MODIFY and AFFIRM; and Opinion Filed January 21, 2015.




                                         Court of Appeals
                                                         S     In The


                                  Fifth District of Texas at Dallas
                                                     No. 05-14-00289-CR
                                                     No. 05-14-00290-CR
                                                     No. 05-14-00291-CR

                                          MATTHEW LOPEZ, Appellant
                                                     V.
                                         THE STATE OF TEXAS, Appellee

                         On Appeal from the Criminal District Court No. 6
                                       Dallas County, Texas
                Trial Court Cause Nos. F13-41241-X, F13-41249-X, and F13-41250-X

                                        MEMORANDUM OPINION
                       Before Chief Justice Wright, Justice Lang, and Justice Fillmore
                                        Opinion by Justice Fillmore
          A jury convicted Matthew Lopez of aggravated robbery with a deadly weapon, evading

arrest or detention using a vehicle, and unlawful possession of a firearm by a felon. 1 The trial

court assessed Lopez’s punishment for those three offenses at imprisonment for twenty-five

years, ten years, and ten years, respectively. In two issues, Lopez contends (1) the judgments in

the aggravated robbery and unlawful possession of a firearm cases contain errors, and (2) the

trial court erred by submitting a jury charge in the evading arrest case that contained a theory of

guilt not supported by evidence. We modify the judgments in the aggravated robbery and


     1
        The aggravated robbery case was numbered F13-41241-X in the trial court and is numbered 05-14-00289-CR in this Court. The evading
arrest using a vehicle case was numbered F13-41249-X in the trial court and is numbered 05-14-00290-CR in this Court. The unlawful
possession of a firearm case was numbered F13-41250-X in the trial court and is numbered 05-14-00291-CR in this Court.
unlawful possession of a firearm cases and, as modified, affirm those judgments. We affirm the

trial court’s judgment in the evading arrest case.

                                           Background

       Enrique Zapata was working on his truck on the side of a road in Mesquite when a

vehicle drove up beside him.        After feigning conversation, the vehicle’s passenger, later

identified as Lopez, got out of the vehicle and came up behind Zapata. Lopez held a chrome

revolver to Zapata’s head and told him to get down on the ground. The vehicle’s driver, later

identified as Juan Godinez, then approached Zapata and searched his pockets. Godinez took

Zapata’s cell phone, keys, and cash.

       Zapata had earlier called his brother, Anthony Zapata, for assistance with the truck.

Anthony arrived while the robbery was in progress. Lopez and Godinez returned to Godinez’s

vehicle and drove away; the Zapata brothers followed in Anthony’s truck. While the Zapatas

were in pursuit, Lopez leaned out the window, aimed and fired his gun, and hit the truck.

Eventually, Godinez was able to lose the Zapatas in the darkness and the unfamiliar

neighborhood.

       The Zapatas were able to give police the license plate number on the robbers’ vehicle,

and the police traced it to Godinez. When questioned, Godinez gave the police Lopez’s name, a

description of Lopez’s vehicle, and the address of Lopez’s girlfriend’s home. The police placed

the girlfriend’s residence under surveillance. A man matching Lopez’s description left the home

and got into a vehicle that matched the description of Lopez’s vehicle. Uniformed patrol officer

Bruce Sales stopped the vehicle. The driver’s side window was down and, as Sales approached

the vehicle, he began to instruct Lopez about placement of his hands. Instead of complying with

Sales’s instructions, Lopez drove off. Sales followed in his Mesquite Police squad car, with

lights and sirens activated. The chase continued at high speeds until Lopez wrecked his vehicle,

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and was pinned underneath the vehicle at the bottom of a ravine. Sales and other police

personnel who arrived on the scene managed to lift the vehicle and pull Lopez out from under

the truck. Police found a chrome revolver at the scene of the accident; the ammunition taken

from that revolver was consistent with the ammunition fired into Anthony’s truck.

       The State charged Lopez by indictment with (1) aggravated robbery using a deadly

weapon, enhanced by a prior conviction for burglary of a habitation; (2) evading arrest or

detention using a vehicle; and (3) unauthorized possession of a firearm by a felon. The jury

found him guilty of all three charges. The trial court assessed his punishment for the three

offenses at imprisonment for twenty-five years, ten years, and ten years, respectively, to run

concurrently.

                                  Errors in Two Judgments

       In his first issue, Lopez contends the trial court’s judgments in both cause numbers F13-

41241-X (aggravated robbery) and F13-41250-X (unauthorized possession of a firearm)

incorrectly indicate his punishment was assessed by the jury, rather than the trial court. Lopez

also contends the trial court’s judgment in cause number F13-41241-X indicates a plea to the

first enhancement paragraph was “N/A,” or “not applicable.” Lopez asserts he entered a plea of

“true” to a single enhancement paragraph and the trial court found the enhancement paragraph to

be true. The State agrees with Lopez’s contentions, and our review of the record confirms the

trial court assessed Lopez’s punishment in all three cases, Lopez pleaded “true” in the

aggravated robbery case to a prior conviction for burglary of a habitation, and the trial court

found the enhancement paragraph to be true.

       We may modify a trial court’s written judgment to correct a clerical error when we have

the necessary information before us to do so. TEX. R. APP. P. 43.2(b); Bigley v. State, 865

S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex.

                                              –3–
App.—Dallas 1991, pet. ref’d). We resolve Lopez’s first issue in his favor and modify the

judgments in cause numbers F13-41241-X and F13-41250-X to indicate Lopez’s punishment

was assessed by the trial court. We further modify the judgment in cause number F13-41241-X

to indicate Lopez pleaded “true” to the first enhancement paragraph and the paragraph was found

to be true.

                                     Submission of Unsupported Theory of Guilt

          In his second issue, Lopez argues the trial court erred in submitting a charge in the

evading arrest case on a theory of guilt not supported by the record. 2 In cause number F13-4129-

X, the State was required to prove that Lopez fled from a person he knew was “a peace officer or

federal special investigator attempting lawfully to arrest or detain him.” TEX. PENAL CODE ANN.

§ 38.04(a) (West Supp. 2014). The status of the person from whom Lopez fled—peace officer or

federal special investigator—forms the basis of Lopez’s complaint.                                            The State’s amended

indictment in the evading-arrest case charged that Lopez did:

          unlawfully, then and there intentionally flee from B. Sales, hereinafter called
          complainant, while complainant was lawfully attempting to arrest and detain the
          defendant, and the said defendant knew the said complainant was a peace officer
          and federal special investigator attempting to arrest and detain the said defendant,

          And further, defendant did use a vehicle while in the flight from the said officer
          and investigator.

          (Emphasis added).

The application paragraph in the jury charge nearly mirrors the indictment, although it submitted

Sales’s status in the disjunctive:



     2
        In his statement of this issue, Lopez contends the erroneous submission denied his right to a unanimous verdict. He does not brief that
point further. Regardless, Lopez’s complaint addresses the trial court’s submission of the manner or means by which he committed the offense of
evading arrest. Jurors returning a general verdict need not be unanimous as to the manner or means by which a criminal act is committed. See
Ngo v. State, 175 S.W.3d 738, 746 & n.27 (Tex. Crim. App. 2005); see also Jourdan v. State, 428 S.W.3d 86, 94 (Tex. Crim. App. 2014) (“But
the requirement of jury unanimity is not violated by a jury charge that presents the jury with the option of choosing among various alternative
manner and means of committing the same statutorily defined offense.”). We, therefore, focus our analysis on Lopez’s complaint that the
submission was unsupported by evidence at trial.



                                                                    –4–
       Now, bearing in mind the foregoing instructions, if you find and believe from the
       evidence beyond a reasonable doubt that the defendant, MATTHEW LOPEZ, on
       or about the 26th day of July, 2013 in the County of Dallas and State of Texas,
       did unlawfully, then and there intentionally flee from B. Sales, hereinafter called
       complainant, while complainant was lawfully attempting to arrest or detain the
       defendant, and the said defendant knew the said complainant was a peace officer
       or federal special investigator attempting to arrest or detain the said defendant,
       and further, defendant did use a vehicle while in the flight from the said officer or
       investigator, then you will find the defendant guilty of the offense of Evading
       Arrest or Detention using a motor vehicle, as charged in the indictment.

       (Emphasis added.)

Lopez contends there was no evidence at trial that Sales was a federal special investigator, and

the trial court erred by submitting that status in the jury charge.

       Our first duty in analyzing a jury-charge issue is to decide whether error exists. Kirsch v.

State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). If error exists, we then determine whether

the error caused sufficient harm to warrant reversal. Ngo v. State, 175 S.W.3d 738, 743–44 (Tex.

Crim. App. 2005). In this case, the State concedes no evidence supported a finding that Sales

was a federal special investigator, and our review of the record confirms that Sales was never

linked to such a status. The trial court, therefore, erred by including in the jury charge the

possibility of convicting Lopez of evading arrest based on his fleeing from a federal special

investigator. See Sanchez v. State, 376 S.W.3d 767, 774 (Tex. Crim. App. 2012) (op on reh’g)

(trial court should have narrowed four manner-and-means theories in indictment to two

supported by evidence at trial).

       We next turn to whether Lopez was harmed by the error. When, as in this case, the error

was not objected to, the error must be “fundamental” and requires reversal “only if it was so

egregious and created such harm that the defendant ‘has not had a fair and impartial trial.’”

Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (quoting Almanza v. State, 686

S.W.2d 157, 171 (Tex .Crim. App. 1985) (op. on reh’g)). Egregious harm exists when the record

shows that a defendant has suffered actual, rather than merely theoretical, harm from jury-charge

                                                 –5–
error. Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013); Almanza, 686 S.W.2d at 174.

Egregious harm consists of error affecting the very basis of the case, depriving the defendant of a

valuable right, or vitally affecting a defensive theory. Nava, 415 S.W.3d at 298 (citing Cosio v.

State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011)). We assess harm in light of “the entire jury

charge, the state of the evidence (including the contested issues and the weight of probative

evidence), the arguments of counsel, and any other relevant information revealed by the record

of the trial as a whole.” Nava, 415 S.W.3d at 298.

       Further, because the specific issue in this case is the presence of alternative theories in the

charge, we must also measure harm against the likelihood that the jury found Lopez guilty of

evading arrest based on a theory of culpability that was supported by the evidence. See Sanchez,

376 S.W.3d at 775. Thus, the jury’s verdict will stand if the evidence is sufficient to support a

finding under the alternative theory submitted to the jury, that Sales was, and Lopez knew he

was, a peace officer. See id. Evidence is sufficient if, when examined in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Matlock v.

State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013).

       Sales identified himself at trial as “Officer Bruce Sales.” He testified he had been

employed by the Mesquite Police Department as a police officer for four years and, during that

time, worked as a patrol officer. He was in uniform and in a “typical squad car” that said

“Mesquite Police” on the side when he was instructed to follow Lopez’s vehicle. He described

his car as a “full-marked white squad car with blue silver reflective decals [and] overhead

lights.” He approached Lopez’s vehicle and spoke to Lopez through the open driver’s window

until Lopez drove away. He testified that while he chased Lopez’s vehicle, the squad car’s lights




                                                –6–
and sirens were activated. Throughout the prosecutor’s direct examination, he referred to Sales

as “Officer Sales.” 3

           Only one other witness made reference to Sales at trial. Josh Troquille, of the Mesquite

Police Department, testified he oversaw the undercover surveillance of the suspect believed to be

Lopez at his girlfriend’s house. Troquille explained that when the suspect left the house, the

police planned to have a uniformed officer stop him and identify him. The prosecutor asked

Troquille who was going to perform the stop, and Troquille responded:

           Officer Sales is one of our patrol officers. We have a marked police unit stop the
           vehicle. And he saw the vehicle leaving, and he is the officer that made contact
           with Matthew Lopez.

Thus, the only third-person testimony referring to Sales confirmed his status as a patrol officer

and the fact he would make the stop in a marked car. The testimony also maintained the record’s

consistent reference to Sales as “Officer Sales.”

           Although the prosecutor made only a brief argument concerning the evading arrest

charge, he referred to the unsupported language in the charge during that argument. However,

the prosecutor did not dwell on Sales’s status. Indeed, the prosecutor referred to Sales just twice

during its closing, both times as “Officer Sales.” The defense argument made no challenge to the

evading arrest charge at all.

           As to the jury charge as a whole, the very first instruction given by the trial court was the

definition of the offense of evading arrest. The definition made no reference to the possibility of

Sales’s having investigator status:

           A person commits the offense of evading arrest or detention using a motor vehicle
           if he intentionally flees from a person he knows is a peace officer attempting
           lawfully to arrest or detain him, and the person uses a vehicle while in flight from
           the said officer or investigator.


    3
        Lopez’s counsel did not cross-examine Sales.



                                                       –7–
           (Emphasis added.)

The charge defined “peace officer” by reference to statutes that specifically include a city’s

police officers within the classification.

           We conclude the record contains sufficient evidence for any rational juror to have

concluded Sales was a peace officer and to have inferred that Lopez knew Sales was a peace

officer.     See Jackson, 443 U.S. at 319; Matlock, 392 S.W.3d at 667.         Moreover, having

considered the record as a whole, including the state of the evidence, argument of counsel, and

the entire jury charge, we conclude the status of the person who stopped and then pursued Lopez

was never a contested issue. See Almanza, 686 S.W.2d at 171. Instead, uncontroverted evidence

established Lopez drove off to evade detention or arrest by a person he knew to be a peace

officer. Accordingly, the jury could have found Lopez guilty based on this alternative theory

that was supported by the evidence. See Sanchez, 376 S.W.3d at 775.

           We conclude Lopez did not suffer egregious harm due to the erroneous instruction in the

charge. We resolve his second issue against him.

                                             Conclusion

           We modify the trial court’s judgments in cause numbers F13-41241-X and F13-41250-X.

As modified, we affirm those judgments. We affirm the trial court’s judgment in cause number

F13-41241-X.




                                                       /Robert M. Fillmore/
                                                       ROBERT M. FILLMORE
Do Not Publish                                         JUSTICE
TEX. R. APP. P. 47

140289F.U05
                                                 –8–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

MATTHEW LOPEZ, Appellant                            On Appeal from the Criminal District Court
                                                    No. 6, Dallas County, Texas,
No. 05-14-00289-CR         V.                       Trial Court Cause No. F13-41241-X.
                                                    Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee                        Chief Justice Wright and Justice Lang
                                                    participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       The section of the judgment entitled “Punishment Assessed by” is modified to
       state “Trial Court.”

       The section of the judgment entitled “Plea to 1st Enhancement Paragraph” is
       modified to state “True.”

       The section of the judgment entitled “Findings on 1st Enhancement Paragraph” is
       modified to state “True.”

As MODIFIED, the judgment is AFFIRMED.


Judgment entered this 21st day of January, 2015.




                                              –9–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

MATTHEW LOPEZ, Appellant                            On Appeal from the Criminal District Court
                                                    No. 6, Dallas County, Texas,
No. 05-14-00290-CR         V.                       Trial Court Cause No. F13-41249-X.
                                                    Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee                        Chief Justice Wright and Justice Lang
                                                    participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 21st day of January, 2015.




                                             –10–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

MATTHEW LOPEZ, Appellant                            On Appeal from the Criminal District Court
                                                    No. 6, Dallas County, Texas,
No. 05-14-00291-CR         V.                       Trial Court Cause No. F13-41250-X.
                                                    Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee                        Chief Justice Wright and Justice Lang
                                                    participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       The section of the trial court’s judgment entitled “Punishment Assessed by” is
       modified to state “Trial Court.”

As MODIFIED, the judgment is AFFIRMED.


Judgment entered this 21st day of January, 2015.




                                             –11–
