Andres Alfredo Segovia v. State , 467 S.W.3d 545 ( 2015 )

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-14-00367-CR
Andres Alfredo SEGOVIA,
Appellant
v.
The STATE of Texas,
Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2012CR8592
Honorable Ray Olivarri, Judge Presiding 1
Opinion by: Patricia O. Alvarez, Justice
Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Jason Pulliam, Justice
Delivered and Filed: April 29, 2015
AFFIRMED
Appellant Andres Alfredo Segovia was charged by indictment with the murder of Joel
Flores; the State provided notice of intent to enhance Segovia’s penalty with two prior felony
convictions. The jury subsequently found Segovia guilty and assessed punishment at fifty-five
years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. On
appeal, Segovia contends the trial court erred as follows: (1) denying the testimony of defense
1
The Honorable Ray Olivarri presided over the guilt/innocence portion of the trial. The punishment phase was
presided over by the Honorable George Godwin.
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investigator Manuel Alfaro; (2) allowing the testimony of Bexar County Sheriff’s Deputy Miguel
Tena Mora; (3) failing to include a sudden passion instruction in the court’s jury charge; and (4)
instructing the jury “you will find” Segovia’s enhancement allegations to be true. We affirm the
trial court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Because whether Appellant Andres Alfredo Segovia shot and killed Joel Flores is not at
issue, we need not provide an in-depth recitation of the facts.
The incident leading to Flores’s death began earlier in June of 2012. Segovia and his
girlfriend, Shannon Rodriguez, were at a bar when a fight ensued between Segovia and the Flores
brothers. Segovia and the Flores brothers all lived in the same apartment complex. By his own
admission, on June 8, 2012, Segovia came home from work, set out to find Joel Flores, and
approached the Flores apartment with a bat. The testimony supports that Segovia screamed up at
the apartment, but did not actually approach the apartment. Segovia ultimately left the area and
returned to his apartment.
After several hours, Segovia returned to the parking area outside the Flores apartment and,
from the parking lot, called up to Joel Flores. Instead of a bat, however, Segovia brought a .40
caliber firearm. A friend of Flores attempted to calm the situation, but things unraveled quickly
and the friend soon found himself being used by Segovia as a shield. Flores and Segovia shot at
each other. Flores died as a result of a gunshot wound.
Segovia was indicted for murder and the State filed a notice of intent to use two prior
convictions for enhancement purposes. Segovia elected to have his case heard before a jury. After
five days of trial, the jury convicted Segovia and ultimately assessed punishment at fifty-five years’
confinement in the Institutional Division of the Texas Department of Criminal Justice.
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On appeal, Segovia contends the trial court erred in allowing the State to present evidence
that Segovia was affiliated with the Mexican Mafia and in excluding pictures of the crime scene
taken by the defense. Segovia also contends the trial court erred in failing to include a sudden
passion instruction in the jury charge on punishment; and, in the absence of a plea of true, the
charge incorrectly directed the jury that “you will find,” rather than “if you find,” Segovia’s
enhancement allegations to be true.
We first address Segovia’s evidentiary issues.
ADMISSION OF EVIDENCE
Segovia contends the trial court erred in excluding the testimony of the defense
investigator, Manuel Alfaro, and the pictures that Alfaro took of the crime scene. Segovia also
argues the trial court erred in allowing the testimony of Bexar County Deputy Miguel Tena Mora
regarding Segovia’s gang affiliation.
We address each witness individually.
A. Standard of Review
We review a trial court’s decision to admit or exclude evidence under an abuse of discretion
standard. Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006); Weatherred v. State,
15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Sandoval v. State, 409 S.W.3d 259, 297 (Tex. App.—
Austin 2013, no pet.). A trial court abuses its discretion if it acts arbitrarily or unreasonably,
without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380
(Tex. Crim. App. 1991) (op. on reh’g); accord Thompson v. State, 274 S.W.3d 776, 778 (Tex.
App.—San Antonio 2008, no pet.). When considering a trial court’s decision to admit or exclude
evidence, we will not reverse the ruling unless it falls outside the “zone of reasonable
disagreement.” McGee v. State, 233 S.W.3d 315, 318 (Tex. Crim. App. 2007); see also Jessop v.
State, 368 S.W.3d 653, 686 (Tex. App.—Austin 2012, no pet.).
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B. Testimony of Manuel Alfaro and Photographs Taken by Alfaro
Segovia sought to have Alfaro testify about photographs he took of the crime scene. The
trial court sustained the State’s objection and did not admit the photographs or allow Alfaro to
testify. Segovia claims the trial court erroneously excluded the testimony of Alfaro due to Alfaro’s
testimony allegedly violating Texas Rule of Evidence 614, the witness sequestration rule. See
TEX. R. EVID. 614.
1. Arguments of the Parties
Segovia argues that Rule 614’s concerns for any improper influence on a witness do not
apply because Alfaro’s proffered testimony was limited to when and where the proposed
photographs were taken. Accordingly, any testimony heard by Alfaro during the trial would not
influence his testimony before the jury. Additionally, Segovia contends Alfaro was never listed
as a defense witness because no one either contemplated or planned for Alfaro to testify.
The State counters that the trial court’s exclusion was based on a determination that the
photographs were not relevant because the photographs were taken in 2014, two years after the
fact and were of little probative value.
2. Trial Court Ruling
Alfaro was hired as the defense investigator. He consulted with the defense throughout
pretrial, during trial, provided his opinions to defense counsel, and reviewed the State’s file. After
the fourth day of trial, defense counsel requested Alfaro return to the scene of the shooting and
take additional photographs, specifically focusing on the balcony and the parking lot. Alfaro was
prepared to testify there were trees obstructing the view from the balcony to the parking lot area
where the alleged shooting took place. Alfaro took photographs from the balcony, looking down
into the parking lot. The State objected to the witness and photographs, and defense counsel argued
there was no violation under Rule 614. See id.
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The trial court held as follows:
You know, I don’t think it’s relevant because it’s not the same view that they had
when it happened. It’s a completely different view now and for that reason and for
him being—you invoked the Rule, he was present. I’m not going to allow him to
testify.
Because the trial court excluded the evidence based on relevancy, we need not address whether
Alfaro violated the Witness Sequestration Rule. Cf. Russell v. State, 155 S.W.3d 176, 179–80
(Tex. Crim. App. 2005) (explaining the purpose of invoking the rule is to prevent potential
witnesses from being influenced by, or modifying their testimony because of, the testimony of
other witnesses). We, therefore, turn to a determination of whether the trial court erred in
excluding the testimony and photographs based on relevancy.
3. Relevancy Determination
Although Segovia contends the jury and not the trial court should have determined whether
the photographs were taken from a “completely different view,” Texas Rule of Evidence 104(a)
dictates the initial question in deciding whether to admit evidence at trial is a preliminary question
to be decided by the trial court. TEX. R. EVID. 104(a); Tienda v. State, 358 S.W.3d 633, 637 (Tex.
Crim. App. 2012). Only relevant evidence is admissible. TEX. R. EVID. 402; Montgomery, 810
S.W.2d at 375.
“Relevant evidence is ‘evidence having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than it would
be without the evidence.’” Manuel v. State, 357 S.W.3d 66, 74 (Tex. App.—Tyler 2011, pet. ref’d)
(quoting TEX. R. EVID. 401). A proponent of evidence is not required to “rule out all possibilities
inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports
to be.” Campbell v. State, 382 S.W.3d 545, 549 (Tex. App.—Austin 2012, no pet.) (internal
quotation marks omitted). “The preliminary question for the trial court to decide is simply whether
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the proponent of the evidence has supplied facts that are sufficient to support a reasonable jury
determination that the evidence he has proffered is authentic.” Tienda, 358 S.W.3d at 638; see
also Manuel, 357 S.W.3d at 74 (stating “proponent must only produce sufficient evidence that a
reasonable fact finder could properly find genuineness”).
Under Rule 403, even relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the
jury, or needless presentation of cumulative evidence. See TEX. R. EVID. 403. To be relevant, the
photograph must “be a correct representation of the subject at a given time.” Delacerda v. State,
425 S.W.3d 367, 393 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (citing Huffman v. State,
746 S.W.2d 212, 222 (Tex. Crim. App. 1988)). “[A] trial court may exclude any relevant evidence
if its probative value is substantially outweighed by any or all of the countervailing factors
specified in Rule 403.” Winegarner v. State, 235 S.W.3d 787, 791 (Tex. Crim. App. 2007) (citing
Gigliobianco v. State, 210 S.W.3d 637, 640 (Tex. Crim. App. 2006)).
4. Analysis
Here, the photographs were taken from the apartment balcony looking into the parking lot.
The purpose was to show the jury the obstructed view created by the trees. But the photographs
actually depicted what the trees and parking lot looked like on May 2, 2014, not on the night of
the alleged offense—June 8, 2012. The trial court concluded the photographs were not relevant
because they did not depict the scene as it was on the night in question. See Saldano v. State, 232
S.W.3d 77, 101–02 (Tex. Crim. App. 2007) (holding photographs may be admitted to show what
verbal testimony described).
We cannot conclude that the trial court’s determination was outside the zone of reasonable
disagreement or that the trial court abused its discretion when conducting a relevancy
determination. See Winegarner, 235 S.W.3d at 791 (providing trial court “considerable latitude”
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in determining “impact upon the jury, and to conduct the necessary balancing”). We, therefore,
overrule Segovia’s first issue.
C. Testimony of Segovia’s Alleged Gang Affiliation
Segovia next contends the trial court erred when it allowed the testimony of Bexar County
Deputy Miguel Tena Mora.
1. Arguments of the Parties
Segovia argues the State’s testimony regarding Segovia’s involvement in the Mexican
Mafia violated the requirement that the State provide timely notice of its intent to offer extraneous
bad acts evidence.
The State counters that because the testimony was offered during the punishment phase,
the proper test was an application of Texas Code of Criminal Procedure article 37.07 which only
requires reasonable notice be given to the defendant. The State further argues that any error was
harmless because Segovia was not surprised by the evidence and was able to counter with an
explanation.
2. Testimony in Question
On April 30, 2014, during the guilt/innocence phase of the trial, but outside the presence
of the jury, the State moved to supplement its witness list and its Notice of Intent to Introduce
Evidence of Extraneous Offenses. The original notice was filed on September 13, 2012.
The State: All right. Judge, for the record, at this time, based on some new
information that was discovered this morning, the State needs to
supplement its witness list and supplement the 404(b).
At this time, we need to supplement that Andres Segovia has
been identified as a member of the Mexican Mafia and, in fact, a ranking
member of the Mexican Mafia. We need to add that to the 404(b).
We are adding Bexar County Sheriff Deputy Miguel Tenamora
[sic] to our witness list and he’s a gang officer at the jail.
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And this information just came to us this morning. We’re still
checking into it. So as soon as we learned of it, I wanted to notify the
Court and the defense. As we get more information we’ll make the
defense aware.
The Court: All right.
Defense: Judge, it’s not in compliance with the statute that requires the State to
turn over any 404(b) evidence in anticipation of the trial.
This case has been going on for quite some time. The idea that
the State did not know that there was an association is unfathomable to
me. Again, it’s not proper notice to the defense.
What?
The State: Your Honor, last setting or a setting ago, I handed a paper to Mr.
Segovia and I—and the bailiffs admonished me for doing that. They said
because he is a known gang member, I couldn’t do that. So it’s been in
the purview of the State. So I don’t see that coming in the middle of trial
and if—this was the March setting. It wasn’t even this setting. Was it
even the March setting? There’s been so many. I don’t believe that it’s—
Defense: Proper notice, Judge, it’s not.
The State: For the record, it sounds like the defense has been aware of his gang
membership. The new information that we received this morning is
regarding his ranking position within the Mexican Mafia.
Defense: That’s not true. They told her he had some membership. They didn’t tell
them Mexican Mafia.
The State: They didn’t tell me—
Defense: Whenever I went to go visit him at the county jail, nobody ever told me
that I had to wait for an additional period of time because he was in
lockdown or he was in that particular mod. I had no knowledge of this,
Judge.
The Court: All right. Well, just get the information, and then I’ll make a ruling later.
The testimony was not offered during the guilt/innocence portion of the trial. However, five days
later, on May 5, 2014, during the punishment phase of the trial, the State again offered evidence
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of Segovia’s gang affiliation through a signed “gang letter.” The State explained that a gang letter
is provided to an individual upon entry into the Bexar County Jail.
The State: . . . they’re given an opportunity to state if they are a member of a gang.
The purpose of it is to try to house those same members together so they
cannot try to either recruit others in the jail to join their gang or have
potential conflict with others in the gang.
In this case, because Segovia signed a letter acknowledging his membership in the Mexican
Mafia, he was placed in the unit with other Mexican Mafia members. The prosecutor, however,
argued that she did not learn until that morning that Segovia was “a ranking member—the ranking
member of the Mexican Mafia.”
Defense counsel objected to the admission of any evidence pertaining to Segovia’s gang
membership explaining that Segovia had been incarcerated since shortly after the incident in 2012
and the State should have had knowledge of (1) the alleged gang affiliation, and (2) his signing of
a gang letter, prior to April 30, 2014. The State responded that Segovia himself signed the gang
letter and, thus, the State’s evidence that Segovia is a “ranking member of the Mexican Mafia”
could not cause any type of undue surprise to the defense.
The trial court opined there was a difference between the information that he is a gang
member and the specific evidence of his being “a ranking member.” In overruling defense
counsel’s objection, the trial court warned:
I’m going to tell [the State] to be very, very careful. I think the prospect that he is
a gang member is probably—should be admissible, despite the lack of notice.
Going any further, this ranking member business, or any of—you know, gang
government protocol, for lack of a better way to say it, I’ve got problems with that.
Defense counsel followed up with an objection that the evidence being offered was more
prejudicial than probative. See TEX. R. EVID. 401, 403. After Deputy Tena Mora testified under
a proffer of testimony, the trial court again overruled defense counsel’s objection. Once again, the
trial court warned that its ruling was not “with regard to each and every specific question that was
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asked during the proffer.” The trial court clarified that it was not ruling on the admissibility of the
gang letter itself.
3. Proper Punishment Evidence
Evidence offered during the punishment phase establishing Segovia’s membership,
affiliation, or association with a gang, specifically the Mexican Mafia, constitutes extraneous
evidence of crimes or bad acts governed by article 37.07 of the Texas Code of Criminal Procedure
and Rule of Evidence 404(b). See TEX. CODE CRIM. PROC. ANN. art 37.07, § 3(g) (West Supp.
2014) (citing TEX. R. EVID. 404(b)).
Article 37.07 provides that, “[o]n timely request of the defendant,” the State must provide
“reasonable notice . . . in advance of trial” of its intent to introduce extraneous-conduct evidence.
See Nance v. State, 946 S.W.2d 490, 492 (Tex. App.—Fort Worth 1997, pet. ref’d). “The purpose
of the notice requirement is to enable the defendant to prepare to meet the extraneous offense
evidence.” Roethel v. State, 80 S.W.3d 276, 282 (Tex. App.—Austin 2002, no pet.) (op. on reh’g).
Any deficiency in notice is analyzed on how it affected a defendant’s “ability to prepare for the
evidence.” Id.; see also Nance, 946 S.W.2d at 493 (explaining the notice requirement avoids unfair
surprise and trial by ambush). The reasonableness of the notice turns on the facts and
circumstances of each case. Scott v. State, 57 S.W.3d 476, 480 (Tex. App.—Waco 2001, pet.
ref’d); Patton v. State, 25 S.W.3d 387, 392 (Tex. App.—Austin 2000, pet. ref’d).
The trial court has broad discretion to admit or exclude extraneous-conduct evidence. See
Garcia v. State, 239 S.W.3d 862, 866 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (citing
Brooks v. State, 76 S.W.3d 426, 435 (Tex. App.—Houston [14th Dist.] 2002, no pet.)) (applying
this standard of review to admission of extraneous conduct evidence over objection based on
article 37.07, section 3(g)’s notice requirements). The courts have long held that testimony
regarding a defendant’s affiliation with a gang may be relevant and admissible at the punishment
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phase to show the defendant’s character. See Beasley v. State, 902 S.W.2d 452, 456 (Tex. Crim.
App. 1995); Anderson v. State, 901 S.W.2d 946, 950 (Tex. Crim. App. 1995); Ho v. State, 171
S.W.3d 295, 305 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (“Even if appellant was no
longer affiliated with the gang at the time of the shooting, evidence that he was a gang member is
relevant—and thus admissible at punishment—because it relates to his character.”). The evidence
need not link the accused to the bad acts or misconduct generally engaged in by gang members, so
long as the fact-finder is
1) provided with evidence of the defendant’s gang membership,
2) provided with evidence of character and reputation of the gang,
3) not required to determine if the defendant committed the bad acts or
misconduct, and
4) only asked to consider reputation or character of the accused.
See Beasley, 902 S.W.2d at 457; accord Jessop, 368 S.W.3d at 693.
4. Analysis of Evidence under Texas Code of Criminal Procedure Article 37.07
Deputy Tena Mora’s testimony that Segovia signed a form indicating his affiliation with
the Mexican Mafia is sound evidence of his gang membership. Deputy Tena Mora also provided
testimony consistent with the requirements set forth in Beasley. See Beasley, 902 S.W.2d at 457.
Accordingly, the trial court did not abuse its discretion in admitting the evidence under article
37.07.
We acknowledge, however, Segovia’s complaint is focused specifically on the lack of
notice. TEX. CODE CRIM. PROC. ANN. art 37.07, § 3(g). The State possessed this information for
almost two years and provided notice of extraneous offenses—but without the gang-affiliation
information—more than eighteen-months prior to the trial.
Whether the notice was timely is of no accord if Segovia did not suffer harm. We,
therefore, look at any harm associated with the State’s amended notice of extraneous bad acts
offered after the start of the trial.
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5. Harm Analysis
“‘The admission of an extraneous offense into evidence during the punishment phase when
the State failed to provide notice required by statute is non-constitutional error.’” Gonzalez v.
State, 337 S.W.3d 473, 485 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (quoting Ruiz v.
State, 293 S.W.3d 685, 695 (Tex. App.—San Antonio 2009, pet. ref’d)). “An appellate court may
reverse a judgment of conviction or punishment based on a non-constitutional error only if that
error affected the defendant’s substantial rights.” Id. (citing TEX. R. APP. P. 44.2(b)). Because the
purpose of article 37.07, section 3(g) is to avoid unfair surprise and enable the defendant to prepare
to answer the extraneous misconduct evidence, this court must analyze whether and how the notice
deficiency affected Segovia’s ability to prepare for this evidence. Roethel, 80 S.W.3d at 281–82.
This court’s examination analyzes the record to determine whether the deficient notice
resulted from prosecutorial bad faith or prevented the defendant from preparing for trial. Id. at
282. Specifically, this court must answer whether Segovia was surprised by the substance of the
testimony and whether any surprise affected his ability to prepare for cross-examination or present
mitigating evidence. Id. at 282; see also Allen v. State, 202 S.W.3d 364, 369 (Tex. App.—Fort
Worth 2006, pet. ref’d). A 37.07 violation of a notice requirement does not have an “injurious”
effect on the verdict if the defendant was not surprised by the evidence. See Hernandez v. State,
176 S.W.3d 821, 825 (Tex. Crim. App. 2005) (holding that evidence admitted in violation of rule
of evidence 404(b)’s notice requirement is not harmful error if defendant not surprised by
evidence); see also Roethel, 80 S.W.3d at 281–82.
Segovia’s counsel was provided with notice that the State intended to use the testimony of
Deputy Tena Mora on Wednesday, April 30, 2014. The testimony was offered to the jury on
Monday, May 5, 2014. Defense counsel did not request a continuance or indicate that he needed
additional time to prepare his defense in light of the State’s proffer. See Pelache v. State, 324
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S.W.3d 568, 577 (Tex. Crim. App. 2010) (identifying “appellant did not request a continuance,
appear surprised by the allegations, or argue that he was unprepared to defend against the prior
conviction allegations”).
It would be difficult to imagine that Segovia would be surprised by his gang involvement
considering that he signed the paperwork upon which the State relied. Segovia testified that he
initialed “affiliated” because “the only option on there was member.” He further explained the
officer brought the paper in and told him to initial it, so he did. Segovia testified that his only
option was “active or nonactive.” Keeping in mind that Segovia had numerous previous arrests
and had been processed by the Bexar County Jail on numerous occasions, the process would not
have been new to Segovia.
Segovia further denied that he had been associated with the Mexican Mafia since 1994. To
the contrary, Segovia testified that the only reason they classified him as a gang member was
because of his tattoos: if you have a Spurs tag, “you will be classified as the Tango Orejon . . . for
any type of cultura . . . you are classified as Mexican Mafia over anything else.” Segovia knew
his classification was Mexican Mafia. He signed the form and resided in the Bexar County Jail
with the other Mexican Mafia inmates. The trial court could have reasonably determined that
Segovia did not suffer any surprise.
Accordingly, we cannot say that Segovia was surprised by the substance of Deputy Tena
Mora’s testimony, i.e., Segovia’s affiliation with the Mexican Mafia. Roethel, 80 S.W.3d at 282;
Hernandez, 176 S.W.3d at 825; Allen, 202 S.W.3d at 369. Neither can we say that five-days’
notice adversely affected Segovia’s ability to prepare his defense. Roethel, 80 S.W.3d at 282.
Because the testimony did not affect Segovia’s substantial rights, we overrule Segovia’s second
issue. See Gonzalez, 337 S.W.3d at 485 (citing TEX. R. APP. P. 44.2(b)).
We turn next to Segovia’s alleged error in the trial court’s charge on punishment.
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PUNISHMENT CHARGE
A. Arguments of the Parties
Segovia asserts two errors in the trial court’s charge: (1) failure to include a sudden passion
instruction and (2) instructing the jury that “you will find” rather than “if you find” on the habitual
offender instruction.
The State counters that Segovia’s testimony, specifically his admission to committing the
enhancement allegations, foreclosed any possibility that he would be eligible for a reduced penalty
range provided by the “sudden passion” finding. Additionally, even assuming the trial court’s
charge was in error, Segovia did not suffer any harm.
B. Standard of Review
A trial court’s denial of a requested jury instruction on a defensive issue is reviewed for
abuse of discretion. See Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000); accord
Serrano v. State, No. 01-13-00975-CR, 2015 WL 456511, at *4 (Tex. App.—Houston [1st Dist.]
Feb. 3, 2015, no pet. h.). Appellate review of alleged jury charge error generally involves a two–
step process. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012); Ngo v. State, 175
S.W.3d 738, 743 (Tex. Crim. App. 2005). 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. Id.; Ngo,
175 S.W.3d at 744. If error has been properly preserved, as is the case here, reversal is required if
the error is “calculated to injure the rights of defendant,” meaning there must be some harm. See
TEX. CODE CRIM. PROC. ANN. art. 36.19 (West 2006); Sakil v. State, 287 S.W.3d 23, 25–26 (Tex.
Crim. App. 2009). The defendant must have “‘suffered some actual, rather than merely theoretical,
harm from the error.’” Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013) (quoting
Warner v. State, 245 S.W.3d 458, 462 (Tex. Crim. App. 2008)). We consider “‘the entire jury
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charge, the state of the evidence, including the contested issues and weight of probative evidence,
the argument of counsel and any other relevant information revealed by the record of the trial as a
whole.’” Barron v. State, 353 S.W.3d 879, 883 (Tex. Crim. App. 2011) (quoting Almanza v. State,
686 S.W.2d 157, 171 (Tex. Crim. App. 1981) (op. on reh’g), superseded on other grounds by rule
as stated in Rodriguez v. State, 758 S.W.2d 787, 788 (Tex. Crim. App. 1988)).
C. Sudden Passion Instruction
The defense requested a sudden passion instruction to be included in the trial court’s charge
on punishment.
1. Texas Penal Code Section 19.02(d)
In a murder trial, a defendant may raise the issue of whether he caused the victim’s death
under the immediate influence of sudden passion arising from an adequate cause. See TEX. PENAL
CODE ANN. § 19.02(d) (West 2011); Wooten, 400 S.W.3d at 605. “Sudden passion” is defined as
“passion directly caused by and arising out of provocation by the individual killed or another acting
with the person killed which passion arises at the time of the offense and is not solely the result of
former provocation.” TEX. PENAL CODE ANN. § 19.02(a)(2); Wooten, 400 S.W.3d at 605. “The
mere fact that a defendant acts in response to the provocation of another is not sufficient to warrant
a charge on sudden passion.” Trevino v. State, 100 S.W.3d 232, 241 (Tex. Crim. App. 2003).
“‘Adequate cause’ means cause that would commonly produce a degree of anger, rage,
resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool
reflection.” TEX. PENAL CODE ANN. § 19.02(a)(1); accord Wooten, 400 S.W.3d at 605. Adequate
cause is not determined by considering the defendant’s peculiar conditions, such as low mentality
or unstable emotions. See Gonzales v. State, 689 S.W.2d 900, 904 (Tex. Crim. App. 1985)
(quoting Hart v. United States, 130 F.2d 456, 458 (D.C. Cir. 1942)). Instead, adequate cause is
determined by applying the “person of ordinary temper” standard, which is the same as the
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reasonable person standard. See id. at 903. This approach is used to avoid differing applications
of the law. See id.
Segovia contends the jury would at least have had the benefit of receiving the “sudden
passion arising from an adequate cause” instruction which Appellant’s attorney could have more
effectively argued for a sentence at the lower range of punishment.
2. Charge Conference
The record indicates the trial court was concerned about jury confusion and provided a
relatively detailed explanation of why it chose to deny the defense request. As this court has
previously stated, “‘It is not the function of the charge merely to avoid misleading or confusing
the jury: it is the function of the charge to lead and to prevent confusion.’” Vogt v. State, 421
S.W.3d 233, 238–39 (Tex. App.—San Antonio 2013, pet. ref’d) (quoting Reeves, 420 S.W.3d at
818). The trial court explained as follows:
I understand the defendant’s special requested charge wanting to get
voluntary manslaughter, thereby reducing the punishment. However, when the
defendant testified, the defendant admitted to the two prior felony convictions. With
that admission in the record and the state of the record, that would mean the
punishment range would be a minimum of 25 to 99 or life in the penitentiary.
....
So despite the argument that the evidence could be construed to show some
evidence from somewhere—which I understand. I understand the burden and I
understand the requirement, a scintilla of evidence raising the issue that if a murder
happened or the taking of a life was the result of adequate cause and sudden passion,
then the defense is required—or the Court is required to submit that to the jury.
However, since the defendant has admitted that he does have two prior
felony convictions, then that would make that practically moot.
Due to the fact that I believe that submitting it would be confusing—I
haven’t heard—I haven’t heard a whole lot of lawyers who understand it. That it
would—the only reason to raise it is for the lower possible punishment range.
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Since that lower possible punishment range is no longer a legal possibility,
it is in fact a legal impossibility, I think it would be superfluous and confusing and
actually impede the jury’s deliberation on this.
The trial court subsequently denied the instruction. Defense counsel argued the sudden passion
instruction would provide a comparison for the jury when assessing the range of punishment. The
trial court overruled defense counsel’s objections.
3. Application
Segovia argued before the trial court, and again on appeal, that the sudden passion charge
would have allowed the jury to consider the lower end of the penalty range. Specifically, Segovia
contends that being able to point to the charge with a definition of sudden passion would have
persuaded the jury to impose a lesser sentence. We disagree.
During closing arguments, defense counsel argued “sudden passion” before the jury. He
argued that Segovia’s actions were in the heat of the moment and, based on a “situations like that,”
Segovia did not deserve “a harsh sentence.”
And again, if you put yourself in that situation or if you’ve ever seen a
situation where things happen instantaneously—and we’ve all been involved in
situations like that, thankfully they’re not as tragic as this—that you’re not making
rational judgments. So in his mind’s eye, there’s shooting going on and there’s
shooting and Eric is shooting. And you saw all the physical evidence pointing to
the fact that my client’s hiding for cover and shooting back.
We don’t know. They never properly told us in fact who shot who, if in fact
it happened. But you found him guilty and, again, we accept it for whatever reason
or logic that you came to that conclusion. We accept it. But the fact of the matter
is, it’s important because it goes to punishment.
My client did not turn around and, bang, shoot him point-blank in the head.
That is absolutely impractical. It couldn’t happen under those circumstances
because of the fear that was expressed by my client, the fear for his own life. And
he ran away.
....
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As the State pointed out, he made choices. But does this circumstance of
what happened that night truly justify a harsh sentence? Truly? I think not. But
that’s your decision.
The trial court clearly believed the instruction would confuse, as opposed to assist the jury
in its understanding of the charge. See Vogt, 421 S.W.3d at 238–39; Reeves, 420 S.W.3d at 818.
In this case of first impression, we are asked to determine whether a defendant who presents
evidence on the statutory requirements of the requested instruction, but is prohibited from
receiving the statutory benefit of the requested instruction, is entitled to the instruction. Compare
Vogt, 421 S.W.3d at 238–39; Reeves, 420 S.W.3d at 818 with Bufkin, 207 S.W.3d at 781–82;
Wesbrook, 29 S.W.3d at 122. Here, although Segovia may have presented evidence on the
question of sudden passion, as a felony habitual offender, Segovia was not entitled to the second-
degree penalty range contained within the instruction.
To give the instruction requested by defense counsel could have potentially led jurors to
believe that a penalty range of two years to twenty years’ confinement was a possibility. See
Bufkin, 207 S.W.3d at 782 (reviewing court’s denial of the defendant’s requested instruction).
Such a discrepancy in the charge could have potentially been misleading or allowed for some form
of jury nullification. Based on the record before this court, we cannot say the trial court abused its
discretion in denying the requested instruction. See Wesbrook, 29 S.W.3d at 122. Accordingly,
we overrule Segovia’s issue regarding the sudden passion instruction.
E. Habitual Felony Offender
Segovia next argues that the trial court’s failure to solicit a plea on the State’s enhancement
allegations required the State to prove each enhancement allegation beyond a reasonable doubt.
Without a plea of true, Segovia contends the trial court erred in instructing the jury “you will find”
Segovia’s enhancement allegations to be true.
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1. Texas Penal Code Section 12.42(d)
The State timely provided notice of its intent to use two prior convictions for enhancement
of punishment under Texas Penal Code section 12.42. See TEX. PENAL CODE ANN. § 12.42 (West
Supp. 2014). Texas Penal Code section 12.42(d), describing the penalty for habitual felony
offenders generally, provides that
if it is shown on the trial of a felony offense other than a state jail felony punishable
under Section 12.35(a) that the defendant has previously been finally convicted of
two felony offenses, and the second previous felony conviction is for an offense
that occurred subsequent to the first previous conviction having become final, on
conviction the defendant shall be punished by imprisonment . . . for life, or for any
term of not more than 99 years or less than 25 years.
Id. § 12.42(d) (emphasis added); see also Allen v. State, 865 S.W.2d 472, 474 (Tex. Crim. App.
1993) (concluding 12.42(d) is mandatory operation).
“To establish a prior conviction for purposes of enhancement, the State must prove two
elements beyond a reasonable doubt: (i) the existence of a prior conviction; and (ii) the defendant’s
link to that conviction.” Wood v. State, 453 S.W.3d 488, 491 (Tex. App.—San Antonio 2014, pet.
filed) (citing Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007)). A defendant’s plea
of “true” to the enhancement allegation satisfies the State’s burden of proof. Wilson v. State, 671
S.W.2d 524, 525 (Tex. Crim. App. 1984). Absent a plea of “true,” the State must prove the two
elements by proof beyond a reasonable doubt, including introducing evidence such as the
defendant’s admission or stipulation or documentary proof. Flowers, 220 S.W.3d at 921–22. Both
parties agree the trial court’s instruction was proper had Segovia actually entered a plea of true.
However, because there was no plea, the burden of proof rested on the State and the trial court’s
charge usurped that burden. Id. Accordingly, the charge was in error.
Finding error, we must conduct a harm analysis.
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2. Harm Analysis
“Harm does not emanate from the mere failure to include the requested instruction.”
Wooten, 400 S.W.3d at 606 (citing Trevino, 100 S.W.3d at 241). In analyzing harm resulting from
a jury charge error, “[n]either the State nor the defense has a burden to prove harm.” Reeves, 420
S.W.3d at 816; accord Wooten, 400 S.W.3d at 606; Trevino, 100 S.W.3d at 241 (recognizing lack
of burdens in harm analysis and “the appellate court should make its own assessment as to whether
harm occurred”). Theoretical harm, however, is not sufficient. Reeves, 420 S.W.3d at 816.
3. Roberts v. State Analogy
The court’s analysis in Roberts v. State, 321 S.W.3d 545 (Tex. App.—Houston [14th Dist.]
2010, pet. ref’d), is instructive. Cf. Washington v. State, 677 S.W.2d 524 (Tex. Crim. App. 1984),
overruled on other grounds, Bell v. State, 994 S.W.2d 173, 175 (Tex. Crim. App. 1999) (reviewing
testimony adduced during the guilt/innocence phase of the trial); Lewis v. State, 814 S.W.2d 513
(Tex. App.—Houston [14th Dist.] 1991, pet. ref’d) (reviewing appellant’s entry of a plea of not
true to the enhancement allegations).
In Roberts, the State sought to use four prior convictions to enhance Robert’s punishment.
Roberts, 321 S.W.3d at 553. Roberts entered a plea of true to the first three enhancement
allegations, but “not true” to the fourth. Id. The trial court’s punishment charge instructed the
jury “to find” all four allegations true. Id. The appellate court looked at the entire record: (1) the
evidence adduced at both the guilt/innocence and the punishment phase, (2) the penitentiary
packets offered for the first three enhancement allegations, (3) the trial court judgment convicting
Roberts on the fourth enhancement allegation, and (4) Roberts’s testimony. The court
acknowledged that because Roberts entered a plea of not true, the State was required to prove
beyond a reasonable doubt the existence of the prior conviction and Roberts’s link to the
conviction. Id. In proving such, the court noted, “[a]ny type of evidence, documentary or
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testimonial, can suffice.” Id. Reviewing the entire record, the court concluded that the evidence
was sufficient to make a finding of true as to the fourth enhancement allegation and Roberts did
not suffer egregious harm. Id. at 556.
Importantly, because Roberts’s attorney did not object to the charge, the harm analysis was
a question of egregious harm. Id. at 553–54; cf. Vogt, 421 S.W.3d at 239 (explaining “where the
error is urged for the first time on appeal, a reviewing court will search for ‘egregious harm’”). In
this case, Segovia’s attorney did object to the wording of the court’s charge, so this court need
only find “some harm” as a result of the error to obtain a reversal. Ngo, 175 S.W.3d at 743 (citing
Almanza, 686 S.W.2d at 171). The analysis, however, is the same. Roberts, 321 S.W.3d at 554.
4. Review of the Record
The State introduced ten prior judgments of conviction, without objection from defense
counsel. During his testimony, Segovia admitted to the two prior convictions set forth in the
State’s enhancement allegations; both allegations were convictions for felony assault on a family
member in cause number 2006-CR-6793 (convicted August 27, 2007) and 2001-CR-5442
(convicted June 13, 2002). He also admitted to the other convictions offered by the State. 2
The State: Are you the same Andres Alfredo Segovia who in 2011-CR-5442 was
convicted of the offense of assault family-second offense on August 6th,
2002?
Segovia: Yes, sir.
The State: And I apologize for the cause number. It’s 2001-CR-5442. Is that—are
you the same person?
Segovia: Yes, sir.
2
The additional offenses included two felony convictions for unauthorized use of a motor vehicle, one misdemeanor
conviction for unlawful carrying of a firearm, four misdemeanor convictions for assault causing bodily injury, and
one misdemeanor conviction for failure to identify to a police officer.
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The State: Are you also the same Andres Alfredo Segovia who in Cause Number
2006-CR-6793 was convicted of the offense of assault family-second
offense on August 27th of 2007? Are you the same individual?
Segovia: Yes.
The State: And rather than spend another few minutes here, you earlier heard the
State admit Exhibit No. 69 through 78, your criminal judgments,
correct?
Segovia: Yes, sir.
The State: Are you the same individual who was convicted in each of those cases?
Segovia: Yes, sir, I am.
The State: All 10 of them?
Segovia: Yes, sir.
Additionally, during closing argument, defense counsel acknowledged his criminal
history—“Yes, [Segovia] does have a criminal history. We don’t deny that.”
5. Application
Although it was the State’s burden to obtain a plea of true on the record, Segovia must have
suffered “some” harm. See Reeves, 420 S.W.3d at 816. On the record before this court, there was
no evidence refuting the enhancement allegations. Segovia did not plead true to some and not true
to others. He admitted both of the enhancement allegations, as well as the eight other offenses
presented during the punishment phase. “During trial proceedings, the evidence of [Segovia’s
guilt on the enhancement allegations] was undisputed, uncontradicted, and seemed to have been
taken as a ‘given’ by the parties.” Buckley v. State, No. 14-12-00202-CR, 2013 WL 865567, at *3
(Tex. App.—Houston [14th Dist.] 2013, Mar. 7, 2013, pet. ref’d) (mem. op., not designated for
publication) (citing Kucha v. State, 686 S.W.2d 154, 156 (Tex. Crim. App. 1985)). Even assuming
error, the record does not support any finding of harm. The appellant conceded as much during
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oral argument. Segovia admitted the prior convictions and the jury therefore had no other options.
The jury was compelled to sentence Segovia under the enhanced penalty range.
Segovia does not contend that the evidence is insufficient to support a finding of true.
Although the trial court erred in not obtaining an actual plea to the enhancement allegations, the
record overwhelming supports (1) the existence of Segovia’s prior convictions, and (2) Segovia’s
link to those convictions. Flowers, 220 S.W.3d at 921. Based on Segovia’s testimony and the
convictions admitted during the punishment phase, we cannot conclude that Segovia suffered any
harm and we, therefore, overrule Segovia’s last issue on appeal.
CONCLUSION
Having overruled each of Segovia’s issues on appeal, we affirm the trial court’s judgment.
Patricia O. Alvarez, Justice
PUBLISH
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