion for new trial. Attached to
the motion was an affidavit from trial counsel. In it, trial counsel argued that he
considered the facts, if sufficient, to constitute one continuous evading detention.
Similarly, the State re-affirmed its position in a response to Vidales’s motion for
new trial. (CR 140 [arguing facts demonstrated “one continuous episode of
Evading Detention in a Vehicle”]). In fact, the first chair prosecutor argued
strenuously at the hearing on Vidales’s motion, focusing exclusively on the first
detention at the apartment complex. (RR Supp. 13-18). The trial court denied the
motion.
The parties’ arguments in the court of appeals are important. Vidales
argued, inter alia, that the evidence presented constituted two evading detentions
6
and that because the initial attempted detention at the apartment complex was
unlawful, the evidence was insufficient, and judgment of acquittal should be
entered. The State confessed error, conceding that the evidence was insufficient to
support that Anderson was lawfully attempting to detain Vidales at the apartment
complex. Consistent with its position in the trial court, the State repeatedly
maintained in its appellate brief that the facts presented to the jury constituted one
continuous attempted detention.
The court of appeals, after reviewing the record but before deciding the case,
ordered additional briefing on an unassigned, potentially meritorious punishment
issue. Vidales v. State, 07-13-00286-CR, 2014 WL 5462476, at *1. (Tex. App.—
Amarillo Oct. 28, 2014), appeal decided, 07-13-00286-CR, 2015 WL 4116140 (Tex.
App.—Amarillo July 7, 2015). It never asked for supplemental briefing on the
propriety Vidales’s second detention at the motel parking lot. See id.
After both parties submitted additional briefing, the court of appeals, in
relevant part, held that it agreed with the parties that Anderson’s initial attempted
detention at the apartment complex was unlawful. The court of appeals continued,
however, and held that because Vidales did not challenge the lawfulness of the
subsequent detention at the motel parking lot, he had waived the issue. The court
of appeals then sua sponte concluded,
7
[A]t the time of the encounter at the motel parking lot, Officer
Anderson was operating in good faith, under the objective (albeit
incorrect) assumption that Appellant had earlier committed the
offense of evading detention. Because a police officer’s reasonable
mistake about past facts may justify his conclusion that there is
reasonable suspicion for purposes of an investigatory detention,
Robinson v. State, 377 S.W.3d 712, 720 (Tex. Crim. App. 2012), we
conclude Officer Anderson’s subsequent attempted detention at the
motel parking lot was supported by reasonable suspicion. Slip op., at 8.
Prior to the court of appeal’s opinion, neither party ever even
mentioned “good faith” or “reasonable mistake of fact.” More importantly,
because lawfulness of the attempted detention was an element of the offense,
only the jury was permitted to decide these issues. Yet, the jury was never
instructed about nor or asked to consider these concepts either.
8
A RGUMENT & R EASONS FOR R EVIEW
I. The court of appeals rendered the rules meaningless when it abandoned
its judicial role and assumed the role of an advocate to raise and decide
an issue not briefed, argued, or addressed by either party at any time.
Our adversarial system of justice, fundamental guarantees of due process,
and the rules of procedure are based on the principle that the courts of appeal
cannot create issues and arguments for a litigant. The court of appeals had no
authority or discretion to re-frame an issue, assert appellate waiver, and advance an
argument based on a legal theory that was never explained to the jury, argued to the
jury, or argued to the court of appeals, much less briefed — even after it ordered
re-briefing on another un-raised issue. If due process and the rules of procedure
mean anything, the court of appeals’ decision cannot stand.
A. By advancing an argument on an issue not actually before it, the court of
appeals disregarded decisions of this Court and numerous courts of
appeal
Importantly, the State strenuously argued at trial and at the motion for new
trial stage (CR 14) that the facts proven at trial constituted one continuous evading
arrest. The State maintained this argument on appeal. In fact, at least 10 different
times the State argued in its brief that the events in evidence constituted only one
evading detention. (State’s Brief at 7, 29, 35, 40, 43, 44, 45, 49). By asserting
waiver and arguing an issue affirmatively disavowed by the State (that the evidence
9
could have supported more than one evading), the court of appeals abandoned its
judicial role.
In limited circumstances, “ordinary notions of procedural default” allow
courts of appeal to uphold a trial judge’s rulings on a basis not argued at a hearing.
State v. Mercado, 972 S.W.2d 75, 77–78 (Tex.Crim.App. 1998) (“ordinary notions
of procedural default” do not require a prevailing party to list or verbalize “in the
trial court every possible basis for upholding” its decision). This is commonly
referred to as the Calloway rule, and most often is used to uphold pretrial rulings.
See generally id. (surveying cases dealing procedural default). But even in the
procedural default context, this Court has cautioned against allowing parties to
engage in “sandbagging.” See Wilson v. State, 692 S.W.2d 661, 663 (Tex.Crim.
App. 1984) (describing sandbagging as when the State takes a position on appeal
inconsistent with its position in the trial court). Thus, courts have refused to
employ the Calloway rule if it “would work a manifest injustice to the appellant.”
State v. Esparza, 413 S.W.3d 81, 89 (Tex. Crim. App. 2013).
Worse, here it was the court of appeals, not the State, advancing a theory
inconsistent with the State’s position in the trial court and on appeal. The State
would have been foreclosed from advancing this position by this Court’s ruling in
Callaway v. State. 743 S.W.2d 645, 651–52 (Tex. Crim. App. 1988), and its progeny
10
from at least two courts of appeals. See State v. Gonzales, 850 S.W.2d 672 (Tex.
App.—San Antonio 1993, no pet.) (refusing defendant's request to apply the
Calloway rule to affirm an order suppressing evidence based on new grounds not
raised in the trial court); Sedani v. State, 848 S.W.2d 314 (Tex. App.—Houston
[1st Dist.] 1993, pet. ref'd) (opinion on reh'g) (holding an illegal arrest for failure to
appear when the appellant tore up traffic citations could not be justified by the
State's argument, made for the first time on appeal, that he could have been arrested
for littering). Likewise, it was improper for the court of appeals to advance an
argument on behalf of the State, which the State itself was precluded from making.
Similarly, only in rare circumstances may a court of appeals sua sponte decide
“unassigned error.” Unassigned error refers to “a claim that was preserved in the
trial below but was not raised on appeal.” See Pena v. State, 191 S.W.3d 133, 136
(Tex. Crim. App. 2006). Typically when a court reviews unassigned error it works
to protect the rights of the accused. See, e.g., Hammock v. State, 211 S.W.3d 874,
879 (Tex. App.—Texarkana 2006, no pet.) (reversing defendant’s conviction
because “the court's charge authorized the jury to convict him for conduct not
defined as a criminal offense.”); Skelton v. State, 655 S.W.2d 302, 304 (Tex.
App.—Tyler 1983, pet. ref'd, untimely filed) (“Where a defendant has been
deprived of due process under the state and federal constitutions, indeed it is our
11
constitutional duty to take appropriate decisional action to enforce such
constitutional protections.”). The opposite occurred here.
Moreover, by Pena’s very definition the unassigned error concept
contemplates that the issue was at least presented in the trial court. Not only did
the State not present this theory, it repeatedly, consistently argued the opposite.
By affirmatively arguing in the trial court and on appeal that the actions constituted
one continuous evading detention, the court of appeals’ decision conflicts with
Pena. The United States Supreme Court has recognized the extreme disadvantage
caused when the appellee benefits from “contrary assertions in the courts below.”
Steagald v. United States, 451 U.S. 204, 209 (1981).
Moreover, this Court has drastically limited the discretion of courts of
appeals to employ the unassigned error doctrine, prohibiting its use when it
requires a court to “re-frame” an issue. State v. Bailey, 201 S.W.3d 739, 744
(Tex.Crim.App.2006). In Bailey, the court of appeals’ revision of appellant’s point
of error caused the court to, instead, decide “an issue that was neither ruled upon
by the trial court, nor raised on appeal.” Id. This Court explained that the court of
appeals “should have answered the question posed by Appellant on appeal,”
reasoning that the question actually answered by the court of appeals “was not
before it.” Id. at 743. The same is true here.
12
The court of appeals’ decision to address an issue that was not raised on
appeal, and also invoke a legal concept (reasonable good faith mistake of fact) the
jury had never heard of, all of which the State affirmatively disavowed in the trial
court and in the State’s brief is in conflict with this Court’s decisions involving
ordinary notions of procedural default and the unassigned error doctrine. The State
would have been prohibited from advancing this contrary position on appeal. This
Court should grant review to clarify whether a court of appeals can abandon its
judicial role to advance an argument a litigant itself would be prohibited from
making.
B. Whether a court of appeals may adopt and advance its own legal theory
of the case even though it was not argued to the jury or contemplated at
any point in the trial court is an issue of first impression.
The action of the court of appeals was unprecedented. It re-framed an issue
and claimed Vidales waived the re-framed issue, precluding Vidales from arguing
the issue on appeal, even though the court of appeals ordered re-briefing on an
unrelated unassigned error. The court of appeals then advanced an argument on
behalf of the State, even though the State never made the argument at trial or on
appeal. The court of appeals then decided what the jury would have done if the
argument had been raised and explained. This Court should grant review to clarify
the fundamental, undecided question of whether a court of appeals may take
13
advantage of the appellate rules to violate fundamental notions of fairness, as well
as due process at trial and on appeal.
C. By re-framing the issue and advancing a brand new theory never argued
or adopted by either party at any point, the court of appeals
misconstrued the rules.
There are two rules at play here. Rule of Appellate Procedure 38.1 requires
appellants to “state concisely all issues or points presented for review.” Rule 38.9
allows courts of appeal that believe a case has not been adequately researched and
presented to “postpone submission, require additional briefing, and make any
other order necessary for a satisfactory submission of the case.” Although these
rules give “some discretion,” they do not permit courts of appeal to “reach out”
and rule “on an issue that was not raised.” Bailey, 201 S.W.3d at 744. Because that
is exactly what the court of appeals did, thereby substituting its own judgment for
the jury’s on an issue advanced only by the court of appeals after submission,
review is warranted pursuant to Rule 66.3(c).
D. The constitutional implications involved necessitate this Court’s
exercise of its supervisory power.
It is axiomatic that “the Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364
(1970) (emphasis added). This entitled Vidales to a unanimous jury verdict on the
14
lawfulness element of a single detention submitted to the jury. Indeed, a unanimous
jury verdict “ensures that the jury agrees on the factual elements underlying an
offense which requires more than a mere agreement on a violation of a statute.”
Sanchez v. State, 182 S.W.3d 34, 63 (Tex.App.—San Antonio 2005), aff'd, 209
S.W.3d 117 (Tex. Crim. App. 2006) (internal citations and quotations omitted). By
upholding the conviction based on Anderson’s “subsequent detention at the motel
parking lot,” the court appeals upheld a conviction based on a mere agreement on a
violation of a statute — one never explained or argued to the jury at trial. Slip op., at
8.
Worse, the argument advanced by the court of appeals, for the first time
after submission, misstated and misapplied the law. Citing Robinson, the court of
appeals opined that Anderson’s “assumption” that Vidales had earlier committed
the offense of evading constituted a “reasonable mistake about past facts,” which
justified his subsequent detention at the motel parking lot. But Anderson was not
mistaken about any facts; he was mistaken about the law.
As the State conceded and the court of appeals agreed, Officer
Anderson knew Vidales was not the black male that he was looking for. Vidales v.
State, 07-13-00286-CR, 2015 WL 4116140 at *7 (Tex.App.—Amarillo July 7, 2015)
(emphasis in original) (“[W]e agree with both Appellant and the State that the
15
attempted initial detention was not supported by adequate reasonable suspicion to
warrant a lawful detention.”). The court of appeals, misapplying this Court’s
decision in Robinson v. State, confused Anderson's mistake about whether Vidales
had illegally evaded detention (a mistake of law) at the apartment complex as a
mistake of fact. 377 S.W.3d 712 (Tex. Crim. App. 2012) (deciding a “dispute about
the legal significance” of historical facts).3 Had Anderson been incorrect about a
fact — like whether Vidales was a black male, whether Vidales was driving an SUV
or a sedan, or whether the reporting party called from a cell phone or a landline —
that could be a mistake about a historical fact. Anderson's “assumption” that
Vidales's conduct at the apartment complex, five hours earlier, allowed him to
legally stop Vidales again at the motel parking lot was a mistake about the
law. Commerce Comm'n v. Louisville & Nashville R.R. Co., 227 U.S. 88, 91 (1913)
("[T]he legal effect of evidence is a question of law.").
Further, Officer Anderson was not permitted to make such a mistake. Texas
law does not permit an officer to make a mistake of law, even if reasonable, without
probable cause. Even in good faith, Article 38.23 prohibits using evidence obtained
in violation of the constitution (e.g., unconstitutional searches and seizures). And
3
The holding in Robinson is wholly inapplicable here because in an evading arrest case, the
one and only arbiter of the facts and related legal conclusion on the lawfulness element of a
detention is the jury. Woods v. State, 153 S.W.3d 413, 415, n.2 (Tex. Crim. App. 2005).
16
our State’s statutory good-faith excuse only applies when there is “a warrant issued
by a neutral magistrate based on probable cause.” TEX. CODE CRIM. P. art.
38.23(b). No warrant existed here. Good faith was not permitted.
Finally, the court of appeals violated basic notions of fairness when it, “[i]n
the interest of justice, and out of an abundance of fairness to all parties,” ordered
re-briefing on an unassigned punishment issue not related to any issue raised at trial
or on appeal. Vidales v. State, 07-13-00286-CR, 2014 WL 5462476, at *1. (Tex.
App.—Amarillo Oct. 28, 2014), appeal decided, 07-13-00286-CR, 2015 WL 4116140
(Tex. App.—Amarillo July 7, 2015). At that point, by its own admission, the court
of appeals had reviewed the record. Instead of allowing Vidales to brief a dispositive
innocence issue it would later deem “waived,” the court of appeals ordered
briefing on a punishment issue when no punishment issue was ever addressed by
the parties. This Court, in the interest of justice, must correct this error to maintain
the integrity of the appellate process in this state.
II. The court of appeals erred when it held Vidales’s two encounters with
Officer Anderson could have constituted three possible units of
prosecution.
Under the Court’s current framework, determining the legally supported
units of prosecution in this case has been difficult. Hobbs v. State, 175 S.W.3d 777,
780 (Tex. Crim. App. 2005) (holding evading was one continuous offense when
17
“pursuit was temporarily suspended” due to officers and search dog being tired
and “resumed several hours later when it was feasible for the officers to effectively
search for the appellant.”).
Trial counsel argued the facts supported only one unit of prosecution in the
trial court. (CR 124-26). The prosecution argued it was one in the trial court. Citing
Hobbs, Vidales argued it was two in his motion for new trial and on appeal. Citing
Hobbs, the State maintained it was one unit of prosecution on appeal. During its
deliberations, the jury even questioned whether the evidence supported one or two
evading detentions:
Is “the offense” isolated to the initial detention or does it include the
subsequent attempted detention/arrest at the Executive Inn? (CR
Supp. 9).
The court of appeals, however, held that this could form the basis for three
possible “prosecution events:” “(1) the encounter at the apartment complex, (2)
the encounter at the motel, or (3) the encounter at the motel as a continuation of
the offense at the apartment complex.” Slip op., at 11. By the State’s own
concession, if the court of appeals or the jury considered the evidence as described
in the first or third scenarios, the evidence was insufficient because the stop was
unlawful (State’s Brief at 41), and Vidales suffered jury charge error. (State’s Brief
at 49 [recognizing Vidales’s right to jury unanimity but arguing “only one offense
18
of evading arrest or detention presented at trial,” supporting only one “unit of
prosecution”]).
Vidales agrees with the State’s assessment regarding clarity in this area of
the law: “[T]here are no clear rules for when evading is a continuing offense and
when it is not.” (State’s Brief at 43). Thus, the law is “unsettled” on this issue.
(Id.). And the court of appeals’ decision only complicates things. This case
provides the perfect vehicle by which this Court can provide much needed clarity
for whether an evading detention offense can continue into perpetuity.
III. The court of appeals erred when it failed to cite, analyze, or apply
controlling caselaw cited by both the State and Vidales.
In addition to sufficiency, Vidales raised issues related to ineffective
assistance of counsel, see Part IV infra, and jury charge error. On both of these
issues, the court of appeals did no more than cite the law and jump straight to its
conclusion.
To maintain the integrity of the appellate process, TEX. R. APP. P. 47.14
requires the courts of appeals to analyze the facts in light of the controlling law.
Sims v. State, 99 S.W.3d 600, 603-04 (Tex. Crim. App. 2003) (“Rule 47.1 suggests
that the courts of appeals should ‘show their work,’ much as we had to when
4
The court of appeals must hand down a written opinion… that addresses every issue raised
and necessary to disposition of the appeal.”
19
learning long division in elementary school. . . .”). This required the court of
appeals to rely on and analyze the correct legal authority when reaching its decision.
See Thomason v. State, 892 S.W.2d 8, 10 n. 4 (Tex. Crim. App. 1994). Despite the
clear direction of this Court and Rule 47.1, the court of appeals relied on
inapplicable authority, not cited by either party, to abruptly conclude Vidales was
not deprived of his constitutional right to a unanimous jury verdict. Slip op., at 13.
The court of appeals disposed of Vidales’s jury charge error in a total of nine
sentences. The first three sentences describe the parties’ arguments. The fourth
sentence provides the court of appeals’ conclusion. The next two sentences cited
cases that were not argued by either party. The seventh sentence described the
indictment. The only sentence that could conceivably qualify as analysis is the eight
sentence: “Even though the jury could have concluded Appellant committed that
offense in more than one manner, the gravamen of the offense has always been an
evading detention offense alleged to have been committed on October 7, 2012.”
Slip op., at 6. The final sentence overruled the issue.
Not only is the court of appeals’ unprecedented holding regarding manner
and means at odds with its earlier ruling that this case presented “three possible
prosecution events,” Slip op. at 11 (emphasis added), it conflicts with the only case
cited by both Vidales and the State in their briefs. (Appellant’s Opening Brief, at
20
64-67 [extensively citing and quoting Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim.
App. 2005)]; State’s Brief, at 48-49 [same]). In addition to Ngo, the State cited
Cosio v. State for its holding that when dealing with separate units of prosecution,
“[t]he judge's charge, to ensure unanimity, would need to instruct the jury that its
verdict must be unanimous as to a single offense or unit of prosecution among
those presented.” 353 S.W.3d 766, 772 (Tex. Crim. App. 2011). A proper analysis
of this issue reveals, by the court of appeals’ own logic, that Vidales was subject to
a non-unanimous verdict in violation of Ngo and Cosio.
Because the court of appeals did not cite, discuss, or distinguish Ngo or
Cosio, opting instead to reach a conclusion that was incorrect based on its own
earlier ruling, the court of appeals has decided a case of constitutional magnitude in
a way that conflicts with Rule 47.1, this Court’s precedent, and so far departed
from the usual course of judicial proceedings, necessitating review under Rules
66.3(c), 66.3(d), and 66.3(f).
IV. The court of appeals erred when, despite trial counsel’s affidavit
confessing ineffective assistance, it claimed the record was insufficiently
developed to decide the issue.
This Court has never explicitly held that an affidavit from trial counsel is
sufficient to overcome the “strong presumption that counsel's conduct fell within a
wide range of reasonable representation.” Salinas v. State, 163 S.W.3d 734, 740
21
(Tex.Crim.App.2005) (internal citation omitted). The Court has, however,
impliedly done so by finding ineffective assistance based on an affidavit from trial
counsel. Ex parte Varelas, 45 S.W.3d 627, 632 (Tex.Crim.App.2001) (finding
ineffective assistance of counsel based on trial counsel’s affidavit claiming his
failure to request burden of proof and limiting instructions on extraneous offense
evidence was an oversight). This case provides an opportunity for this Court to
squarely address the issue of whether an affidavit from trial counsel can overcome
the reasonable representation presumption.
Here, attached to Vidales’s motion for new trial, was an affidavit from trial
counsel confessing ineffective assistance for not seeking proper jury instructions on
reasonable suspicion. Trial counsel also explained how: because he believed this
was “one continuous Evading Arrest,” he did not move to quash the indictment,
ask for an election between the two offenses, object to extraneous offense evidence,
or request additional jury instructions. (CR 124-126).
Instead of addressing all of the allegations of ineffective assistance, the court
of appeals avoided the issue, claiming “the record [was] insufficiently developed,”
suggesting that a writ of habeas corpus was more appropriate so that the record
could be further developed. Slip op., at 12.
22
Interestingly, the court of appeals cited five cases for this proposition, but
none of them involved a scenario where direct evidence existed in the record
providing insight into trial counsel’s choices. See Freeman v. State, 125 S.W.3d 505,
511 (Tex. Crim. App. 2003) (finding ineffective assistance without any explanation
from trial counsel); Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003)
(“[T]he record is silent as to why appellant's trial counsel took or failed to take the
actions which undermined the court of appeals' confidence in the convictions.”);
Lopez v. State, 343 S.W.3d 137, 143-44 (Tex. Crim. App. 2011) (“The record is
silent as to why trial counsel failed to object to the outcry-witness testimony.”);
Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999) (“The record in the
case at bar is silent as to why appellant's trial counsel failed to object to the State's
persistent attempts to elicit inadmissible hearsay.”). The record here was not
silent.
Even though this Court has never explicitly held an affidavit can overcome
the strong presumption relating to trial counsel’s conduct, at least one other court
of appeals has. Shanklin v. State, 190 S.W.3d 154, 160 (Tex. App.—Houston [1st
Dist.] 2005, pet. granted) (“[A]n affidavit from defense counsel defeats the
presumption that defense counsel was employing a reasonable trial strategy.”).
This case provides the perfect opportunity for this Court to correct the conflict
23
amongst the courts of appeals, correct the implied conflict with this Court’s
Varelas decision, and address an issue that has not been, but should be, settled by
this Court. TEX.R.APP.P. 66.3(a); 66.3(b); 66.3(c). Review should be granted.
P RAYER FOR R ELIEF
Vidales respectfully prays that this Court grant discretionary review, and
after full briefing set this this case for oral argument, and that the decision of the
Amarillo Court of Appeals affirming his conviction be reversed and judgment of
acquittal entered. Alternatively, Vidales prays this Court reverse and remand this
case to the Court of Appeals for further proceedings.
Respectfully submitted,
_________________________
Frank Sellers
Texas Bar No. 24080305
HURLEY, GUINN & SELLERS
1805 13th Street
Lubbock, Texas 79401
P: 806.771.0700
F: 806.763.8199
E: frank@hurleyguinn.com
Attorneys for Appellant
24
C ERTIFICATE OF S ERVICE
Pursuant to TEX. R. APP. P. 9.5(d), I certify that on August 14, 2015, the
foregoing was served on opposing counsel via email to the following:
Lisa C. McMinn
Stacey M. Goldstein
State Prosecuting Attorney’s Office
Information@spa.texas.gov
Jeff Ford
Lubbock County District Attorney’s Office
jford@lubbockcda.com
_________________________
Frank Sellers
C ERTIFICATE OF C OMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that this
brief contains 4,496 words (excluding the caption, identification of the parties and
counsel, statement regarding oral argument, table of contents, index of authorities,
statement of the case, statement of issues presented, statement of procedural
history, signature, certificate of service, certificate of compliance, and appendix).
This is a computer-generated document created in Microsoft Word, using 14-point
typeface for all text, except for footnotes which are in 12-point typeface. In making
this certificate of compliance, I am relying on the word count provided by the
software used to prepare the document.
_________________________
Frank Sellers
25
TAB 1
Substitute Opinion of Court of Appeals
In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-13-00286-CR
________________________
SAMMY VIDALES, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 137th District Court
Lubbock County, Texas
Trial Court No. 2012436579; Honorable John J. McClendon III, Presiding
July 7, 2015
OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
By opinion and judgment dated May 15, 2015, this court affirmed the conviction
of Sammy Vidales, Appellant herein, for evading arrest but reversed and remanded the
cause for a new punishment hearing. Vidales v. State, No. 07-13-00286-CR 2015 Tex.
App. LEXIS 5033 (Tex. App.—Amarillo May 15, 2015, pet. filed by State June 12,
2015). After due consideration, and within this court‟s plenary power over the judgment
issued, the court withdraws its opinion and judgment of May 15, 2015, and substitutes
the following opinion and judgment. TEX. R. APP. P. 19.1(a).1 Univ. of Tex. Health Sci.
Ctr. At Houston v. Gutierrez, 237 S.W.3d 869, 870 (Tex. App.—Houston [1st Dist.]
2007, pet. denied).
Appellant was convicted by a jury of evading arrest or detention with a vehicle,
an offense alleged to have been committed on the 7th day of October 2012.2 Finding
two enhancement paragraphs to be true, the jury sentenced him to sixty-two years
confinement. By three issues raised through his original briefing, Appellant contends (1)
his initial detention was not lawful because there were no specific and articulable facts
supporting reasonable suspicion to detain him, (2) his trial counsel was ineffective, and
(3) error in the jury charge failed to instruct the jury on unanimity of the verdict regarding
what he perceived to be two separate evading arrest offenses on the same date. After
original submission on the briefs, the parties were ordered to brief a previously
unassigned, potentially meritorious issue concerning the legality of the sentence
imposed.3 By a supplemental brief, Appellant added a fourth issue contending he was
egregiously harmed when the trial court authorized the jury to assess a sentence within
the statutory punishment range provided by section 12.42(d) of the Texas Penal Code
1
This court‟s plenary power expires sixty days after judgment if no timely filed motion for
rehearing is pending. On June 15, 2015, Appellant did file a motion for rehearing; however, that motion
was not timely filed. Although the State filed a Petition for Discretionary Review, it did not file a motion for
rehearing; therefore, no timely filed motion for rehearing is currently pending.
2
TEX. PENAL CODE ANN. § 38.04(a) (West Supp. 2014). Although formerly a state jail felony,
effective September 1, 2011, evading arrest through the use of a motor vehicle is a third degree felony.
3
Vidales v. State, No. 07-13-00286-CR, 2014 Tex. App. LEXIS 12255 (Tex. App.—Amarillo Oct.
28, 2014, no pet.).
2
without requiring the jury to first find an element essential to the enhanced punishment
range, to-wit: the sequential finality of his prior convictions.4
The State responded to Appellant‟s first issue with a lengthy discussion
concerning reasonable suspicion to lawfully detain Appellant and then concluded “it
would appear that the attempted lawful detention element of evading arrest or detention
was not met here.” Without stating what the proper disposition should be when the
State fails to prove an essential element of the offense charged, the State requests this
court to “review [the issue] under the proper standard of review, and render an
appropriate judgment and decision.” The State then responds to issues two and three
with a conclusion they should be overruled. Finally, by its supplemental brief, the State
responds to the fourth issue by conceding Appellant was egregiously harmed by the
omission of an essential instruction in the punishment charge. As to this error, the State
contends we should reverse the sentence and remand the case for a new trial on
punishment. We affirm in part and reverse and remand in part.
BACKGROUND
Shortly after midnight on October 7, 2012, Officer Justin Anderson of the
Lubbock Police Department was dispatched to an apartment complex on a domestic
disturbance call. The caller described the suspect as a black male. When Officer
4
See TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2014) (providing that a third degree felony is
punishable by imprisonment for life, or any term of not more than 99 years or less than 25 years if it is
shown that the defendant has previously been convicted of two felony offenses, and the second previous
felony conviction is for an offense that occurred subsequent to the first previous felony having become
final).
3
Anderson and his partner arrived at the complex, they exited their vehicle and
proceeded to the apartment of the reporting party. The suspect had already left.
While walking back to his patrol car, Officer Anderson observed an SUV driving
in the parking lot without the headlights turned on. He ran toward the SUV and shined
his flashlight inside and yelled for the driver to stop. The driver, a Hispanic male later
identified as Appellant, complied. Officer Anderson admitted that, even though he
realized the driver was not the suspect they were looking for, he asked Appellant for the
keys to his SUV. Appellant inquired “why” and the officer responded “because I asked
you to.” Instead of complying, Appellant drove away and exited the complex. The
officers were not near their patrol car and did not pursue Appellant. At that time, Officer
Anderson did not report to dispatch that there was an “evading detention” in progress.
Approximately five hours later, while Officer Anderson was patrolling his area of
the city, he observed what he believed to be the same SUV previously encountered at
the apartment complex. At that time, he activated his emergency lights and the SUV
pulled over into a motel parking lot. Appellant was the driver of that vehicle. This time
Appellant exited his SUV and walked toward Officer Anderson. For safety reasons,
Officer Anderson drew his weapon and ordered Appellant to his knees in order to
handcuff him.5 Appellant complied. As Officer Anderson was attempting to secure the
handcuffs, they got caught in Appellant‟s jacket and he began moving around as if
attempting to get away. Officer Anderson discarded the handcuffs, subdued Appellant
with his body weight, and called for backup.
5
Officer Anderson testified that Appellant did not have any weapons on his person.
4
Appellant managed to push Officer Anderson off and proceeded to his SUV.
Officer Anderson then attempted to deploy his taser, but not all of the probes made
contact with Appellant and he was not completely disabled. After Appellant entered his
SUV, some of the taser leads broke off. Appellant then reversed his SUV, crashing it
into Officer Anderson‟s patrol car before exiting the motel parking lot. Backup officers
pursued Appellant, and after he wrecked his SUV, he was eventually apprehended
while on foot.
ISSUE ONE—LEGALITY OF DETENTION
The lawfulness of a detention is an essential element of evading arrest or
detention which is reviewed for legal sufficiency. See York v. State, 342 S.W.3d 528,
544 (Tex. Crim. App. 2011); Woods v. State, 153 S.W.3d 413, 415 (Tex. Crim. App.
2005). See also Rodriguez v. State, 578 S.W.2d 419, 420 (Tex. Crim. App. 1979)
(finding evidence insufficient to find a lawful arrest where officer lacked reasonable
suspicion to detain suspect). Here, Appellant alleges the State did not satisfy that
element. We disagree.
STANDARD OF REVIEW
In assessing the sufficiency of the evidence to support a criminal conviction, this
court considers all the evidence in the light most favorable to the verdict and determines
whether, based on that evidence and reasonable inferences to be drawn therefrom, a
rational trier of fact could have found the essential elements of the crime beyond a
5
reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 33 S. Ct. 2781, 61 L. Ed. 2d
560 (1979). See also Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010).
We measure the legal sufficiency of the evidence by the elements of the offense
as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240
(Tex. Crim. App. 1997). In our review, we must evaluate all of the evidence in the
record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v.
State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131, 120 S.
Ct. 2008, 146 L. Ed. 2d 958 (2000). Furthermore, we must give deference to the
responsibility of the trier of fact to fairly resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper
v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
ANALYSIS
A person commits the offense of evading arrest or detention with a vehicle if he
(1) intentionally (2) flees (3) from a person he knows is a peace officer (4) attempting
lawfully to arrest or detain him, and (5) he uses a vehicle while in flight. TEX. PENAL
CODE ANN. §§ 38.04(a), 38.04(b)(2)(A). As to the issue of a lawful arrest or detention,
the Fourth Amendment to the United States Constitution protects citizens from
unreasonable searches and seizures at the hands of government officials. Wiede v.
State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). When a person pulls over in
response to a patrol car‟s emergency lights rather than of his own accord, an
investigatory detention has occurred. Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim.
App. 2010). For police officers to be able to conduct an investigative detention which is
6
lawful under the Fourth Amendment, they must have reasonable suspicion founded on
specific, articulable facts. Delafuente v. State, 414 S.W.3d 173, 177 (Tex. Crim. App.
2013). Reasonable suspicion requires more than just a hunch; it exists only when an
officer has specific, articulable facts that, taken together with reasonable inferences
from those facts, would lead the officer to reasonably conclude the person detained is,
has been, or soon will be engaging in criminal activity. Crain, 315 S.W.3d at 52; Ford v.
State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). This is an objective standard that
disregards any subjective intent of the officer making the stop and looks solely to
whether an objective basis for the stop exists. Id. A reasonable suspicion
determination is an objective one made by considering the totality of the circumstances.
Id. at 492-93.
By his first issue, Appellant contends the evidence is insufficient to support
Officer Anderson‟s initial detention at the apartment complex, as a lawful detention.
Appellant argues Officer Anderson did not have specific, articulable facts to support a
reasonable suspicion to detain him because, at the time of that encounter, he knew
Appellant was not a black male, the subject of his pending investigation. The State has
conceded that, during the encounter at the apartment complex Officer Anderson did not
have reasonable suspicion to believe that a crime had been committed or was in
progress. In that respect, we agree with both Appellant and the State that the
attempted initial detention was not supported by adequate reasonable suspicion to
warrant a lawful detention. That said, Appellant does not challenge the lawfulness of
Officer Anderson‟s subsequent detention at the motel parking lot. Because the failure to
sufficiently advance the analysis of an argument can result in the waiver of that issue,
7
Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000), we find Appellant has
waived that issue.
Notwithstanding the waiver of this issue, it is clear from a review of the entire
record that at the time of the encounter at the motel parking lot, Officer Anderson was
operating in good faith, under the objective (albeit incorrect) assumption that Appellant
had earlier committed the offense of evading detention. Because a police officer‟s
reasonable mistake about past facts may justify his conclusion that there is reasonable
suspicion for purposes of an investigatory detention, Robinson v. State, 377 S.W.3d
712, 720 (Tex. Crim. App. 2012), we conclude Officer Anderson‟s subsequent
attempted detention at the motel parking lot was supported by reasonable suspicion.
Furthermore, even if reasonable suspicion did not exist at the commencement of
the detention at the motel parking lot, during that second encounter, Appellant engaged
in conduct that not only merited an investigatory detention, it justified a warrantless
arrest. While Appellant initially complied with Officer Anderson‟s requests, at some
point he ceased to be cooperative and attempted to flee. Despite Officer Anderson‟s
attempt to physically subdue him through the use of non-deadly force, he continued to
be combative. At some point, Appellant re-entered his SUV, crashed it into Officer
Anderson‟s patrol vehicle, and sped off. Resisting an arrest or detention is unlawful,
even if the officer attempting to effect the arrest lacks reasonable suspicion or probable
cause. TEX. PENAL CODE ANN. § 38.03(b) (West 2011); State v. Mayorga, 901 S.W.2d
943, 945 (Tex. Crim. App. 1995). Giving deference to the responsibility of the jury to
weigh this evidence, we find the evidence was legally sufficient, as to the subsequent
8
attempted detention, to establish Appellant‟s guilt as to the offense of evading arrest or
detention with a vehicle. Accordingly, Appellant‟s first issue is overruled.
ISSUE TWO—INEFFECTIVE ASSISTANCE OF COUNSEL
By his second issue, Appellant contends he was denied effective assistance of
counsel at the guilt-innocence phase of his trial because his counsel failed to (1)
request an explanatory jury instruction concerning reasonable suspicion to stop, (2) file
a pretrial motion to quash the indictment, (3) compel the State to elect the prosecution
event, and (4) make appropriate objections to the evidence. To support those claims,
Appellant filed a motion for new trial wherein he attached an affidavit from his trial
counsel stating that it was his theory that the events in question constituted one
continuous evading arrest. Because Appellant‟s second and third complaints raise an
issue with respect to counsel‟s theory of the case, we will address those complaints
together, before addressing the first and fourth complaints.
STANDARD OF REVIEW
The adequacy of defense counsel‟s assistance is based on the totality of the
representation rather than isolated acts or omissions. Thompson v. State, 9 S.W.3d
808, 814 (Tex. Crim. App. 1999). Although the constitutional right to counsel ensures
the right to reasonably effective counsel, it does not guarantee errorless counsel whose
competency or accuracy of representation is judged by hindsight. Robertson v. State,
187 S.W.3d 475, 483 (Tex. Crim. App. 2006).
9
The effectiveness of counsel‟s representation is measured by the two-pronged
test enunciated in Strickland v. Washington. 466 U.S. 668, 687 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984). See Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986)
(adopting Strickland standard in Texas). The first prong of the Strickland test requires
an appellant prove counsel made such serious errors that he did not function as the
“counsel” guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. Appellant
must show that counsel‟s performance was unreasonable under prevailing professional
norms and that the challenged action was not part of counsel‟s sound trial strategy. Id.
at 689-90. If deficient assistance is established, the second Strickland prong requires
an appellant affirmatively demonstrate prejudice; that is, a reasonable probability that,
but for counsel‟s unprofessional errors, the outcome of the case would have been
different. Thompson, 9 S.W.3d at 812. “Reasonable probability” means probability of a
degree sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694.
Our review of counsel‟s performance is highly deferential and a strong
presumption exists that counsel‟s conduct fell within a wide range of reasonable
professional assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).
See Strickland, 466 U.S. at 689 (noting there are countless ways to provide effective
assistance in any given case). To overcome the presumption of reasonable
professional assistance, any allegation of ineffectiveness must be firmly rooted in the
record. Thompson, 9 S.W.3d at 813-14. The showing of ineffectiveness must warrant
the conclusion of a reviewing court that counsel‟s performance fell below an objective
standard of reasonableness as a matter of law and that no reasonable trial strategy
10
could justify counsel‟s acts or omissions, regardless of his subjective reasoning. Lopez
v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011).
In the majority of cases, the record on direct appeal is simply inadequate to show
that counsel‟s conduct fell below an objectively reasonable standard of performance.
See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003) (stating “[w]e have
previously stated that the record on direct appeal will generally not be sufficient to show
that counsel‟s representation was so deficient as to meet the first part of the Strickland
standard as the reasonableness of counsel‟s choices often involves facts that do not
appear in the appellate record”). “When such direct evidence is not available, we will
assume that counsel had a strategy if any reasonably sound strategic motivation can be
imagined.” Lopez, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011).
Here, based on the allegations contained in the indictment, there were three
possible prosecution events: (1) the encounter at the apartment complex, (2) the
encounter at the motel, or (3) the encounter at the motel as a continuation of the offense
commenced at the apartment complex. When conduct alleged in a charging instrument
can be construed as implicating more than one offense, a motion to quash is an
appropriate means of forcing the State to be more specific as to the offense charged.
See State v. Draper, 940 S.W.2d 824, 826 (Tex. App.—Austin 1997, no pet.) (holding
that a trial court‟s decision to quash an indictment for lack of certainty in indictment‟s
allegations is a matter within the discretion of the trial court). Furthermore, upon a
proper request, a trial court is obligated to require the State to elect which of multiple
instances of an offense the State was relying upon for conviction. Phillips v. State, 193
11
S.W.3d 904, 909-10 (Tex. Crim. App. 2006). Given the facts of this case, we cannot
say that trial counsel did not have a legitimate trial strategy in adopting a position that
the events in question constituted a single continuous offense. Accordingly, Appellant
has not established the first prong of the Strickland test as to these complaints.
Furthermore, as to the complaints that Appellant‟s counsel failed to request an
explanatory jury instruction concerning reasonable suspicion or make appropriate
objections to the evidence, we find that the record is insufficiently developed to establish
deficient performance in that regard. Where the alleged deficiency is an error of
omission rather than commission, a collateral attack by means of a post-conviction writ
of habeas corpus is generally the more appropriate vehicle by which to develop a
detailed record of the alleged defective assistance. See Freeman v. State, 125 S.W.3d
505, 506-07 (Tex. Crim. App. 2003). See generally Massaro v. United States, 538 U.S.
500, 123 S. Ct. 1690, 155 L. Ed. 2d 714 (2003) (stating that when a claim of ineffective
assistance of counsel is raised on direct appeal, a trial record is usually not developed
for purposes of establishing such a claim). Accordingly, Appellant‟s second issue is
overruled.
ISSUE THREE—CHARGE ERROR REGARDING UNANIMITY OF THE VERDICT
By his third issue, Appellant contends he was prejudiced by the trial court‟s
failure to instruct the jury that their verdict required unanimous agreement as to the
prosecution event. Appellant contends the court‟s charge authorized a guilty verdict if
half of the jury thought he was guilty of evading detention at the apartment complex,
while the other half thought he was guilty of evading detention at the motel parking lot.
12
The State contends unanimity is not a question because there was only one evading
detention or arrest offense presented at trial. While we disagree with the State‟s
position, we nonetheless find the question does not present reversible error.
Where the offense in question is a single offense with multiple or alternate
methods of commission, unanimity is required with respect to all essential elements of
the offense, even though jurors are not required to unanimously agree on the specific
method of committing that offense. Miranda v. State, 391 S.W.3d 302, 310 (Tex. Crim.
App. 2012). A jury is entitled to return a general verdict where evidence of an
alternative manner and means of committing the charged offense is submitted to the
jury. Young v. State, 341 S.W.3d 417, 422 (Tex. Crim. App. 2011). Here, the
indictment merely averred that Appellant “on or before the 7th day of October, A.D.
2012, did then and there, while using a vehicle, intentionally flee from [Officer
Anderson], a person [Appellant] knew was a peace officer who was attempting lawfully
to arrest or detain the defendant.” Even though the jury could have concluded Appellant
committed that offense in more than one manner, the gravamen of the offense has
always been an evading detention offense alleged to have been committed on October
7, 2012. Appellant‟s third issue is overruled.
ISSUE FOUR—ILLEGAL SENTENCE
By the fourth issue contained in his Supplemental Brief, Appellant contends his
sentence is an illegal sentence because it exceeds the maximum sentence for a second
degree felony. With admirable candor, by its Supplemental Letter Brief, the State
concedes (1) the trial court‟s punishment charge erroneously fails to require the jury to
13
find sequential finality of the prior felony conviction as required by section 12.42(d) of
the Texas Penal Code and Jordan v. State, 256 S.W.3d 286, 290-91 (Tex. Crim. App.
2008), and (2) Appellant suffered “egregious harm” from the lack of a jury instruction
requiring the jury to find the second previous felony conviction was for an offense that
occurred subsequent to the first previous felony conviction having become final. See
Reynolds v. State, 227 S.W.3d 355, 361-65 (Tex. App.—Texarkana 2007, no pet.)
(finding egregious harm from the failure to instruct the jury that the State had to prove
the enhancement paragraphs beyond a reasonable doubt). As to this error, the State
admits we should reverse the sentence and remand the case for a new trial on
punishment. We agree.
With certain exceptions not applicable to the facts of this case, if it is shown on
the trial of a felony of the third degree that the defendant has previously been finally
convicted of a felony other than a state jail felony, on conviction the defendant shall be
punished for a felony of the second degree.6 TEX. PENAL CODE ANN. § 12.42(a) (West
Supp. 2014). Furthermore, again with certain exceptions not applicable here, if it is
shown on the trial of a felony of the third degree that the defendant has previously been
finally convicted of two felonies, and the second previous felony conviction was for an
offense that occurred subsequent to the first previous felony conviction having become
final, on conviction the defendant shall be punished by imprisonment for life, or for any
6
While an offense may be “punished” as a higher degree of felony, for purposes of the judgment,
the offense remains the same “level of offense” provided by the particular statute under which the
conviction was obtained. Ford v. State, 334 S.W.3d 230, 235 (Tex. Crim. App. 2011) (holding that while
the punishment level may have been increased, the “level of offense” was not increased).
14
term of not more than 99 years or less than 25 years. TEX. PENAL CODE ANN. § 12.42(d)
(West Supp. 2014).
In this case, the indictment alleged three prior felony convictions. The State
waived the second enhancement and proceeded to trial on the basis of two prior
convictions: (1) the offense of aggravated robbery in cause number 94-419,354 and (2)
the offense of burglary of a habitation in cause number 2008-419,494. While the State
did prove up these prior felony convictions, it never requested a jury finding that the
second previous felony conviction was for an offense that occurred subsequent to the
first previous felony conviction having become final, nor did it object to the trial court‟s
failure to include such an instruction. Consequently, the jury never made the essential
fact finding necessary to elevate the range of punishment to confinement for a minimum
term of 25 years in accordance with section 12.42(d). Id.
Based upon the findings of the jury, the applicable range of punishment for the
offense for which Appellant was convicted was that of a second degree felony, i.e., by
imprisonment for any term of not more than twenty years or less than two years and by
a fine not to exceed $10,000. TEX. PENAL CODE ANN. § 12.33 (West 2011). Since the
term of confinement exceeded the maximum sentence allowable by law, according to
the fact findings in this case, it is inconsequential whether we construe that error as the
assessment of an unlawful sentence or jury charge error because under either analysis,
the result is the same—reverse and remand for a new punishment hearing. This is so
15
because the State has conceded in its Supplemental Brief that “the record reveals that
Appellant suffered „egregious harm‟ from the lack of a jury instruction.”
Accordingly, Appellant‟s fourth issue is sustained.
CONCLUSION
That portion of the verdict and judgment pertaining to Appellant‟s conviction is
affirmed, while that portion of the verdict and judgment pertaining to Appellant‟s
punishment is reversed and this cause is remanded to the trial court for a new
punishment trial pursuant to article 44.29(b) of the Texas Code of Criminal Procedure.
In remanding this cause for a new punishment hearing, we express no opinion as to
appropriate range of punishment on retrial.7
Patrick A. Pirtle
Justice
Publish.
7
Based upon the jury findings from the first trial, the appropriate range of punishment would be
that of a second degree felony. The question of whether the State can seek additional findings on retrial
regarding the applicability of section 12.42(d) of the Texas Penal Code was not an issue before us and
we expressly decline the opportunity to offer an opinion on that question without adequate briefing.
16
TAB 2
Motion to Extend Time
ACCEPTED
07-13-00286-CR
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
6/12/2015 4:33:07 PM
Vivian Long, Clerk
CAUSE NO. 07-13-00286-CR
SAMMY VIDALES § IN THE SEVENTH COURT OF APPEALS
§
V. § OF TEXAS
§
STATE OF TEXAS § IN AMARILLO, TEXAS
_________________________________________________________________
MOTION TO EXTEND TIME TO FILE MOTION FOR REHEARING
_________________________________________________________________
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
Comes now SAMMY VIDALES, Appellant, pursuant to TEX. R. APP. P. 49.8 &
10.5(b), and files this Motion to Extend Time to File Motion for Rehearing
requesting an additional 15 days in which to file a Motion for Rehearing. In
support of this motion, Appellant shows the Court the following:
I.
A. Deadline for Filing the Item in Question: Appellant’s Motion for
Rehearing was due on June 1, 2015.1
B. Length of Extension Sought: Appellant seeks an additional 15 days to file
the Motion for Rehearing.
C. Facts Relied on to Explain Need for Extension:
• This Court released the opinion in this case on May 15, 2015. Monday
1
The Court’s opinion was issued on May 15, 2015. Because the 15-day deadline to file a
motion for rehearing fell on a Saturday, this extended the deadline until Monday, June 1, 2015.
May 25, 2015 was Memorial Day, and the office was closed on that
day.
• On May 26, 2015, undersigned began a jury trial in State v. Julio
Arce, Cause No. 2014-477,576; in the Lubbock County Court at Law
No. 2. On the second day of trial, an agreement was reached.
Preparing for and partially trying the case consumed a significant part
of defense counsel’s time.
• The following week, on June 1, 2015, defense counsel began a four-
day jury trial in State v. Harrison Hood, Cause No. 2012-471,374, in
the Lubbock County Court at Law No. 2. Preparing for and trying the
case consumed a significant amount of defense counsel’s time.
• Immediately following the conclusion of State v. Hood, defense
counsel left town for vacation for the weekend.
• In addition to the trials above, defense counsel was also set to appear
in at least 6 different courts on behalf of 20 different clients during the
thirty days following the day the Court’s opinion was released.
• Due to mischance, defense counsel was scheduled for all of these
various trials in the time Appellant’s Motion for Rehearing was due.2
2
See Houser v. McElveen, 243 S.W.3d 646, 647 (Tex. 2008) (emphasis added) (explaining
that extension of time should be granted if “any plausible statement of circumstances indicating
In order to provide effective assistance of counsel and comply with
disciplinary rules, defense counsel needed to adequately prepare for
each hearing on each case, as well as for each of these trials.3
D. Number of Previous Extensions Granted Regarding Item in Question:
Appellant has not requested any previous extensions of time to file this
document.
II.
Should the Court deny this Motion, Appellant will be denied the effective
assistance of counsel.
WHEREFORE, Appellant prays the Court extend the deadline to file the
Motion for Rehearing until June 15, 2015.
Respectfully submitted,
___________________________
Frank Sellers
Texas Bar No. 24080305
HURLEY & GUINN
1805 13th Street
Lubbock, Texas 79401
806.771.0700 tel
806.763.8199 fax
frank@hurleyguinn.com
Attorney for Appellant
that failure to file within the [specified] period was not deliberate or intentional, but was the
result of inadvertence, mistake, or mischance.”).
3
See TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 1.01(b)(1) (“In representing a client, a
lawyer shall not neglect a legal matter entrusted to the lawyer.”).
Certificate of Service
This is to certify that on June 12, 2015, a true and correct copy of the above
and foregoing Motion was delivered to:
Jeff Ford
Lubbock County District Attorney’s Office
Via email to jford@lubbockcda.com
Lisa McMinn & Stacey Goldstein
State Prosecuting Attorney
Via email o information@spa.texas.gov
___________________________
Frank Sellers
Vidales, Sammy
Combined Opinion