Affirmed and Memorandum Opinion filed December 18, 2018.
In The
Fourteenth Court of Appeals
NO. 14-17-00966-CR
LUIS LIMONES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 2
Harris County, Texas
Trial Court Cause No. 2110250
MEMORANDUM OPINION
Appellant Luis Limones appeals his conviction for the misdemeanor offense
of failure to stop and give information following an accident involving damage to a
vehicle and his sentence of ninety days in the Harris County Jail. Appellant
challenges the judgment on the following grounds: (1) the evidence is insufficient
to support his conviction; (2) the trial court improperly enhanced his punishment
based on a prior offense unsupported by the charging instrument or the evidence,
which resulted in a failure to consider the full and correct punishment range; (3) his
trial counsel was ineffective for not objecting to the trial court’s failure to consider
the full and correct punishment range; (4) the complaint supporting the charging
instrument is invalid; and (5) the charging instrument is insufficient.
Concluding that none of appellant’s issues have merit, we affirm.
Background
The morning of September 6, 2016, appellant made a right turn in his black
Honda Accord and struck the complainant’s vehicle on the passenger side between
the doors. The complainant made eye contact with appellant, and appellant signaled
that he would pull over to the side of the road. Instead, however, appellant sped
away without stopping. The complainant followed appellant—never losing sight of
him—and called 911 to report the collision and appellant’s license plate number.
Appellant drove to his residence on a nearby street and parked his car behind the
house. The complainant parked on the street near the house and waited for the police
to arrive. About twenty-five minutes later, the complainant saw appellant—now
wearing a beanie and a change of clothing—drive away from the house in a different
vehicle.
After appellant left, Harris County Sheriff’s Department Deputy Brian Bevil
arrived at the house to investigate the incident. While the complainant was speaking
to Bevil on the street outside the residence, she saw appellant return to the home.
Bevil detained appellant, and the complainant identified appellant as the man driving
the car that hit her vehicle. Bevil saw a black Honda Accord parked behind the home
that matched the description the complainant reported to the 911 operator.
According to Bevil, damage to the Accord was consistent with the complainant’s
account of the collision.
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At trial, appellant admitted owning a black Honda Accord but claimed that he
had not been involved in a collision with the complainant. According to appellant,
he was dropping his children off at school at the time of the collision, after which he
returned home where police detained him. Appellant stated that he had never met
the complainant before but could not explain why the complainant had described his
car (including his license plate number) to the 911 operator following the collision,
or why the complainant would have followed the car to appellant’s home if appellant
had not struck her vehicle. According to appellant, the complainant and the
responding officer must have lied when they testified that they had observed damage
to his black Honda Accord on the day of the collision.
After hearing the evidence and argument of counsel, a jury found appellant
guilty of failure to stop and give information after an accident involving damage to
a vehicle.1 During the punishment hearing before the bench, the trial judge accepted
appellant’s signed stipulation of evidence, in which appellant stipulated to the
following previous offenses:
1. On MAY 2, 2006, in the 179th DISTRICT COURT of Harris
County, Texas, in Cause Number 1041817, the Defendant was
finally convicted of the misdemeanor offense of ASSAULT OF A
FAMILY MEMBER.
2. On NOVEMBER 8, 1999, in the COUNTY CRIMINAL COURT
AT LAW NO. 14 of Harris County, Texas, in Cause Number
9938161, the Defendant was finally convicted of the misdemeanor
offense of HARASSING COMMUNICATION.
3. On NOVEMBER 8, 1999, in the COUNTY CRIMINAL COURT
AT LAW NO. 14 of Harris County, Texas, in Cause Number
9932728, the Defendant was finally convicted of the misdemeanor
offense of HARASSING COMMUNICATION.
1
See Tex. Transp. Code § 550.022.
3
4. On January 25, 1993, in the COUNTY CRIMINAL COURT AT
LAW NO. 13 of Harris County, Texas, in Cause Number 9300604,
the Defendant was finally convicted of the misdemeanor offense
of TERRORISTIC THREAT.
5. On OCTOBER 16, 1991, in the COUNTY CRIMINAL COURT
AT LAW NO. 11 of Harris County, Texas, in Cause Number
9125370, the Defendant was finally convicted of the misdemeanor
offense of ASSAULT – BODILY INJURY.
6. On SEPTEMBER 20, 1988, in the 263rd DISTRICT COURT of
Harris County, Texas, in Cause Number 0505080, the Defendant
was finally convicted of the FELONY offense of
UNAUTHORIZED USE OF A MOTOR VEHICLE.
7. On SEPTEMBER 20, 1988, in the 263rd DISTRICT COURT of
Harris County, Texas, in Cause Number 0505081, the Defendant
was finally convicted of the FELONY offense of CRIMINAL
MISCHIEF.
8. On SEPTEMBER 20, 1988, in the 263rd DISTRICT COURT of
Harris County, Texas, in Cause Number 0505082, the Defendant
was finally convicted of the FELONY offense of CRIMINAL
MISCHIEF.
9. On SEPTEMBER 28, 1988, in the COUNTY CRIMINAL
COURT AT LAW NO. 13 of Harris County, Texas, in Cause
Number 8816333, the Defendant was finally convicted of the
misdemeanor offense of RECKLESS CONDUCT.
10. On SEPTEMBER 20, 1988, in the 263rd DISTRICT COURT of
Harris County, Texas, in Cause Number 0490449, the Defendant
was finally convicted of the FELONY offense of AGGRAVATED
ASSAULT.
11. On SEPTEMBER 20, 1988, in the 263rd DISTRICT COURT of
Harris County, Texas, in Cause Number 0490450, the Defendant
was finally convicted of the FELONY offense of CRIMINAL
MISCHIEF.
12. On JULY 1, 1987, in the COUNTY CRIMINAL COURT AT
LAW NO. 01 of Harris County, Texas, in Cause Number 0946919,
the Defendant was finally convicted of the misdemeanor offense
RECKLESS CONDUCT.
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13. On JULY 5, 1984, in the 338th DISTRICT COURT of Harris
County, Texas, in Cause Number 0404003, the Defendant was
finally convicted of the FELONY offense of FORGERY BY
UTTERING.
14. On JANUARY 10, 1983, in the COUNTY CRIMINAL COURT
AT LAW NO. 05 of Harris County, Texas, in Cause Number
0687679, the Defendant was finally convicted of the misdemeanor
offense of POSSESSION OF MARIHUANA.
15. On JANUARY 10, 1983, in the COUNTY CRIMINAL COURT
AT LAW NO. 05 of Harris County, Texas, in Cause Number
0687680, the Defendant was finally convicted of the misdemeanor
offense of UNLAWFUL CARRYING OF A WEAPON.
Appellant also pleaded true to an enhancement paragraph, which alleged that
before commission of the instant offense, appellant was convicted of the May 2,
2006 misdemeanor assault offense listed in the stipulation. After considering the
evidence—the stipulated evidence, as well as the testimony of two character
witnesses for appellant—the trial court sentenced appellant to ninety days in the
Harris County Jail.
This appeal timely followed.
Analysis
A. Sufficiency of the Evidence
In his first issue, appellant asserts that his conviction is supported by
insufficient evidence because the state did not prove that he failed to return to the
accident scene.
When addressing a challenge to the sufficiency of the evidence, we must
determine whether, viewing the evidence in the light most favorable to the verdict,
any rational factfinder could have found the essential elements of the offense beyond
a reasonable doubt. Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013)
(citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). Thus, we will uphold the
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jury’s verdict unless a rational factfinder must have had a reasonable doubt as to any
essential element. Guzman v. State, 552 S.W.3d 936, 941-42 (Tex. App.—Houston
[14th Dist.] 2018, pet. ref’d) (citing Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim.
App. 2009); West v. State, 406 S.W.3d 748, 756 (Tex. App.—Houston [14th Dist.]
2013, pet. ref’d)). We presume the jury resolved any conflicting inferences from the
evidence in favor of the verdict, and we do not substitute our judgment for that of
the jury; jurors are the exclusive judges of the facts, the credibility of the witnesses,
and the weight to be given to the testimony. See Merritt v. State, 368 S.W.3d 516,
525-26 (Tex. Crim. App. 2012); Gilder v. State, 469 S.W.3d 636, 638 (Tex. App.—
Houston [14th Dist.] 2015, pet. ref’d).
Evidentiary sufficiency should be measured by the elements of the offense as
defined by a hypothetically correct jury charge—a charge that “accurately sets out
the law, is authorized by the [information], does not unnecessarily increase the
State’s burden of proof or unnecessarily restrict the State’s theories of liability, and
adequately describes the particular offense for which the defendant was tried.”
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); see also
Ramjattansingh v. State, 548 S.W.3d 540, 546 (Tex. Crim. App. 2018). Further,
when a charging instrument alleges alternative means for the commission of an
offense, the conviction will stand if the evidence supports any of the theories alleged.
See, e.g., Kitchens v. State, 823 S.W.2d 256, 258-59 (Tex. Crim. App. 1991); Teamer
v. State, 429 S.W.3d 164, 169-70 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
Texas law provides that
the operator of a vehicle involved in an accident resulting only in
damage to a vehicle that is driven or attended by a person shall:
(1) immediately stop the vehicle at the scene of the accident or as
close as possible to the scene of the accident without obstructing
traffic more than is necessary;
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(2) immediately return to the scene of the accident if the vehicle is
not stopped at the scene of the accident; and
(3) remain at the scene of the accident until the operator complies
with the requirements of Section 550.023.2
Tex. Transp. Code § 550.022(a); see also Birdwell v. State, 10 S.W.3d 74, 79 (Tex.
App.—Houston [14th Dist.] 1999, pet. ref’d).
The information in this case alleged that appellant was involved in an accident
that resulted in damage to a vehicle driven by the complainant and that appellant
“failed to stop his vehicle at the scene of the accident . . . , failed to return to the
scene of said accident, and failed to remain at the scene of said accident” until he
provided his name and address to the complainant. Appellant contends that the
State’s failure to allege in the information that he did not “immediately” return to
the scene renders the evidence insufficient because “there is simply no evidence in
the record that [appellant] did not return to the accident scene at all.” Appellant
acknowledges, however, that the evidence sufficiently shows that he failed to stop
at the accident scene. Further, it is undisputed that appellant did not provide his
name and address to the complainant.
The information alleged that appellant violated the statute by failing to stop
and by failing to provide certain requisite statutory information. See Tex. Transp.
Code § 550.022(c) (explaining that a person commits an offense “if the person does
not stop or does not comply with the requirements of Subsection (a)”). It is
undisputed in today’s case that appellant failed to provide the requisite information.
See Birdwell, 10 S.W.3d at 79-80 & n.7 (“Appellant was required by law to both
stop and provide information and was charged with the failure to do both. It was
not necessary for the State to prove that he failed to do each.”); see also St. Clair v.
2
Under Section 550.023, the vehicle operator is required to provide, along with other
information, his or her name and address. See Tex. Transp. Code § 550.023.
7
State, 26 S.W.3d 89, 98-99 (Tex. App.—Waco 2000, pet. ref’d) (overruling
sufficiency challenge to conviction for failure to stop and render aid under similarly
worded Tex. Transp. Code § 550.021(a) where appellant failed to challenge both
alleged means of committing offense). Because appellant has not challenged the
evidence to support his conviction based on his failure to provide the requisite
statutory information, his evidentiary sufficiency challenge fails. See St. Clair, 26
S.W.3d at 98-99.
Moreover, based on the evidence described above, the jury could have
believed the complainant’s testimony that appellant’s car struck her vehicle and she
followed appellant to his home after the accident. From this evidence, including
appellant’s flight from the accident scene, a jury rationally could infer that appellant
did not intend to stop and provide his information. Appellant denied involvement in
any accident with the complainant, but the jury could have rejected appellant’s
testimony. The jury also could have accepted some portions of appellant’s testimony
as partial truth. See Gilder, 469 S.W.3d at 638 (jury may believe or disbelieve any
or all of a witness’s testimony). For instance, a rational juror could have disbelieved
appellant’s denial of involvement in the accident but accepted his testimony that he
drove to his children’s school—not the accident scene—when he left his house in a
different car before returning and being detained. Thus, the jury could have found
beyond a reasonable doubt that appellant never returned to the accident scene and,
for that independent reason, was guilty as charged in the information.
For the foregoing reasons, we conclude that legally sufficient evidence
supports appellant’s conviction. We overrule his first issue.
B. Punishment Enhancement
In his second issue, appellant asserts that the trial court erred by enhancing his
punishment based on the misdemeanor offense alleged in the information. He
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contends in his contingent third issue that the trial court failed to consider the full
punishment range. In his fourth issue, appellant complains his counsel was
ineffective by not objecting to the trial court’s failure to consider the full punishment
range. Because we conclude that the trial court did not err by relying on the
enhancing offense pleaded in the information in determining appellant’s
punishment, we overrule all three interrelated issues.
We apply a legal sufficiency analysis in reviewing punishment enhancement
issues. Jordan v. State, 256 S.W.3d 286, 289 (Tex. Crim. App. 2008); Young v.
State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000). We measure the evidentiary
sufficiency by the hypothetically correct jury charge. Young, 14 S.W.3d at 753. A
defendant found guilty of a Class B misdemeanor is subject to confinement in jail
for a term not to exceed 180 days. See Tex. Penal Code § 12.22. But, if the State
shows on the trial of a Class B misdemeanor that a defendant has previously been
convicted of a Class A or Class B misdemeanor or any felony offense, a defendant
may be confined for a term of not less than 30 days or more than 180 days. See id.
§ 12.43(b)(2).
The State alleged in the charging instrument that, before the commission of
this offense, “on MAY 2, 2006, in cause No. 101817, in the 179th DISTRICT
COURT of HARRIS County, Texas, the Defendant was convicted of the
MISDEMEANOR OFFENSE OF ASSAULT.” Appellant pleaded “true” to this
enhancing allegation. Further, as described above, appellant stipulated that he
committed this offense, among numerous other felony and misdemeanor offenses.
Appellant contends that the State’s failure to denote that the enhancing offense
alleged is a Class A or Class B misdemeanor means that this offense may not be
used to enhance his punishment. But “[i]t is well settled that it is not necessary to
allege prior convictions for enhancement purposes with the same particularity that
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must be used in charging the primary offense.” Freda v. State, 704 S.W.2d 41, 42
(Tex. Crim. App. 1986); see also Cole v. State, 611 S.W.2d 79, 80 (Tex. Crim. App.
[Panel Op.] 1981). Instead, in alleging a prior conviction for punishment
enhancement, the allegations are sufficient if they include the court in which the
conviction was obtained, the conviction date, and the nature of the offense. Cole,
611 S.W.2d at 80. This is so because the purpose of the enhancement allegation is
to give the defendant notice of the earlier conviction so that he can prepare a
defense.3 See, e.g., Roberson v. State, 420 S.W.3d 832, 839 (Tex. Crim. App. 2013).
As shown above, the State provided the required details regarding the enhancing
offense in the information. Appellant cites no authority to support his proposition
that the State must provide more information than what was included here.4
Moreover, appellant pleaded “true” to the enhancing allegation. A plea of
“true” generally satisfies the State’s burden of proving an enhancement allegation.
Wood v. State, 486 S.W.3d 583, 588-89 (Tex. Crim. App. 2016). However, if the
record affirmatively reflects that the enhancement itself is improper, then a
defendant does not forfeit his right to challenge the legality of his sentence and may
challenge the evidentiary sufficiency to prove the prior conviction. See Ex parte
Rich, 194 S.W.3d 508, 513-14 (Tex. Crim. App. 2006) (permitting habeas applicant
3
Appellant does not claim that he lacked notice of the enhancing conviction or that he was
misled by any error. See, e.g., Pelache v. State, 324 S.W.3d 568, 577 (Tex. Crim. App. 2010).
4
Appellant acknowledges that his “additional prior convictions would have been enough
to enhance the punishment for [his] Class B misdemeanor offense.” See Tex. Penal Code § 12.43.
However, he asserts that consideration of these additional convictions would result in a
discrepancy between the information allegation and the evidence, resulting in a variance. But such
a variance, assuming it exists, is material and fatal only if the defendant shows surprise or
prejudice. See Freda v. State, 704 S.W.2d 41, 42-43 (Tex. Crim. App. 1986); Williams v. State,
980 S.W.2d 222, 226 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d); see also Kitchen v. State,
No. 01-17-00173-CR, 2018 WL 1630296, at *4-5 (Tex. App.—Houston [1st Dist.] Apr. 5, 2018,
pet. ref’d) (mem. op., not designated for publication). Appellant stipulated to these numerous
additional convictions; thus, we cannot say that appellant could claim surprise or prejudice had the
State used one of these other offenses as the enhancing offense.
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to challenge illegal sentence even though he pleaded true to enhancing paragraph
where record reflected that prior “felony” conviction had been reduced to
misdemeanor, which was not appropriate for enhancement purposes). But the record
in this case does not affirmatively reflect that the prior conviction could not be used
for enhancement purposes; instead, it reflects only that this particular offense may
not have been proper for enhancement purposes. In other words, the trial court
would have erred in relying on this offense for enhancing appellant’s sentence only
if this conviction were for a Class C misdemeanor, a detail that our record does not
reflect. See Hopkins v. State, 487 S.W.3d 583, 586-87 (Tex. Crim. App. 2016)
(“After relieving the State of its burden by pleading ‘true’ to the enhancements, to
prevail Appellant had to show that the record affirmatively reflected that the
enhancements were improper. However, as in Roberson, not only does Appellant
fail to direct us to any record evidence affirmatively showing that the enhancements
were improper, the record actually supports the enhancement allegations.”); cf.
Sanders v. State, 785 S.W.2d 445, 448 (Tex. App.—San Antonio 1990, no pet.)
(appellant was improperly enhanced to habitual offender status because the record
affirmatively showed that the appellant’s predicate conviction was not final before
the commission of the primary offense). Further, appellant was not illegally
sentenced in this case; his ninety days’ confinement is within that authorized for the
Class B misdemeanor offense for which he was convicted. See Tex. Penal Code §
12.22 (Class B misdemeanor may carry sentence of up to 180 days confinement).
Thus, the exception identified in Rich does not apply here. See Ex parte Rich, 194
S.W.3d at 511-12.
For the foregoing reasons, appellant has not demonstrated that the trial court
erred in enhancing his punishment based on the enhancing allegation contained in
the information. We overrule his second, third, and fourth issues.
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C. Complaint Validity
In his fifth issue, appellant argues that the complaint underlying the
information is invalid because the person who signed the complaint has not been
shown credible.5 More specifically, he asserts that “[b]ecause there is no evidence
the complaint was signed by a credible person, the information should never have
been presented. . . . Thus, because presentation of the information to the court was
erroneous, the trial court never obtained jurisdiction of the case. Consequently, the
judgment of conviction is void.”
Appellant acknowledges that this court “may feel compelled to reject this
argument” because of contrary precedent from the Texas Court of Criminal Appeals.
See Ramirez v. State, 105 S.W.3d 628, 629-30 (Tex. Crim. App. 2003); Aguilar v.
State, 846 S.W.2d 318, 320 (Tex. Crim. App. 1993) (en banc); Woods v. State, 499
S.W.2d 328 (Tex. Crim. App. 1973). Appellant is correct.
In 1985, the Texas Constitution was amended to provide, in part, that the
presentment of an indictment or information vests the trial court with jurisdiction of
the cause. Tex. Const. art. V, § 12(b). Thus, “under the explicit terms of the
constitution itself, the mere presentment of an information to a trial court invests that
court with jurisdiction over the person of the defendant, regardless of any defect that
might exist in the underlying complaint.” Aguilar, 846 S.W.2d at 320 (emphasis
added); see also Ramirez, 105 S.W.3d at 629-30 (“If the defendant does not object
to a defect, error, or irregularity of form or substance in an indictment or information
before the date on which the trial on the merits commences, he waives and forfeits
the right to object to the defect, error, or irregularity, and he may not raise the
objection on appeal or in any other postconviction proceeding.”); Woods, 499
5
Appellant did not object to any alleged defects in the complaint or information in the trial
court.
12
S.W.2d at 329 (explaining that complaint need not allege that affiant is a credible
person; any challenge to complaint on this basis must be made in trial court).
As an intermediate appellate court, we are bound to follow the Texas Court of
Criminal Appeals’ decisions. Cervantes-Guervera v. State, 532 S.W.3d 827, 832
(Tex. App.—Houston [14th Dist.] 2017, no pet.); LeBlanc v. State, 138 S.W.3d 603,
606 (Tex. App.—Houston [14th Dist.] 2004, no pet.). When the Court of Criminal
Appeals “has deliberately and unequivocally interpreted the law in a criminal matter,
we must adhere to its interpretation.” Mayer v. State, 494 S.W.3d 844, 848 (Tex.
App.—Houston [14th Dist.] 2016, pet. ref’d). The Court of Criminal Appeals has
unequivocally decided this issue against appellant’s position, as appellant
acknowledges.
Having been presented with the subject information, the trial court was vested
with jurisdiction over appellant and his conviction is not void. See Ramirez, 105
S.W.3d at 629-30; Aguilar, 846 S.W.2d at 320. We overrule appellant’s fifth issue.
D. Information Sufficiency
In his sixth and final issue, appellant asserts that the information is insufficient
in this case because it was filed on the same date that the offense is alleged to have
occurred.6 He claims that this timing renders the information defective because the
date alleged in the indictment is not anterior to the filing of the information as
required by the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. art.
21.21(6).
Appellant presents another issue that the Court of Criminal Appeals has
rejected. In Hopkins v. State, 46 S.W.3d 896, 898 (Tex. Crim. App. 2001), the court
6
The information, which was filed on September 6, 2016, alleges that appellant “heretofore
on or about SEPTEMBER 6, 2016, did then and there unlawfully while driving and operating a
vehicle, was involved in an accident resulting only in damage to another vehicle. . . .”
13
held that “the State sufficiently alleged that the offense occurred prior to the filing
of the information” even though the State filed the information on the same date that
the offense was alleged to have been committed. As we note supra, we are bound
by Court of Criminal Appeals precedent.
Thus, we overrule appellant’s sixth issue.
Conclusion
Having overruled appellant’s issues, we affirm the trial court’s judgment.
/s/ Kevin Jewell
Justice
Panel consists of Justices Donovan, Wise, and Jewell.
Do Not Publish — Tex. R. App. P. 47.2(b).
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