Mark Valencia v. State ( 2011 )

NUMBER 13-10-00201-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MARK VALENCIA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 94th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Chief Justice Valdez
Appellant, Mark Valencia, was charged by indictment with one count of
aggravated assault (―Count 1‖), a second-degree felony, see TEX. PENAL CODE ANN. §
22.02(a), (b) (West Supp. 2010); one count of unlawful possession of a firearm by a
felon (―Count 2‖), a third-degree felony, see id. § 46.04(a), (e) (West Supp. 2010); one
count of unlawful carrying of a weapon (―Count 3‖), a third-degree felony, see id. §
46.02(a), (c) (West Supp. 2010); and one count of evading arrest (―Count 4‖), a state-jail
felony. See id. § 38.04(a), (b)(1)(A) (West Supp. 2010).1 After the jury found him guilty
of the charged offenses, Valencia was sentenced to: (1) forty years‘ incarceration in the
Institutional Division of the Texas Department of Criminal Justice for Count 1; (2) thirty
years‘ incarceration for Counts 2 and 3; and (3) ten years‘ incarceration for Count 4. 2
The sentences were ordered to run concurrently. By five issues, Valencia argues that:
(1) the trial court erred in allowing evidence of a photographic line-up because the
lineup was ―impermissibly suggestive and constituted bolstering‖; (2) the trial court erred
in charging the jury that he could be found guilty of felony evading arrest under section
38.04; and (3) the evidence supporting specific elements of Counts 2, 3, and 4 is
insufficient. We affirm.
I. BACKGROUND
During the early morning hours on September 4, 2009, Valencia drank beer and
watched exotic dancers with his friend, Rogelio Vasquez, at the Party Place Cabaret
1
The indictment further alleged that Valencia had been previously convicted of evading arrest on
June 7, 2004, which enhanced the evading arrest count to a state-jail felony. See TEX. PENAL CODE ANN.
§ 38.04(b)(1)(A) (West Supp. 2010). In addition, each of the allegations made in the indictment were
further enhanced by Valencia‘s prior convictions for: (1) first-degree felony murder on January 8, 1988;
and (2) unlawful possession of cocaine, a second-degree felony, on September 9, 1997. Thus, the
enhanced punishment range for Counts 1-3 was ―life, or for any term not more than 99 years or less than
25 years,‖ and Count 4 was enhanced to a second-degree felony with a punishment range of two to
twenty years. See id. §§ 12.33(a), 12.42(a)(2), (d) (West Supp. 2010).
2
A deadly weapon finding as to Count 1 was also made.
2
(the ―Cabaret‖) in Corpus Christi, Texas. The Cabaret usually closed at 2:00 a.m. At
1:45 a.m., Michael Soto, the Cabaret‘s night manager, bouncer, and DJ, announced
that ―it [was] last call for alcohol.‖ The Cabaret stopped selling alcohol at 1:50 a.m. At
the time of the announcement, approximately ten to twelve customers remained in the
Cabaret, including Valencia and Vasquez.
Shortly thereafter, Soto observed Valencia trying to put a twelve-ounce bottle of
beer in the pocket of his jeans. Soto testified that he ―got on the microphone and I
announce, you know, Sir, you know . . . you cannot take the beer, so you might as well
drink it and take it out of your pocket.‖ Soto testified that ―[i]t‘s illegal for you to take the
beer out of the bars.‖ Valencia responded by approaching Soto, who was behind the
DJ booth. Soto recalled the incident as follows:
He [Valencia] took the beer out of his pocket and placed it on the
table and asked me if the beer was that fucking important.
....
I told him, sir, it was just a beer, a $3.50 beer. You know, either
drink it, throw it away, and it‘s time to go. I went for the beer and he
moved it with his left hand[;] he moved it. I told him, sir, it‘s just a beer, it‘s
not that important. I‘m trying to close, you know, let‘s just go ahead and
go. And he kept asking me again, is the beer that fucking important. I told
him it‘s just a beer and I went for the beer again, then it was already the
second time he was gonna [sic] give it up, he moved it again for a third
time. He asked me one more time, ―Is the beer that fucking important.‖
That‘s when I raised my hands up and I said, ―It‘s just a beer,‖ and that‘s
when he pulled the gun out and aimed it right to my chest.
3
Soto identified the firearm as either a .40-caliber or nine-millimeter Smith & Wesson
handgun. Soto further testified that the gun was gray with a black bottom and that he
recognized the make and model of the gun because he owns a similar gun.
With the gun still pointed at him, Soto then ―made relations‖ with Valencia and
―tried [his] best to talk [his] way out of it.‖3 Valencia and Vasquez then left the Cabaret
through the front door. As he left, Valencia kept the gun pointed in Soto‘s direction.
After Valencia exited the Cabaret, Soto instructed the remaining customers and Cabaret
employees to go to the dressing rooms, which were towards the back of the Cabaret, in
case Valencia returned. Soto then went to the front door of the Cabaret and peered out.
Soto recalled that a police officer had been parked in a lot adjacent to the Cabaret‘s
parking lot when he went outside to smoke a cigarette about twenty minutes earlier.
When he peered out of the front door, Soto saw Valencia and Vasquez heading towards
a pick-up truck. Soto also saw the police car still parked in the adjacent lot. Valencia
saw Soto peer out the door and once again pointed the gun in Soto‘s direction. Soto
retreated into the Cabaret, and when he peered out the door a few seconds later, he
saw the pick-up truck leave the Cabaret‘s parking lot.
As the pick-up truck left the Cabaret‘s parking lot, Soto flagged the police officer
parked nearby and informed him about the incident. After speaking with Soto, the
police officer, Lieutenant Tim Brown of the Corpus Christi Police Department, began to
3
Soto‘s girlfriend, Estella Martinez, the Cabaret‘s door girl, corroborated Soto‘s testimony about
Valencia‘s brandishing of a gun in the Cabaret.
4
pursue the pick-up truck with his emergency lights activated. Lieutenant Brown followed
the pick-up along Leopard Street until the driver of the pick-up made a sharp turn and
headed towards the entrance ramp to southbound Interstate 37. At no point did
Lieutenant Brown observe anything being thrown from the pick-up truck. Lieutenant
Brown called for backup and continued to follow the pick-up truck onto Interstate 37 and
then on several side streets until they reached a residential area. During the pursuit,
Lieutenant Brown witnessed the pick-up truck run ―red lights at Agnes and Airport while
it was traveling on Old Robstown Road.‖ Officers Norman Morton and Jose Flores
responded to Lieutenant Brown‘s call for backup and proceeded to run ―parallel‖ so that
they could ―join the pursuit.‖ Eventually, the three police cars followed the pick-up truck
into a residential area. At one point, the pick-up truck slowed down, and the passenger,
Valencia, jumped out and ran on foot. Officers Morton and Flores stopped their vehicles
and pursued Valencia on foot. Lieutenant Brown continued to follow the pick-up truck.
With respect to the pursuit of Valencia on foot, Officer Morton described the
scene as follows:
The passenger came out of the car and ran up the street because it
was kind of curbs, I think it‘s Gloria or something, I‘m not sure of the name
of the street, and [sic] it goes up. We chased him probably about 50
yards[,] and while he was running[,] he‘s messing with his pants, kind of
pulling his pants up.
Because the call was that the subject was supposed to have a gun,
I backed off him a little bit, drew my Taser deployed the Taser, got him in
the back[,] and he fell to the ground.[4]
4
Officer Morton further testified that before deploying his taser, he shouted ―Stop, Police‖ to
Valencia, but Valencia continued to run from them.
5
After Valencia fell to the ground, Officers Morton and Flores arrested Valencia, but they
did not observe a gun on Valencia‘s person.5 They did, however, notice that Valencia
was wearing blue jeans and had a laceration on the bottom of his chin as a result of the
pursuit and subsequent tasing. Police escorted Valencia to the local hospital so that the
laceration could be bandaged.
Officer Cortney Daggett testified that he attempted to join in the pursuit of the
pick-up truck to set up ―spike stripes‖; however, in attempting to ―parallel the pursuit,‖
Officer Daggett was unable to continue following. Instead, he traveled to the Cabaret to
interview witnesses. Officer Daggett testified that Soto ―was shaken up, he was visibly
shaken.‖
According to Lieutenant Brown, after Valencia received treatment for the
laceration on his chin, Officer Morton took Valencia back to the Cabaret for identification
by Soto. Soto identified Valencia as the perpetrator, and Valencia was subsequently
taken to the police station. A couple of weeks later Soto was asked to come to the
police station to identify the gun and the perpetrator from a photographic line-up. After
reviewing the subjects in the photographic line-up, Soto identified Valencia as the
perpetrator. Police also asked Estella, Soto‘s girlfriend, to identify the perpetrator from
a photographic line-up. She also identified Valencia as the perpetrator. At trial,
Valencia objected to the line-up as ―impermissibly suggestive‖ because the only subject
5
Officers testified that the pursuit lasted approximately ten minutes.
6
in the line-up in a white T-shirt was Valencia; because he was the only person with a
scrape on his chin; and because Valencia had a ―unique complexion out of every—all
the other individuals.‖6
After reviewing the offense report he created, Officer Daggett stated that once he
had spoken with Soto, he ―backtracked where the pursuit had gone and I was looking at
ditches and the grass and median and I ended up finding a bunch of ammunition and a
pistol magazine.‖ Officer Daggett noted that he found a .40-caliber Smith & Wesson
handgun, which matched the handgun described by Soto, with twelve ―live .40[-]caliber
rounds‖ on the ―37 access road eastbound, just east of Navigation. Just a little past the
Denny‘s on 37.‖ Officer Daggett acknowledged, however, that he never observed the
handgun in Valencia‘s possession. On re-direct examination, Officer Daggett admitted
that he incorrectly recalled the time his discovered the handgun and, instead, asserted
that the handgun was discovered a day after the incident occurred.
Antonio Aguilar, an officer with the Corpus Christi Police Department, testified
that he was dispatched to recover a .40-caliber Smith & Wesson handgun and twelve
unfired rounds that had been found by Mauricio Moreno, a warehouse manager for
Contractors Building Supply, who happened to discover the items while he was mowing
the grass. Moreno testified that the items were ―right at the edge of the grass and the
driveway going into the—our corporate office right there.‖ Moreno denied touching the
handgun or unfired rounds and stated that upon discovering the items, he immediately
6
The record indicates that all of the subjects in the photographic line-up had a black bar placed
over their chins so as to obscure the fact that Valencia had a scrape on his chin.
7
called the police. Officer Aguilar confirmed that the handgun and unfired rounds were
found at ―5125 IH-37 access, southbound,‖ which was near a Denny‘s. On cross-
examination, Officer Aguilar admitted that several motels and establishments where
criminals frequented were located near where the handgun and unfired rounds were
found, and he acknowledged that the items that were found could have been discarded
by someone else.
Carolyn Martinez, an expert in firearms and tool-marks employed by the Corpus
Christi Police Department, noted that she conducted fingerprint and ballistics tests on
the found handgun and unfired rounds. After conducting various tests on the items,
Martinez admitted that ―nothing very tangible was obtained as a result of [her]
examination‖ and that she ―didn‘t get any development of prints‖ to conclusively link
Valencia to the handgun and unfired rounds. A review of records reported by gun
dealers revealed that the gun was sold to Josh Goforth of Corpus Christi; however,
Martinez did not report this information to investigators because it was never requested.
The records did reveal, however, that the gun had been purchased by Goforth
approximately 181 days before it was discovered; Martinez acknowledged that ―a lot of
things can happen in six months with a gun.‖
The State rested its case-in-chief, and Valencia subsequently moved for a
directed verdict as to Count 4, the charge of evading arrest, which the trial court denied.
As a part of his case-in-chief, Valencia called one witness—his sister, Esperanza
Valencia. Esperanza testified that during the late evening hours of September 3, 2009,
8
and the early morning hours of September 4, 2009, she was at her mother‘s house.
Esperanza noted that Valencia lived at his mother‘s house and that he left the house at
approximately 11:30 p.m. on September 3, 2009 to go out. Esperanza recalled that
when he left, Valencia was wearing ―[a] little tank top with blue jeans, or a T-shirt. I
don‘t know what they‘re called, the little muscle shirts.‖ She also recalled seeing
Valencia get into a pick-up, though she could not recall the model or color of the pick-up
truck.
At the conclusion of the evidence, the jury convicted Valencia on all four counts
and sentenced him to: (1) forty years‘ confinement for Count 1; (2) thirty years‘
confinement for Counts 2 and 3; and (3) ten years‘ confinement for Count 4. The
sentences were ordered to run concurrently. The trial court certified Valencia‘s right to
appeal, and this appeal followed.
II. THE PHOTOGRAPHIC LINE-UP
By his first issue, Valencia contends that the trial court committed reversible error
by allowing evidence of Soto‘s pre-trial identification of Valencia by photographs
because the photographic line-up was impermissibly suggestive and constituted
bolstering.
A. Applicable Law
In-court identification is inadmissible if tainted by an unduly suggestive pre-trial
identification. See Loserth v. State, 963 S.W.2d 770, 771 (Tex. Crim. App. 1998). In
determining whether the trial court erred in admitting an in-court identification, we
9
employ a two-step analysis, inquiring: (1) if the pre-trial procedure was impermissibly
suggestive; and (2) if so, whether the impermissibly suggestive pre-trial procedure gave
rise to a very substantial likelihood of irreparable misidentification at trial. See Ibarra v.
State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1999); Delk v. State, 855 S.W.2d 700, 706
(Tex. Crim. App. 1993); see also Livingston v. State, 739 S.W.2d 311, 334 (Tex. Crim.
App. 1987) (―[I]f the line[-]up occurred after initiation of formal adversarial proceedings
or where the confrontation was found to be ‗so unnecessarily suggestive and conclusive
to irreparable mistaken identification‘ that it would deny an accused due process of law,
an in-court identification would not be allowed unless it was shown that the identification
had an origin independent of the challenged confrontation, as viewed by the totality of
circumstances.‖). It is the risk of in-court misidentification that taints the identification.
See Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988). The defendant has
the burden to show by clear and convincing evidence that the in-court identification is
unreliable. See Delk, 855 S.W.2d at 706. The admissibility of an identification is a
mixed question of law and fact that we review de novo. See Loserth, 963 S.W.2d at
773.
In the first step, we evaluate the pre-trial photo line-up itself to determine whether
it was impermissibly or unduly suggesting. ―A line[-]up is considered unduly suggestive
if other participants are greatly dissimilar in appearance from the suspect.‖ Withers v.
State, 902 S.W.2d 122, 125 (Tex. App.–Houston [1st Dist.] 1995, pet. ref‘d) (citing
United States v. Wade, 388 U.S. 218, 232-33 (1967)). A suspect may be greatly
10
dissimilar in appearance from the other participants because of his distinctly different
appearance, race, hair color, height, or age. See id. (citing Foster v. California, 394
U.S. 440, 442-43 (1969)). But minor discrepancies between line-up participants do not
render a line-up impermissibly suggestive. See id. (citing Partin v. State, 635 S.W.2d
923, 926 (Tex. App.–Fort Worth 1982, pet. ref‘d)). The line-up participants need not be
identical to satisfy due process requirements. See Buxton v. State, 699 S.W.2d 212,
216 (Tex. Crim. App. 1985).
B. Discussion
Assuming, without deciding, that the pre-trial identification done via a
photographic line-up was impermissibly suggestive, we conclude that Valencia has
failed to prove by clear and convincing evidence that the alleged impermissibly
suggestive pre-trial procedure gave rise to a very substantial likelihood of irreparable
misidentification at trial.7 See Ibarra, 11 S.W.3d at 195; Delk, 855 S.W.2d at 706;
McClenton v. State, 167 S.W.3d 86, 96-97 (Tex. App.–Waco 2005, no pet.); see also
Jackson v. State, 657 S.W.2d 123, 130 (Tex. Crim. App. 1983) (holding that if the
totality of the circumstances reveals no substantial likelihood of misidentification, an out-
7
In Jackson v. State, the court of criminal appeals noted that:
A defendant who contends on appeal that a trial court erred in allowing an in[-]court
identification of him by a complaining witness has a difficult and heavy burden to sustain,
for unless it is shown by clear and convincing evidence that a complaining witness‘ in[-
]court identification of a defendant as the assailant was tainted by improper pre-trial
identification procedures and confrontations, the in[-]court identification is always
admissible.
628 S.W.2d 446, 448 (Tex. Crim. App. 1982).
11
of-court identification will be deemed reliable regardless of a suggestive pre-trial
procedure); Garza v. State, 633 S.W.2d 508, 512 (Tex. Crim. App. 1982) (op. on reh‘g)
(concluding that the fact that the show-up procedure was an on-the-scene confrontation
conducted shortly after the crime occurred did not violate defendant‘s due process
rights; thus, the identification was admissible). At trial, evidence was adduced that after
Valencia received treatment for the laceration on his chin, Officer Morton took Valencia
back to the Cabaret and Soto identified Valencia as the perpetrator at that time. See
Livingston, 739 S.W.2d at 334; see also Jackson, 657 S.W.2d at 130 (concluding that if
the record clearly reveals that the witness‘s prior observation of the accused was
sufficient to serve as an independent origin for the in-court identification, then in-court
testimony of an identification witness is admissible, even where the pre-trial
identification procedure was impermissibly suggestive). In addition, several witnesses,
including Soto, Estella, and police officers, separately identified Valencia as the man
who pulled a gun on Soto at the Cabaret and subsequently fled the scene, both in court
and out of court. Thus, the complained-of evidence was cumulative of other evidence
pertaining to the identification of Valencia as the perpetrator, including evidence
regarding the pre-trial photographic line-up, and the admission of such evidence was
harmless. See Livingston, 739 S.W.2d at 334; see also Matz v. State, 21 S.W.3d 911,
912 (Tex. Crim. App. 2000) (stating that if other properly-admitted evidence proves the
same facts, any error is harmless); Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim.
App. 1999) (same). Based on this evidence, we cannot say that Valencia proved by
12
clear and convincing evidence that there was a substantial likelihood that witnesses
misidentified Valencia as the perpetrator at trial based upon an alleged impermissibly
suggestive pre-trial photographic line-up.
In addition, Valencia asserts that the admission of evidence pertaining to Soto
and Estella‘s pre-trial identification of Valencia through photographic line-ups
constituted improper bolstering. We first note that Valencia has not adequately
explained on appeal how the admission of such evidence amounted to improper
bolstering. See TEX. R. APP. P. 38.1(i). In any event, we note that ―bolstering‖ is no
longer a valid objection where testimony is not deemed to be hearsay. See Jones v.
State, 833 S.W.2d 634, 635 (Tex. App.–Houston [14th Dist.] 1992, pet. ref‘d); see also
White v. State, No. 01-98-00148-CR, 1999 Tex. App. LEXIS 5072, at *6 (Tex. App.–
Houston [1st Dist.] July 8, 1999, no pet.) (mem. op., not designated for publication).
Texas Rule of Evidence 801(e)(1)(c) provides that a statement is not hearsay if the
declarant testifies at trial, is subject to cross-examination, and the statement is one of
identification of a person made after perceiving him. TEX. R. EVID. 801(e)(1)(c); see
Jones, 833 S.W.2d at 635; see also White, 1999 Tex. App. LEXIS 5072, at *6. Here,
both Soto and Estella testified at trial and were subject to cross-examination. In
addition, the complained-of evidence pertains to Soto and Estella‘s identification of
Valencia as the perpetrator after perceiving him. Thus, we reject Valencia‘s bolstering
argument. Accordingly, we overrule Valencia‘s first issue.
III. EVADING ARREST
13
In his second issue, Valencia argues that the trial court erred in charging the jury
that he could be found guilty of felony evading arrest under section 38.04 of the penal
code. See TEX. PENAL CODE ANN. § 38.04. He also challenges the sufficiency of the
evidence demonstrating that he evaded arrest.8
The Texas Court of Criminal Appeals has held that our only sufficiency review
should be under "a rigorous and proper application" of the Jackson standard of review.
Brooks v. State, 323 S.W.3d 893, 906 (Tex. Crim. App. 2010). Under this standard, "the
relevant question is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); see
Brooks, 323 S.W.3d at 902 n.19. "[T]he fact-finder's role as weigher of the evidence is
preserved through a legal conclusion that upon judicial review all of the evidence is to
be considered in the light most favorable to the prosecution." Jackson, 443 U.S. at 319
(emphasis in original); see also TEX. CODE CRIM. PROC. ANN. art. 38.04 (Vernon 1979)
(The jury, in all cases, is the exclusive judge of facts proved and the weight to be given
to the testimony . . . ."); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000)
("The jury is the exclusive judge of the credibility of witnesses and of the weight to be
given testimony, and it is also the exclusive province of the jury to reconcile conflicts in
the evidence.").
8
Count 4 of the indictment originally alleged that Valencia had evaded Lieutenant Brown ―while
using a vehicle‖; however, the indictment was amended on March 1, 2010, to omit that language.
14
Sufficiency of the evidence is measured by the elements of the offense as
defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327
(Tex. Crim. App. 2009). "'Such a charge [is] one that accurately sets out the law, is
authorized by the indictment, 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.'" Id. (quoting Malik v. State,
953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).
Section 38.04(a) provides that an individual commits the offense of evading
arrest ―if he intentionally flees from a person he knows is a peace officer attempting to
lawfully arrest or detain him.‖9 TEX. PENAL CODE ANN. § 38.04(a). With regard to
punishment, section 38.04(b)(1) states that the offense of evading arrest is a class A
misdemeanor, unless the actor ―has been previously convicted under this section‖ or the
actor ―uses a vehicle while the actor is in flight and the actor has not been previously
convicted under this section,‖ in which case the offense becomes a state-jail felony. Id.
§ 38.04(b).
9
"A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result
of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result."
TEX. PENAL CODE ANN. § 6.03(a) (Vernon 2003). Intent may "be inferred from circumstantial evidence[,]
such as acts, words, and the conduct of the appellant." Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim.
App. 2004); see Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002) (stating that a fact-finder may
infer both knowledge and intent from the defendant's acts, words, or conduct and from the nature of the
wounds inflicted on the victim); Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991);
Ledesma v. State, 677 S.W.2d 529, 531 (Tex. Crim. App. 1984) (noting that the requisite culpable mental
state may be inferred from the surrounding circumstances).
15
The State tendered a copy of the judgment indicating that on June 7, 2004,
Valencia had been previously convicted of evading arrest under section 38.04 of the
penal code.10 Pursuant to section 38.04(b)(1), Valencia‘s conviction for evading arrest
in this case would constitute a state-jail felony because of his prior conviction for
evading arrest.11 Id. Thus, it does not matter whether the evidence established that
Valencia evaded arrest ―while using a vehicle.‖
Officer Morton testified that on the night in question, Valencia exited a moving
vehicle and ran from police. Officer Morton instructed Valencia to ―Stop, Police‖;
however, Valencia continued to run until Officer Morton deployed his taser. Reviewing
the evidence in the light most favourable to the prosecution, we conclude that a rational
juror could have concluded that Valencia evaded arrest under section 38.04 for a
second time; thus, we hold that the evidence is sufficient to support Valencia‘s
conviction for felony evading arrest. See id.; see also Jackson, 443 U.S. at 319;
Brooks, 323 S.W.3d at 906. Accordingly, we overrule Valencia‘s second issue.
IV. PROOF THAT VALENCIA FLED FROM LIEUTENANT BROWN
By his third issue, Valencia asserts that the record contains no evidence that he
fled from Lieutenant Brown on the night in question, as was alleged in the indictment,
10
The record also contains a second judgment indicating that Valencia was convicted of another
instance of evading arrest on July 22, 2004.
11
The evading arrest count was further enhanced to a second-degree felony by evidence of
Valencia‘s prior felony convictions for murder and unlawful possession of cocaine. See TEX. PENAL CODE
ANN. § 12.42(a)(2).
16
because he was merely a passenger in the truck driven by Vasquez. 12 In making this
argument, Valencia devotes two small paragraphs of his brief to the issue, and he does
not cite to any authority to support his contention. As such, we conclude that this issue
was inadequately briefed. See TEX. R. APP. P. 38.1(i).
Nevertheless, even if this issue had been adequately briefed, we disagree with
Valencia‘s contention. The record reflects that Valencia left the Cabaret while pointing a
gun at Soto. Valencia then got into a pick-up truck driven by Vasquez. The passengers
in the pick-up truck proceeded to lead police on a ten-minute pursuit around Corpus
Christi. Lieutenant Brown first pursued the pick-up truck as it left the Cabaret‘s parking
lot. Further, the emergency lights on Lieutenant Brown‘s patrol car were activated
during the pursuit so as to notify the occupants of the pick-up truck to stop. The
evidence demonstrates that Valencia used the pick-up truck driven by Vasquez to flee
police, a conclusion that is supported by the fact that once he exited the truck, Valencia
continued to run away from police. See TEX. PENAL CODE ANN. § 38.04(b)(1)(B)
(providing that an actor need only use a vehicle to evade arrest, rather than be the
driver of the vehicle); see also Jones v. State, No. 05-09-00114-CR, 2010 Tex. App.
LEXIS 157, at **1-6 (Tex. App.–Dallas Jan. 12, 2010, no pet.) (mem. op., not
designated for publication) (affirming appellant‘s conviction for evading arrest, even
though appellant was not the driver of the vehicle that fled from law enforcement);
12
Count 4 of the indictment specifically provides that Valencia ―on or about SEPTEMBER 4,
2009 . . . did then and there intentionally flee from Tim Brown, a person the defendant knew was a peace
officer who was attempting lawfully to arrest or detain the defendant . . . .‖
17
Marron v. State, No. 01-02-00601-CR, 2003 Tex. App. LEXIS 3581, at **9-11 (Tex.
App.–Houston [1st Dist.] Apr. 24, 2003, no pet.) (mem. op., not designated for
publication) (same).13 We overrule Valencia‘s third issue.
V. UNLAWFUL POSSESSION OF A FIREARM BY A FELON
In his fourth issue, Valencia contends that the evidence supporting his conviction
for unlawful possession of a firearm by a felon is insufficient. Specifically, Valencia
argues that there is no evidence indicating that he ―was convicted of an offense within
five years of the date of the charged offense.‖ In his brief, Valencia does not provide
any citations to the record, nor does he cite any authority supporting his contentions.
As a result, we conclude that this issue has been inadequately briefed. See TEX. R.
APP. P. 38.1(i).
VI. UNLAWFUL CARRYING OF A WEAPON
By his fifth issue, Valencia contends that there is no evidence that he carried a
firearm on a licensed premise. See TEX. PENAL CODE ANN. § 46.02(a). Specifically, he
13
In Marron, the First Court of Appeals, in concluding that the evidence supporting appellant‘s
conviction for evading arrest was sufficient, noted the following facts, which are strikingly similar to the
facts in this case:
The record shows that the car in which appellant was riding was being pursued by two
patrol cars with activated lights and sirens at the time that appellant allegedly attempted
to evade arrest. While being pursued, the driver fled the moving car. As soon as it was
safe to do so, appellant also jumped out of the car and was attempting to get up when he
was seized by Deputy Brown. After appellant jumped out of the car, but before he was
seized, he was facing the opposite direction from the deputies and ignored their
commands to stay down on the ground.
Marron v. State, No. 01-02-00601-CR, 2003 Tex. App. LEXIS 3581, at *10 (Tex. App.–Houston [1st Dist.]
Apr. 24, 2003, no pet.) (mem. op., not designated for publication).
18
argues that ―there was no admissible evidence that the bar was licensed.‖ We
disagree.
The penal code provides that a person commits the offense of unlawfully carrying
a weapon if:
the person intentionally, knowingly, or recklessly carries on or about his or
her person a handgun, illegal knife, or club if the person is not:
(1) on the person‘s own premises or premises under the person‘s
control; or
(2) inside of or directly en route to a motor vehicle that is owned by the
person or under the person‘s control.
Id.
Here, the State tendered a copy of the Cabaret‘s liquor license purportedly
issued by the Texas Alcoholic Beverage Commission (the ―TABC‖), which was
designated as State‘s exhibit 27. Relying on Texas Rule of Evidence 902, Valencia
asserts that the license ―was not properly authenticated or admitted.‖ See TEX. R. EVID.
902 (listing types of documents that can be self-authenticating). He further notes that
the purported liquor license is void, has no seal, and ―is not attested to by any official or
agent of the [T]ABC certifying that fact.‖
Several witnesses testified that the Cabaret was licensed by the TABC to sell
liquor. Moreover, the license itself contains a signature of an ―Administrator‖ for the
TABC. The copy of the licensed tendered by the State does contain imprints of the
word ―VOID‖ in various places on the license; however, this notation likely exists
19
because the exhibit is a copy of the actual license. The ―VOID‖ notation is designed to
prevent unauthorized replication of the license. Because several witnesses testified that
the Cabaret was licensed by the TABC at the time of the incident, we need not reach
Valencia‘s arguments pertaining to the validity of State‘s exhibit 27. This is so because
State‘s exhibit 27 is cumulative of other evidence in the record. See Matz, 21 S.W.3d at
912; Brooks, 990 S.W.2d at 287. Therefore, any error associated with the admission of
the purported liquor license is harmless. See Matz, 21 S.W.3d at 912; Brooks, 990
S.W.2d at 287.
In any event, we also note that, in applying the Jackson standard of review, an
appellate court considers all the evidence admitted before the jury, including which was
admitted properly and that which may have been admitted improperly. See Moff v.
State, 131 S.W.3d 485, 488 (Tex. Crim. App. 2004); see also Thomas v. State, 753
S.W.2d 688, 695 (Tex. Crim. App. 1988). The court of criminal appeals has stated that:
We first note that in reviewing the sufficiency of the evidence, the
appellate court must look at all the evidence, whether properly or
improperly admitted. In the event a portion of the evidence was
erroneously admitted, the accused may complain on appeal of such error.
The admission of inadmissible evidence is considered trial error and thus
the proper remedy is to reverse the conviction and remand for a new trial.
But jurors do not act irrationally in taking such evidence into account,
since they are bound to receive the law from the trial judge. All evidence
which the trial judge has ruled admissible may therefore be weighed and
considered by the jury, and a reviewing court is obligated to assess the
jury‘s factual findings from this perspective.
Miles v. State, 918 S.W.2d 511, 513 (Tex. Crim. App. 1996) (internal quotations &
citations omitted); see GEORGE E. DIX & ROBERT O. DAWSON, 43A TEXAS PRACTICE,
20
CRIMINAL PRACTICE AND PROCEDURE § 43.531, at 742 (2d ed. 2001) (―[A]n
appellant . . . is not entitled to have an appellate court first consider the appellant‘s
complaints concerning improper admitted evidence and, if it resolves any of those in
favor of the appellant, to then, second, consider the sufficiency of the properly-admitted
evidence to support the conviction.‖) (emphasis in original). The impetus behind this
rule is ―the unfairness of barring further prosecution where the State has not had a fair
opportunity to prove guilt. A trial judge‘s commission of trial error may lull the State into
a false sense of security that may cause it to limit its presentation of evidence.‖ Moff,
131 S.W.3d at 490.
As noted earlier, several witnesses testified that the Cabaret is licensed to sell
alcoholic beverages in the State of Texas. Moreover, aside from his authentication
contention regarding State‘s exhibit 27, Valencia does not argue that a rational juror
could not accept the witnesses‘ testimony or State‘s exhibit 27 as proof beyond a
reasonable doubt that the Cabaret is a licensed premises. Thus, we conclude that the
evidence supporting that element of the State‘s case is sufficient, and we overrule
Valencia‘s fifth issue. See TEX. PENAL CODE ANN. § 46.02(a); see also Romero v. State,
No. 07-06-0198-CR, 2008 Tex. App. LEXIS 4221, at **10-13 (Tex. App.–Amarillo June
11, 2008, no pet.) (mem. op., not designated for publication) (concluding that the
testimony of a police officer regarding whether a bar is licensed was sufficient to support
the jury‘s finding that the bar is a licensed premises).
21
VII. CONCLUSION
Having overruled all of Valencia‘s issues, we affirm the judgment of the trial
court.
____________________
ROGELIO VALDEZ
Chief Justice
Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
19th day of May, 2011.
22