Hector Tellez v. State

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

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HECTOR TELLEZ, No. 08-13-00141-CR
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Appellant, Appeal from
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v. 384th District Court
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THE STATE OF TEXAS, of El Paso County, Texas
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Appellee. (TC # 20120D04773)
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OPINION

Hector Tellez appeals his convictions of intoxication manslaughter (Counts I and III) and

aggravated assault (Count V). A jury found Appellant guilty of Counts I, III, and V, and

assessed his punishment at a fine of $10,000 and imprisonment for a term of twenty years on

Counts I and III, and a fine of $10,000 and imprisonment for a term of fifteen years on Count V.

The trial court ordered the sentence for Count III to run consecutively to the sentence for Count

I, while the sentence in Count V will concurrently with Counts I and III. We affirm.

FACTUAL SUMMARY

On July 8, 2011, a band called “Ancient of Days” played a concert at the Open Gate

Church in Northeast El Paso. Mark Anthony Dobbs, Jon Cervoni, Aaron Carrillo, Brandon

Beltran, and Austin Ramos were in the band. As Dobbs drove home in his parents’ Nissan

Sentra, he experienced car trouble and pulled onto the shoulder of Loop 375. Dobbs turned on
the vehicle’s hazard lights and called Cervoni for help because he did not want to call his

parents. Cervoni and Carrillo arrived within ten or fifteen minutes. Cervoni pulled his car in

front of Dobbs’ car so that the two cars were facing each other, and they attempted to start

Dobbs’ car with jumper cables but were unsuccessful. Dobbs and Cervoni got in Dobbs’ car to

call for assistance while Carrillo stood outside on the passenger side. Dobbs remembered the

three of them talking and the next thing he remembered was waking up in the hospital. His

father was present and told him that Cervoni and Carrillo were dead.

Evadne Atkinson, a registered nurse, was driving home on Loop 375 sometime after 11

p.m. when she saw a truck ahead of her that was driving on the shoulder rather than in a lane of

traffic. The truck continued to travel on the shoulder and Atkinson suddenly saw it become

airborne and flip. Atkinson did not see the truck’s brake lights illuminate before the accident.

Atkinson stopped and got out of her car. She saw a man, whom she identified at trial as

Appellant, coming from the direction of the truck. Atkinson asked Appellant if he was okay and

he replied that he could not find his cell phone. Appellant was staggering as he walked and he

wandered out into the roadway. Atkinson described him as being oblivious to everything going

on around him. Based on her experience, Atkinson concluded that Appellant was intoxicated.

After Atkinson guided Appellant out of the roadway, she went over to one of the other vehicles

at the scene and found two passengers. The person seated in the driver’s seat was dazed and

unable to respond, but he was breathing and did not have any visible injuries. The person on the

passenger’s side was pinned against the dashboard, barely breathing, and unresponsive. Other

motorists stopped, and after calling 911, they removed the driver from the vehicle.

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 El Paso Police Officer Adrian Armendariz is assigned to the Special Traffic

Investigations and was called out to investigate the collision. His investigation showed that the

Toyota Tundra struck the rear of the Nissan Sentra with such force that the trunk was pushed into

the front passenger area of the vehicle and the right rear tire was immediately behind the front

passenger seat. Carrillo’s body was thrown 79 feet by the force of the collision. Armendariz

found no evidence that Appellant applied his brakes. An open 30-pack of Budweiser beer was

found next to the Tundra. Several of the cans were open and empty. A civilian witness at the

scene testified that the inside of the Tundra smelled like alcohol.

El Paso Police Officer Daniel Conway arrived at the accident scene and asked Appellant

for identification. Appellant’s speech was slurred and he had a strong odor of alcoholic

beverages on his breath as he spoke to Conway. Appellant volunteered to Conway that he had

been on his cell phone at the time of the accident. Conway placed Appellant in handcuffs and

told Appellant that he was under arrest for intoxication assault. Appellant was transported to

Beaumont Army Hospital in an ambulance. Appellant refused to state his name when asked and

he claimed that the cars were in an accident before he arrived at the scene.

Officer Raul Lom was dispatched to the scene of the accident and he spoke with civilian

witnesses. Lom determined that the collision was caused by an intoxicated driver and he went to

Beaumont Army Hospital where Appellant was being treated. Appellant would not respond

when Lom asked him to identify himself. Lom told Appellant he was under arrest and

administered the Miranda warnings to him. He also read the statutory warnings form known as

the DIC-24 to Appellant and asked Appellant for a specimen of his blood. Appellant did not

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respond. At Lom’s request, a nurse drew a specimen of Appellant’s blood using a kit provided

by Lom. Analysis of that specimen showed that Appellant’s blood alcohol level was .29.

The jury found Appellant guilty of intoxication manslaughter of Jon Cervoni (Count I),

intoxication manslaughter of Aaron Carrillo (Count III), and aggravated assault with a deadly

weapon of Mark Dobbs. Further, the jury assessed Appellant’s punishment at a fine of $10,000

and imprisonment for a term of twenty years on Counts I and III, and a fine of $10,000 and

imprisonment for a term of fifteen years on Count V. The trial court ordered the sentence for

Count III to run consecutively to the sentence for Count I, while the sentence in Count V will run

concurrently with Counts I and III.

AMENDED BRIEF

It is necessary to address the effect of the filing of an amended brief by Appellant on our

consideration of the issues presented on appeal. Appellant filed an original brief on November

22, 2013 raising three issues: (1) the blood evidence was obtained in violation of the Fourth

Amendment; (2) trial counsel was ineffective because he failed to object to the blood evidence;

and (3) the evidence was insufficient to support Appellant’s convictions. After the State filed its

brief, we granted Appellant’s motion to substitute appellate counsel. The El Paso County Public

Defender’s Office subsequently filed a motion on behalf of Appellant to rebrief the case because

Appellant was not satisfied with the performance of his prior appellate counsel. We granted that

motion in order to protect Appellant’s right to the effective assistance of counsel on appeal and

permitted Appellant to file an amended brief even though it delayed submission of this case. See

TEX.R.APP.P. 38.7 (“A brief may be amended or supplemented whenever justice requires, on

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whatever reasonable terms the court may prescribe.”). In his amended brief, Appellant attempts

to incorporate portions of the argument raised in his original brief. The filing of an amended

brief, in contrast with a supplemental brief, operates to replace the original brief. See Florence v.

State, No. 01-11-00822-CR, 2013 WL 3957696 at *1 n.1 (Tex.App.--Houston [1st Dist.] July 30,

2013, no pet.)(not designated for publication). Consequently, we have restricted our review to

the amended brief and have not considered the original brief filed by Appellant’s prior appellate

counsel.

INEFFECTIVE ASSISTANCE

In Issue One, Appellant argues that he was denied the effective assistance of counsel

because his attorney failed to: (1) exclude evidence related to an unconstitutional blood draw;

(2) exclude evidence from his privileged hospital-treatment records; (3) request an interpreter for

him during the guilt/innocence phase of trial; (4) object to alleged misstatements of law by the

prosecutors; (5) request the trial court to take judicial notice of Sections 545.303 and 545.058 of

the Texas Transportation Code; and (6) request the trial court to instruct the jury during the

punishment phase that Appellant’s sentences could be served consecutively or concurrently.

Standard of Review

Both the United States and the Texas Constitutions guarantee an accused the right to

assistance of counsel. U.S. CONST. amend. VI; TEX.CONST. art. I, § 10; TEX.CODE

CRIM.PROC.ANN. art. 1.05 (West 2005). This right includes the right to reasonably effective

assistance. Strickland v. Washington, 466 U.S. 668, 683-86, 104 S.Ct. 2052, 2062, 80 L.Ed.2d

674 (1984). In Strickland, the Supreme Court set forth the standard of review for evaluating

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claims of ineffective assistance of counsel. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. The

two-prong Strickland test requires Appellant to show that: (1) counsel’s performance fell below

an objective standard of reasonableness, and (2) counsel’s performance prejudiced his defense.

Id. Prejudice requires a showing that, but for counsel’s unprofessional error, there is a

reasonable probability that the result of the proceeding would have been different. Id.; Mitchell

v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002); Vasquez v. State, 830 S.W.2d 948, 949

(Tex.Crim.App. 1992). Reasonable probability is defined as a “probability sufficient to

undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

Appellant has the burden to prove ineffective assistance of counsel by a preponderance of

the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998). In analyzing a

claim for ineffective assistance, we begin with the strong presumption that counsel was

competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Appellant must

overcome the presumption that counsel’s conduct falls within the wide range of reasonable,

professional assistance, and that, under the circumstances, the challenged action might be

considered sound trial strategy. Thompson, 9 S.W.3d at 814. Counsel’s action or inaction will

be found reasonable if the record is silent as to the facts, circumstances, or rationale behind a

particular course of action. Id. If trial counsel is not given an opportunity to explain his actions,

an appellate court should not find deficient performance unless the challenged conduct was so

outrageous that no competent attorney would have engaged in it. Goodspeed v. State, 187

S.W.3d 390, 392 (Tex.Crim.App. 2005). Appellant filed a motion for new trial, but he did not

allege ineffective assistance. Because the record does not reflect the rationale for any of the

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challenged acts or omissions, we will not find deficient performance unless Appellant meets his

burden of showing that counsel’s conduct was so outrageous that no competent attorney would

have engaged in the same conduct.

The Blood Evidence

Appellant first asserts that counsel’s performance was deficient because he did not seek

to suppress the blood test results on the ground that the warrantless search was unreasonable

under the Fourth Amendment. He argues that counsel should have moved to suppress the blood

test evidence based on Missouri v. McNeely which held that the natural dissipation of alcohol in

the bloodstream is not a per se exigent circumstance justifying a blood test without a warrant in

all DWI cases. Missouri v. McNeely, --- U.S. ---, 133 S.Ct. 1552, 1567-68, 185 L.Ed.2d 696

(2013).

McNeely was decided on April 17, 2013. The trial of this case began two days later, on

April 19, 2013, and the blood test evidence was admitted on April 23, 2013. Obviously, no

Texas appellate court had addressed the impact of Missouri v. McNeely on Texas’ mandatory

blood draw statute at the time this case was tried. On January 13, 2014, the U.S. Supreme Court

vacated the San Antonio Court of Appeals’ decision in Aviles v. State, cite, and remanded the

case for reconsideration in light of McNeely. Aviles v. Texas, --- U.S. ---, 134 S.Ct. 902, 187

L.Ed.2d 767 (2014). Ten days later, the Thirteenth Court of Appeals was the first Texas

intermediate appellate court to apply McNeely when it decided State v. Villarreal on January 23,

2014. See State v. Villarreal, No. 13-13-00253-CR, 2014 WL 1257150, at *11 (Tex.App.--

Corpus Christi Jan. 23, 2014, pet. granted)(holding repeat offender provision of the mandatory

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blood draw statute did not constitute an exception to the Fourth Amendment’s warrant

requirement).1 Other courts of appeals have since concluded that Texas’ mandatory blood draw

and implied consent statutes do not provide an exception to the warrant requirement. See Gentry

v. State, No. 12-13-00168-CR, 2014 WL 4215544 at*3-4 (Tex.App.--Tyler Aug. 27, 2014, pet.

filed); Aviles v. State, 443 S.W.3d 291, 293-94 (Tex.App.--San Antonio 2014, pet. filed); State v.

Ballard, No. 11-13-00224-CR, 2014 WL 3865815 at *3 (Tex.App.-Eastland July 31, 2014, pet.

filed); Weems v. State, 434 S.W.3d 655, 665-66 (Tex.App.--San Antonio 2014, pet. granted);

Holidy v. State, No. 06-13-00261-CR, 2014 WL 1722171 at *2-4 (Tex.App.--Texarkana Apr. 30,

2014, pet. granted); Reeder v. State, 428 S.W.3d 924, 930 (Tex.App.--Texarkana 2014, pet.

granted); Sutherland v. State, 436 S.W.3d 28 (Tex.App.--Amarillo 2014, pet. filed). We recently

applied McNeely and held that Section 724.012(b) does not provide an exception to the warrant

requirement. Burcie v. State, No. 08-13-00212-CR, 2015 WL 2342876 (Tex.App.--El Paso

May 15, 2015, pet. filed).

Counsel’s performance must, however, be measured against the state of the law in effect

during the time of trial. Ex parte Chandler, 182 S.W.3d 350, 359 (Tex.Crim.App. 2005). At the

time this case was tried, it was accepted law in Texas that blood drawn in compliance with the

Section 724.012(b) of the Transportation Code was a valid search. See Beeman v. State, 86

S.W.3d 613, 615 (Tex.Crim.App. 2002). While Missouri v NcNeely was decided two days

before trial on the merits began, its impact on Texas law was decidedly unsettled when this case

1
The Court of Criminal Appeals issued an opinion affirming the court of appeals’ decision in State v. Villiarreal,
but it has since granted rehearing. See State v. Villarreal, No. PD-0306-14, 2014 WL 6734178 (Tex.Crim.App.
November 26, 2014)(rehearing granted).

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was tried. Furthermore, the record does not reflect counsel’s reasoning for not moving to

suppress the blood test results and we do not find that counsel’s failure to seek suppression based

on McNeely was so outrageous that no competent attorney would have made the same decision.

Under these circumstances, we conclude that Appellant has failed to show that his counsel’s

performance was deficient. See Bernal v. State, No. 02-13-00381-CR, 2014 WL 5089182 at *4-

5 (Tex.App.--Fort Worth Oct. 9, 2014, no pet.)(concluding that appellant failed to show

ineffective assistance of counsel related to allegation that counsel did not move to suppress

evidence under Missouri v. McNeely where the law was unsettled at the time of appellant’s trial

and counsel was not given an opportunity to explain his reasoning).

Appellant’s Medical Records

Appellant also contends that trial counsel should have sought exclusion of his medical

records, admitted as State’s Exhibits 53 and 54, because the records are related to his treatment

for drug and alcohol abuse, and as such, the records are privileged and inadmissible under

TEX.R.EVID. 509(b). Rule 509(b) provides that there is no physician-patient privilege in a

criminal case, but a confidential communication is not admissible in a criminal case if made: (1)

to a person involved in the treatment of or examination for alcohol or drug abuse; and (2) by a

person being treated voluntarily or being examined for admission to treatment for alcohol or drug

abuse. TEX.R.EVID. 509(b). When an ineffective assistance claim alleges that counsel was

deficient in failing to object to the admission of evidence, the defendant must show, as part of his

claim, that the evidence was inadmissible. Ortiz v. State, 93 S.W.3d 79, 93 (Tex.Crim.App.

2002).

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 State’s Exhibits 53 and 54 were admitted as business records pursuant to TEX.R.EVID.

902(10). State’s Exhibit 53 contains the medical records from William Beaumont Army

Hospital related to Appellant’s treatment in the emergency department on July 9, 2011 for his

injuries suffered in the accident. These records are unrelated to treatment for drug or alcohol

abuse and there is nothing in the records indicating that Appellant made a confidential

communication to a person involved in the treatment of or examination for Appellant’s

admission to drug or alcohol treatment. Consequently, State’s Exhibit 53 is not subject to a Rule

509(b) objection. An attorney does not render deficient performance by failing to make a

meritless objection. See Ex parte White, 160 S.W.3d 46, 53 (Tex.Crim.App. 2004); Patrick v.

State, 906 S.W.2d 481, 496 (Tex.Crim.App. 1995).

State’s Exhibit 54 contains approximately 105 pages of medical records related to

Appellant’s admission to the hospital’s ICU unit for treatment of his accident-related injuries on

July 9, 2011. The adult admission assessment form reflects that Appellant drinks alcohol and

uses recreational drugs. The record does not reflect that Appellant provided this information to a

person involved in the treatment of or examination for Appellant’s admission to drug or alcohol

treatment. Consequently, this portion of State’s Exhibit 54 is admissible. Another portion of

State’s Exhibit 54 contains a one-page note titled “NURS Alcohol Abuse.” “Alcohol abuse” is

the sole diagnosis written in the section of the note titled “nursing diagnoses.” In the “expected

outcomes” section of the note, the author wrote that the patient “acknowledges alcohol problem

and the need for support to maintain alcohol free lifestyle” and “has contract and AA or other

community support and mental health groups.” The note also states Appellant should be

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observed for withdrawal symptoms, including hallucinations and “DTS” and provided with

medications to control withdrawal symptoms.

Assuming for the sake of argument that Appellant’s statements satisfy the first part of

Rule 509(b)’s test, the record does not support a finding that the second part of the test is

satisfied because there is no evidence that Appellant was being treated voluntarily for alcohol or

drug abuse or that he was being examined for admission to treatment for alcohol or drug abuse.

See TEX.R.EVID. 509(b). The nurse’s assessment of Appellant was made during the course of his

one-day hospital stay in connection with his medical treatment for injuries suffered in the

accident. Consequently, the evidence does not support a finding that State’s Exhibit 54 was

inadmissible under Rule 509(b). Appellant’s trial counsel was not required to make a meritless

objection. See Ex parte White, 160 S.W.3d at 53; Patrick, 906 S.W.2d at 496.

Failure to Request Interpreter

Appellant also asserts that counsel was ineffective because he failed to request an

interpreter for him during the guilt/innocence phase of trial. Under the Sixth Amendment, an

accused has the right to be present at his trial and confront the witnesses brought against him.

U.S. CONST. amend. VI. Encompassed within these rights is the right to understand the

testimony of the witnesses. See Garcia v. State, 149 S.W.3d 135, 140-41 (Tex.Crim.App. 2004).

Consequently, if an accused does not understand English, he must be provided with an

interpreter. Garcia, 149 S.W.3d at 140-41. This constitutional requirement is codified in Article

38.30. See TEX.CODE CRIM.PROC.ANN. art. 38.30 (West Supp. 2014). The Court of Criminal

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Appeals has determined that the right to an interpreter is a category two-waiveable only Marin2

right. Garcia, 149 S.W.3d at 144. Therefore, the judge has an independent duty to implement

this right in the absence of a knowing and voluntary waiver by the defendant. Id. The trial judge

may become aware of the defendant’s language problem either by being informed of it by one or

both parties or by noticing the problem sua sponte. Id. Article 38.30(a) addresses the procedure

to be followed if a party files a motion for appointment of an interpreter. TEX.CODE

CRIM.PROC.ANN. art. 38.30(a).

To establish deficient performance based on an allegation that counsel failed to request

appointment of an interpreter, Appellant must demonstrate that he was entitled to the assistance

of an interpreter and that the trial court would have erred in denying a motion on that basis. Ex

parte Cockrell, 424 S.W.3d 543, 546 (Tex.Crim.App. 2014). To be entitled to an interpreter,

there must be a showing that the accused does not understand English. See Hernandez v. State,

862 S.W.2d 193, 198 (Tex.App.--Beaumont 1993, pet. ref’d).

Appellant asserts in his brief that he is a Spanish-speaker, but fluency in a language other

than English does not demonstrate an inability to understand English. See Abdygapparova v.

State, 243 S.W.3d 191, 201 (Tex.App.--San Antonio 2007, pet. ref’d). There is evidence in the

record that Appellant understood English. Appellant appeared to understand and speak English

at the scene of the accident. For example, he told Michael Rolon, “I’m sorry. My life’s over.

My life sucks.” Armando Sifuentes, a firefighter/paramedic, approached Appellant and placed

his hand on Appellant’s shoulder while asking him if he was okay. Appellant slapped Sifuentes’

hand off of his shoulder and said, “Leave me alone.” Sifuentes repeated his question, and
2
Marin v. State, 851 S.W.2d 275 (Tex.Crim.App. 1993).
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Appellant said, “Just leave me alone.” During the punishment phase, Appellant chose to testify

and he had the following exchange with the trial court when he was called to testify:

[Court]: Mr. Tellez, please stand.

(Defendant approaches witness table)

[Court]: Raise your right hand. Do you swear to tell the truth -- well, do you

need the interpreter?

[Appellant]: I do understand English, but I need her for answering questions.

[Court]: That’s fine.

(Witness sworn through duly sworn interpreter)

[Court]: All right. Please be seated. Mr. Tellez, I know you understand English,
but we have the interpreter here to interpret your responses in English. So she’s
going to interpret the questions into Spanish for you, and she will interpret your
responses back into English.

So you respond in Spanish and she’ll interpret your responses. Okay?

[Appellant]: Okay.

Appellant’s admission to the trial court that he understood English severely undercuts his claim

on appeal that the trial court was required to appoint an interpreter for him during guilt-

innocence so that he could understand the proceedings and the testimony of the witnesses against

him. The record does not support Appellant’s claim that he does not understand English nor

does it show that the trial court would have abused its discretion by denying a request for

appointment of an interpreter during the guilt-innocence portion of trial. Trial counsel did not

render deficient performance by failing to ask the trial court to appoint an interpreter for the

guilt-innocence phase of trial.

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 Failure to Object to Misstatements of the Law
and Request Court to Take Judicial Notice of Relevant Law

Appellant next argues that counsel’s performance was deficient because he did not object

to misstatements of law by the prosecutor and two witnesses. He directs our attention to Officer

Adrian Armendariz’s testimony that Dobbs and Cervoni had not violated any traffic laws by

parking their vehicles on the shoulder because Dobbs’ vehicle was broken down and Cervoni

was attempting to provide a jump start. Appellant maintains that Cervoni violated Section

545.303 of the Texas Transportation Code by parking his vehicle on the shoulder so that it faced

Dobbs’ vehicle and counsel should have asked the trial court to take judicial notice of the statute.

Section 545.303 addresses stopping or parking a vehicle on a roadway. TEX.TRANSP.CODE ANN.

§ 545.303 (West 2011). “Roadway” is defined in the Transportation Code as “the portion of a

highway, other than the berm or shoulder, that is improved, designed, or ordinarily used for

vehicular travel.” TEX.TRANSP.CODE ANN. § 541.302(11). Thus, Section 545.303 does not

pertain to stopping or parking a vehicle on the shoulder.

Section 545.058, which addresses driving on an improved shoulder, provides as follows:

(a) An operator may drive on an improved shoulder to the right of the main
traveled portion of a roadway if that operation is necessary and may be done
safely, but only:

(1) to stop, stand, or park;

(2) to accelerate before entering the main traveled lane of traffic;

(3) to decelerate before making a right turn;

(4) to pass another vehicle that is slowing or stopped on the main traveled
portion of the highway, disabled, or preparing to make a left turn;

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 (5) to allow another vehicle traveling faster to pass;

(6) as permitted or required by an official traffic-control device; or

(7) to avoid a collision.

TEX.TRANSP.CODE ANN. § 545.058(a). The record reflects that Dobbs stopped his car and

parked on the shoulder because the vehicle was disabled. Cervoni parked his vehicle on the

shoulder to render assistance to Dobbs. Under the applicable law, neither of these drivers

violated the Transportation Code. Thus, Armendariz did not misstate the law by testifying that

Dobbs and Cervoni did not violate the Transportation Code by parking on the shoulder.

Appellant also asserts that counsel should have objected to Armendariz’s testimony that

Appellant violated a traffic law by driving on the shoulder. As noted by the State, the prosecutor

asked Armendariz whether it is legal to drive on the shoulder “as if it were a lane of travel,” and

Armendariz replied that it is illegal. The evidence at trial showed that Appellant was driving on

the shoulder when he struck the parked cars. There is no evidence that any of the circumstances

set forth in Section 545.058 were present in this case. Consequently, Armendariz’s testimony

was not a misstatement of the law and an objection to the testimony would not have been valid.

Appellant additionally alleges that trial counsel failed to object to Officer Lom’s

testimony that Appellant’s blood was drawn pursuant to Section 724.012 of the Transportation

Code even though the decision in Missouri v. McNeely “drew the constitutionality of the

statute . . . into serious question.” We understand Appellant to argue that the officer’s testimony

was a misstatement of the law. At the time this case was tried, it was generally understood that

blood drawn in compliance with Section 724.012(b) of the Transportation Code was a valid

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search. See Beeman, 86 S.W.3d at 615. As we stated in our discussion of Appellant’s claim that

counsel was ineffective because he did not move to suppress the blood evidence, McNeely was

decided only two days before the trial in this case began and its impact on Texas law was

unsettled. Appellant has failed to show that counsel’s decision to not object to the testimony is

so outrageous that no competent attorney would have made the same decision.

Instruction on Concurrent/Consecutive Sentences

Appellant also complains that trial counsel did not request a jury instruction during the

punishment phase that Appellant’s sentences could be served consecutively or concurrently. The

State filed a motion requesting cumulative sentences pursuant to Article 42.08 of the Code of

Criminal Procedure. During punishment deliberations, the jury sent out a note asking whether

the sentences would be served consecutively or concurrently, and the trial court answered the

jury by stating that all of the definitions and instructions that can be given to the jury are

provided in the court’s charge.

Section 3.03(b) of the Texas Penal Code provides that when a defendant is found guilty

of more than one offense arising out of the same criminal episode, the sentences may run

concurrently or consecutively if each sentence is for a conviction of an offense under Section

49.07 or 49.08. TEX.PENAL CODE ANN. § 3.03(b)(1)(A)(West Supp. 2014). Further, Article

42.08(a) provides that the trial court has discretion to order that sentences run concurrently or

cumulatively. TEX.CODE CRIM.PROC.ANN. art. 42.08(a)(West Supp. 2014). The Texas

Legislature has assigned the task of cumulating sentences exclusively to the trial judge. Beedy v.

State, 250 S.W.3d 107, 110 (Tex.Crim.App. 2008); Barrow v. State, 207 S.W.3d 377, 380

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(Tex.Crim.App. 2006). Consequently, Appellant was not entitled to an instruction regarding the

trial court’s authority to order the sentences to be served consecutively or concurrently. See Clay

v. State, 102 S.W.3d 794, 798 (Tex.App.--Texarkana 2003, no pet.); Villarreal v. State, No. 13-

08-00601-CR, 2010 WL 2638486 at *2 (Tex.App.--Corpus Christi June 29, 2010, no pet.)(not

designated for publication); Manzano v. State, No. 10-04-00323-CR, 2006 WL 348463 at *4

(Tex.App.--Waco Feb.15, 2006, pet. ref’d)(not designated for publication)(holding that due

process does not require that the jury be given information about the trial court’s ability to

cumulate sentences or order them to run concurrently). Trial counsel is not required to request

an instruction to which the defendant is not entitled.

Appellant has not demonstrated that any of the challenged actions or decisions of trial

counsel amounted to deficient performance. Consequently, he has failed to establish his claim of

ineffective assistance. Issue One is overruled.

CRUEL AND UNUSUAL PUNISHMENT

In Issue Two, Appellant contends that his sentence violates the Eighth Amendment’s

prohibition against cruel and unusual punishment because the jury was not informed that the trial

court could order the sentences to run consecutively or concurrently. As a prerequisite to

presenting a complaint for appellate review, Appellant must present to the trial court a timely

request, objection, or motion stating the specific grounds for the desired ruling. TEX.R.APP.P.

33.1(a)(1)(A); Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996). Constitutional

rights, including the right to be free from cruel and unusual punishment, may be waived by the

failure to object. Rhoades, 934 S.W.2d at 120; Curry v. State, 910 S.W.2d 490, 496

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(Tex.Crim.App. 1995). Appellant did not raise this complaint about his sentences at the time

they were imposed or in his motion for new trial. Consequently, the asserted error is waived.

Issue Two is overruled.

CONCURRENT/CUMULATIVE SENTENCE INSTRUCTION

In Issue Three, Appellant asserts that he suffered egregious harm from the absence of an

instruction in the punishment charge informing the jury that the trial court could order the

sentences to run concurrently or consecutively. Appellate review of alleged jury charge error

involves a two-step process. Kirsch v. State, 357 S.W.3d 645, 649 (Tex.Crim.App. 2012);

Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984)(op. on reh’g). First, we must

determine whether error occurred. Wooten v. State, 400 S.W.3d 601, 606 (Tex.Crim.App. 2013).

If there is error in the charge, we must then analyze whether sufficient harm resulted from the

error to require reversal. Wooten, 400 S.W.3d at 606. Under this second step, the degree of

harm necessary for reversal usually depends on whether the appellant properly preserved the

error by objection. Middleton v. State, 125 S.W.3d 450, 453 (Tex.Crim.App. 2003).

In addressing Appellant’s assertion in Issue One that his trial counsel was ineffective

because he did not request this instruction, we concluded that Appellant was not entitled to an

instruction regarding the trial court’s authority to order the sentences to be served consecutively

or concurrently. See Clay, 102 S.W.3d at 798; Villarreal, No. 13-08-00601-CR, 2010 WL

2638486 at *2; Manzano, No. 10-04-00323-CR, 2006 WL 348463, at *4. Issue Three is

overruled.

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 CUMULATIVE ERROR

In his final issue, Appellant argues that the trial court erred by allowing his conviction to

be based on “false testimony.” Appellant does not claim that any of the witnesses committed

perjury. He instead contends that the jury “was substantially misled by the cumulative effect of

the repeated misstatements of law.” This issue focuses on the complaints raised in Issues One

through Three related to the alleged misstatements of law made by two police officers during

their testimony and the trial court’s failure to instruct the jury regarding the court’s authority to

order the sentences to be run concurrently or consecutively.

The Court of Criminal Appeals has recognized that a number of errors may be found

harmful in their cumulative effect, but there is no authority holding that non-errors may in their

cumulative effect cause error. Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App.

1999). We have already determined that Appellant failed to establish that his trial counsel

rendered ineffective assistance and the trial court did not err by failing to include an instruction

in the punishment charge regarding the trial court’s ability to order the sentences to run

concurrently or consecutively. Consequently, there can be no cumulative error or harm. See id.

Issue Four is overruled. Having overruled each issue, we affirm the judgment of the trial court.

September 16, 2015
ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)

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