Opinion issued March 15, 2018




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-17-00574-CR
                            ———————————
                          JOSE LUIS ORTA, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 179th District Court
                            Harris County, Texas
                        Trial Court Case No. 1504299


                          MEMORANDUM OPINION

      A grand jury indicted Jose Luis Orta for the felony offense of evading arrest

or detention. See TEX. PENAL CODE § 38.04. He pleaded not guilty, and his case

was tried to a jury. A jury found Orta guilty and assessed his punishment at 7 years’

confinement. On appeal, Orta contends that (1) the evidence is legally insufficient
to support his conviction; (2) the trial court erred in denying his request for a jury

question as to whether reasonable suspicion existed to conduct a traffic stop; and (3)

counsel rendered ineffective assistance by waiving an opening statement and by

failing to request a necessity instruction. We affirm.

                                    BACKGROUND

      This prosecution arose out of a surveillance operation. Jaime Garza was the

target, for whom the police had obtained an arrest warrant in connection with a

robbery investigation. Officers arrived at the home of Garza’s reputed girlfriend and

began watching it. A black pick-up truck, known to be driven by Garza, but thought

to be stolen, was parked in front of the home when the officers arrived.

      Orta exited the home with Garza. Orta got into the passenger side of the truck.

Garza got in on the driver’s side. Garza became aware of the police surveillance,

exited the truck, and attempted to flee on foot. Orta drove away in the truck a couple

of minutes later. Officers pursued Orta, believing that the truck he was driving was

stolen and that there might be weapons in it.

      After Orta failed to signal a lane change and improperly turned into the far

lane of traffic, an officer in a marked police car tried to stop Orta. The officer turned

on his car’s lights and sirens, and Orta sped away. Two officers in a second marked

police car joined the chase and became the lead vehicle in the pursuit. They turned

on their car’s lights and sirens.


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      The pursuit, which occurred during the early to mid-afternoon in moderate

traffic, continued for about 12 to 15 miles. During this time, Orta failed to signal

lane changes, swerved around other vehicles, drove on the shoulder, exceeded the

speed limit, exited a highway by driving up a grassy median, disregarded a stop sign,

entered the oncoming lane of traffic, and crashed through a security gate. Motorists

had to take evasive action to avoid Orta.

      Orta extended a shotgun from the driver’s side window and appeared to fire

it.

      The chase ended at the Brazos River. Orta jumped out of the truck and into

the river. He unsuccessfully tried to swim away. After about an hour in the water,

officers persuaded Orta to come back ashore and surrender. An officer found the

shotgun lying near the abandoned truck.

      Five peace officers testified about the surveillance and pursuit. Orta took the

stand in his own defense. He admitted that he knowingly fled from a police officer

who was trying to pull him over. But he denied that he had violated any traffic laws.

Orta said that he did not know that Garza was wanted by the police or that the truck

was stolen. He panicked and fled in the truck after a police vehicle aggressively

tried to “box him in.” According to Orta, he did not know whether the police were

going to shoot him, and so he believed that he was fleeing for his life. As a felon in

a vehicle with a firearm that was not his, he also feared being sent back to prison.


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He claimed that he did not fire the shotgun, had checked to see if it was loaded, and

tried to throw it out the window. Orta conceded that he could and should have

stopped rather than fleeing.

                                   DISCUSSION

I.    Legal sufficiency

      Orta contends that the evidence is legally insufficient to prove beyond a

reasonable doubt that peace officers were lawfully attempting to detain him, which

is an essential element of the offense of evading arrest or detention.

      A.     Standard of review and applicable law

      In a review for legal sufficiency, we view the evidence in a light favorable to

the verdict to determine whether a rational factfinder could have found the essential

elements of the crime beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743,

746 (Tex. Crim. App. 2011) (relying on Jackson v. Virginia, 443 U.S. 307, 318–19,

99 S. Ct. 2781, 2788–89 (1979)). We defer to the jury’s resolution of conflicts in

the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

      The elements of the offense of evading arrest or detention are: (1) intentionally

(2) fleeing (3) from a person whom the defendant knows is a peace officer (4) who

is trying to lawfully arrest or detain him. TEX. PENAL CODE § 38.04(a); Farrakhan

v. State, 263 S.W.3d 124, 134 (Tex. App.—Houston [1st Dist.] 2006), aff’d, 247




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S.W.3d 720 (Tex. Crim. App. 2008). Evading arrest in a motor vehicle is a third-

degree felony. TEX. PENAL CODE § 38.04(b)(2)(A).

      The State must prove the lawfulness of the attempted detention. Crawford v.

State, 355 S.W.3d 193, 196 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). A

detention to investigate criminal activity is lawful when law enforcement officers

can point to specific, articulable facts that, along with any rational inferences from

those facts, reasonably warrant the detention. Id. (relying on Terry v. Ohio, 392 U.S.

1, 30, 88 S. Ct. 1868, 1884–85 (1968), and Garcia v. State, 43 S.W.3d 527, 530

(Tex. Crim. App. 2001)). We review de novo the legal question of whether the

totality of the circumstances supports an officer’s reasonable suspicion. See Madden

v. State, 242 S.W.3d 504, 517 (Tex. Crim. App. 2007); Crawford, 355 S.W.3d at

196–97.

      B.     Analysis

      Orta’s testimony provided legally sufficient proof of several of the elements

of the offense. He conceded that he fled from the police. Orta admitted that he knew

that it was a police officer who was trying to pull him over. Orta likewise admitted

that that he could have stopped and chose not to stop, and that he should have

stopped.

      Orta’s challenge focuses on the lawfulness of the initial attempted detention.

Sergeant H. Sanchez said that law enforcement officers had identified the truck in


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connection with a robbery investigation. Officer R. Rojas-Garcia stated that officers

thought the truck might contain weapons related to the investigation. Another

officer, J. Lagunas, said that the officers believed the truck had been stolen. Finally,

Officer I. Frost testified that Orta committed two traffic violations that warranted a

stop: failure to signal a lane change and failure to turn into the nearest available lane.

Each of these reasons presented a reasonable basis for an investigatory detention.

See Crawford, 355 S.W.3d at 196 (detention lawful if officers can articulate specific

facts warranting it); see, e.g., Vasquez v. State, 324 S.W.3d 912, 919 (Tex. App.—

Houston [14th Dist.] 2010, pet. ref’d) (officers may detain motorist if they have

reasonable basis to suspect that he has committed traffic violation); Mount v. State,

217 S.W.3d 716, 728–29 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (officers

may detain motorist if they reasonably suspect that vehicle is stolen).

      Orta argues that other evidence shows that the officers had no lawful basis to

detain him. For example, Orta testified that Officer Frost was too far away to see

any traffic violations, and Orta denied committing any. Conflicts in the testimony,

however, were for the jury to resolve. See Isassi, 330 S.W.3d at 638. The lawfulness

of a traffic stop does not turn on whether the motorist committed a violation, but on

whether the officer formed a reasonable belief that the motorist did so. Vasquez,

324 S.W.3d at 919. Further, Orta does not address the alternative reasons that the

officers proffered for Orta’s detention—their belief that the truck he was driving was


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stolen and might have contained weapons associated with the robbery they were

investigating.

      Because the officers demonstrated a reasonable belief that a crime had been

committed involving the truck or weapons concealed within the truck, we hold that

the evidence was legally sufficient to prove that the officers properly sought to detain

Orta to investigate possible criminal activity.

II.   Trial court’s denial of Article 38.23 instruction

      Orta contends that the trial court erred in denying his requested jury

instruction as to the unlawfulness of the attempted stop. Because there was an

evidentiary dispute as to whether he committed a traffic violation, Orta reasons, he

was entitled to have the jury instructed to disregard any evidence obtained if it found

that peace officers did not lawfully attempt to detain him for such a violation.

      A.     Standard of review and applicable law

      In reviewing jury-charge issues, our threshold inquiry is whether error exists.

See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Tottenham v. State,

285 S.W.3d 19, 30 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d).

      If there is a fact issue as to whether law enforcement officers lawfully obtained

certain evidence used against the defendant, then the trial court must instruct the jury

that if it believes, or has a reasonable doubt, that this evidence was unlawfully

obtained, it must disregard this evidence. TEX. CODE CRIM. PROC. art. 38.23(a);


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Madden, 242 S.W.3d at 510; Rocha v. State, 464 S.W.3d 410, 418–19 (Tex. App.—

Houston [1st Dist.] 2015, pet. ref’d). To qualify for such an instruction, the evidence

must (1) raise a fact issue; (2) be affirmatively contested; and (3) be material to the

lawfulness of the challenged conduct. Madden, 242 S.W.3d at 510; Rocha, 464

S.W.3d at 419. To obtain an instruction, the defendant must request one on a specific

historical fact. Madden, 242 S.W.3d at 511. If other, undisputed facts are sufficient

to support the lawfulness of the challenged conduct, then the disputed fact is not

material. Id. at 510. In other words, the disputed fact must be an essential one in

deciding the challenged conduct’s lawfulness. Id. at 511.

      B.     Analysis

      Orta is correct that there was conflicting testimony as to whether he committed

any traffic violations. Nevertheless, this evidentiary conflict did not entitle him to

an Article 38.23 instruction for two reasons.

      First, even if the jury had found that Orta did not commit a traffic violation,

this finding would not have rendered the attempted stop unlawful. An officer need

only reasonably believe that a motorist committed a violation; an actual violation is

not a prerequisite to a lawful detention. Vasquez, 324 S.W.3d at 919. Thus, Orta’s

contention that he did not commit a traffic violation is immaterial to the lawfulness

of the officers’ attempt to detain him.




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       Second, even if the commission of a traffic violation ordinarily would be

material as to whether an officer formed a reasonable belief that a criminal

investigatory detention was necessary, the officers’ belief that the truck Orta was

driving was stolen and might have contained weapons associated with the robbery

they were investigating were additional bases for the stop. See Crawford, 355

S.W.3d at 196; Mount, 217 S.W.3d at 728–29. The traffic violations therefore were

not essential to the attempted stop’s lawfulness.

       We hold that the trial court did not err in denying Orta’s request for the

inclusion of an Article 38.23 instruction in the jury charge.

III.   Ineffective assistance

       Orta contends that his lawyer rendered ineffective assistance in two respects:

by failing to make an opening statement on his behalf, and by failing to request a

jury instruction on the defense of necessity.

       A.    Standard of review and applicable law

       To prevail on his claims of ineffective assistance, Orta must prove that his

lawyer’s performance fell below an objective standard of reasonableness and that

this deficiency prejudiced his defense. Lopez v. State, 343 S.W.3d 137, 142 (Tex.

Crim. App. 2011) (citing Strickland v. Washington, 466 U.S. 668, 686–88, 104 S.

Ct. 2052, 2063–64 (1984)). Orta bears the burden of proof on both issues, and failure

to make either showing by a preponderance of the evidence will defeat his


                                          9
ineffectiveness claims. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.

1999).

      We presume that a lawyer performed within professional norms. See Lopez,

343 S.W.3d at 142–43; Minassian v. State, 490 S.W.3d 629, 641 (Tex. App.—

Houston [1st Dist.] 2016, no pet.). We do not assume that counsel lacked a sound

reason for making strategic choices; rather, the defendant must show that no

plausible reason exists for a particular act or omission. Bone v. State, 77 S.W.3d

828, 836 (Tex. Crim. App. 2002); Minassian, 490 S.W.3d at 642. Without testimony

from counsel, we will not speculate as to counsel’s strategy if the record is silent as

to the basis for her choices. Minassian, 490 S.W.3d at 642.

      B.     Analysis

      Orta did not move for a new trial on the basis of ineffective assistance.

Consequently, the record contains no evidence about trial counsel’s strategy or

decision-making.

             1.     Failure to make an opening statement

      The purpose of an opening statement is to preview the evidence that counsel

expects the jury will hear. See Davis v. State, 22 S.W.3d 8, 13 (Tex. App.—Houston

[14th Dist.] 2000, no pet.). Texas courts have held that an opening statement is

“entirely optional” or “entirely discretionary.” Darkins v. State, 430 S.W.3d 559,

570 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d); Calderon v. State, 950


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S.W.2d 121, 127 (Tex. App.—El Paso 1997, no pet.). Thus, counsel’s decision as

to whether to make an opening statement is a matter of trial strategy. See Brennan

v. State, 334 S.W.3d 64, 77 (Tex. App.—Dallas 2009, no pet.); Davis, 22 S.W.3d at

13; Standerford v. State, 928 S.W.2d 688, 697 (Tex. App.—Fort Worth 1996, no

pet.). Defense counsel reasonably may waive the opportunity to make an opening

statement to avoid previewing the defense case or to retain flexibility to mount

unforeseen defenses disclosed by the evidence at trial. See Davis, 22 S.W.3d at 13.

      The State tried Orta for a crime with readily understandable elements. Most

of the material facts were undisputed. The entire trial—both the guilt-innocence and

punishment phases—was concluded in two days. On this record, Orta has not shown

that his lawyer lacked a plausible reason for not making an opening statement or that

his trial would have had a different outcome if his lawyer had previewed the

evidence for the jury. See Brennan, 334 S.W.3d at 77; Davis, 22 S.W.3d at 13; see

also Doe v. Brazoria Cty. Child Protective Servs., 226 S.W.3d 563, 573 (Tex.

App.—Houston [1st Dist.] 2007, no pet.) (rejecting claim of ineffective assistance

premised in part on failure to give opening statement where party had not shown

how the outcome of her trial would have been different had her counsel done so).

             2.    Failure to request an instruction on the defense of necessity

      Orta testified that he panicked and fled the police in fear for his life. Orta

contends that this testimony was sufficient to raise the defense of necessity and that


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counsel was ineffective when counsel failed to request a necessity instruction for the

jury charge.

      Necessity is a defense that otherwise criminal acts are justified under the

circumstances. See TEX. PENAL CODE § 9.22; Young v. State, 991 S.W.2d 835, 839

(Tex. Crim. App. 1999). To raise it at trial, the defendant must admit that he

committed the offense and then offer necessity as a justification for his otherwise

illegal conduct. Young, 991 S.W.2d at 839. At trial, Orta argued that the jury should

acquit him on the ground that that State had not proved beyond a reasonable doubt

that peace officers were lawfully trying to detain him when he fled. In other words,

he disputed an essential element of the offense. See TEX. PENAL CODE § 38.04(a);

Farrakhan, 263 S.W.3d at 134. Orta therefore was not entitled to have the jury

charged on the defense of necessity. See Young, 991 S.W.2d at 839. And because

Orta was not entitled to this jury instruction, his lawyer did not render ineffective

assistance by failing to request it. See id.




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                                 CONCLUSION

      We affirm the judgment of the trial court.




                                                Jane Bland
                                                Justice

Panel consists of Justices Bland, Lloyd, and Caughey.

Do not publish. TEX. R. APP. P. 47.2(b).




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