                                                                     ACCEPTED
                                                                 13-14-00750-CR
                                                 THIRTEENTH COURT OF APPEALS
                                                        CORPUS CHRISTI, TEXAS
                                                            8/18/2015 9:56:26 AM
                                                          CECILE FOY GSANGER
                                                                          CLERK

        NO. 13-14-00750-CR

   IN THE COURT OF APPEALS        FILED IN
                          13th COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT
                       CORPUSOFCHRISTI/EDINBURG, TEXAS
            TEXAS          8/18/2015 9:56:26 AM
       AT CORPUS CHRISTI    CECILE FOY GSANGER
                                         Clerk

         CHRISTOPHER
       CORDIL-CORTINAS,
                   Appellant,
              v.

      THE STATE OF TEXAS,
                    Appellee.

         On Appeal from the
         th
      377 Judicial District Court
      Of Victoria County, Texas
      Cause No. 14-05-27969-D

 BRIEF FOR THE STATE OF TEXAS

       STEPHEN B. TYLER
      Criminal District Attorney
       Victoria County, Texas

     BRENDAN WYATT GUY
  Assistant Criminal District Attorney
        Victoria County, Texas
      205 N. Bridge St. Ste. 301,
     Victoria, Texas 77901-6576
            bguy@vctx.org
            (361) 575-0468
         (361) 570-1041 (fax)
        State Bar No. 24034895

    Attorneys for the State of Texas

ORAL ARGUMENT NOT REQUESTED
                                             TABLE OF CONTENTS

                                                                                                PAGE (S)

TABLE OF CONTENTS .......................................................................... i

INDEX OF AUTHORITIES ................................................................ ii-iv

STATEMENT OF THE FACTS .......................................................... 1-6

SUMMARY OF ARGUMENT ............................................................. 7-9

ARGUMENT ........................................................................................ 9-28

      I. The evidence was sufficient to support Appellant’s
         guilty plea to the offense of felony murder as alleged
         in Paragraph 1 of the indictment ............................................. 9-21

    II. The indictment for Paragraph 2 was valid and even
        if it was not, Appellant waived any claim of error by
        failing to timely object ............................................................. 22-23

  III. The evidence was sufficient to support Appellant’s
       guilty plea to the offense of felony murder as alleged
       in Paragraph 2 of the indictment ........................................... 23-28

PRAYER .................................................................................................. 28

SIGNATURE ........................................................................................... 28

CERTIFICATE OF COMPLIANCE ................................................... 29

CERTIFICATE OF SERVICE ............................................................. 30




Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00750-CR
                                                       i
                                             INDEX OF AUTHORITIES

                                      United States Supreme Court Cases

Jackson v. Virginia, 443 U.S. 307 (1979) ............................................... 17



                                                  Texas Cases

Aguilar v. State, 468 S.W. 2d 75 (Tex. Crim. App. 1971) .................... 26

Alba v. State, 905 S.W.2d 581 (Tex.Crim.App.1995) ........................... 11

Brooks v. State, 323 S.W. 3d 893 (Tex. Crim. App. 2010)
(plurality op) ............................................................................................ 17

Brown v. State, 2012 WL 3594228, 13-11-00595-CR
(Tex.-App. Corpus Christi 2012, pet. ref’d)
(mem. op. not designed for publication) ......................................... 13, 25

Hammett v. State, 578 S.W. 2d 699 (Tex. Crim. App. 1979) ........... 10-11

Harvey v. State, 2011 WL 5589281, 13-09-00696-CR
(Tex. App.- Corpus Christi 2011, pet. ref’d)
(mem. op. not designated for publication ............................................. 17

Jarnigan v. State, 57 S.W. 3d 76
(Tex. App.-Houston [14th Dist.] 2001, pet. ref'd) ................................ 11

Jones v. State, 373 S.W. 3d 790
(Tex. App.-Houston [14th Dist] 2012, no pet)........................................ 15

Mata v. State, 46 S.W. 3d 902 (Tex. Crim. App. 2001) ........................ 16

Menefee v. State, 287 S.W. 3d 9 (Tex. Crim. App. 2009) ................ 13-15




Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00750-CR
                                                        ii
McGuire v. State, 2012 WL 344952, 01-11-01089-CR
(Tex. App.-Houson [1st Dist] 2012, pet. ref’d)
(mem. op. not designated for publication) ............................................ 11

Reese v. State, 2015 WL 4381223, 13-13-00616-CR
(Tex. App.-Corpus Christi 2015)
(mem. op. not designed for publication) ............................................... 15

Scott v. State, 945 S.W. 2d 347
(Tex. App.-Houston [1st Dist] 1997, no pet) .................................... 13, 25

Smith v. State, 965 S.W. 2d 509 (Tex. Crim. App. 1998) ..................... 26

Smithhart v. State, 503 S.W. 2d 283 (Tex. Crim. App. 1973) .............. 19

State v. Rivera, 42 S.W.3d 323
(Tex.App.-El Paso 2001, pet. ref'd) ....................................................... 11

Stone v. State, 919 S.W. 2d 424 (Tex. Crim. App. 1996) ............. 9-10, 24

Teal v. State, 230 S.W. 3d 172 (Tex. Crim. App. 2007) ........................ 23

Weems v. State, 328 S.W. 3d 172
(Tex. App.-Eastland 2010, no pet) ......................................................... 19

Wise v. State, 364 S.W.3d 900 (Tex. Crim. App. 2012) ........................ 16

Yandell v. State, 46 S.W. 3d 357
(Tex. App.—Austin 2001, pet. ref'd) ............................................... 11, 22




                                             Texas Statutes

TEX. CODE CRIM. PROC. art. 1.14 (West 2005)................................ 23

TEX. CODE CRIM. PROC. art. 1.15 (West 2005).................9, 13-14, 21

Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00750-CR
                                                   iii
                                             Texas Rules

TEX. R. APP. P. 9.4 ................................................................................ 29




Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00750-CR
                                                    iv
                                                 NO. 13-14-00750-CR

                                  IN THE COURT OF APPEALS
                             FOR THE THIRTEEN DISTRICT OF TEXAS
                                      AT CORPUS CHRISTI

CHRISTOPHER CORDIL-CORTINAS…………..………………..Appelant

v.

THE STATE OF TEXAS,…..….…………………………………...Appellee

                                                     * * * * *

                                     STATE’S BRIEF ON THE MERITS

                                                     * * * * *

TO THE HONORABLE COURT OF APPEALS:

            COMES NOW, THE STATE OF TEXAS, by and through her Criminal

District Attorney, Stephen B. Tyler, and as Appellee in the above numbered

and entitled cause, and files this the Appellee’s brief showing:

                                             STATEMENT OF THE FACTS

            Appellant was indicted on May 16, 2014 for one count of murder.

[CR-I-6]. The offense of murder was alleged in two separate paragraphs.

[CR-I-6]. The first paragraph alleged felony murder, due to the Appellant

committing an act clearly dangerous to human life while committing the

felony offense of driving while intoxicated (which was a felony due to the

Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00750-CR
                                                         1
Appellant having two prior convictions for driving while intoxicated.) [CR-

I-6]. The second paragraph alleged felony murder, due to the Appellant

committing an act clearly dangerous to human life while committing the

felony offense of evading arrest/detention in a vehicle. [CR-I-6].

            Appellant’s case was called to trial on October 15, 2014. [RR-I-4].

Appellant did not raise any challenge to the indictment prior to the

commencement of his trial. [CR-I; RR-II].

            On October 15, 2014, the Appellant signed a plea memorandum that

amongst other things, had the Appellant consent in writing to an oral

stipulation of the evidence being admitted in his case and to him waiving his

right against self-incrimination. [CR-I-14-20]. The trial court then orally

advised the Appellant of all the rights he would be giving up by pleading

guilty and ascertained that the Appellant understood what he was doing and

was mentally competent to plead guilty before accepting the Appellant’s

guilty plea. [RR-II-4-9].

            The State then read the indictment to the Appellant. [RR-II-10-12].

The Appellant then pled guilty to the indictment and affirmed that he was

pleading guilty freely and voluntarily. [RR-II-12]. Appellant did not raise

any verbal challenge to the indictment prior to entering his plea of guilty.

[RR-II-1-12].
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00750-CR
                                             2
            The State then proceeded with the stipulation of evidence and called

the Appellant to testify.                    [RR-II-16].   The Appellant then agreed and

stipulated that if Stephen Lang, who was formerly with the Victoria Police

Department, was called to testify, that he would testify truthfully and under

oath that on or about February 27, 2014, the Appellant committed the felony

offense of driving while intoxicated, which was a felony due to the

Appellant having twice before been convicted of driving while intoxicated

offenses, and that in the course of and in furtherance of committing that

felony the Appellant committed an act clearly dangerous to human life,

specifically driving at an excessive rate of speed, disregarding a traffic

signal, and driving a motor vehicle into a vehicle being driven by Ms.

Cynthia Partida, which caused the death of Ms. Cynthia Partida. [RR-II-16].

            The Appellant then further stipulated that Stephen Lang’s testimony

would also establish that on or about February 27, 2014, the Appellant

committed the felony offense of evading arrest or detention with a vehicle

and that in the course of and in furtherance of committing that felony offense

the Appellant committed an act clearly dangerous to human life, specifically

driving at an excessive rate of speed, disregarding a traffic signal, and

driving a motor vehicle into a vehicle being driven by Ms. Cynthia Partida,

which caused the death of Ms. Cynthia Partida. [RR-II-17].
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00750-CR
                                                     3
            The Appellant then stipulated that Stephen Lang’s testimony would

also prove that the Appellant used a deadly weapon, specifically a motor

vehicle, during the commission of his offense. [RR-II-17].

            The Appellant then further agreed and stipulated that all the acts and

allegations alleged in the indictment were true and correct. [RR-II-17].

Appellant’s lawyer likewise joined in this stipulation. [RR-II-17]. The State

did not rest upon the entry of the stipulation into evidence. [RR-II-17-18].

            The trial court then held that the Appellant was mentally competent

and had entered into his plea freely and voluntarily. [RR-II-19]. The trial

court then recessed the hearing until November 24, 2014. [RR-II-19].

            On November 24, 2014, the trial court reconvened the hearing. [RR-

III-1]. At that hearing, the State presented evidence, through both live

testimony and exhibits, that showed that on February 27, 2014, the

Appellant was stopped by Stephen Lang, a uniformed police officer in a

marked police vehicle, [RR-III-16-17, 20; State’s Exhibit 1], and how the

Appellant then fled from Deputy Lang in a motor vehicle at a high rate of

speed [RR-III-21; State’s Exhibit 1] and that while fleeing from Deputy

Lang the Appellant collided with a vehicle being driven by Ms. Partida [RR-

III-21-22, 24; State’s Exhibits 1-2], and that Ms. Partida was killed in that

collision. [RR-III-24].
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00750-CR
                                             4
            The State also presented evidence that the Appellant at the time when

he was first stopped by Deputy Lang had a droopy facial expression, glassy

eyes, and slurred speech [RR-III-22-23] and that Appellant refused to

provide a blood test when requested.             [RR-III-23].   The State further

presented evidence that Appellant was going at least 85 miles per hour at the

time of the collision [RR-III-29] and that the Appellant made no attempt to

avoid the collision. [RR-III-31].

            The State then established that the Appellant had an alcohol level

between .089 and .122 at the time of the collision [RR-III-37] and that the

Appellant was on felony probation for driving while intoxicated at that time.

[RR-III-37-38]. Appellant did not object to the admission of the blood test

evidence or the introduction of the extrapolation evidence. [RR-III-37].

             The State’s evidence further established that Appellant had previously

been convicted of misdemeanor driving while intoxicated offenses on

October 10, 2007 in cause number 2-90,186 in the County Court at Law #2

of Victoria County, Texas, [State’s Exhibit 36, page 4; RR-III-13], and again

on December 10, 2010 in cause number 1-97118 in the County Court at Law

#1 of Victoria County, Texas. [State’s Exhibit 43, page 4; RR-III-13]. The

State also established that the Appellant was convicted of a felony driving

while intoxicated offense on July 1, 2013 in cause number 13-4-27259-D in
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00750-CR
                                             5
the 377th Judicial District Court of Victoria County, Texas. [State’s Exhibit

44; RR-III-13]. A copy of the indictment for that cause was also admitted

into evidence. [State’s Exhibit 41; RR-III-13]. It showed that Appellant’s

two prior driving while intoxicated offenses were for the offenses listed in

State’s Exhibit 36 and State’s Exhibit 43. [State’s Exhibit 41].

            The State then called one of Appellant’s prior probation officers, Ms.

Amanda Garcia. [RR-III-89]. Ms. Garcia identified the Appellant [RR-III-

89-90] and confirmed he had been placed on probation for a felony driving

while intoxicated case with her on July 1, 2013. [RR-III-90]. That is the

same day that State Exhibit 44 shows that Appellant was convicted of a

felony driving while intoxicated offense in cause number 13-4-27529-D.

[State’s Exhibit 44].

            The Appellant then testified where he admitted in open court that he

was the only person responsible for the death of Ms. Partida. [RR-III-165,

169]. The Appellant also acknowledged it was stupid of him to flee from the

police.           [RR-III-166].              Appellant also admitted he had previously been

convicted for a felony driving while intoxicated offense. [RR-III-177].

            The trial court assessed a sentence of life imprisonment for the

Appellant. [RR-III-194].



Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00750-CR
                                                        6
                                     SUMMARY OF THE ARGUMENT

           The evidence was sufficient to support Appellant’s guilty plea to the

offense of felony murder alleged in Paragraph 1 of the indictment.

Appellant stipulated as to what Stephen Lang would have testified to, and

that stipulation covered all the elements of the charged offense. Thus that

stipulation alone was sufficient to establish a valid guilty plea. Appellant

also stipulated that all of the allegations contained within the indictment

were true. Since the indictment alleged all of the required elements of the

offense of felony murder, Appellant’s stipulation was also sufficient by itself

to fully validate his guilty plea.              There was also sufficient evidence

presented at Appellant’s sentencing hearing to substantiate his plea of guilty.

The evidence offered at the sentencing hearing gave the fact finder sufficient

evidence to reasonably conclude both that Appellant was driving a motor

vehicle while intoxicated at the moment where he struck and killed Ms.

Partida, and that Appellant’s driving while intoxicated offense was a felony

due to the Appellant having three prior driving while intoxicated

convictions. Therefore Appellant’s plea of guilty as to Paragraph 1 of the

indictment was sufficiently corroborated by evidence independent of the

plea, and thus the plea was valid and should be affirmed.



Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00750-CR
                                                7
            The indictment for Paragraph 2 was sufficient to vest the trial court

with jurisdiction over the case. That indictment alleged all of the elements

of the offense of felony murder which is all it had to do to be a valid

charging instrument. There is no requirement in Texas law to allege a

culpable mental state from the constituent felony offense of the felony

murder offense and thus the indictment was not required to allege

Appellant’s mental state for committing the offense of evading

arrest/detention in a vehicle.

            In the alternative, even if the indictment for Paragraph 2 was deficient

for not alleging the culpable mental state of the constituent felony offense of

evading arrest/detention in a vehicle, the Appellant waived any claim of

error on that point by failing to object to the indictment prior to trial. Thus

Appellant is now barred from raising this issue on appeal.

            There was sufficient evidence to corroborate Appellant’s plea of

guilty to the offense of felony murder as alleged in Paragraph 2 of the

indictment. Appellant’s stipulation as to what Deputy Lang would testify

and Appellant’s own admission that all of the allegations contained within

the indictment were true and correct were each sufficient to validate

Appellant’s guilty plea.                     Furthermore, the evidence presented at trial,

specifically through the testimony of Deputy Lang and Appellant’s own
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00750-CR
                                                     8
admission, provided sufficient evidence that Appellant knew Deputy Lang

was a police officer and that Appellant intentionally fled from Deputy Lang;

an act that led directly to Appellant killing Ms. Partida. Thus Appellant’s

plea of guilty was validated by independent evidence and thus that plea was

valid and should be affirmed.

                                             ARGUMENT

      I. The evidence was sufficient to support Appellant’s guilty plea to
         the offense of felony murder as alleged in Paragraph 1 of the
         indictment.

            The Court of Criminal Appeals has routinely held that a stipulation as

to what witnesses would testify had they been present at trial is legally

sufficient to support a conviction within the context of Article 1.15 of the

Texas Code of Criminal Procedure. See Stone v. State, 919 S.W. 2d 424,

426 (Tex. Crim. App. 1996). In the present case, the agreed upon stipulation

as to what Stephen Lang would have testified to fully established every

element of Paragraph 1 of the charged offense of murder.

            That stipulation established that on or about February 27, 2014, the

Appellant committed the felony offense of driving while intoxicated, which

was a felony due to the Appellant having twice or more previously been

convicted of driving while intoxicated offenses, and that in the course of and

in furtherance of committing that felony the Appellant committed an act
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00750-CR
                                                9
clearly dangerous to human life, specifically driving at an excessive rate of

speed, disregarding a traffic signal, and driving a motor vehicle into a

vehicle being driven by Ms. Cynthia Partida, which caused the death of Ms.

Partida. [RR-II-16]. That stipulation therefore covered all the elements of

the murder offense alleged in Paragraph 1 and thus it was a valid stipulation

sufficient to fully substantiate Appellant’s plea of guilty. See Stone, 919

S.W. 2d at 427.

            Appellant now argues that the stipulation was incomplete because it

did not establish the manner in which Appellant was driving a vehicle while

intoxicated and it did not provide details about Appellant’s prior driving

while intoxicated convictions. Those are flawed arguments as the manner of

how Appellant committed the offense of driving while intoxicated and the

specifics of his prior driving while intoxicated convictions are not elements

of the charged offense of murder and thus do not have to be alleged in the

indictment or proven in the stipulation.

            It is long settled Texas law that when the State alleges an offense for

which another offense is a constituent part, the State is not required to allege

the elements of the constituent offense in the charging instrument for the

greater offense. See Hammett v. State, 578 S.W. 2d 699, 708 (Tex. Crim.

App. 1979)(holding that “an indictment charging one offense during the
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00750-CR
                                             10
commission of another crime need not allege the elements of the later

offense.”)                    See            also   Alba   v.    State,   905   S.W.2d   581,   585

(Tex.Crim.App.1995)(indictment need not allege constituent elements of

underlying offense which elevates murder to capital murder); Jarnigan v.

State, 57 S.W. 3d 76, 92 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd)(in

an organized crime case, the State need not allege the manner and means by

which the underlying theft was committed; State v. Rivera, 42 S.W.3d 323,

328–29 (Tex.App.-El Paso 2001, pet. ref'd)(State need not allege manner

and means by which underlying offense such as bribery was committed in

organized crime case.)

            This rule applies with equal force in felony murder cases. See Yandell

v. State, 46 S.W.3d 357, 362 (Tex. App.—Austin 2001, pet. ref'd)(holding

that in a felony murder case that the indictment did not have to include the

mental state for the constituent felony offense of deadly conduct because

“when an indictment alleges one offense during the commission of a second

offense, the elements of the second offense need not be alleged.”); see also

McGuire v. State, 2012 WL 344952, 01-11-01089-CR at 3 (Tex. App.-

Houson [1st Dist] 2012, pet. ref’d)(mem. op. not designated for

publication)(“an indictment for felony murder is not required to allege the

constituent elements of the underlying felony.”)
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00750-CR
                                                            11
            Since the elements of the underlying felony offense of driving while

intoxicated did not have to be alleged, the State was also clearly not required

to prove those elements as part of the stipulation. Rather all the State had to

prove to establish the offense of murder in this case was that Appellant had

committed the felony offense of driving while intoxicated at the time when

he killed Ms. Partida. Appellant’s stipulation as to what Deputy Lang would

testify conceded that Deputy Lang’s testimony would testify truthfully that

Appellant had committed the felony offense of driving while intoxicated.

[RR-II-16]. Thus that stipulation fully satisfied the felony offense element

of felony murder and was therefore a valid stipulation. Thus that stipulation

alone was enough to validate Appellant’s guilty plea.

            But that was not the only independent evidence the State had to

validate Appellant’s guilty plea. Appellant himself also stipulated that all

the acts and allegations contained in the State’s indictment were true and

correct. [RR-II-16]. Since the indictment contained all of the elements of

the charged offense of felony murder, Appellant conceding that all the

allegations contained within that indictment were true and correct meant that

Appellant directly stipulated that all of those elements were true, including

the element that he had been committing the felony offense of driving while

intoxicated at the time his actions clearly dangerous to human life caused the
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00750-CR
                                             12
death of Ms. Partida and the fact that his driving while intoxicated offense

was a felony because he had at least two prior driving while intoxicated

convictions. [RR-II-16].

            As such even without taking in account the stipulation concerning

what Deputy Lang would testify to, Appellant’s own stipulation was itself

also sufficient to fully validate Appellant’s plea of guilty for the purposes of

Article 1.15. See Scott v. State, 945 S.W. 2d 347, 348 (Tex. App.-Houston

[1st Dist] 1997, no pet.)(holding that the defendant agreeing that the elements

of the offense alleged in the indictment constitute the evidence in the case

was sufficient to satisfy the validation requirements of Article 1.15.) See

also Brown v. State, 2012 WL 3594228, 13-11-00595-CR at 3 (Tex.-App.

Corpus              Christi            2012,   pet.   ref’d)(mem.   op.   not   designed   for

publication)(holding that the defendant agreeing and stipulating as part of a

guilty plea that all the acts alleged in Count 1 of the indictment was true was

evidence that could be used to establish the charged offense.)

            Appellant’s own stipulation thus also fully established his guilt to this

charge.              Nor was Appellant’s stipulation simply a regurgitation of

Appellant’s plea of guilty. The Court of Criminal Appeals in Menafee noted

that there is a very real difference between a defendant pleading guilty to a

charged offense and the defendant acknowledging that he is guilty of the
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00750-CR
                                                        13
charged offense. See Menefee v. State, 287 S.W. 3d 9, 15 (Tex. Crim. App.

2009). Appellant’s action in pleading guilty was itself just a plea of guilty

and thus that act by itself would not be enough to validate Appellant’s guilt

under Article 1.15, but Appellant’s action in stipulating that the allegations

contained within the indictment were true and correct was more than just a

plea of guilty. That stipulation constituted an admission that Appellant was

in fact guilty of the charged offense. It was not simply Appellant pleading

guilty, it was Appellant swearing in open court that he was in fact guilty of

the charged offense.

            The indictment for Paragraph 1 contained all the elements necessary

to prove Appellant guilty of the offense of felony murder.              Appellant

admitted those allegations were true and thus testified that he was in fact

guilty of the charged offense.               Thus Appellant’s own stipulation was

sufficient to validate his guilty plea under Article 1.15.

            Furthermore, even if the stipulations as to what Deputy Lang would

testify to and the stipulation from the Appellant were somehow not sufficient

to validate Appellant’s plea of guilty for the offense of murder alleged in

Paragraph 1 of the indictment, Appellant’s guilt as to that allegation was also

substantiated by the evidence that was presented at the remainder of his

hearing in this case.
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00750-CR
                                              14
            Texas law holds that even if a stipulation as to guilt is defective, a

defendant’s guilty plea can still be validated by other competent evidence in

the record. See Menefee, 287 S.W. 3d at 14; See also Jones v. State, 373

S.W. 3d 790, 793 (Tex. App.-Houston [14th Dist] 2012, no pet); Reese v.

State, 2015 WL 4381223, 13-13-00616-CR at 4 (Tex. App.-Corpus Christi

2015)(mem. op. not designed for publication). In this case there was more

than enough evidence presented at the Appellant’s sentencing hearing to

substantiate his guilt to the offense alleged in Paragraph 1 of the indictment.

            Evidence was presented at the sentencing hearing that established that

Appellant fled from the police in a motor vehicle at a high rate of speed,

[RR-III-21], that the Appellant crashed into Ms. Partida’s vehicle, [RR-III-

21-22, 24; State’s Exhibits 1-2], that said crash killed Ms. Partida [RR-III-

24], and that Appellant made no effort to avoid crashing into her. [RR-III-

31].

            Moreover, concerning Appellant’s specific claim regarding a lack of

evidence to prove his intoxication there was also specific evidence presented

at the sentencing hearing to show that Appellant was driving while

intoxicated when this crash occurred. This evidence supported both a per se

theory of intoxication and an impairment theory of intoxication.



Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00750-CR
                                             15
               To support the per se theory of intoxication there was blood test

evidence that confirmed both the presence of alcohol in Appellant’s system

and established that his alcohol level would have been over the legal limit at

the time of the fatal crash. [RR-III-37]. That is all that is needed for the fact

finder to be convinced Appellant committed the offense of driving while

intoxicated.

            Appellant now attempts to discount this evidence, arguing in

particular that the extrapolation intoxication evidence that was presented to

the trial court was unreliable. Appellant’s argument comes too late though

as the extrapolation evidence was admitted into evidence without objection

by the Appellant at trial. [RR-III-37]. A challenge to the reliability of

evidence needs to be made before that evidence is accepted into evidence.

(The Mata case, cited by Appellant, itself turned upon the defense

challenging the initial admissibility of retrograde evidence. See Mata v.

State, 46 S.W. 3d 902, 904 (Tex. Crim. App. 2001).) Once Appellant

acquiesces to evidence being admitted, Appellant has waived any argument

that the evidence is unreliable, and that evidence thus becomes fair game for

the fact finder to consider just as the fact finder would consider any other

evidence that has been lawfully admitted into evidence.



Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00750-CR
                                             16
            Moreover, the fact finder is the exclusive judge of the weight and

credibility to be given to the evidence. Wise v. State, 364 S.W.3d 900, 903

(Tex. Crim. App. 2012). And when the record could support conflicting

inferences from the evidence, the reviewing court, after a finding of guilty,

must presume that the fact finder resolved those conflicts in favor of the

prosecution and defer to the trial court’s determination. Wise, 364 S.W. 3d

at 903. Nor does it matter that a different fact finder might have made a

different determination upon looking at the evidence.            See Jackson v.

Virginia, 443 U.S. 307, 318-319 (1979). The reviewing court must defer to

the fact finder’s determinations on the weight and credibility to be given to

the evidence. See Brooks v. State, 323 S.W. 3d 893, 894 (Tex. Crim. App.

2010)(plurality op); Harvey v. State, 2011 WL5589281, 13-09-00696-CR at

4 (Tex. App.- Corpus Christi 2011, pet. ref’d)(mem. op. not designated for

publication).

            Thus in the present case the fact finder had undisputed evidence from

the extrapolation evidence that Appellant’s alcohol level was above the legal

limit at the time of the fatal collision. And it must be presumed the fact

finder found that evidence credible and gave it considerable weight since it

must be presumed that the fact finder resolved all evidentiary conflicts in

favor of finding the defendant guilty of the charged offense. Therefore just
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00750-CR
                                             17
from that evidence alone the fact finder could have rationally concluded that

Appellant was driving while intoxicated at the time of the fatal collision

under a per se theory of intoxication. Therefore that evidence was sufficient

to establish Appellant was driving a vehicle while intoxicated at the time he

caused the death of Ms. Partida.

            The fact finder could likewise have ratioanlly concluded the Appellant

was driving in an impaired state at the time of the fatal collision due to the

presence of alcohol in his body. There was evidence that the Appellant had

alcohol in his system at that time through both the blood test results [RR-III-

37], and there was evidence of Appellant having droopy facial expressions,

slurred speech, and glassy eyes. [RR-III-22-23]. Those signs that Appellant

was under the influence of alcohol, coupled with the evidence of Appellant’s

spectacularly poor driving that night which directly caused the death of Ms.

Partida [RR-III-21-22, 24, 31] support a reasonable inference that Appellant

was suffering a loss of normal use of his physical and/or mental faculties due

to the introduction of alcohol into his system while he was operating a motor

vehicle at the moment he killed Ms. Partida. And again it must be presumed

that the fact finder made such an inference, since all conflicts in evidence

must be resolved in favor of upholding the verdict.             Thus it must be

presumed the trial court also concluded that Appellant was driving while
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00750-CR
                                             18
intoxicated under an impairment theory of intoxication at the moment when

he struck and killed Ms. Partida.

             Nor is the State required to introduce opinion testimony that a

defendant lost the normal use of their mental and or physical faculties or

present evidence of field sobriety testing to establish a defendant was

impaired. The offense of driving while intoxicated can be proven beyond a

reasonable doubt by circumstantial evidence. See Weems v. State, 328 S.W.

3d 172, 177 (Tex. App.-Eastland 2010, no pet); Smithhart v. State, 503 S.W.

2d 283, 285 (Tex. Crim. App. 1973). Thus the evidence offered at the

sentencing hearing was fully sufficient to establish that Appellant was

driving while intoxicated at the time he killed Ms. Partida under both a per

se intoxication theory and under an impairment intoxication theory.

            The evidence at the sentencing hearing likewise established that this

driving while intoxicated offense was a felony. Evidence was presented

without objection showing that Appellant had three prior driving while

intoxicated convictions. [State’s Exhibit 36, page 4; State’s Exhibit 43, page

4; State’s Exhibit 44; RR-III-13].                That the Appellant was the same

Christopher Cordil-Cortinas listed on those three convictions was likewise

established by the evidence presented at the sentencing hearing.             Ms.

Amanda Garcia, Appellant’s former probation officer, testified at the hearing
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00750-CR
                                             19
where she personally identified Appellant as the person who went on her

felony probation case load on July 1, 2013. [RR-III-89-90]. July 1, 2013 is

the same day that a Christopher Cordil-Cortinas was convicted in Cause

Number 13-4-27529-D of the felony offense of driving while intoxicated

and placed on felony community supervision.                              [State’s Exhibit 44].

Appellant himself also acknowledged he had pled guilty to a felony driving

while intoxicated offense. [RR-III-177].

            Thus on this evidence it would be reasonable for the trial court to

conclude that the Appellant is the same Christopher Cordil-Cortinas that was

convicted of felony driving while intoxicated in Cause Number 13-4-27529-

D.          And the indictment for Cause Number 13-4-27529-D (which was

admitted into evidence as State’s Exhibit 41) alleged the two prior driving

while intoxicated offenses for that offense saw Christopher Cordil-Cortinas

convicted of driving while intoxicated on October 10, 2007 and December 1,

2010. [State’s Exhibit 41]. October 10, 2007 is the same conviction date as

the driving while intoxicated conviction a Christopher Cordil-Cortinas

received for cause number 2-90,186. [State’s Exhibit 36, page 4]. Likewise

December 1, 2010 is the same conviction date as the driving while

intoxicated conviction a Christopher Cordil-Cortinas received for cause

number 1-97118.                          [State’s Exhibit 43, page 4].   Thus if the evidence
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00750-CR
                                                        20
supports that the Appellant is the same Christopher Cordil-Cortinas as the

one who was convicted of felony driving while intoxicated on July 1, 2013,

then that Christopher Cordil-Cortinas must also be the same Christoper

Cordil-Cortinas who was previously convicted of driving while intoxicated

offenses on October 10, 2007 and December 1, 2010, and that in turn means

that the Appellant already had three prior driving while intoxicated

convictions at the time of the offense at issue in this case. Appellant did not

dispute any of this evidence, and it must be presumed that the trial court

gave this evidence substantial weight and found it credible, and thus the

evidence presented at the sentencing hearing fully substantiated that

Appellant had enough prior driving while intoxicated conviction to make his

driving in an intoxicated condition at the time he struck and killed Ms.

Partida a felony level offense.

            Therefore Appellant’s plea of guilty was fully substantiated by three

different manners: Appellant’s agreement as to what Deputy Lang would

testify, Appellant’s own stipulation that the allegations contained within the

indictment were true and correct, and the evidence that was produced at

Appellant’s sentencing hearing.              As such Appellant plea of guilty to

Paragraph 1 was valid and fully complied with the requirements of Article

1.15 and thus that plea of guilty should be affirmed.
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00750-CR
                                             21
            II. The indictment for Paragraph 2 was valid and even if it was
                not, Appellant waived any claim of error by failing to timely
                object.

            The indictment for Paragraph 2 was likewise valid. It alleged all the

elements of the offense of felony murder which is all that is required for a

legally valid indictment. [CR-I-6].

            Appellant now contends that the indictment as to Paragraph 2 is

deficient because it did not allege the mental state for evading

arrest/detention in a vehicle. This argument is without merit because, as

already discussed in the previous section, the State is not required to allege

the elements of the constituent felony offense that enables a felony murder

charge. See Yandell, 46. S.W. 3d at 362 (holding that the State was not

required to allege in a felony murder case alleging deadly conduct as the

underlying felony; the culpable mental state of recklessness for the deadly

conduct offense.) The mental state for evading arrest/detention in a vehicle

is part of the constituent offense of evading arrest/detention in a vehicle.

Therefore, since it is merely an element of the constituent offense, rather

than an element of the greater offense, it does not have to be alleged within

the charging instrument for the greater offense of murder. As such the

indictment for Paragraph 2 was sufficient without alleging the culpable

mental state for evading arrest/detention in a vehicle.
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00750-CR
                                             22
            In the alternative, even if the State was required to allege the culpable

mental state of the offense of evading arrest/detention in a vehicle in

Paragraph 2 of the indictment, Appellant waived any claim of error for such

a defect in the indictment by failing to object to the indictment before trial.

Article 1.14(b) of the Texas Code of Criminal Procedure establishes that a

defendant waives any challenge to a defect in the indictment if the defendant

does not object to the indictment before the date the trial begins. See also

Teal v. State, 230 S.W. 3d 172, 182 (Tex. Crim. App. 2007). This applies

even if the indictment fails to allege the element that establishes the required

mental state. Id. at 181-182.

                The record for the present case clearly shows Appellant never made

any sort of objection to the contents of the indictment. Appellant never filed

any sort of motion to quash and never verbally objected to the indictment.

[CR-I; RR-II-1-12]. Therefore since the Appellant did not object to the

substance of Paragraph 2 of the indictment prior to trial, he waived any

objection on that basis and is barred from raising such an issue on appeal.

Thus Appellant’s claim on this point should be denied.

      III. The evidence was sufficient to support Appellant’s guilty plea to
           the offense of felony murder as alleged in Paragraph 2 of the
           indictment.

           The evidence was fully sufficient to validate Appellant’s guilty plea to
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00750-CR
                                             23
the offense of felony murder as alleged in Paragraph 2 of the indictment.

Appellant stipulated that Stephen Lang would testify that on or about

February 27, 2014, the Appellant committed the felony offense of evading

arrest/detention in a vehicle, and that in the course of and in furtherance of

committing that felony the Appellant committed an act clearly dangerous to

human life, specifically driving at an excessive rate of speed, disregarding a

traffic signal, and driving a motor vehicle into a vehicle being driven by Ms.

Cynthia Partida, which caused the death of Ms. Partida. [RR-II-16-17].

This stipulation established all the elements of the offense of felony murder,

and thus it was by itself sufficient to fully validate Appellant’s plea of guilty

to this offense. See Stone, 919 S.W. 2d at 426.

           Appellant also personally stipulated that all of the acts and allegations

contained within Paragraph 2 of the indictment were true and correct. [RR-

II-17]. Paragraph 2 contained all of the elements of the offense of felony

murder.             [CR-I-6].                Therefore since the indictment contained all of the

elements necessary to establish Appellant committed the charged offense of

felony murder while committing the underlying felony of evading

arrest/detention in a vehicle, Appellant’s admission that the accusations

against him were true, was likewise by itself sufficient to fully establish he

was guilty of the offense of murder as alleged in Paragraph 2 of the
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00750-CR
                                                           24
indictment. See Scott, 945 S.W. 2d at 348; Brown, 13-11-00595-CR at 3. A

defendant swearing that he is guilty is very different than the defendant

simply pleading guilty, and thus the Appellant admitting in open court that

the allegations against him in Paragraph 2 were true is enough to

substantiate his guilty plea to those allegations.

            Evidence presented at the sentencing hearing also fully substantiated

that Appellant committed the offense of felony murder as alleged in

Paragraph 2 of the indictment.               At that sentencing hearing the State

presented the testimony of Deputy Stephen Lang. [RR-III-15]. Deputy

Lang testified as to how on February 27, 2014, while he was in uniform and

driving a marked police car, he initiated a traffic stop on the Appellant, who

could clearly see him. [RR-III-16-17, 20]. Deputy Lang then described how

the Appellant, in response to Deputy Lang’s request for his driver’s license,

took off in his vehicle, fleeing from Deputy Lang. [RR-III-21]. Deputy

Lang then established that while fleeing from him, Appellant struck Ms.

Partida’s vehicle, killing her. [RR-III-21].

            Deputy Lang’s testimony thus fully established everything needed to

prove the underlying evading arrest/detention in a vehicle allegation. That

testimony established that the Appellant knew Deputy Lang was a peace

officer, established that Deputy Lang was lawfully detaining the Appellant,
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00750-CR
                                             25
and established that the Appellant fled from Deputy Lang in a motor vehicle

(during which time the Appellant killed Ms. Partida). Intent can be inferred

from the circumstances surrounding an act. See Smith v. State, 965 S.W. 2d

509, 518 (Tex. Crim. App. 1998). As such the fact finder would be able to

conclude from Deputy Lang’s testimony and from the video evidence that

Appellant had the requisite mental state to commit the felony offense of

evading arrest/detention in a vehicle based on Appellant’s actions that night.

And the testimony of a single witness is sufficient as a matter of law to

prove a defendant’s guilt beyond a reasonable doubt if the fact finder finds

that witness’s testimony proves every element of the offense beyond a

reasonable doubt. See Aguilar v. State, 468 S.W. 2d 75, 77 (Tex. Crim.

App. 1971). Thus the testimony of Deputy Lang by itself was legally

sufficient to prove Appellant committed the underlying felony offense of

evading arrest/detention in a vehicle if the fact finder found that testimony

credible which it must be presumed the fact finder did. See Wise, 364

S.W.3d at 903.

             Now was Deputy Lang’s testimony the only evidence the State had

that showed Appellant had intentionally fled from Deputy Lang in a vehicle

while knowing Deputy Lang was a peace officer who was trying to detain

him. The State also offered video evidence that showed Appellant fleeing
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00750-CR
                                             26
from Deputy Lang. [State’s Exhibit 1]. This video evidence likewise made

it abundantly clear that Appellant had the culpable mental state necessary for

the offense of evading arrest/detention in a vehicle.

             The Appellant also testified in open court that he had fled from the

police and acknowledged that it was foolish of him to do so. [RR-III-166].

Thus beyond Deputy Lang’s testimony and an actual video showing

Appellant committing the crime, the trial court also had Appellant’s own

judicial confession that he committed the felony offense of evading

arrest/detention in a vehicle. That admission by the Appellant also fully

established that he had the required mental state for that particular offense.

Thus the trial court had overwhelming evidence to substantiate that

Appellant               committed            the   underlying   felony   offense   of   evading

arrest/detention in a vehicle, and that evidence fully covered all of the

elements of that particular offense.

             As such based upon Appellant’s agreed upon stipulation as to what

Deputy Lang would testify, Appellant’s own stipulation that the allegations

contained within the indictment were true and correct, and the evidence that

was presented at the sentencing hearing, there was overwhelming

independent evidence to corroborate the Appellant’s plea of guilty to

Paragraph 2 of the indictment. Therefore Appellant’s plea to that accusation
Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00750-CR
                                                        27
was a valid guilty plea and should be upheld.

                                              PRAYER

            WHEREFORE, PREMISES CONSIDERED, the State prays that this

Honorable Court affirm the judgment of the trial court.

.

                                             Respectfully submitted,


                                             STEPHEN B. TYLER
                                             CRIMINAL DISTRICT ATTORNEY

                                             /s/ Brendan W. Guy
                                             Brendan W. Guy
                                             Assistant Criminal District Attorney
                                             SBN 24034895
                                             205 North Bridge Street, Suite 301
                                             Victoria, Texas 77902
                                             E-mail: bguy@vctx.org
                                             Telephone: (361) 575-0468
                                             Facsimile: (361) 576-4139


                                             ATTORNEYS FOR THE APPELLEE,
                                             THE STATE OF TEXAS




Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00750-CR
                                                  28
                                     CERTIFICATE OF COMPLIANCE

            In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I,

Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria County,

Texas, certify that the number of words in Appellee’s Brief submitted on

August 18, 2015, excluding those matters listed in Rule 9.4(i)(1) is 5,885.



                                             /s/ Brendan W. Guy
                                             Brendan W. Guy
                                             Assistant Criminal District Attorney
                                             SBN 24034895
                                             205 North Bridge Street, Suite 301
                                             Victoria, Texas 77902
                                             E-mail: bguy@vctx.org
                                             Telephone: (361) 575-0468
                                             Facsimile: (361) 576-4139




Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00750-CR
                                                  29
                                             CERTIFICATE OF SERVICE

            I, Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria

County, Texas, certify that a copy of the foregoing brief has been served on

Dayna Jones, 1800 McCullough, San Antonio, Texas 78212, Attorney for

the Appellant, Christopher Cordil-Cortinas, by placing the same in the United

States mail on the day of August 18, 2015.



                                                   /s/ Brendan W. Guy
                                                   Brendan W. Guy
                                                   Assistant Criminal District Attorney
                                                   SBN 24034895
                                                   205 North Bridge Street, Suite 301
                                                   Victoria, Texas 77902
                                                   E-mail: bguy@vctx.org
                                                   Telephone: (361) 575-0468
                                                   Facsimile: (361) 576-4139




Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00750-CR
                                                        30
