Salazar, Raul Garza ( 2015 )

PD-1160-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 9/29/2015 10:19:29 AM
Accepted 9/30/2015 3:12:53 PM
IN THE COURT OF CRIMINAL APPEALS OF TEXAS ABEL ACOSTA
CLERK
NO.# PD-1160-15 & PD-1161-15
ON PETITION FOR DISCRETIONARY REVIEW OF THE FOLLOWING:
Court of Appeals of Texas,
Corpus Christi-Edinburg.
Raul Garza Salazar, Appellant,
v.
The State of Texas, Appellee.
NUMBERS 13–14–00006–CR, 13–14–00007–CR
Delivered and filed July 16, 2015
On appeal from the 445th District Court of
Cameron County, Texas.
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
Larry Warner
Counsel for Raul Garza Salazar
3109 Banyan Drive
Harlingen, Texas 78550
Phone (956)230-0361
Facsimile: 1-866-408-1968
Email: office@larrywarner.com
Texas Bar#20871500;
USDC,SDTX 1230;
Board Certified, Criminal Law,
Texas Board of Legal
Specialization(1983)
Member of the Bar of the
September 30, 2015 Supreme Court of the United
States (1984)
Page i of vi
Pursuant to TEX.R.APP.P.68.4,Appellant provides the
following identity of parties and counsel:
Identity of parties and counsel
1. Hon. Luis V. Saenz, District Attorney, Attorney at
trial and on appeal and on Petition for Discretionary
Review for the State; 964 East Harrison;
Brownsville, TX 78520
2. Hon. Victor Ramirez, Attorney for Defendant at trial.
Brownsville, TX 78520
3. Hon. Rene Gonzalez, Assistant Cameron County District
Attorney, Attorney for Appellant on Appeal.
4. Hon. Larry Warner, Attorney for Petitioner on
Petition for Discretionary Review and on appeal,
3109 Banyan Drive, Harlingen, Texas 78550
5. Raul Garza Salazar, Petitioner
Page ii of vi
Pursuant to TEX.R.APP.P.68.4(a), Petitioner provides this
Table of Contents with reference to the pages of the
Petition, indicating the subject of each ground or
question presented for review.
TABLE OF CONTENTS
PAGE
Identity of Parties and Counsel . . . . . . . . . . . ii
Table of Contents . . . . . . . . . . . . . . . . . iii
Index of Authorities . . . . . . . . . . . . . . . iv
Statement re oral argument . . . . . . . . . . v - vi
Statement of the case . . . . . . . . . . . . . . . . 1
Statement of procedural history . . . . . . . . . . . 2
Grounds for Review . . . . . . . . . . . . . . . . 3-4
Argument . . . . . . . . . . . . . . . . . . . . 5-11
Prayer for Relief. . . . . . . . . . . . . . . . . 12-13
Certificate of Service . . . . . . . . . . . . . . .14-15
Certificate of Compliance . . . . . . . . . . . . . 16-17
Appendix. . . . . . . . . . . . . . . . . . . . . . . 18
Page iii of vi
Pursuant to TEX.R.APP.P.68.4(b), Petitioner provides an
Index of Authorities, arranged alphabetically and
indicating the pages of the petition where the authorities
are cited.
INDEX OF AUTHORITIES
CASES: PAGES
Nava v. State, 415S.W.3d289,306(Tex.Crim.App.2013). . 4
The decision of the Court of Criminal Appeals with
which the decision of the Court of Appeals is in
conflict is
Worthy v. Collagen Corp.,967 S.W.2d 360,365hn2(Tex.
1998). . . . . . . . . . . . . . . . . . . . . . . 9, 10
The former rule required supplementation unless the
supplementation would have unreasonably delayed the
appeal.
RULES:
TEX.R.APP.P.10.5(b)(3)(B). . . . . . . . . . . . . . . 2
TEX.R.APP.P.10.5(b)(3)©. . . . . . . . . . . . . . . . 2
TEX.R.APP.P.10.5(b)(3)(D). . . . . . . . . . . . . . . 2
TEX.R.APP.P.66.3©. . . . . . . . . . . . . . . . . . . 3
TEX.R.APP.P.34.6(d). . . . . . . . . . . . . . . 3, 4, 11
Page iv of vi
Pursuant to TEX.R.APP.P. 68.4©, Petitioner includes a
short statement of why oral argument would be helpful.
STATEMENT RE ORAL ARGUMENT
Oral argument would be helpful to the decisional
process because counsel and the Judges of the Court of
Criminal Appeals could discuss when a Court of Appeals
should allow supplementation of the record.
Here, Appellant filed a misdemeanor writ application
and a direct appeal. The writ was filed before the
appellate brief. It alleged prosecutorial misconduct in
making a misleading argument by waving a purported agenda
to prove that Appellant retaliated against witnesses. The
misdemeanor writ application was sworn to.
In the direct appeal, he filed a verified bill of
exceptions, making the same allegations as the writ
application, but on information and belief. The appellate
lawyer said he believed what the trial lawyer told the
appellate lawyer about the misleading action of the
prosecutor at trial.
Substantially later, but before decision, the trial
lawyer finally verified the bill of exceptions. Appellate
Counsel tendered the bill verified on personal knowledge
by trial counsel and moved to supplement the record.
Page v of vi
The Court of Appeals denied the motion to supplement
the record. The Court of Appeals affirmed the judgment and
sentence, holding the record insufficient to sustain the
allegations of prosecutorial misconduct.
The Court and Counsel could discuss the general policy
under the more recent appellate rules of allowing
supplementation of the record before decision. They could
discuss whether the Court of Appeals ought to have
supplemented the record with the bill of exceptions
verified on personal knowledge.
Page i of vi
Pursuant to TEX.R.APP.P.68.4(d), Petitioner provides a
statement of the case, noting briefly the nature of the
case, and reserving the details of the case for statement
with the pertinent grounds or questions.
STATEMENT OF THE CASE
The nature of the case was a prosecution of Petitioner
for misdemeanor tampering with a public record. It is now
a review of the action of the Court of Appeals for the
Thirteenth District in failing to allow supplementation of
the record before decision.
Petitioner pleaded not guilty and submitted the matter
to a jury on guilt/innocence.
The jury found him guilty. The judge imposed a
sentence of ten months’ confinement in the County Jail.
Petitioner appealed and moved to supplement the record
with a bill of exceptions on personal knowledge showing
prosecutorial misconduct.
The Court of Appeals denied the motion to supplement,
affirmed the judgment and sentence, saying that the record
before it did not show prosecutorial misconduct.
Petition asked for and was granted an extension of
time to file this Petition for Discretionary Review.
Petitioner timely files this Petition for Discretionary
Review.
Page 1 of 16
Pursuant to TEX.R.APP.P.68.4(e), Petitioner provides a
Statement of Procedural History.
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
The court of appeals is the Court of Appeals for the
Thirteenth District of Texas.
Re: TEX.R.APP.P.10.5(b)(3)(B), the date of Court of
Appeals’ judgment is
Re: TEX.R.APP.P.10.5(b)(3)© the case number in the Court
of Appeals is No.
Re: TEX.R.APP.P.10.5(b)(3) (D), the date every motion for
rehearing or en banc reconsideration was filed.
On, August 6, 2015 petitioner filed both Motions for
Rehearing and Motion for Rehearing En Banc.
On September 10, 2015, Petitioner sought and was
granted an extension of thirty days to file the Petition
for Discretionary Review. This Court granted an extension
to file the PDR until October 7, 2015.
This Petition is filed Electronically Via EFC and by
mailing it to the Clerk of the Court of Appeals to the
following address:
Clerk, Court of Appeals for the Thirteenth District of
Texas, 5th Floor, Hidalgo County Administration
Building, 100 East Cano Street, Edinburg, Texas.
Page 2 of 16
Pursuant to TEX.R.APP.P.68.4(f), Petitioner states
briefly, without argument, the question presented for
review, expressed in the terms and circumstances of the
case, but without unnecessary detail.
GROUND FOR REVIEW
1. The Court of Appeals decision conflicts with an
important question of state law in a way that conflicts
with the applicable decision of the Court of Criminal
Appeals. TEX.R.APP.P.66.3©
The issue is whether the Court of Appeals should have
remanded the matter of the incomplete reporter’s record to
the Trial Court pursuant to TEX.R.APP.P.34.6(d)to
supplement the record with a verified, tendered bill of
exceptions.
The reporter’s record was inaccurate and incomplete
because it did not show that the prosecutor was waving a
purported agenda of the Commissioners’ Court in front of
the jury during final argument, contending that the
Defendant had an item on that very agenda to demote
employees in retaliation for their cooperation with the
prosecution; the bill of exceptions swore that there was
no such agenda existing when the prosecutor made that
argument.
The decision of the Court of Criminal Appeals with
Page 3 of 16
which the decision of the Court of Appeals is in conflict
is Nava v. State,415S.W.3d289,306(Tex.Crim.App.2013)
The question is important to the jurisprudence of the
state for two reasons. One, it deals with a Rule of
Appellate Procedure, TEX.R.APP.P.34.6(d),dealing with
supplementation of the record before decision.
Analogizing to the words of The Court of Criminal
Appeals in Nava, the record can be supplemented...the
record needs to be supplemented. Nava v. State, 415 S.W.
3d289,306hn13(Tex.Crim.App.2013)[emphasis in original,lw]
Page 4 of 16
Pursuant to TEX.R.APP.P.68.4(g), Petitioner provides a
direct and concise argument, with supporting authorities,
amplifying the reasons for granting review.
ARGUMENT
STANDARD OF REVIEW
“In answering that question, we start with
the standard of review for construing
court rules. We attempt to effectuate the
plain language of a rule unless there are
important countervailing considerations.37
Unlike the standard for construing
statutes articulated in Boykin v. State,38
the standard for construing court rules
permits the consideration of extratextual
factors even if the text of the rule is
not ambiguous and does not lead to absurd
results.39 Extratextual factors include
(but are not limited to) the object sought
to be attained, common law or former
provisions, and the consequences of a
particular construction.”Nava v.
State,415S.W.3d289,306hn13(Tex.Crim.App.
2013)[emphasis in original,lw]
The presumption is that the record should be
supplemented.
When determining whether a missing portion
of the record is necessary for resolution
of an appeal, in assessing a trial judge's
recollection, the Court of Criminal
Appeals should view the circumstances from
the appellant's standpoint and resolve any
reasonable doubt in his favor. Nava v.
State (Cr.App. 2013) 415 S.W.3d 289,
application for writ of habeas corpus held
in abeyance 2014 WL 7188854
Page 5 of 16
The Court of Appeals for the Tenth District abated an
appeal when the record was incomplete. That is similar to
what the Court of Criminal Appeals should do here...grant
this petition, allow full briefing, and, on submission,
require the Court of Appeals to allow supplementation of
the record and determination of the appeal upon a complete
record, rather than upon an incomplete record.
Appeals from convictions of forgery and
failure to identify would be abated for
trial court to determine date by which
supplemental reporter's record containing
exhibits would be filed, where reporter
had over eight months since original due
date of record to obtain exhibits from
clerk, Court of Appeals actively attempted
to obtain complete reporter's record for
over three months only to have incomplete
record filed without reporter notifying
court that record was not complete, and
reporter never suggested that he could not
file complete record because district
clerk would not give him needed exhibits
so they could be copied and made part of
reporter's record. Jenkins v. State (App.
10 Dist. 2010) 312 S.W.3d 314, appeal
decided 2011 WL 337338.
As a negative example:
Evidence would be presumed to be
sufficient to support trial court's
findings of fact in action by parents of
deceased workers' compensation claimant to
recover death benefits from workers'
compensation insurer, where record on
Page 6 of 16
appeal was incomplete because parents'
exhibit was missing; trial court quoted
language from parents' exhibit in one of
trial court's findings of fact, and
insurer did not attempt to supplement
record, did not argue that parents'
exhibit had been lost or destroyed, and
did not designate partial reporter's
record. Travelers Indem. Co. of Rhode
Island v. Starkey (App. 5 Dist. 2005) 157
S.W.3d 899, rehearing overruled, review
denied, rehearing of petition for review
denied.
But in Petitioner’s appeal, the incomplete record does
not support the decision of the Court of Appeals precisely
because the Court of Appeals did not allow supplementation
of the record with the bill of exceptions verified on
personal knowledge (by the trial lawyer, who said the
prosecutor misled the jury by waving a purported [but non-
existent] Commissioners’ Court agenda saying that it
contained evidence of Petitioner’s seeking vengeance
against two witnesses for the prosecution by having them
demoted).
Someone quoted from the missing document in
Petitioner’s trial...the prosecutor did. But this time
there was nothing to quote from. There was no
Commissioners’ Court agenda in being at the time of the
argument containing any attempted demotion of prosecution
Page 7 of 16
witnesses. So, the quoting in Starkey serves to supplement
the record while the quoting at Petitioner’s trial is the
essence of the Petition: Send the case back to the Court
of Appeals and tell it to allow the Bill of Exceptions;
then decide the case on a complete record rather than on
an incomplete record.
In Petitioner’s appeal, Counsel did obtain a complete
record. Mr. Warner personally paid for the reporter’s
complete record when the trial court denied Appellant a
record at the cost of the county. (Motion for Record at
Cost of the state)
Extra textual factors include (but are not
limited to) the object sought to be
attained, common law or former provisions,
and the consequences of a particular
construction.”Nava v. State,415S.W.3d289,
06hn13(Tex.Crim.App.2013)[emphasis in
original,lw]
THE OBJECT SOUGHT TO BE ATTAINED
Petitioner seeks to have his appeal decided upon a
complete record, rather than upon an incomplete record.
COMMON LAW OR FORMER PROVISIONS
The current appellate rules make it easier to
supplement the record.
A Court of Appeals did not abuse its discretion in
Page 8 of 16
denying leave to supplement record after its opinion
issued, where appellant had previously failed to
supplement record after requesting and being granted leave
to do so. Worthy v. Collagen Corp.,967 S.W.2d 360,365hn2
(Tex.1998)
In Petitioner’s appeal, he did indeed try to
supplement the record with a Bill of Exceptions before
decision. The Court of Appeals denied leave to supplement
the record with the Bill of Exceptions.
The former rule required supplementation unless the
supplementation would have unreasonably delayed the
appeal. Worthy v. Collagen Corp.,967 S.W.2d
360,365hn2(Tex.1998)
There was no showing or finding that the filing of the
bill of exceptions would have unreasonably delayed the
decision on appeal.
Under prior appellate rules, the trial judge had to
approve the record on appeal. It required a motion to
make a change. This Court’s opinion notes:
“Under article 2248, Revised Civil
Statutes 1925, only the judge who tries a
criminal cases is authorized to approve
the statement of **294 facts, except where
the trial judge dies before the time for
said approval or filing, in which event
Page 9 of 16
the statement of facts may be approved or
filed by the deceased judge's successor.
The record does not disclose the death of
the trial judge, nor is any reason shown
why he did not approve the statement of
facts. For this reason we cannot consider
s a m e . ” H u d n a l l v .
State,296S.W.293(Tex.Crim.App.1927)
CONSEQUENCES OF A PARTICULAR CONSTRUCTION
Construing the rule to require supplementation of the
reporter’s record will promote the end of the current
rules that any party by letter [not motion], the Trial
Court, or the Court of Appeals can direct that the
reporter supplement the record.TEX.R.APP.P.34.6(d)
“d) Supplementation. If anything relevant
is omitted from the reporter's record, the
trial court, the appellate court, or any
party may by letter direct the official
court reporter to prepare, certify, and
file in the appellate court a supplemental
reporter's record containing the omitted
items. Any supplemental reporter's record
is part of the appellate
record.”TEX.R.APP.P.34.6(d)
Page 10 of 16
CONCLUSION AND REQUEST FOR RELIEF
Courts of Appeals should decide cases based on a
complete record.
Petitioner tried to complete the record before
decision.
The Court of Appeals should not have decided the
appeal based on an incomplete record.
A complete record would have resulted in a different
decision, since it would have shown blatant, material
prosecutorial misconduct...misleading the jury by arguing
that evidence existed which did not exist.
The Court of Criminal Appeals should allow full
briefing.
Respectfully submitted
September 29, 2015
By:
Larry Warner
Attorney for Raul Garza Salazar
3109 Banyan Drive
Harlingen, Texas 78550
Office: 956-230-0361
Facsimile: 1-866-408-1968
Email: office@larrywarner.com
State Bar of TX 20871500;
USDC, SDTX 1230(1981)
Board Certified, Criminal Law,
Page 11 of 16
Texas Board Legal
Specialization(1983)
Member of the Bar of the
Supreme Court of the United
States(1984)
Page 12 of 16
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO.# PD-1160-15 & PD-1161-15
ON PETITION FOR DISCRETIONARY REVIEW OF THE FOLLOWING:
In the Court of Appeals for the Thirteenth District of
Texas
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
CERTIFICATE OF SERVICE
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
This is to certify that a true and correct copy of the
foregoing APPELLANT’S PETITION FOR DISCRETIONARY REVIEW,
was sent Electronically Via EFC to the following counsel
of record on September 29, 2015, the day it was filed.
LUIS V. SAENZ, Cameron County District Attorney’s
Office, 964 E. Harrison, Brownsville, Texas 78520.
Phone (956) 544-0849. Fax (956) 544-0869.
Email: district.attorney@co.cameron.tx.us
LAW OFFICE OF LARRY WARNER
RESPECTFULLY SUBMITTED
September 29, 2015
Larry Warner,
Counsel for Raul Garza Salazar
3109 Banyan Circle
Harlingen, Texas 78550
Phone: (956)230-0361
Facsimile: (866)408-1968
Email: office@larrywarner.com
State Bar of TX 20871500;
USDC,SDTX 1230(1981)
Board Certified, Criminal Law,
TX Board Legal Specialization
(1983)Member of the Bar of the
Supreme Court of the
United States(1984)
Page 13 of 16
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO.# PD-1160-15 & PD-1161-15
ON PETITION FOR DISCRETIONARY REVIEW OF THE FOLLOWING:
In the Court of Appeals for the Thirteenth District of
Texas
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
CERTIFICATE OF COMPLIANCE
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
1. This brief complies with the type-volume limitation
of FED. R. APP. P. 32(a)(7)(B) because: this brief
contains 2991 words, excluding the parts of the
brief exempted by FED. R. APP. P. 32(a)(7)(B)(iii).
2. This brief uses a monospaced typeface and contains
754 lines of text, excluding the parts of the brief
exempted by FED. R. APP. P. 32(a)(7)(B)(iii).
3. This brief complies with the typeface requirements
of FED. R. APP. P. 32(a)(5) and the type style
requirements of FED. R. APP. P. 32(a)(6) because:
this brief has been prepared in a proportionally
spaced typeface using Word Perfect X6 in Courier in
font size 14pt.
The undersigned understands a material
misrepresentation in completing this certificate, or
circumvention of the type-volume limits in 5th CIR.
R. 32.2.7, may result in the court’s striking the
brief and imposing sanctions against the person
signing the brief.
LAW OFFICE OF LARRY WARNER
RESPECTFULLY SUBMITTED
September 29, 2015
By:
Page 14 of 16
Larry Warner,
Counsel for Raul Garza Salazar
3109 Banyan Circle,
Harlingen, Texas 78550
Phone: (956) 230-0361
Facsimile: (866)408-1968
office@larrywarner.com
State Bar of TX 20871500;
USDC,SDTX 1230(1981)
Board Certified, Criminal Law,
Texas Board Legal
Specialization(1983)
Member of the Bar of the
Supreme Court of the
United States(1984)
Page 15 of 16
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO.# PD-1160-15 & PD-1161-15
ON PETITION FOR DISCRETIONARY REVIEW OF THE FOLLOWING:
In the Court of Appeals for the Thirteenth District of
Texas
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
APPENDIX
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Order
A copy of the opinion of the Court of Appeals for the
Thirteenth District is attached.
Page 16 of 16
NUMBERS
13-14-00006-CR
13-14-00007-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
RAUL GARZA SALAZAR, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 445th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza and Longoria
Memorandum Opinion by Justice Longoria
Appellant Raul Garza Salazar challenges his convictions on two counts of abuse
of official capacity and one count of tampering with governmental records. 1 See TEX.
PENAL CODE ANN. §§ 39.02, 37.10 (West, Westlaw through Chapter 46, 2015 R.S.).
Salazar raises the following twelve issues: (1) we should grant a new trial in the interest
of justice; (2) the verdict is contrary to the law and the evidence;
(3)–(6) the State presented misleading testimony and evidence calculated to harm
Salazar; (7) the witness failed to identify Salazar prior to trial; (8) the State alleged untrue
facts regarding an item of evidence; (9) the overall conduct by the State in presenting
misleading arguments warrants a new trial; (10)–(11) cumulative error deprived Salazar
of a fair trial; and (12) the indictment failed to state an offense. We affirm.
I. BACKGROUND
On November 15, 2013, a Cameron County jury convicted Salazar on two counts
of abuse of official capacity and one count of tampering with governmental records. See
See TEX. PENAL CODE ANN. §§ 39.02, 37.10. The State alleged that between March and
August of 2011 Salazar committed the offenses of abuse of official capacity and
tampering with governmental records in his effort to assist Roberto Cadriel obtain a job
with Cameron County. Salazar was Cameron County Commissioner Ernie Hernandez’s
administrative assistant at the time. Cadriel is Hernandez’s brother-in-law.
In June of 2011, Carmen Vera worked for the Cameron County Human Resources
Department. On June 10, 2011, Cadriel took a computerized civil service exam in order
to apply for a position in the Cameron County Animal Control Department. Cadriel failed
1 The State alleged two counts of abuse of official capacity in trial court cause No. 2013-DCR-1700
(appellate cause no. 13-13-0006-CR) and one count of tampering with a government record in trial court
cause No. 2013-DCR-1701 (appellate cause no. 13-13-0007-CR).
2
the exam twice. Vera testified that, at Salazar’s direction, she took the exam in place of
Cadriel for his third attempt and received a passing score. On June 28, 2011, Cadriel
came back to the Human Resources Department to apply for a security guard position.
Cadriel testified that he copied the correct answers for the security guard exam from an
answer key. Cadriel further testified that Salazar gave him the answer key.
In trial court cause number 2013-DCR-1701, the State alleged that Salazar abused
his official capacity by directing Vera to take the civil service exam on Cadriel’s behalf
(count one), and by providing the answer key for the security guard exam to Cadriel (count
two). In trial court cause 2013-DCR-1700, the State alleged that Salazar tampered with
government records by directing Vera to take the civil service exam in Cadriel’s place
(count three). The jury found Salazar guilty on all three counts. The trial court sentenced
him to three concurrent ten-month terms in prison. The trial court assessed no fine.
II. WAIVER
We first address whether Salazar waived his issues by failing to cite to the record
in his brief. The State did not address any of Salazar’s issues but rather argued that
Salazar waived any error because he “completely failed to include any cites to the record
in support of these twelve issues.”
A. Applicable Law
An appellant's brief must contain both citations to authorities and to the record, and
a failure to include either waives an issue on appeal. TEX. R. APP. P. 38.1(i) (“The brief
must contain a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record.”); see Vuong v. State, 830 S.W.2d 929, 940
(Tex. Crim. App. 1992) (holding that when an appellant cites to no specific constitutional
3
provisions, statutory authority, or case law to support claims, then the court does not need
to address the claims). As an appellate court, we have no duty to make an independent
search of a voluminous record for evidence supporting a party's position. See Alvarado
v. State, 912 S.W.2d 199, 210 (Tex. Crim. App. 1995) (“As an appellate court, it is not our
task to pore through hundreds of pages of record in an attempt to verify an appellant’s
claims.”). However, if an issue presented in an appellant's brief directs our attention to
the location of the error or complaint in the record, then the appellant has sufficiently
briefed the facts of the issue. See id.; Martinez v. El Paso Cnty., 218 S.W.3d 841, 844
(Tex. App.—El Paso 2007, no pet.).
B. Analysis
We have thoroughly reviewed Salazar's brief and found that Salazar failed to
include any citations to the record in either his argument or statement of facts. See TEX.
R. APP. P. 38.1(i). Salazar only included two citations to the record in his statement of the
case. See id. Salazar does not cite the specific pages in the record that support any of
his issues. See Alvarado, 912 S.W.2d at 210; Vuong, 830 S.W.2d at 940.
Salazar argues in his first two issues that we should grant a new trial in the interest
of justice and that the verdict is contrary to the law and the evidence but cites neither the
record nor any authorities. Therefore, we are unable to review these issues. See TEX.
R. APP. P. 38.1(i).
By his third through sixth issues, Salazar claims that the State presented
misleading testimony calculated to harm him. Salazar contends that certain testimony
centered on Salazar conspiring to retaliate against witnesses by demoting or firing them,
specifically those witnesses who were employees at the Cameron County Human
4
Resources Department. Salazar contends that the reorganization of the Human
Resources Department by the Cameron County Commissioners’ Court was not his idea
and so could not constitute retaliation. Salazar fails to cite where in the 400-page record
this allegedly misleading or false evidence is located. Salazar does not specify which
witnesses allegedly provided misleading or false testimony. Without more, we are unable
to ascertain which witness provided the testimony that he alleges is misleading or false.
See Martinez, 218 S.W.3d at 844. Since we are unable to analyze the testimony, we are
unable to reach a conclusion as to its nature. See Alvarado, 912 S.W.2d at 210.
Salazar’s seventh issue, arguing that “the witness failed to identify the defendant
prior to trial,” refers to Dalia Salinas, an employee within the Human Resources
Department. But Salinas never testified at trial. Again, Salazar provides no record
citations to direct us to where he claims that Salinas testified or where she failed to identify
Salazar. We are unable to address this issue on the merits without any record citations.
See id.
Salazar’s eighth issue mirrors his third through sixth issues. Salazar contends that
the State alleged that Salazar caused an agenda item calling for the reorganization of the
Human Resources Department to be placed on the agenda of the Cameron County
Commissioners’ Court as retaliation against those employees who testified. Salazar
contends that the prosecutor offered a misleading argument by claiming that the piece of
paper in his hand during closing argument was the agenda item for the day to discuss the
reorganization. We are unable to address this issue because Salazar does not cite to the
prosecutor’s closing statement or cite to anything in the record that illustrates how the
prosecutor’s argument was misleading. See id.
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In sum, we will not attempt to perform an independent review of the record and
verify each of Salazar’s twelve issues. See id. With one exception, which we discuss
below, we agree with the State and conclude that Salazar’s brief contains no citations to
the record. As a result, Salazar’s brief presents nothing for our review. See Alvarado,
912 S.W.2d at 210; Martinez, 218 S.W.3d at 844.
III. FAILURE OF INDICTMENT TO ALLEGE AN OFFENSE
In the interest of justice, we address Salazar’s twelfth issue that addresses the
indictment because Salazar cited to the indictment within the record in his statement of
the case. Salazar argues that the indictment failed to state an offense.
A. Applicable Law
“An indictment must allege, in plain and intelligible language, all the facts and
circumstances necessary to establish all the material elements of the offense charged.”
Garcia v. State, 981 S.W.2d 683, 685 (Tex. Crim. App. 1998). These material elements
include “the facts necessary to show that the offense was committed, to bar a subsequent
prosecution for the same offense, and to give the defendant notice of precisely what he
is charged with.” Bynum v. State, 767 S.W.2d 769, 779 (Tex. Crim. App. 1989). If the
State fails to allege an element of an offense in an indictment or information then this
failure is a defect in substance. Studer v. State, 799 S.W.2d 263, 268 (Tex. Crim. App.
1990). The accused must object to substance defects before trial begins; otherwise the
accused forfeits his right to raise the objection on appeal or by collateral attack. Id. In
order to be an effective indictment or information, the charging instrument need not
necessarily allege every element of the offense charged, as long as no material element
is missing. Id.
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B. Analysis
The indictment includes the basic facts of the case, specifying in count one, that
Salazar:
on or about the 1st day of March, 2011 and through the 1st day of August,
2011, through a continuing course of conduct and one scheme . . . did then
and there, with the intent to obtain a benefit and defraud another,
intentionally or knowingly violate a law relating to the defendant’s office as
a public servant, namely, tampering with governmental records relating to
the testing of and by Roberto Cadriel, by directing another to take the civil
service test for and in the place of Roberto Cadriel.
The language of the indictment for count two mirrors count one except for referring to
Salazar providing test answers to Roberto Cadriel.
Salazar cites one case in his brief in support of this issue. See Ex parte Nivens,
619 S.W.2d 184, 185 (Tex. Crim. App. 1981) (holding a conviction void as the felony
information was fundamentally defective for failing to allege an essential element of the
offense), overruled on other grounds, Ex parte Patterson, 969 S.W.2d 16, 20 (Tex. Crim.
App. 1998) (holding that a defect in a charging instrument does not automatically render
a judgment void). Salazar asserts that the indictment does not allege that Salazar gave
the answers to Cadriel without the owner’s consent. Salazar contends that lack of
consent is a material element of the offense and that when the State omits a material
element from the indictment, then the indictment fails to state an offense. Again, he fails
to refer to the record; therefore, the exact offense to which he is referring remains unclear.
We reject Salazar’s argument for two reasons. First, lack of consent of the owner
is not a material element of either offense. See Bynum, 767 S.W.2d at 779. The Texas
Penal Code does not mention consent in either offense. See TEX. PENAL CODE ANN.
§§ 39.02, 37.10; see also Harrelson v. State, 153 S.W.3d 75, 80 (Tex. App.—Beaumont
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2005, pet. ref’d) (setting out the elements of abuse of official capacity); Pokladnik v. State,
876 S.W.2d 525, 526 (Tex. App.—Dallas 1994, no pet.) (discussing the elements of
tampering with a governmental record). The indictment in this case sufficiently states the
material elements for abuse of official capacity by tampering with a governmental record.
See Campbell v. State, 139 S.W.3d 676, 686 (Tex. App.—Amarillo 2003, pet. ref’d)
(holding that the indictment did not fail to state an offense when it specifically alleged the
acts that appellant had to perform and that appellant acted with intent to obtain a benefit).
Furthermore, the indictment included sufficient information to put Salazar on notice of the
offense because it specifically alleged that he intended to obtain a benefit and defraud
another while intentionally or knowingly violating a law relating to Salazar’s office as a
public servant. See TEX. PENAL CODE ANN. § 39.02; see also Bynum, 767 S.W.2d at 799.
Second, since Salazar did not object to any defects of substance or form in the
charging instrument prior to the day of trial, Salazar waived any error. See Ex parte
Patterson, 969 S.W.2d at 20; see also Studer, 799 S.W.2d at 268. We overrule Salazar’s
twelfth issue.
IV. CONCLUSION
We affirm the judgment of the trial court.
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
16th day of July, 2015.
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