                                                                              PD-0035-15
                                                             COURT OF CRIMINAL APPEALS
                                                                              AUSTIN, TEXAS
                                                           Transmitted 2/12/2015 4:02:02 PM
                                                             Accepted 2/13/2015 9:18:45 AM
                                                                               ABEL ACOSTA
                         No. PD-0035-15                                                CLERK



                ln the Court of Criminal Appeals



                     DANIEL DIAZ, APPELLANT

                             VIIRSUS


                 Tue Srnra oF TEXAS, APPELLDE



      ON AppEAL FRoM THE 253RD Julrcu.L DISTRICT couRT
                    LIBERTY COUNTY, TEXAS
               TRIAL COURT CAUSE NO. 1259853
                             AND
THE COURT OF.APPtrALS FOR THE NINTH JUDICIAL DISTRICT OF TEXAS
                       BEAUMONT, TEXAS
                       No. 09-I3-00104-CR


       APPELLANT,S PETITION FoR DISCRETIONARY REVIEW




                                          wENDRT-r- A. Onorrr Jn.
                                          TEXAs BAR # i5208500
                                          440 I-oursrANA Sr., SrE 200
                                          I IousToN, TExAS 77002
                                          (713)223-ss7s
                                          (713)224-28rs   lrnxl
 February 13, 2015
                                            ATToRNEY FoR Arne     II,IN
                                            I)ANIEL DIAZ




                     IORAL ARGUMENT RrquEsrEo]
                           IDENTITIES oF PARTItrS AND COUNSEL



Daniel Diaz                                                     Appellant

State of Texas                                                  Appellee

Honorable Susan Baker                                           Trial Courl Judge
PO Box 3937                                                     253'd District Court
Galveston,'l exas 77 552                                        Liberty Counly, TX

Wendell A. Odom, Jr.                                            Appellate Counsel
440 Louisiana St., Ste 200                                      for PDR
I   Iouston, Texas 77002

Richard Burroughs                                               Appellate Counsel
P.O. Box 1676                                                   in Courl of Appeals
Cleveland, Texas 77328

Paul Aman                                                       Trial Counsel
7l 2 Westcotl St.
Houston, 'Iexas 77007

Logan Pickett                                                    District Attorney
1923 Sam Houston, Ste 112                                        on Appeal
I-iberty, Texas77575

Anne Streit                                                     Assistant District
1923 Sam Houston, Ste 112                                       Attorney at Trial
Liberty, Texas77575
                              TABLE oF CONTENTS



                                                                                   PAGE
IDDNTITIES oF PARTIES, COUNSELS AND JUDGE ...........,          .........,.................i
TABLE oF CONTENTS ............                                       .................... ii
INDEX oF  AurHoRrrrtrs                                       ........................... iii
STATEMENT REGARDTNG ORAL     ARGUMENT                                  ..............,....1
STATEMENT oF THE   CasE'...............                                         ...........2
STATDMENT oF PROCEDURAL    HrsroRy...                             ........................2
STATEMENT oF    FAcrs..........                                     ......................3
GROUNDS FoR     REvrtrw                                     ..............................5
   I.           _
         ISSUE I DID THE COURT oF APPEALS RULE INCOII.RECTLY WHEN THtrY
         FOUND THAT THE EVIDENCT] WAS SUF'FICIENT TO SUSTAIN THE
         CONVICTION?
   il. ISSUD II _ DID THE COURT oF APPDALS RULD INCORRECTLY WHEN THEY
         FOUND THAT MR. DIAZ wAS PROVIDED EFFECTIVE ITEPRESENTATION
         uNDER ,srflcrzlND AND TI{E 6t " AMENDMENT To rHE UNTTED STATDS
         CONSTITUTION?
ARGUMENT AND AurHoRrrIES .....................                         ....................5
   I.    IssuE   I......................                                ...................5
         A. HYPOTHETICALLY CORRECT JURY CHARGD.........                        ............6
         B. ARGUMENT                                           ............................7
   I     IssuE   II...........                                ...........................10
         A. DEFrcrtrNT PERFORMANCD..................... ...........................11
         B. HARM RESULTED FROM DEFrcrENcy......                 .........................13
 PRAYER FoR R8LrEF..............                                      ..................,14
 CERTTFTCATn oF SERvrcE                                           .......................15




                                              II
                                     INDEX oF AurHoRrrrEs



                                            CASES




Ex Parte Lal-lood,401 S.W.3d 45 (Tex. Crim. App. 2013)
Fuller v. State,73 S.W.3d 250 (Tex. Crim. App. 2002)........
Garcia v, State,827 S.W.2d 937 (Tex. C[im. App.1992)
Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001).......         6
I'lorton v. State,4l8l LEXIS I (Tex. App. Houslon[14th Disl.] 2010)    1




                                            Statutes

Tcx. Trans. ('odc Antt. $ 545.1 5b                                    ...9




                                               lll
                                 NO. PD-0035-15




           In   The Court              of Crjrninal Appeals
                           DANItrL DIAZ, APPDLLANT

                                        VERSUS


                        TH E STATE oF TEXAS, APPELLEE



                On Appeal from the 253'd Judicial District Court
                             Liberty County, Texas
                        Trial Court Cause No. CR-29411
                                       And
           The Court of Appeals for thc Ninth Judicial District of Texas
                                Beaumont, Texas
                              No. 09-13-00104-CR



      APPELLANT'S PETITION FOR DISCRETIONARY REVIEW


TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      Comes Now, Daniel Diaz, Petitioner, in the above styled and nurnbered

cause and respectfully urges this Court to grant discretionary revierv of 1he above

named cause, pursuant to the rules of appellate procedures

              STATEMENT REGARDING ORAL ARGUMENT

       Petitioner requests oral argument. Tltis case presents tlte irnportanl issue   of
whether lhe lower courl inconectly ruled that th.e evidence was sfficient to

maintain a convictionfor official oppression when it is un.disputed fi'otn tlte record

tltat probable couse existed   for   lhe detention   All of the issues presented require
discussiol of the facts, and are issues that require a look at the correct application

of the lau, to the facts in this case. Oral argument would be helpful to the Coutt

and to the parties because the issues                in this    case are fact-intensive and oral

argument would allow the parties 1o respond 10 any concerns or questions of this

Court.

                                STATEMENT OF THE CASE

         Appellanl was charged with official opprcssion in violation of Texas Penal

Code $ 39.03(a)(1) in Liberty County, Texas. On February 28,2013, he was

convicted subsequent to a trial by iury, and sentenced to the maximum of one year

in the Liberty County Jail. The Court of Appeals for the Ninth Judicial District                           of

Texas affinned his conviction, holding that the evidence was sufficient to sustain a

conviction and that Appellant was not denied his 6tl' arnendment right to effective

representation.

                     STATEMENT OF PROCEDURAL HISTORY

         The Courl o1'Appeals for the Ninth Judicial District of Texas affinled the

trial court's judgment on October 22,2014 in an unpublished opinion. Di.az                                  v.


State, Appellate Number 09-13-00104-CR.                    A rnotion for rehearing            was filed on

Novernber      2I,2014.        'l-his rnotion was overuuled by the Court of Appeals on

December       I0,2014. This petition for discretionary review is tirnely if filed                         by

February 9,2015. See Tex. R.App.P. 68.2(a), (c).1



' A Motion to Extend has been filed with this Petition for Discretionary    l{eview. That Motion is requesting
an additional two (2) days to file the Petition for Discretionarf Review.

                                                      2
                                    STATtrMENT OF FACTS

        Daniel Diaz ("Mr. Diaz") worked for Texas Parks and Wiidlife of "fexas as

an acling garne warden. RR6-7.2 As a peace officer, Mr. Diaz was responsible                               for

enforcing all of the laws in the State of Texas including those relating 1o Texas

fish and garne. RR4-27.

        Throughout his tirnc as a galne warden, Mr. Diaz had cone into conlact

with rnany people in Liberty County, Texas. One person that he liad contacted on

more than one occasion was James David McCorrnick ("Mr. McCorrnick"), the

cornplaining witness in this case. See RR2, RR3-6. As a result of these contacts,

Mr. McCorrnick had filed official complaints against Mr. Diaz for                                     various

allegations of harassment while Mr. Diaz was acting in his capacity as a garne

warden. See RR2. These cornplaints against Mr. Diaz took place prior to 201                                   1.


Mr. McCormick had also beerl charged with assaulting Mr. Diaz in 2006 after an

altercation at Mr. Diaz's horne. RR3-12-13.

         On the rlorning of Novenber 13,2011, Mr. Diaz was scheduled to be on

patrol as a gane warden for Texas Parks and Wildlife. Mr. Diaz got into his state

issued garne warden vehicle at around 6:20 that morning. 511.3 As he sat in his

driveway, Mr. Diaz observed a Ford F-350 truck corning down his slreet with no

head lights on. S11. Further, Mr. Diaz noted that the car seemed to be traveling in



2
  RR will refer to the Repoder's Record in the record on appeal. The number foJlowing the RRwill refer to
the volurne number, and the number afler the dash refers to the page number within that volurno. For
exarnple. RR6-7 refers to Volurne 6 oftl)e Reporter's Record at page 7.
' S will refer to State's Exhibits iD the trial. The numbel after the S will refer to the exhibit number. S1 I is
state's exhibit I L

                                                        3
clear excess of the 30 MPH posted speed           lirrit for his neighborhood. S 11. The

Ford F-350 was being driven by Mr. McCorrnick.

           Mr. Diaz pulled out of his driveway and began to follow Mr. McCorrnick

RR3- I 80. Shortly thereafter,        Mr. Diaz lurned on his emergency lights in       an

atternpt to pull the vehicle over, and lalk to Mr. McColnick. RR3-180. Mr

McCorrnick failed 1o respond to Mr. Diaz's emergency lights. RR3-180-187.

Instead of pulling over, Mr. McCormick called 911 for advice, noting that he was

concerned about Mr. Diaz's inlentions in pulling hiur over that rnorning.      Id.   AlTer

close to a rnile, Mr. McCorrnick decided to subrnit to Mr. Diaz and pulled his car

over to the side of Minglewood road outside of Mr. Diaz's neighborhood. RR3-

209

           Mr. Diaz asked Mr. McCormick for his license and proof ol          insurance.

RR3-211. The two men had a few words back and forth, and Mr. McCormick was

placed      in   handcuffs   for officer   safety. RR3-275-217. Shortly after Mr

McCormick was placed in handcuffs, two officers with the City of Liberty Police

Departrnent arrived on the scene. RR3-221.              Mr. Diaz and the two     officers

discussed the natter, and Mr. Diaz decided that he would let         Mr. McCormick go

with   a   verbal warning.   S   10

           Mr. McCorrnick filed an official complaint with the internal affairs division

of Texas Parks and Wildlife in Austin, Texas. RR4-55. After an investigation, the

Liberty County District Attorney's Office accepted charges of Official Oppression

against Mr. Diaz for his actions on Novernber 13, 2011. RR4-112.

                                              4
                           GROUNDS FOR REVIEW

         1.   DID THE COURT OF APPEALS RULE INCORRECTLY
              WHEN THEY FOUND THAT THE EVIDENCE WAS
              SUFFICIENT TO SUPPORT THE CONVICTION?

         2.   DID THE COURT OF APPEALS RULE INCORRECTLY
              WHEN THEY FOUND THAT MR. DIAZ WAS PROVIDED
              EFFECTIVE REPRESENTATION UNDER,STRIC&IND AND
              THE 6TIT AMENDMENT OF THE UNITED STATES
              CONSTITUTION?

                                  ARGUMENT

   I     The 9th Court of Appeals rulcd incorrectly when they found that the
         evidence was sufficicnt to support a conviction in light of the
         undisputed testimony that Mr. Diaz had probablc cause that Mr.
         McCormick had violated Texas Transportation Code,                 Title   1
         Subchapter C S 545.156 prior to his detention.

   A.    The Rule of Law

   In reviewing the evidence for sufficiency, the court uust consider the evidence

in the light most favorable to the verdict to determine whether 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, 318-19 (1979); Brooks v. State, 323

S.W.3d 893, 898 (Tex. Crini. App. 2010). Evidence can be held to be insufficient

under 1he Jackson standard     in two   circumstances: 11,) the record contains no

evidence, or merely a "rnodicum"     of evidence, probative of an element of      the

offense, or (2) the evidence conclusively establishes a reasonable      doubt.   See


Jackson,443 U.S. at 314,318 n. 1l;see also Lasterv. State,275 S.W.3d 512,518

(Tex. Crirn. App. 2009); Williams v. State,235 S.W.3d 742,750 (Tex. Crim. App

2007).

                                          5
      The sufficiency-of-the-evidence standard allocates to the fact-finder the

responsibility to lesolve conflicts in the lestimony, to weigh the evidence, and      tro


draw reasonable inferences frorn basic facts to ultiurate facts. See Jackson,443

U.S. at 319; Claytonv. State,235 S.W.3d 772,778 (Tex. Crirn. App.2007). There

is a presurnption that the fact-finder resolved any conflicts in the evidence in favor

of the verdict and review of legal sufficiency defers to that resolution, provided

that the resolution is rational. See Jackson,443U.S. a|326

       Legal sufficiency in a case is measured against the elements of the offense

as defined   by   a   hypolhetically correct jury charge for the case. Malik v. State,953

5.W.2d234,240 (Tex. Crim. App. 1997). A hypolhetically correct jury charge is

one that "accurately sets out the law, is authorized by the indictrnent, does not

unnecessarily increase the State's burden ofproof or necessarily restrict the State's

theories of iiability, and adequately describes the parlicular offense for which the

defendant was         tried." Id. A hypothelically coruect jury   charge would no1 simply

quote fronr the controlling statute. Gollihar v. State,46 S.W.3d 243,254 (Tex.

Crim. App. 2001). Its scope is limited by "the statutory elernents of the offense

as nrodified by the charging instrument." Fuller v. State, 13 S.W.3d 250,254

(Tex. Crinr. App.2002) (Keller, P.J., concurring);        Cuty    v. State,30 S.W.3d 394,

404 (Tex. Crim. App. 2000).

    B. Hvpotheticallv Correct Jurv Charge

       Under Texas Penal Code $ 39.03 (a)(1), the State has to prove that Mr

Diaz, while acting under color              of his office, intentionally subjected the
                                               6
colnplainant to a detention that he knew was criminal, tortious, or both. Palacios

v.   State, 2014 WL    37'71870 (Tex.     App.-Corpus Christi 2014). In order for            a


delendant to know that the detention is unlawful under the official oppression

statule, the detention rnust be in fact, unlawful. State v. Edmond,933 S.W.2d 120,

127 (Tex. Crirn. App. 1996). Otherwise a defendant's 'rnislake             of law' as to the

illegality of his own act would create liability where none before existed. 1d

        A detention under the 4th amendment         does not take place   until i ) the officer

makes a showing of his authority and 2) there is a subrnission to that authority.

Johnsonv. State,912 S.W.3d        221   ,234 (Tex. Crirn. App. 1995). Atraffic stop is        a


detention once the person submits to the officer's authority                by stopping     his

vehicle.   Id. A peace of.ficer   may lawfully detain a rnotorist rvho commits a traffic

violation when the officer has probable cause to believe a traffic violation has

occuned. Garcia v. State,827 S.w.2d 937,944 (Tex. Crim. App. 1992).

Probable cause exists where police have reasonably trustworthy infonnation

sufficient to warrant a reasonable person to believe that a particular person has

cornrnitted or is cornrnitting an offense. McGee v. State, 105 S.W.3d 609, 614

(Tex. Crirn. App. 2003). The test for probable cause is objective and does not take

into account the subjective thoughts or rnotives of the officer. Amador v. Slate

275 S.W.3d 872,878 (Tex. Crirn. App. 2009). Further, a peace officer rnay rnake

a warrantless arresl   of any person who commits a traffic violation in his presence.

Horton v. State, 4187 LEXIS        1, 7-8 (Tex.    App.-Houston [14th Dist.] 2010).

      C. Argument

                                               1
        The facts in this case are such that no reasonable juror could have found the

element of an unlawful detention beyond a reasonable doubt. Given the facts in

this case, there are three different sets of facts which could have given Mr. Diaz

the requisite probable cause to lawfully detain Mr. McConlick:

   1. Mr. Diaz's   statement that Mr. McCormick's lights were off while traveling

        through his neighborhood before the sun rose.        S   I 1.

   2. Mr. Diaz's statenent that Mr. McCorrnick              appeared    to be lraveling well

        over the 30 MPII speed lirnit posted in his neighborhood. S11

   3.   The undisputed fact that Mr. McCorrnick failed to pull to the side of the

        road and stop when confronted with an ernergency vehicle. S11, RR3-180-

        r   87.

        The Court of Appeals was corect in their analysis that the first two sets of

facts were not strong enough for a successful challenge to the sufficiency of the

evidence under ,Iackson The hrst reasons for probable cause detailed above,

regarding the speed    of Mr. McCorrnick and whether his lights were on,               were

heavily disputed in the record on appeal. Testirnony was delivered by Mr.

McCorrnick that he was traveling 28 MPH when he saw Mr. Diaz and his lights

were "on" when he passed Mr. Diaz's house. RR3-178, RR3-176. The jury

weighs the credibility of all of the witnesses, and they were within their power to

choose to believe Mr. McCorrnick during         trial.   For that reason, a reasonable juror

could have found the elernent of an unlawful detention beyond a reasonable doubl

if they were given just the first two sels of facts

                                            8
       However, the objective standard set out under our 4rl' amendrnent

jurisprudence only requires thal the facts of the case show one set of fhcts that

provide probable cause for a lawful detention.       In other words, the Court of
Appeals for the Ninth Judicial District needed to view the merits        of the third

ground for probable cause standing on its own rvithout referring to other facts

Mr. Diaz need not prove he had probable cause that three violations occurred in

order to show it was a lawful detention.    If the evidence   shows an undisputed set

of facts that would provide probable cause for the traffic stop then the dctention is

lawful without any need to defer to the iury's province of weighing the wilness's

credibility.

          In this case, it is   undisputed that   Mr. McCormick violated Texas
Transportation Code, Title    7 Subtitle C $ 545.156 - Vehicle Approached          by

Authorized Emergency Vehicle. This section of the Transportation Code requires

that on the immediale approach of an authorized ernergency vehicle using audible

and visual signals, a driver shall 1) yield the right-of-way; 2) immediately drive to

a position parallel to and as close as possible to the right-hand edge or curb   ofthe

roadway clear   of any   intersection; and (3) stop and rernain standing until the

authorized energellcy vehicle has passed.

          Under any version     of the facts that the jury     chose   to believe, Mr
McCormick violated this statute when he 1) saw Mr. Diaz behind hitn with his

 emergency lights activated and sirens audible, 2) failed to yield the right-of-way,

 and 3) continued driving for-ward instead of stopping and remaining still until Mr.

                                           9
Diaz had an opportunity to pass. A vierv of Mr. McCormick's or Mr. Diaz's

statements in the record on appeal   will   establish these baseline facts to suppod a

lawful detention. There is no difference in their testin.ronies.    S   11, RR3-180-187.

Furlher, the other evidence in the case presented by the State corroborates their

teslirnonies that   Mr. McCorrnick did not pull over rvhen confronted with            an

emergency vehicle. See       RR.   These undisputed facts provided         Mr. Diaz   the

probable cause necessary to effectuate a lawful traffic stop (detention) on           Mr

McCorrnick. I-Iis subjective intent or pasl dealings with Mr. McCormick               are

iruelevant to the analysis   of whether the detention was in fact unlawful. With

conclusive evidence that Mr. McCorrnick violated a traffic law in the presence         of

Mr. Diaz, the evidence at trial was insufficient to suppoft a reasonable juror in

finding that the element of an unlawful detention was met. The Courl of Appeals

for the Ninth Judicial District ofTexas tnade an incorrect application of the law to

the facts in this case rvhen they found the evidence sufficient to support the

conviction for Official Oppression on direct appeal.

    2     The Court of Appcals ruled incorrectly when they ftrund that Mr.
         Diaz's Trial Counsel was not ineffective under Stricklarrl and the 6tr'
         amendment of the United States Constitution.

    A.    Rule of Law

          To prevail on a claim for ineffective assistance of counsel, an appellant

must prove two elements by the preponderance of the evidence: 1) trial counsel's

performance was deficient; and 2) harrn resulted fron-r that deficiency sufficient      1o


undermine the confidence in the outcome of the        trial.   Strickland v. Washittgton,

                                             10
466 U.S. 668,687,69a (1984); Ex Parte LaHood,40l S.W.3d 45, 49-50 (Tex

Crirn. App. 2013).     A   clairn for ineffective assistance of counsel must be firlnly

rooted   in the record such that the record affirrnatively demonstrales              the

meritorious nature of the clairn. Menefield v. Stale, 363 S.W.3d 59i, 592 (Tex

Crim. App. 2012). When trial counsel fails to object to questiolts or testitnony

during trial, the Appellant must show that the trial court judge would have

comrnitted error by overruling those objections        in order to   establish deficient

performance.

   B.    Deficient Performance from Trial Counsel

            a        Texas Rule of Evidence 404(b)

         The State in this case must prove beyond a reasonable doubt that Mr.

Diaz knew that the deterrtion o1'Mr. McCormick was unlawful. In order to meet

this elernent, the State brought in six separate instances of "run-ins" beflveen Mr.

Diaz and Mr. McCorrnick in the guilt innocence phase of          trial.   These instances

involved:   l)   a 2004 incident when Mr. Diaz advised Mr. McCormick to not drive

his foul wheeler in the neighborhood bayou, 2) a 2006 incident where Mr. Diaz

gave Mr. McCormick           a   verbal warning   for throwing fish       heads over the

neighbor's fence, 3) a 2006 incident where Mr. McConnick wenl 1o Mr. Diaz's

horne and an altercation broke out resulting          in   assault charges against Mr

McCormick, 4) an incident around 2010 where Mr. Diaz tried to block Mr

McCorrnick's path dorvn a street in their neighborhood with his car, 5) an incidenl

where Mr. Diaz flashed his energency lights behind Mr. McCorrnick on I{ighway

                                             11
146, and    6) an incident where Mr. Diaz followed Mr. McCorrnick                down

Minglewood outside of their neighborhood for a short tirne. RR3-187-207.

        Trial Counsel in this case argued the inadrnissibility oI these acts in his

nrotion in limine prior to trial. See RR2. Trial Counsel argued that these instances

were improper extraneous evidence as the standard for an unlawful stop was

objective and not subjective. See RR2, RR3-43. When the Trial Court denied his

urotion in lirnine, Trial Counsel asked for a running objection on that ground

RR3-43. This was the last time that Trial Counsel obiected to thc admission of the

past incident testimony

         At no point in the trial did Trial Counsel obiect to the admission of this

line of testirnony as     it   came into evidence befbre the     jury. Trial Counsel
understood the vaiue of the testimony enough to have a hearing on a motion in

limine prior to trial, but nonetheless, decided that objecting to the adrnission ofthe

testimony to preserve error and provide the jury with limiting instructions was

unneeded.

         If Trial Counsel had obiected to the adrnission of these incidenls into the
record, the Trial Courl would have erred      if   they adrnitted the evidence without a

limiting instruction in line with Texas Rule of Evidence 404(b). These past "bad

ac1s" or dealings with   Mr. McCorrnick could not be used for confonnity purposes,

but rather, may only be used by the State to go towards Mr. Diaz's knora4edge         of

the unlarvfulness of the detention.    It is incumbent on the Trial Courl to provide    a


limiting instruction on that matter when prompted by Trial Counsel. The Trial

                                            12
Court thus would have erred by allowing the evidence 10 come           in without   a


limiting instruction that it could only go towards a proper purpose. The Trial

Court did not nake those limiting instructions in this case because Trial Counsel

failed to object upon the subrnission of these pieces of testimony before the jury.

RR3-187-207.

        There is no trial strategy that could justify Trial Counsel's failure to

object in lhis case. This evidence was the center piece of the State's case, and

allowing the jury to hear this evidence without an appropriate lirniting instruction

serves no purpose other than to harm Mr.    Diaz. Trial Counsel's inability to obj ect

10 these key pieces   of   evidence   in the tlial was deficient, and no   competent

attorney would have failed to rnake these appropriate obiections.

   C.    Harm Resulted frorn the Deficiency

      The State's case from starl to finish rested on the prior relationship between

Mr. Diaz and Mr. McCormick. The State spent a large porlion of their case-in-

chief building up the prior relationships between Mr. Diaz and Mr. McCormick.

See RRs. When arguing the casc        in closing argumenl the State added that Mr

McCorrnick wouldn't lie because all he wanted was to "stop the harasstnent."       ,See


RR3, 4,   5-52. In order to meet the eletnents of official      oppression, the State

needed more than controverted testirnony about the validity of the detention. They

needed to use the prior encounters between the two men to shorv that this case was

outside the realm of appropriate police work, and thus, Mr. Diaz knew that his

treatment of Mr. McCorrnick was unlawful. It is hard to irnagine a scenario where

                                           13
the State obtains a conviction under these facts without the prior history between

Mr. McCornrick and Mr. Diaz.

        The value of the prior incidenl teslimony cannot be overstated, and the

conl'rdence    in this trial was undermined by Trial Counsel's inability to
appropriately object to these incidents as they came into evidence. Without the

proper limiting instructions, the jury was free to use the evidence as they deerned

fit throughout the trial. It was crucial thal the prior incident testirnony be handled

cornpetently   to insure that Mr. Diaz received a fair trial. In this     case, Trial

Counsel was entirely incompetent        in this area, and harnr resulted frorn this
deficiency. The Courl of Appeals for the Ninth Judicial District of Texas ruled

incorrectly when they found that Mr. Diaz's trial counsel was not ineffective under

the   Strickland standard and the 6tl'amendrnent of the United States Constitution.

                              PRAYER F'OR RELIEF

         For the reasons herein alleged, Petitioner respectfully requests this Court

grant discretionary review ofthe lower court's opinion and grant oral argument.




                                     Respectfully subrnitted,




                                          NDELL A       OM, JR
                                     State Bar No. 15208500
                                     440 Louisiana Streel, Suite 200
                                     I Iouston, Texas 77002
                                     (713) 223-5s7s
                                     (713) 224-2815 fax

                                           14
            CERTIFICATE OF COMPLIANCE WITH TRAP 9.4

I hereby certi$ that this Petition for Discretionary Review cornplies with Texas
Rule of Appellate Procedure 9.4 in that it is written in 14 point font, Tirnes New
Roman, and contains 3,539 words.




                                                              ELL    DOM, JR




                         CERTIF'ICATE OF SERVICE

       I hereby certify that a lrue and colrect copy of the foregoing Petition for
Discretionary Review was served on the Assistant Crirninal District Attorney and
the State Attorney by electronic transmission on February 12,2015 .




                                                              EL       OM, JR.




                                         15
APPENDIX
                                    In The

                              Court of Appeals

                  Ninth District of Texas ot Beflumont


                            NO. 09-13-00104-cR


                          DANIEL DIAZ, Appellant

                                      v
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 253rd District Court
                          Liberty County, Texas
                        Trial Cause No. CR29411


                        MEMORANDUM OPINION
      Appellant Daniel Diaz was indicted for official oppression under section

39.03 of the Texas Penal Code. See Tex. Penal Code Ann. $ 39.03 (West Supp.

2014).' The indictment alleged that on or about November 13, 2011, Diaz

"intentionally subject[ed] James David McCormick to detention that [Diaz] knew
was unlawful, and [Diaz] was then and there acting under color of his employment


       lBecause the amendments do not affect this case, we cite   to the current
version of the statutes.
                                       1
as a public servantl namely, Game Warden." A                 jury found Diaz guilty and the trial
court   sentence   d Diaz to one year confinement in the Liberty County Jail                   and


assessed a $4,000     fne.Diaz    appeals.

        On appeal, Diaz argues that          (   1   )   the evidence is legally and factually

insufficient to sustain the jury's verdict; (2) the trial court abused its discretion by

admitting irrelevant and prejudicial evidence from a series of alleged extraneous

acts in violation of Rules 401 , 403, and 404(b) of the Texas Rules of Evidence; (3)

he was "denied his [c]onstitutionally protected and guaranteed right to effectrve
assistance ofcounsel[;]" and (4) that if the decision of the trial court is upheld by

this Courl,   "it will   create a level of unceftainty that        will   have a chilling effect on

every traffic stop conducted by law enforcement officers within the State of

Texas." We overrule his issues and affirm the judgment

                                  Guilt/Innocence Evidence

        The testimony at trial indicated that Diaz and McCormick had a "prior

history" that preceded the incident              of      November 13,, 2011.       In   2006, Diaz

confronted McCorrnick about some "fish heads" McCormick allegedly threw over

the fence and into his neighbor's pasture. Diaz drove up in his "game warden
truck" while McCormick was throwing out the fish and asked McCormick why he

was thlowing fish heads onto the neighbor's property. McCormick told him                         "I
                                                     2
always throw thern back here." Diaz asked to see McCormick's fishing license and

continued to question McCormick. Based upon Diaz's tone of voice, McCormick

called the Liberty Police Department and asked them to send an officer to the

scene. McCormick testified that as soon as Diaz noticed the Liberty police officer

pulling into McCormick's driveway, Diaz "handed [McCormick his] fishing

license and said   I'm going to give you a warning this time. Don't throw fish heads

over here no more unless you get permission frorn [the neighbor]." A day or two

later, and after he obtained permission from the neighbor, McCormick drove over
to Diaz's home to let him know that the           neighbor had given McCormick

permission    to throw the fish heads over onto her property. According to
McCormick, Diaz then told McCormick he knew that McCormick had "called the

law" on him and he stated to McCormick, "you better not ever call the law on me

again and you better watch your back." McCormick testified he totd Diaz he was

not there to argue, and Diaz told McCormick that he was arresting him and "[he]

was going to    jail" for trespassing.   When McCormick proceeded to walk to his

truck, Diaz grabbed McCormick's wrist and held          it up in the air and began
screaming at McCormick telling him he was going to jail. McCormick went to       jail
and was charged with "assault" on Diaz. The assault case went to trial in 2010, and

the   jury found McCormick not guilty.
                                            J
      McCormick testified that while McCormick was waiting to go to trial on the
2006 assault charge, Diaz followed him on more than one occasion' One evening

Diaz blocked the path of McCormick's vehicle with his personal truck and when

McCormick drove around Diaz to pull into McCormick's driveway, Diaz followed

him and "stayed parked" in front of McCormick's house for fifteen minutes. Right

after the jury found McCormick not guilty on the 2006 assault charge, Diaz again

foltowed McCormick, and Diaz flashed his lights at McCormick but did not stop

him. McCorrnick notified the police department that Diaz was "harassing" him but
he did not make a formal report. McCormick indicated at trial that the police

department personnel told him there was "pretty much nothing they [could] do."
McCorrnick testified that on another occasion, prior to being stopped by Diaz in

November 2011, while McCormick was driving on Highway 146,Diaz followed

McCormick. McCormick also told the jury that prior to November 2011, he spoke

to law enforcement about getting a restraining order against Diaz and they told him

he needed to hire an attorney.

      According to McCormick, on November 13,2011, around 6:20 a.m., he was

driving his vehicle on Minglewoo d   (a/W a   Mizell) Road, on his way to work, and
he drove past the driveway to Diaz's home. McCormick had to drive past Diaz's

home to exit his subdivision. McCormick testified he had his headlights on because
                                         4
it was still dark outside. He stated that he knew he was not going over 30 m.p.h.,
"[b]ecause   I   always make sure    I'm going under 30 when I      pass .   . . Mr. Diaz's

house[,] . . . to try to avoid any trouble that I might have as I pass by his house." As

he approached Diaz's driveway, he noticed Diaz's game warden truck parked in

the driveway. Diaz's vehicle had its headlights on and as McCormick approached

Diaz's driveway, Diaz turned his game warden truck "red and blue lights on."

After McCormick's vehicle got into the first curve past Diaz's driveway,
McCormick then noticed that Diaz pulled out onto the roadway behind
McCormick. McCormick testified that he was "afraid for [his] safety" because of

their "past history" and that is why he did not immediately pull over. McCormick
stated,

                       I yielded for [Diaz] to go around because I thought
                 rnaybe that he had a call that he was going to, so I
                 yielded. . . . I also yielded for [Diaz] to go around while I
                 was on [the] phone with 911, but [Diaz] stayed behind
                 me. Then [Diaz] started getting close to rny vehicle, so at
                 that point, I knew [Diaz] must have been pulling me
                 ovef.

McCormick testified that "[t]here was no other cars on the road, so at that point I

called 911 because       I wasn't really sure what to do. I   was afraid for my safety at
that time." McCormick pulled over and stopped while he was talking to the

91 l operator.

                                               5
      After stopping,Diaztold McCormick to get out of his truck and McCormick
cornplied. Diaz asked to see McCormick's driver's license and proof of insurance.

Diaz told McCormick to put his driver's license on the hood of Diaz's truck, and

McCormick did what he asked. Then Diaz told McCormick to put his hands behind

his back andDiaz handcuffed McCormick, and told hirr he was arresting him for

"speeding." McCormick testified thatDiaz also "got right in [McCormick's] face"

and asked McCormick, "[D]id you get satisfaction out of us going to court[?]"

McCormick replied, "[D]amn right. I enjoyed every minute of it, especially when
you got up on the stand and lied . . . you made a fool out of yourself." McCormick

told Diaz that he had called   91 1 .   Diaz then called someone and said   "I   have James

McCormick pulled over and I have him handcuffed for my protection." Diaz never

had his citation book out or with him, and none of the officers issued McCormick a

citation for anflhing.

      The Liberty Police officers responded to a call to assist. When they arrived,

they took Diaz over in front of their vehicle and they had a discussion with Diaz.

McCormick testified that the male officer came back and told McCormick "Mr.

Diaz [is] going to set [you] free," and the officer told Diaz to take the cuffs off of
McCormick. Before McCormick left to go to work, Diaz told McCormick he was

"going to get a warrant" to arrest McCormick for evading arrest. McCormick
                                               6
turned to the male officer and said, "[C]an he do that?" McCormick told the jury
the officer looked at McCormick "and winked" and told McCormick to contact an

attorney.

       Officer Cedric McDuffie, a Deputy with the Liberty County Constable's

Office and formerly a police officer with the Liberty Police Department, testified

that he and his partner, Officer Elizabeth Polasek, responded to a call on November

13,2011, to assist at the scene of a traffic stop. McDuffie had over twenty years in

law enforcement at the time of trial. McDuffie testified that when they arrived
McCormick was in handcuffs standing on the side of the road over by the Game

Warden's truck. McDuffie got out of his vehicle and walked over to speak with
Diaz. According to McDuffi e, Diaz indicated that McCormick was speeding and

Diaz stated he had observed McCorrnick driving by Diaz's residence at "maybe

about 30 miles per hour." Diaz also said "possibly" McCormick did not have his

headlights on.   At that time, the subject of evading arrest never came up. Officer

McDuffie testified that the City of Liberty requires a radar to determine speed, and

he would never recommend that an officer try to enforce a traffic law for speeding

without getting a radar and special training to enforce speeding laws.2 At one point


       'McDrffie explained   that the Liberty Police use radar to document the speed
of a vehicle, but indicated that you can also use "[r]adar pacing and ciocking[.]"
According to McDuffie, radar pacing is where the officer follows behind someone
                                          7
at the scene, Diaz admitted to McDuffie that he had no reason to give Mr.
McCormick a ticket. At trial, McDuffie acknowledged on direct examination that it

was "fair to say that [Diaz] had no reason to give [McCormick]      aticket[']"

        The video captured by the Liberty Police Deparlment dash camera was also

introduced into evidence at trial and played for the jury without any objection from

Diaz. The video (with audio) depicts the arrival of the Liberty police officers to the

scene, and the conversations of Diaz with the officers about the situation. On the

video, Diaz can be heard making the following statement, "No,            I   don't have   a

reason to give him a ticket . . .   I really wasn't going to give him a ticket." Diaz can

also be heard telling the Liberty officers that "McCormick got out of . . . an assault

on   me . . ,," and "he calls 9-1-1."

        The State introduced the audio recording and a transcript of the 911 call

made by McCormick, and there were also records of two calls made by Diaz on the

non-emergency line. Dispatcher Mary Jackson testified that McCormick's 911 call

came in at 6'.27 a.m., and it was the first call she received. Later, she also received




and determines their speed frorn the speed on the officer's speedometer. And,
"clocking" is timing a vehicle from one point to another and then using the exact
distance to extrapolate a speed. Officer McDuffie said he "never felt comfoftable"
using clocking and that only the State of California uses it. McDuffie testified that,
while you can sometimes just "eyeball" a car to determine if it is speeding, it is
more difficult and deceptive, especially around a curve.
                                              8
two calls from Diaz on the non-emergency line. The time lapse between the start of
McCormick's 9i     I   call and then the beginning of Diaz's first call was about two

minutes. As McCormick hung up with the             91   1 dispatcher, Diaz called   the

dispatcher in his first call and then followed up with another call several minutes

later.

         Rod Ousley, a Captain with Texas Parks and Witdlife, and Diaz's supervisor

at the time of the 2011 incident, testified thatDiaz came to his office the day after

Diaz stopped McCormick in November of 201 1. Ousley explained to the jury that
Diaz brought in Diaz's handwritten statement about the stop and informed Ousley

that Oustey probably needed to notiff internal affairs because he thought the stop
could potentially generate a complaint. Diaz explained in his statement that he

obserued     "a black truck with no lights,      headlights   or parking lights"    that

"appear[ed] to be exceeding the posted speed limit" and that he recognized that the

truck belonged to McCormick ,who he had "had a run-in with in the past." Ousley

testified he notihed Diaz on J anuary 9,2012, that the Internal Affairs investigation

resulted in a letter of intent to take corrective action. The next day, Diaz "put in"

for retilement, and therefore no corrective action was taken.
         McCormick spoke with an attorney and decided to file a complaint with

Texas Parks and Wildlife against Diaz. Texas Parks and Wildlife investigated the
                                            9
matter and referred it to Internal Affairs who then sent it to the District Attorney'
The transcript of Diaz's testimony before the grand jury was admitted into

evidence, as well as Diaz's handwritten statement about the incident. According to

the transcript of Diaz's grand jury testimony, Diaz testified that before sunrise on

November 13,2011, he was leaving in his patrol vehicle and saw a truck "50 feet

100 feet something like that" away with no lights on. He recognized the truck

belonged to McCormick as the truck went by, and he pulls behind him and "turns

on his red and blue lights cause   I'm going to stop him,   he had no lights and   I allege
he's speeding." He saw McCormick apply his brakes but not pull over' Diaz

contacted the police department to inform them the vehicle would not pull over,
and the dispatcher said McCorrnick was on the 911 line and was repofting that

Diaz was harassing him. Diaz asked for assistance. According to Diaz, McCormick

pulled over, and when he got out of his truck "he didn't come out very friendly he

said   I   called the real police and you're in trouble[.]" Diaz made McCormick get

behind his truck and cuffed him because McCormick was talking "in an elevated

voice" and Diaz believed there was going to be "another scuffle" and he "didn't

want to take any chances[.]" The grand jury indicted Diaz.
           Irma Sanchez, custodian of records for Texas Parks and Wildlife, testified

that she performed a search for traffic citations and warnings issued by Diaz from
                                            10
2008 thlough 2011. According to Sanchez, her search revealed that during that
time period Diaz did not write any warnings or citations for traffic offenses'

Dorothy Drennan, Cify      of Liberty Municipal Court Clerk, testified that        she


performed a search    of the traffic citation   issued by Diaz going back   to   1993.

According to Drennan, Diaz had only issued one traffic citation since 1993, and

that was for cutting through a parking lot at an intersection.

                                Punishment Evidence

      At the punishment      phase, Special Ranger Jimmy         Belt with the   Texas

Department of Public Safety, testified he had several "run-ins" with Diaz dating

back to 1986 wherein Diaz tried to intimidate hirn. On at least one occasion, Belt
filed a complaint with Texas Parks and Wildlife regarding Diaz. Belt testified that

Diaz has a reputation for bullying members of the public and members of law

enforcement.

       John Feist, a former Chambers County Game Warden, also testified at the

punishment phase. Feist said he has known Diaz for "[p]robably 25 years" and that

Diaz has a reputation for being unprofessional. Similarly, Highway Patrol Sergeant

Steve Holloway, formerly a Liberly County DPS officer from 1989 to 1998, stated

that he had witnessed Diaz threaten another law enforcement officer. Gary Cain, a

retired game warden who had previously worked in Hardin County, acknowledged
                                           1l
that he had people complain to him about Diaz "using his badge to bully the
public[,]" and that he heard complaints about Diaz from private citizens as well as

law enforcement. Captain Ousley, Diaz's forrner supervisor, testified about         an


incident in 2011 where Diaz violated Texas Parks and wildlife policies when he

discharged a weapon    "to get [a] guy's attention." ln Captain Ousley's opinion,

Diaz engaged in vindictiveness as a game warden. Private citizens also testified

about confrontations they had with Diaz.

      In contrast, Game Warden Vu Nguyen, who has known Diaz for eight years
and worked with Diaz on "[m]any occasions[,]" testified that Diaz's behavior was

,,[a]lways professional and courteous." Nine other character witnesses testified that

they have known Diaz for a long time and all of them had good experiences

dealing with Diaz while he was working in his capacity as a game warden. Diaz's

wife testified that they have been married twenty-two years. She testified that Diaz

"is a good man" and a Vietnam veteran.

                     Lee al and Factual Insufficiencv Challenee

       In his first issue, Diaz contends that the evidence is legally and factually

insufficient to sustain the jury's verdict. We construe appellant's first point of error
as a challenge to the legal sufficiency of the evidence. See Brooks       v   State,323

S.W.3d 893, 912 (Tex. Crim. App. 2010) (there is no longer any meaningful
                                           12
distinction between   a   legal and factual sufficiency standard when reviewing
sufficiency of evidence to sustain a criminal conviction).

      We review the sufficiency of the evidence establishing the elements of a

criminal offense for which the State has the burden of proof under the single

sufficiency standard set out in Jackson v. Virginia,443 U.S. 307,319 (1979)'

Brooks,323 S.W.3d at 912. Under that standard, we view all the evidence in the

light most favorable to the verdict and determine whether any rational trier of fact

could have found the essential elements of the offense beyond a reasonable doubt.
Jackson,443 U.S. at319; Brool<s, 323 S.W.3d at 899.       "It   is not necessary that the

evidence directly proves the defendant's        guilt; circumstantial evidence is      as

probative as direct evidence       in   establishing   the guilt of the actor,       and


circunrstantial evidence alone may be sufficient to establish guilt." Carrizales       v.


State, 414 S.w.3d 737, 742 (Tex. Crim. App. 2013) (citing Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007)).

       We must defer to the jury's assessment of the credibility of the witnesses

and the weight to be given to their testirnony. Brooks,323 S.W.3d at 899. We also

allow for the jury to make "reasonable inferences" from the testimony or evidence.
Williants v. State,235 S.W.3d 742., 750 (Tex. Crim. App. 2007); see also Tex.

Code Crim. Proc. Ann. art. 38.04 (West 1979). When the record suppofts
                                           13
conflicting inferences, we presume that the jury "resolved the conflicts in favor of
the prosecution and therefore defer to that determination." Clayton v. State,235

S.W.3d 772,, 778 (Tex. Crim. App. 2007) (citing to Jackson,443 U.S' at 326).

Sufficiency of the evidence should be measured by the elements of the offense          as


alleged in the indictment.   Malikv. State,953 S.W.2d 234,240 (Tex. Crim. App.

1997).

         On appeal, Diaz contends that the evidence is insufficient because it "did not

prove that [Diaz] acted knowingly, intentionally, and unlawfully in his detention      of
James David McCormick." Diaz argues that "a purely objective standard applies to

whether the officer had a valid reason for the stop [or] detention and not a
subjective standard" and Diaz "had reasonable suspicion            to conduct and did

conduct a valid traffic stop and legally detained James David McCormick[.]"

Further, Diaz argues that if Diaz had "any legal reason to detain McCormick" then

Diaz "could not be guilty          of ofhcial oppression in      relation   to   detaining

McCormick[,] as a matter of law."

         To convict Diaz of official oppression as alleged in this case, the State had to

prove that Diaz, a game warden and public servant, while acting under color of his
office or employment, intentionally subjected McCormick to a "detention" that

                                            14
Diaz knew was "unlawful    ."   SeeTex. Penal Code Ann. $ 39'03(a)(l); see also State

v. Edmond,933 S.W.2d 120, 127 (Tex. Crim. App. 1996) (explaining that when

charged with official oppression by mistreatment, the defendant must have known

that the mistreatment alleged in the indictment was in fact unlawful in that    it   was

either criminal or tortious). The Penal Code defines "[u]nlawful" as "criminal or

tortious or both and includes what would be criminal or tortious but for a defense

not amounting to justification or privilege." Tex. Penal Code Ann. $ 1.07(a)(a8)

(West Supp. 2014). Therefore, the State had to prove thatDiaz, while acting under

color of his office, intentionally subjected McCormick to a detention he knew was

criminal, tortious, or both. See id., $ 39.03(a)(1).
       A temporary detention such as a traffic stop is generally justified when the

officer has reasonable suspicion to believe that an individual is violating the law.

See Terry v. Ohio,392 U.S. 1,29 (1968); Ford v. State,758 S.W.3d 488. 492 (Tex.

Crim. App. 2005). "Reasonable suspicion" exists           if   the officer has specific

articulable facts that, when combined with rational inferences from those facts,

would lead him to reasonably suspect that a person has engaged, is engaging, or

soon   will be engaging in criminal activity. Abney v. State,394 S.W.3d        542,, 548

(Tex. Crim. App. 2013). This objective standard disregards the officer's subjective

intent and looks solely at whether an objective basis for the detention exists. Ford,,
                                            t5
158 S.W.3d at 492. A reasonable-suspicion determination is made by considering
the totality of the circumstances at the time of the detention, considering common

sense judgments and inferences about human behavior.         Illinois v. Wardlow, 528

u.s. 1i9,   12s (2000).

        Based on the evidence      in the record, the jury could reasonably      have

determined that Diaz intentionally subjected McCormick to a detention he knew

was criminal, tortious, or both. In particular, evidence in the record indicates that

Diaz and McCormick had a "prior history" of confrontations, that McCormick was
being harassed by Diaz, that McCormick had made several calls to the Libefty

Police Department about Diaz following him, stopping him, and watching him
prior to this incident, that Diaz admitted to the Liberty Police officers who were

dispatched    to the scene that Diaz had no "reason to give Mr. McCormick           a

ticket[,]" that Diaz did not know the speed of Mccormick's vehicle, and that Diaz

was upset at McCormick for calling 911 and that he felt like McCormick "got out

of'   the prior assault charges.

        Even though Diaz and his expert witness testified that Diaz had reasonable

suspicion to stop McCorrnick for speeding or for not having his headlights on, or
even possibly failing to yield to an officer, the   jury could have reasonably weighed

the credibility of the witnesses and the weight to be given to their testimony, and
                                           l6
made "reasonable inferences" from the testimony        or evidence' Williams,     235

S.W.3d at750; see alsoTex. Code Crim. Proc. Ann' aft. 38.04. We presume that

thejury resolved any conflicts in favor of the verdict and we therefore defer to that

determination. Clayton, 235 S.W.3d      at 778. Reviewing the sufficiency of       the

evidence submitted at trial in the light most favorable to the verdict, we conclude

that the evidence is legally sufficient to support the conviction for official

oppression as alleged in the indictment. We overrule the first issue.

                               Admission of Evidence
      Next, Diaz argues that the trial court erred by admitting inelevant          and


prejudicial evidence from a series     of   alleged extraneous acts. Diaz contends
"[s]pecifically, the trial court erred in admitting the majority    if   not all of the

testimony of Daniel McCormick, Jimmy Belt, John Feist, Steve Holloway' Gary

Cain, Taylor Webb, Henry Dietz, Patsy Dubois, and Rod Ousley, especially

testimony involving alleged bad acts or opinion testimony with no basis and

relevance   to the pending matter[,]" and he was furlher harmed when the          State


referenced the "extraneous offenses" in its closing argurnent. Diaz provides us with

no citations to record evidence that would suppoft his arguments as required by
Texas Rule   of Appellate Procedure 38.1(i), and in our review of the record we

found no suppoft for his arguments.
                                            t7
      Witnesses Belt, Feist, Holloway, Cain, Webb, Dietz, Dubois' and Ousley
testified during the punishment phase, Diaz made no objection to their testimony

during the punishment phase. He failed to preserve any error on this issue relating

to the admission of their testimony.

      McCormick testified during the guilt/innocence phase             of the trial. To
preserve error   for   appellate review,       a party's   objection generally must     be


sufficiently specific so as to "'let the trial judge know what he wants' why he

thinks himself entitled to it, and do so clearly enough for the judge to understand
him at a time when the trial court is in   a   proper position to do something about   it."'

Malone v. State,405 S.W.3d 917,925 (Tex. App.-Beaumont 2013, pet. refd)
(quotingResendezv. State,306 S.W.3d 308,313 (Tex. Crim. App.2009)). In order

to raise a Rule 403 complaint, the objecting party must make a 403 objection

separate from a Rule 404(b) objection. See Montgomery v. State,810 S'W.2d 372,

389 (Tex. Crim. App. 1991) (op. on reh'g). Diaz did not specifically make a Rule

403 objection separate from his 404(b) objection, and therefore, has not preserved

a Rule 403 complaint on appeal. See id.; see also Tex. R.      App.P. 33.1(a).

       Diaz filed a motion in limine to exclude any testimony by McCormick
regarding Diaz's extraneous bad acts. The trial court granted the motion as to

testimony by any complainants (other than Mccorrnick) during the guiltiinnocence
                                               18
phase of the trial, but denied the motion as to McCormick's testimony during the

guilt phase regarding Diaz's extraneous bad acts towards McCormick. Rule 404(b)

expressly provides that evidence of other crimes, wrongs, or acts is not admissible

to prove the character of the defendant in order to show he acted in conformity

therewith. Rule 404(b) codifies the common law principle that a defendant should

be tried only for the offense for which he is charged and not for being a criminal

generally. Rogers v. State,853 S.W.2d 29,32 n.3 (Tex. Crim. App. 1993); see also

Segundo v. State,270 S.W.3d 79, 87 (Tex. Crim. App. 2008) (explaining that the

defendant is generally to be tried only for the offense charged, not for any other

crimes). Extraneous offense evidence, however, may          be admissible for other
purposes   such as proof     of   motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident. Tex. R. Evid. 404(b). The

list of examples in Rule a0a(b) is nonexhaustive. See Prible v. State, 175 S.W.3d

724, 731 (Tex. Crim. App. 2005). "Whether extraneous offense evidence            has


relevance apart from character conformity,       as   required by Rule 404(b),   lsa
question for the trial court:' Moses v. State, i05 S.W.3d 622,627 (Tex. Crim. App

2003). The trial courl's Rule 404@) ruling admitting evidence is generally within
the zone of reasonable disagreement      "if   there is evidence supporting that   an

                                         19
extraneous transaction is relevant    to a material, non-propensity issue." Devoe v.
state,354 S.W.3d 457,469 (Tex. Crim. App.2011).

      The testirnony frorn McCormick about the prior history and confrontations

he had with Diaz was relevant to one or more material issues in the               case.


McCormick     as   the complaining witness explained his history with Diaz, the assault

charge that was brought against him        by Diaz, and the other instances of Diaz

harassing him before this incident. Such detail directly related to the intent and

motive of Diaz in detaining McCormick, furlher explained the conduct of the
parties on the date in question, established a pattern of conduct on the part of Diaz,

and demonstrated intentional and knowing conduct.

      To the extent Diaz complains on appeal of the admission of                certain

testimony during the punishment phase,3 Diaz did not preserve error because he

failed to make any objection. Even      if Diaz   had preserved error, evidence may be

offered during the punishment phase as to any matter the court deems relevant to

sentencing, including but not limited to the prior criminal record of the defendant,


      3Diaz
             complains that the trial court erroneously admitted the "prejudicial"
testimony of Diaz's bad acts by "Daniel McCormick, Jimmy Belt, John Feist,
Steve Holloway, Gary Cain, Taylor Webb, Henry Dietz, Patsy Dubois, and Rod
Ousley[,]" but Diaz fails to give record references regarding the specific testimony
of which he cornplains. We note that, of these witnesses, Ousley testified during
both guilt and punishment phases, McCorrnick testified during the guilt phase only,
and the remainder testified only at punishment.
                                            20
his general reputation, his character, the circurnstances of the offense for which he
is being tried, and any other evidence of extraneous crime or bad act that is shown

beyond a reasonable doubt by evidence to have been committed by the defendant

for which he could be held criminally responsible. SeeTex. Code Crim. Proc. Ann.

afi. 37.07, $ 3(a)(l) (West Supp. 2014). The testimony during the punishment

phase about which Diaz complains was relevant         to   sentencing because   it   was

character evidence. See id. Therefore, we overrule issue two.

                          Ineffective Assistance of Counsel
      In his third   issue Diaz contends that he was "denied his [c]onstitutionally

protected and guaranteed right to effective assistance of counsel." To prevail on a
claim of ineffective assistance ofcounsel, an appellant must prove two elements by

a preponderance of the evidence: (1)   trial counsel's performance was deficient; and

(2) harm resulted from that deficiency sufficient to undermine confidence in the

outcome of the trial. Strickland v. Washington, 466 U.S. 668,    687   , 694 (1984); Ex

parte LaHood, 401 S.W.3d 45, 49-50 (Tex. Crim. App. 2013). An ineffective

assistance ofcounsel claim "must be    'firmly founded in the record' and'the record

must affirmatively demonstrate' the meritorious nature of the claim." Menefield        v.

State,363 S.W.3d 591,592 (Tex. Crim. App.2012) (quoting Thompsonv. State,9

S.W.3d 808, 8i3-14 (Tex. Crim. App. 1999)).
                                          21
      In evaluating the effectiveness of counsel undel the first prong of strickland,
we look to the totality ofthe representation and the particular circumstances of the

case. Thompsor,   9 S.W.3d at 813. Review of counsel's representation is highly

deferential, and the reviewing court indulges a strong presumption that counsel's

conduct fell within a wide range of reasonable representation. Mallett v. State,, 65

S.W.3d 59, 63 (Tex. Crim. App. 2011).

      The Texas Court of Criminal Appeals has explained that "trial counsel

should ordinarily be afforded an opportunity to explain his actions before being
denounced as ineffective." Rylander v. State., 101 S.W.3d      107,lli   (Tex' Crim'

App.2003) (citingBone v. State,77 S.W.3d 828,836 (Tex. Crim' App' 2002))'
Direct appeal is usually inadequate to make an ineffectiveness claim because the

record is frequently undeveloped in this respect . Goodspeed v. State, 187 S.W.3d

390,392 (Tex. Crim. App.2005); see also Cox,389 S.W.3d 817' 819 n.11 (Tex'

Crim. App. 2012) (observing that "[a] reviewing court will rarely be in a position

on direct appeal to fairly evaluate the merits of an ineffective-assistance claim").

Without evidence of trial counsel's strategy, "an appellate court will assume a

strategic motivation and    will not conclude that the challenged        conduct was
deficient unless it was so outrageous no competent attorney would have engaged in

 it." Ozuna v. State, 199 S.W.3d    601, 612 (Tex. App.-Corpus Christi 2006, no
                                          22
pet.) (citing Garcia v. State,57 S.W.3d 436,440 (Tex. Crim. App' 2001)).         It is not
appropriate for an appellate court to simply infer ineffective assistance of counsel.

Matav. State,226 S.w.3d 425,432 (Tex. Crim. App.2007).

      Diaz contends that his trial attorney rendered ineffective assistance in both

phases   of his trial, and that the failure of his attorney to "make a single objection

during the punishment phase of the trial and during the guilt/innocence phase of

trial, other than the alleged running objections made outside the presence of the

.jury and which arguably did not preserve error in any form' can in no way be
classified as 'trial strategy'." Diaz argues "countless objections" could have been

raised during the trial and were not, that Diaz's counsel failed to object to leading
questions, inflammatory statements, unfounded evidence and conclusions, and

failed to familiarize himself with the pfoper legal standards. Diaz points to no

specific record references, but he argues that the extraneous evidence of prior bad

acts as contained in his earlier issue would be a specific example.

         Regarding the alleged omissions of his attorney to object to questions or

testimony, Diaz has not established the trial court judge would have committed

error in overruling the objections    if they had been made. Vaughn v. State,          931

 S.W.2d 564, 566 (Tex. Crim. App. 1996) (holding that              "in   order   to   argue

 successfully that her   trial counsel's failure to object" amounted to ineffective
                                           23
assistance, appellant "must show that the trial judge would have committed error in

overruling such an objection"). To the extent Diaz implies that his trial counsel

should have called more witnesses       in his favor, he has not established that he

would have benefited from the testimony of any other unspecified witnesses he

argues his counsel should have called to testify. "'[F]ailure to call witnesses at the

guilt-innocence and punishment stages is irrelevant absent a showing that such

witnesses were available and appellant would benefit from their testimony."' Perez

v. state,310 s.w.3d 890, 894 (Tex. Crim. App. 2010) (quoting King v. state,649

S.W.2d 42,44 (Tex. Crim. App. 1983)). Additionally, he must demonstrate that

there is a reasonable probability that the witnesses' testimony would have affected
the result of the trial. Id. we conclude that the record in this case does not

affirmatively demonstrate ineffective assistance         of   counsel. The record is

undeveloped and does not adequately reflect the motives behind           trial counsel's

actions. We cannot simply infer that trial counsel lacked a trial strategy in failing to

lodge objections. We therefore overrule this issue.

                                    Chillins Effect

       In his fourth and final issue, Diaz argues that if the decision of the trial court
 is upheld by this Court,   "it will   create   a level of uncertainty that will have    a


 chilling effect on every traffic stop conducted by law enforcement officers within
                                           24
the State of Texas." Diaz cites no legal authority for his argument. The State
argues that the official oppression statute as drafted by the Legislature avoids any

,..chilling effect, on Law Enforcement" personnel because it tells officers what

they should not do.

       As already stated, a temporary detention such as a traffic stop is generally

justified when the officer has "reasonable suspicion" to believe that an individual

is violating the law. see Ford,158 S.W.3d at 492. "Reasonable suspicion" exists       if
the officer has specific articulable facts that, when combined with rational
inferences from those facts, would lead him to reasonably suspect that a person has

engaged, is engaging, or soon      will   be engaging   in criminal activity' Abney, 394
s.w.3d at 548. Our ruling today does not in any way restrict, alter, or amend the
,.reasonable suspicion" standard as applied       by law enforcement personnel in the

exercise   ofa lawful   discharge of their duties. This case does not involve a "lawful

discharge" of ofhcial duties by an officer or public servant in making a traffic stop

              ,.reasonable suspicion." Rather, the   jury found Diaz guilty of official
based upon

oppression. Diaz is not charged with the "lawful discharge" of his official duties in

 conducting a traffrc stop, but rather with the "unlawful discharge" of his duties.
 The   jury determined that Diaz    engaged    in a detention of another person which

                                             25
violated the law and constituted "official oppression." Accordingly, we overrule
his issue.

       Having overruled all of Diaz's issues, we affirm the judgment.

       AFFIRMED.



                                                        LEANNE JOHNSON
                                                               Justice

Submitted on August 11,2014
Opinion Delivered December 10, 2014
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.

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