                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-14-00345-CR


ANGEL TORRES                                                        APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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          FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1301363D

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                        MEMORANDUM OPINION 1

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      Angel Torres appeals his conviction and seven-year sentence for

intoxication assault after pleading guilty before a jury pursuant to an open plea.

In four issues, he challenges the sufficiency of the evidence to support his guilt

and the deadly weapon finding, allegedly improper jury argument by the State,




      1
       See Tex. R. App. P. 47.4.
and the admission of testimonial evidence at punishment, which he claims was in

violation of his Sixth Amendment right of confrontation. We affirm.

                               Guilty Plea Sufficient

      Appellant’s first issue is two-fold.     He first complains that the record

contains no written waiver of a jury trial under article 1.15 of the code of criminal

procedure. Tex. Code Crim. Proc. Ann. art. 1.15 (West 2005). He also contends

that there is insufficient evidence to show that he caused serious bodily injury to

the complainant “by reason of . . . intoxication” 2 because there is no evidence

that he entered the four-way stop intersection while it was unsafe to do so and

because there is evidence that the complainant had also been drinking that night.

However, appellant pled guilty to committing the offense of intoxication assault

before a jury in open court. The court of criminal appeals has held that

             [i]n felony cases a plea of guilty before the jury admits the
      existence of all necessary elements to establish guilt, and in such
      cases, the introduction of testimony by the State is to enable the jury
      to intelligently exercise the discretion which the law vests in them
      touching the penalty to be assessed.

Ex parte Williams, 703 S.W.2d 674, 678 (Tex. Crim. App. 1986) (emphasis

added). Thus, article 1.15 does not apply when a defendant pleads guilty before

a jury rather than to the trial judge, and the plea to the jury itself establishes the

elements of the offense. See id. We overrule appellant’s first issue.

      2
       A person commits intoxication assault if the person “by accident or
mistake[,] . . . while operating a motor vehicle in a public place while intoxicated,
by reason of that intoxication causes serious bodily injury to another.” Tex. Penal
Code Ann. § 49.07 (West 2011).


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            Sufficient Evidence Supports Deadly Weapon Finding

      In his second issue, appellant contends that the evidence is insufficient to

support the jury’s deadly weapon finding because of a lack of evidence that the

complainant first checked to see if it was safe to do so before entering the four-

way stop controlled intersection.     According to appellant, “Considering [the

complainant] admitted to drinking and memory loss it was just as likely that it was

[the complainant] that drove his vehicle in the manner of a deadly weapon by

entering the intersection when it was not safe to do so.” Appellant thus contends

that any conclusion that he used his car as a deadly weapon would be mere

speculation and not a permissible reasonable inference.

      Appellant pled not true to the deadly weapon allegation. Thus, the State

was required to prove beyond a reasonable doubt that appellant used or

exhibited a deadly weapon in commission of the offense. See Brister v. State,

449 S.W.3d 490, 494 (Tex. Crim. App. 2014). Penal code section 1.07 defines a

deadly weapon as “anything that in the manner of its use or intended use is

capable of causing death or serious bodily injury.”       Tex. Penal Code Ann.

§ 1.07(a)(17)(B) (West Supp. 2014). “Serious bodily injury” is defined as “bodily

injury that creates a substantial risk of death or that causes death, serious

permanent disfigurement, or protracted loss or impairment of the function of any

bodily member or organ.” Compare id. § 1.07(a)(46), with § 49.07(b) (defining

“serious bodily injury” substantially same for purposes of intoxication assault

offense).


                                        3
      Officer Gordon Jones, who responded to the accident scene, testified that

appellant told him that the complainant had run the stop sign. Officer Jones

agreed that this statement, however, did not “measure up” to what he heard from

other witnesses. 3   Officer Jones also performed an accident reconstruction.

From that reconstruction, he believed that appellant ran the stop sign because of

where the damage was on the complainant’s car; it was in the middle of the

passenger side, indicating to Officer Jones that the complainant had already

entered the intersection when appellant ran the stop sign.        In addition, the

complainant’s car had spun almost 360 degrees after being hit; this indicated to

Officer Jones that appellant’s car had been travelling at a high rate of speed and

did not stop or slow down before hitting the complainant’s car. The officer also

saw damage to the windshield of the complainant’s vehicle that could have been

made when the complainant’s head hit the windshield after impact.         He saw

pooled, dried blood inside the car, which led him to believe that the complainant’s

injuries were very serious. The complainant had already been transported to the

hospital when Officer Jones arrived.

      The complainant admitted to having had some alcoholic beverages before

driving. He testified on direct that he did not remember the accident. But he also

testified on cross-examination that he remembered stopping at the stop sign.



      3
       When asked on cross-examination whether witnesses at the scene led
him to believe that appellant had run the stop sign, Officer Jones answered yes.


                                        4
      We conclude and hold that this evidence, in addition to appellant’s guilty

plea that established all of the elements of the offense of intoxication assault, is

sufficient to support the jury’s deadly weapon finding under the applicable

standard of review. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,

2789 (1979); Sierra v. State, 280 S.W.2d 250, 256 (Tex. Crim. App. 2009). The

jury was entitled to resolve any conflicts in the testimony and believe the State’s

version of events rather than appellant’s. See Tex. Code Crim. Proc. Ann. art.

38.04 (West 1979); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014).

We overrule appellant’s second issue.

                             Jury Argument Proper

      In his third issue, appellant argues that the following jury argument by the

State was incurable: “The citizens of Tarrant County deserve every single day of

ten years where they don’t have to look over their shoulder and wonder if they’re

next and wonder if they’re the next person laid up in JPS for three months.”

Appellant objected at trial that the prosecutor improperly “told us what the

expectations of the community are.” In his brief, appellant analogizes to similar

arguments that the court of criminal appeals has found to be improper. 4


      4
       Appellant cites the following in his brief: Prado v. State, 626 S.W.2d 775,
776 (Tex. Crim. App. [Panel Op.] 1982) (“There are over a million people that
stand between him and the penitentiary. They’d want him to go there if they
knew what he did.”); Pennington v. State, 345 S.W.2d 527, 528 (Tex. Crim. App.
1961) (op. on reh’g) (“The people of Nueces County expect you to put this man
away.”); Cox v. State, 247 S.W.2d 262, 263 (Tex. Crim. App. 1952) (op. on reh’g)
(“The people of De Soto are asking the jury to convict this defendant.”); Porter v.
State, 226 S.W.2d 435, 436 (Tex. Crim. App. 1950) (“The people of this

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      Proper jury argument must fall within one of four general areas:

summation of the evidence, reasonable deduction from the evidence, answer to

argument of opposing counsel, or pleas for law enforcement. Alami v. State, 333

S.W.3d 881, 891–92 (Tex. App.––Fort Worth 2011, no pet.). It is improper for

the State to argue that the community expects a certain verdict or punishment.

Borjan v. State, 787 S.W.2d 53, 56 (Tex. Crim. App. 1990). But the State may

“argue the impact of the jury’s verdict on the community.” Id.

      The State contends that the prosecutor’s argument in this case amounts to

a proper plea for law enforcement. We agree. Rather than implying that the

citizens of Tarrant County wanted a particular verdict, this argument instead

appeals to the jury to provide proper protection for the county’s citizens. See,

e.g., Adams v. State, 685 S.W.2d 661, 671 (Tex. Crim. App. 1985) (“You ask

yourselves, what is the best for Dallas County, and that is all of us, everybody in


community expect you to put this man away, and the only way you can do it is to
send Willie Porter to the electric chair.”); Peysen v. State, 124 S.W.2d 137, 138
(Tex. Crim. App. 1939) (“I tell you the people of Matagorda and Jackson
Counties are expecting you to do your duty in this case and assess the
defendant’s punishment at death.”); White v. State, 117 S.W.2d 450, 451 (Tex.
Crim. App. 1938) (“Look at this courtroom; it is crowded with Polk County people
demanding the death penalty for Bob White.”); Cleveland v. State, 94 S.W.2d
746, 747 (Tex. Crim. App. 1936) (“Some of [the people] are in the court room
now to see that you do your duty and send him to the penitentiary where he
belongs.”); Hazzard v. State, 15 S.W.2d 638, 639 (Tex. Comm’n App. 1929,
opinion approved) (“The eyes of Comanche County are upon you. Look at this
crowd in this court room, and a crowd has been here all during this trial. The will
and wish of every lawabiding citizen of Comanche County wants a verdict of
death.”); Woolly v. State, 247 S.W. 865, 865 (Tex. Crim. App. 1923) (“[T]he
people of Denison desire it.”).


                                        6
here, as opposed to Brenda Adams.”); Strahan v. State, 358 S.W.2d 626, 627

(Tex. Crim. App. 1962) (characterizing as proper plea for law enforcement jury

argument to “have little mercy for the Defendant but save a little mercy for the

people that have to travel the highways”). We overrule appellant’s third issue.

                 Sixth Amendment Complaint Not Preserved

      Finally, appellant contends in his fourth issue that the trial court improperly

admitted, over his objection, testimony that he had self-identified as a gang

member in violation of his Sixth Amendment right of confrontation. See U.S.

Const. amend. VI. Although acknowledging that evidence of gang membership

and indicia of gang membership is relevant to sentencing, appellant complains

that the trial court improperly admitted the testimony of Officer Chris Wells of the

Fort Worth Police Department’s gang intelligence section that there are entries

matching appellant’s name and birthdate in a gang database maintained by the

police department.

      When, during its direct examination of Officer Wells, the State asked

whether he had found information about appellant in a gang records database,

appellant objected, “This would be predicated on hearsay, Your Honor.

Accumulation of matters that he did not have personal knowledge of, unless, of

course, I could ask him a question on voir dire.” After Officer Wells testified on

voir dire that he did not know appellant personally, appellant renewed his

objection, and the trial court overruled it. Later, when the State asked Officer

Wells which gang was associated with appellant’s name and birthdate,


                                         7
appellant’s counsel renewed his objection “to relevancy.”        When the State

questioned Officer Wells about the specifics of the database and he answered

that the department had “a couple of different systems” but were transitioning to

a new one, appellant’s counsel objected, “It’s based upon hearsay, Your Honor.

It’s a criminal history database based upon something that the reliability of the

information is not shown to be credible. It’s kept specifically for law enforcement

purposes, Your Honor. It’s not a business record. It’s hearsay in its rawest form,

Your Honor.” The trial court sustained the objection, but appellant did not ask for

a limiting instruction and the trial court did not give one. Appellant continued to

object on hearsay grounds during Officer Wells’s testimony. He also renewed his

objection to Officer Wells’s lack of personal knowledge as to appellant.

      Analogizing to case law holding that forensic reports regarding blood

alcohol and controlled substance analysis are considered testimonial for

Confrontation Clause purposes, appellant’s argument on appeal is that Officer

Wells’s entire testimony was predicated on the gang database records––which

are testimonial in nature and inadmissible under the Sixth Amendment unless the

declarant is unavailable and had previously been subject to cross-examination;

thus, Officer Wells’s testimony was likewise inadmissible. See Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 310–11, 129 S. Ct. 2527, 2532 (2009); see also

Bullcoming v. New Mexico, 131 S. Ct. 2705, 2717 (2011) (relying on Melendez-

Diaz even though underlying report was unsworn).             But appellant’s only

objections at trial were to hearsay, relevance, Officer Wells’s lack of personal


                                        8
knowledge, and the reliability of the gang database records themselves. He did

not object on Sixth Amendment, Confrontation Clause, or denial of the right to

cross-examination grounds. Accordingly, appellant’s objection did not preserve

such a complaint for appeal. See Paredes v. State, 129 S.W.3d 530, 535 (Tex.

Crim. App. 2004); Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000),

cert. denied, 531 U.S. 1128 (2001); see also Clark v. State, 365 S.W.3d 333, 339

(Tex. Crim. App. 2012) (holding that “hyper-technical or formalistic use of words

or phrases” is not required to preserve error but that “the objecting party must still

‘let the trial judge know what he wants, why he thinks he is entitled to it, . . .

clearly enough for the judge to understand him at a time when the judge is in the

proper position to do something about it’”); O’Neal v. State, No. 05-06-01358-CR,

2008 WL 192334, at *2 (Tex. App.––Dallas Jan. 24, 2008, no pet.) (not

designated for publication) (involving similar trial court objections to hearsay and

personal knowledge); cf. Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App.

2005) (applying rationale that evidentiary-only objection does not preserve

Confrontation Clause objection to attempt to proffer evidence); Thompson v.

State, No. 01-10-00637-CR, 2012 WL 2106549, at *4 (Tex. App.––Houston [1st

Dist.] June 7, 2012, no pet.) (mem. op., not designated for publication) (holding

objection to hearsay and denial of the right to cross-examine sufficient to

preserve Confrontation Clause complaint).

      We overrule appellant’s fourth issue.




                                          9
                                 Conclusion

      Having overruled appellant’s four issues, we affirm the trial court’s

judgment.

                                              /s/ Terrie Livingston

                                              TERRIE LIVINGSTON
                                              CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ.

GABRIEL, J., concurs without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 2, 2015




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