                              Fourth Court of Appeals
                                     San Antonio, Texas
                                             OPINION
                                        No. 04-12-00041-CR

                                         Robert INFANTE,
                                             Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 186th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2011CR6301
                           Honorable Maria Teresa Herr, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: February 6, 2013

AFFIRMED

           A jury found Robert Infante guilty of the offense of evading arrest or detention with a

vehicle and sentenced him to eight months in prison. On appeal, Infante presents four points of

error: (1) the evidence is legally insufficient; (2) the trial court erred in denying Infante’s request

for a jury instruction under Article 38.23 of the Code of Criminal Procedure; (3) the trial court’s

introductory remarks during voir dire amounted to an improper comment on the evidence; and

(4) Infante received ineffective assistance of counsel in violation of the Sixth Amendment of the

United States Constitution.
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                                          BACKGROUND

       Officers Sotelo and Cummins, who were partners riding in the same patrol car, pulled up

behind Infante at a red light. When the light turned green, the officers noticed Infante accelerate

at an unusually high speed. As a result, the officers sped up to catch up to Infante, at which time

they started to “pace” Infante. After pacing him for a short distance, the officers realized Infante

was traveling fifty-five miles per hour in a forty-mile-per-hour zone. The officers then activated

their overhead lights and sirens in an attempt to stop Infante for the traffic violation, but Infante

failed to pull over. The officers testified Infante passed several empty parking lots and side

streets where he could have stopped. Eventually Infante stopped, and the officers immediately

approached the vehicle and asked Infante to step out. Officer Sotelo noticed that Infante had

something in his mouth, and when asked what it was, Infante responded, “It’s just weed.” The

officers ordered Infante to spit the drug out. They then searched his vehicle and found several

empty plastic baggies with the odor of marijuana. At the conclusion of the stop, Infante was

arrested for evading detention or arrest with a vehicle.

                                 SUFFICIENCY OF THE EVIDENCE

       In his first point of error, Infante claims the evidence is legally insufficient and, as such,

the trial court erred in denying his motion for a directed verdict. In determining whether the

evidence is legally sufficient to support a conviction, we apply the standard articulated in

Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim.

App. 2010) (plurality opinion); Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988)

(en banc). This standard requires us to determine whether, considering the evidence in the light

most favorable to the verdict, a fact finder could rationally find each element of the crime

beyond a reasonable doubt. Jackson, 443 U.S. at 319; Adames v. State, 353 S.W.3d 854, 860

(Tex. Crim. App. 2011), cert. denied, 132 S. Ct. 1763 (2012). We measure the sufficiency of the
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evidence by looking at the substantive elements of the crime as defined by the hypothetically

correct jury charge. Adames, 353 S.W.3d at 860.

       We defer to the fact finder’s credibility assessments and the weight given to the

witnesses’ testimony.    Brooks, 323 S.W.3d at 899.        “We will uphold the verdict unless a

reasonable [fact finder] must have had a reasonable doubt as to at least one of the elements of the

offense.” Runningwolf v. State, 360 S.W.3d 490, 494 (Tex. Crim. App. 2012). “Direct and

circumstantial evidence are treated equally: ‘Circumstantial evidence is as probative as direct

evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient

to establish guilt.’” Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (quoting

Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007)). This is because we must

observe the cumulative impact of the evidence, instead of simply considering each piece of

evidence in isolation. Id.; Evans v. State, 202 S.W.3d 158, 166 (Tex. Crim. App. 2006).

       Section 38.04 of the Texas Penal Code defines the offense of evading arrest or detention

and provides the elements of the offense as they would appear in a hypothetically correct jury

charge. TEX. PENAL CODE ANN. § 38.04 (West Supp. 2012). “A person commits an offense if he

intentionally flees from a person he knows is a peace officer or federal special investigator

attempting to lawfully arrest or detain him.” Id. § 38.04(a). The offense is a state jail felony if a

vehicle is used during the evasion. Id. § 38.04(b)(1)(B). Thus, the prosecution must prove that

“a person (1) intentionally (2) flees (3) from a person (4) he knows is a peace officer [or federal

special investigator] (5) attempting to lawfully arrest or detain him[,] and (6) the actor uses a

vehicle while in flight.” Calton v. State, 176 S.W.3d 231, 234 (Tex. Crim. App. 2005) (en banc).

       Infante does not challenge the legal sufficiency of every element of the offense; instead,

he challenges only the fifth element—the lawfulness of the detention. Specifically, Infante

asserts the evidence is legally insufficient for a reasonable fact finder to determine Infante was
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speeding at the time the officers attempted to stop him.          Under Section 545.351 of the

Transportation Code, “[a]n operator may not drive at a speed greater than is reasonable and

prudent under the circumstances then existing.” TEX. TRANSP. CODE ANN. § 545.351(a) (West

2011). A speed in excess of the prescribed speed limit is prima facie evidence of a traffic

violation. Id. § 545.352 (a). To justify a stop for speeding, the officer must provide specific and

articulable facts that, taken together with rational inferences therefrom, warrant a reasonable

suspicion that the individual was speeding. Castro v. State, 227 S.W.3d 737, 742 (Tex. Crim.

App. 2007); Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005).

       Officer Cummins testified that Infante drove eight-tenths of a mile after the patrol car

lights were activated before he stopped, and that he believed the distance between the light and

the intersection where the officers determined Infante was speeding was about 300 to 400 feet.

During cross-examination, Officer Cummins answered in the affirmative to defense counsel’s

question that the pacing took “about four-and-a-half seconds,” and he estimated that forty-five

seconds to a minute elapsed between the initiation of the stop and the time that Infante stopped.

Officer Sotelo testified Infante drove eight-tenths of a mile between the time the light changed

and the time Infante stopped, and he estimated that the officers paced Infante for about 150 yards

(or 450 feet). In addition, Officer Sotelo also stated that a few minutes elapsed between the time

the officers began pursuit and the time Infante stopped. When told that another witness said the

pursuit lasted only about forty-five seconds, Officer Sotelo agreed that “[t]he actual time on the

road could have been close to a minute.”

       Infante argues the officers’ testimony is insufficient to establish that the officers properly

paced Infante’s vehicle and, consequently, is insufficient to objectively establish reasonable

suspicion that Infante was speeding. In support of this argument, Infante relies primarily on

formulations that he contends make it impossible for him to have been going fifty-five miles per
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hour if the officers’ estimated lengths of pacing are used. Infante provides no case law to

support his assertion that we should even consider such formulas, or further yet, use an officer’s

estimates as determinative evidence of whether reasonable suspicion existed.

       We, however, have found an unpublished case from the El Paso Court of Appeals that

dealt with a very similar argument about an officer’s approximations proving impossible, and the

argument was rejected.

                . . . Appellant argues that Officer Garcia’s testimony that Appellant was
       speeding was incredible, in that the officer’s location, the alleged speed of the
       vehicles, and the location of the stop are inconsistent with the officer’s recitation
       of the distances and speeds involved. Appellant reasons that the figures given by
       Officer Garcia indicate that he would have stopped Appellant well beyond where
       he was stopped; therefore, Appellant was traveling within the speed limit.
       However, Appellant presumes an exactness in the testimony that was not evident
       at trial. Officer Garcia testified in approximations . . . . The court could well
       have disregarded the officer’s testimony that was inconsistent with the location of
       the stop. This was a matter for the trial court to resolve.

White v. State, No. 08-06-00049-CR, 2007 WL 853133, at *3 (Tex. App.—El Paso Mar. 22,

2007, no pet.) (not designated for publication). We agree with the El Paso Court of Appeals.

       Both officers testified they were waiting behind Infante at a red light and Infante

accelerated at an unusually high speed when the light turned green. The officers stated they had

to speed up to catch Infante, and thereafter, they began pacing him at fifty-five miles per hour in

a forty-mile-per-hour zone. The officers described the process employed when they pace a

vehicle and stated that they learned how to properly pace a vehicle while at the police academy,

which bolsters the reasonableness of their suspicion. See Ford, 158 S.W.3d at 494 (explaining

that law enforcement training and experience are factors that can be considered in a

reasonable-suspicion analysis). In addition, the prosecution presented overhead images of the

relevant section of Tezel Road that showed the road’s surroundings, including numerous

buildings, parking lots, and stretches of undeveloped land between each intersection. At trial, the


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officers pointed out the sequence of events along the map images and used various intersections

as points of reference. From these images of the area, the jury could have believed that the

distances pointed out by the officers were sufficient for the officers to determine Infante was

speeding.

       The formulas urged by Infante were not presented in the trial court, and the jury was not

required, or even likely, to know about or apply them. The jury is the sole judge of the weight

and credibility of the evidence, and if it did not believe the officers’ testimony that Infante was

speeding or the approximations provided, the jury was free to discredit it. Johnson v. State, 23

S.W.3d 1, 7 (Tex. Crim. App. 2000) (en banc). The verdict reflects that the jury believed the

officers’ testimony and understood that the numbers provided were merely estimates. On this

record, we cannot say that the evidence is insufficient to support the jury’s finding of a lawful

detention beyond a reasonable doubt or that the trial court erred in denying Infante’s motion for a

directed verdict.

                               ARTICLE 38.23 JURY INSTRUCTION

       In his second point of error, Infante alleges the trial court erred in denying his request for

a jury instruction under Article 38.23 of the Code of Criminal Procedure. Article 38.23 prevents

illegally obtained evidence from being used at trial. TEX. CODE CRIM. PROC. ANN. art. 38.23(a)

(2005). When evidence is presented at trial that raises an issue of whether it was legally

obtained, “the jury shall be instructed that if it believes, or has a reasonable doubt, that the

evidence was obtained in violation of the provisions of the Article, then and in such event, the

jury shall disregard any such evidence obtained.” Id. In other words, to get an Article 38.23

instruction the evidence presented at trial must raise a disputed issue of fact. Madden v. State,

242 S.W.3d 504, 509–10 (Tex. Crim. App. 2007). The defendant must show three things in

order to receive an Article 38.23 jury instruction:
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         (1) The evidence heard by the jury must raise an issue of fact;

         (2) The evidence on that fact must be affirmatively contested;

         (3) That contested factual issue must be material to the lawfulness of the
             challenged conduct in obtaining the evidence.

Id. at 510 (footnote omitted).

         Infante argues that the jury should have been provided an Article 38.23 instruction

because the fact of whether or not he was speeding and the accuracy of the pacing technique

used were contested during cross-examination of Officers Cummins and Sotelo. However,

affirmative evidence of a disputed factual issue will not arise from counsel’s questions on

cross-examination. Id. at 513. Nevertheless, a witness’s answers might put a fact in question.

Id. Recognizing that it must be the witness’s answers that put a fact in dispute, Infante points to

the differences in the answers of Officers Cummins and Sotelo on: (1) the estimated distance

traveled before the officers were able to establish Infante’s speed using pacing techniques (300 to

400 feet versus 450 feet); and (2) the differences in the estimated time that elapsed between the

time the stop was initiated and the time Infante came to a stop (forty-five seconds to a minute

versus a few minutes, then corrected to be closer to a minute).

         The officers’ answers were estimations, not affirmative statements, and these estimates

were not so disparate that they created a dispute in the evidence. Cf. id. (explaining that if one

witness testifies to a fact and another witness is asked about that fact and responds that he

doesn’t know about it, there is no affirmatively disputed issue of fact). Despite extensive cross-

examination, the officers never wavered on the accuracy of the pacing technique employed, their

belief that Infante was speeding, or the unusually far distance Infante drove before pulling over.

We conclude the trial court properly denied Infante’s request for a jury instruction under Article

38.23.


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                                COMMENTS DURING VOIR DIRE

       In his third point of error, Infante argues the trial court’s opening remarks during voir dire

improperly commented on the weight of the evidence.            Specifically, Infante points to the

following explanation of reasonable doubt provided by the trial court:

               Now, having said that beyond a reasonable doubt is the heaviest burden in
       [jurisprudence], one caveat is it’s not the same thing as beyond all possible doubt.
       It’s not proof like in Perry Mason, beyond the shadow of a doubt. I don’t know if
       anyone even remembers that anymore. I do. But it’s not beyond a shadow of a
       doubt and it’s not beyond all possible doubt. And why is that? And the reason is
       that for someone to know something to that certainty, beyond all doubt, beyond
       the shadow of a doubt—I know everything that happened—well, they would have
       had to have been there, they would have had to have seen it, they would have had
       20/20 vision, they would have had a good seat, they would have seen it from
       beginning to the end, okay. Then you would know because you saw it with your
       own eyes, and you really did see it, and there was nothing impeding your ability
       to see, hear, or understand what was going on. If you are that person, will you be
       on the jury? Where will you be? Anybody know where that person will be?
       They’ll be on the witness stand. They’ll be like the star witness, you know,
       because they saw the whole thing and they’ll be able to describe and tell the jury
       what happened, all right.

       Infante contends these comments violated Article 38.05 of the Texas Code of Criminal

Procedure, which prohibits the trial judge, prior to the return of the verdict, from making any

remark designed to convey the judge’s opinion of the case to the jury. TEX. CODE CRIM. PROC.

ANN. art. 38.05 (West 1979). Infante argues the court’s explanation “facilitated” the State’s

burden of proof and constituted an improper comment on the strength of the State’s case because

at trial the only witnesses called by the State were the two arresting officers, who were in fact

eyewitnesses, and thus “star witnesses” under the judge’s comments. Infante, however, did not

object to these remarks at the time they were made. Generally, a party must object when the

statement is made in order to preserve the issue for appeal. TEX. R. APP. P. 33.1. Nevertheless,

an improper comment could be so egregious that it would constitute fundamental error, which

cannot be waived by a failure to object. Blue v. State, 41 S.W.3d 129, 132–33 (Tex. Crim. App.


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2000) (en banc) (plurality opinion); see also TEX. R. EVID. 103(d); Powell v. State, 252 S.W.3d

742, 744 (Tex. App.—Houston [14th Dist.] 2008, no pet.). “Egregious harm is such harm that a

defendant has not had a fair and impartial trial.” Powell, 252 S.W.3d at 744.

       Although we agree that the trial court’s remark, when viewed in isolation, goes farther

than necessary to convey that a juror will never be 100% sure of the verdict and could be

understood to imply that an eyewitness’s testimony is dispositive, we cannot conclude that the

comment deprived Infante of a fair trial. In the unpublished opinion of Runnels v. State, No.

AP-75318, 2007 WL 2655682, at *6 (Tex. Crim. App. Sept. 12, 2007) (not designated for

publication), the Court of Criminal Appeals rejected a complaint regarding a reasonable doubt

explanation similar to the one in this case. In doing so, the court noted the importance of

viewing the surrounding statements of the trial judge and viewing the comment in context. Id.;

see also Guidry v. State, 9 S.W.3d 133, 139–40 (Tex. Crim. App. 1999) (considering the trial

judge’s statements surrounding the allegedly improper comment).

       When we view the remarks surrounding the one complained of and the voir dire as a

whole, we cannot say the comment impinged upon Infante’s basic rights to an impartial judge or

the presumption of innocence. Immediately preceding the complained of comment, the trial

judge explained the other burdens of proof used in civil law matters, including termination of

parental rights cases, and then stressed that beyond a reasonable doubt “is the heaviest burden in

[jurisprudence] . . . [b]ecause no matter how important those issues [in civil cases], when you

come over here, we are talking about a person’s liberty.” After the complained of explanation,

the trial court again remarked that beyond a reasonable doubt was the “heaviest burden in

[jurisprudence].” Additionally, after discussing that a defendant’s choice not to testify and the

fact that an indictment was returned cannot be used against him, the trial court stated, “And the

reason I want to stress that is because any person who asks for a trial is presumed innocent until
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proven guilty. Presumption is for innocence.” Thereafter, the trial judge further discussed the

presumption of innocence and its sanctity in criminal trials. Additionally, during voir dire the

attorneys for the State and the defense discussed at length credibility issues of witnesses, the

presumption of innocence, and the meaning of beyond a reasonable doubt. Having reviewed the

voir dire as a whole, the context of the trial court’s remarks, and the record in its entirety, we

cannot conclude the trial court’s comment deprived Infante of a fair trial.

                             INEFFECTIVE ASSISTANCE OF COUNSEL

       In his fourth point of error, Infante argues he received ineffective assistance of counsel in

violation of the Sixth Amendment of the United States Constitution. To determine whether a

defendant received ineffective assistance of counsel, we use the two-prong standard set out in

Strickland v. Washington: (1) trial counsel’s performance must have been deficient; and (2) that

deficient performance must have prejudiced the defense. Strickland v. Washington, 466 U.S.

668, 687 (1984); Perez v. State, 310 S.W.3d 890, 892–93 (Tex. Crim. App. 2010).

       To show that counsel’s performance was deficient, a defendant must show by a

preponderance of the evidence that under the circumstances counsel’s performance fell “outside

the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690. This is an

objective standard of reasonableness from the perspective of counsel at the time of the

complained of action or inaction. Id. at 689. Furthermore, we indulge a strong presumption that

counsel performed properly under “the wide range of reasonable professional assistance.” Id.;

Perez, 310 S.W.3d at 893.

       Additionally, the ineffective assistance claimed must be “firmly founded in the record.”

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). It is ordinarily very difficult to

demonstrate ineffective assistance of counsel on direct appeal because the record does not

usually contain counsel’s reasons for his actions or inactions. Menefield v. State, 363 S.W.3d
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591, 594 (Tex. Crim. App. 2012). Although a reviewing court can find deficient performance

absent counsel’s reasoning in cases where “the challenged conduct was ‘so outrageous that no

competent attorney would have engaged in it,’” counsel should ordinarily be given an

opportunity to explain himself before being condemned as ineffective. Id. (quoting Garcia v.

State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).

       In support of his claim of ineffective assistance of counsel, Infante complains that trial

counsel failed to: (1) file a motion to suppress the testimony and evidence as to the officer’s

pacing procedures and the resulting detention; (2) object to the trial court’s comments

concerning star witnesses and reasonable doubt during voir dire; (3) object to alleged hearsay

testimony and speculation by Officer Cummins and Officer Sotelo regarding Infante’s marijuana

possession and possible reason for evading detention; and (4) lay out in stronger detail the

physical impossibility of the officer’s purported pacing procedures.

       Infante’s first, third, and fourth complaints fail because the record does not contain trial

counsel’s reasoning or strategy, and this is not one of the rare cases where counsel’s “conduct

was ‘so outrageous that no competent attorney would have engaged in it.’” Menefield, 363

S.W.3d at 594 (quoting Garcia, 57 S.W.3d at 440). When faced with a record devoid of

counsel’s reasoning or obvious deficiencies, we must presume counsel followed an appropriate

trial strategy. Strickland, 466 U.S. at 689. Accordingly, we cannot conclude Infante was denied

his Sixth Amendment right to reasonably effective assistance of counsel. Strickland, 466 U.S. at

687.

       With regard to Infante’s first complaint, there is no evidence that counsel knew of the

officers’ estimated times and distances of the pacing prior to trial to enable him to file a pretrial

motion to suppress. Additionally, with regard to Infante’s fourth complaint, use of the formulas

urged by Infante on appeal to show the “incredible” nature of the officers’ testimony was only
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one possible method of discrediting the officers’ testimony. We cannot fault trial counsel for

using an alternate strategy—cross-examination and closing argument—to highlight the alleged

impossibility of the officers’ statements. See Strickland, 466 U.S. at 689–90. Moreover, with

respect to Infante’s third complaint, trial counsel may have refrained from objecting to prevent

calling attention to the matter. Trial counsel may also have believed the testimony was not

speculative since the jury could have drawn the same inference.

        Infante’s second complaint fails as well. If trial counsel had lodged an objection to the

trial judge’s comment, in order to have his case reversed, Infante would still be required to show

that the comment was reasonably calculated to benefit the State or to prejudice his rights to a fair

trial. Sharpe v. State, 648 S.W.2d 705, 706 (Tex. Crim. App. 1983); Aschbacher v. State, 61

S.W.3d 532, 539 (Tex. App.—San Antonio 2001, pet. ref’d). After placing the trial judge’s

comment in context and considering everything the jury heard during voir dire, we cannot

conclude the comment was calculated to benefit the State or to prejudice Infante’s rights.

                                            CONCLUSION

        We hold that the evidence was legally sufficient, the trial court’s comment during voir

dire did not deprive Infante of a fair trial, and the trial court properly denied the requested Article

38.23 jury instruction. Based on the record before us, we conclude that trial counsel was not

ineffective. Accordingly, we overrule Infante’s points of error and affirm the judgment of the

trial court.


                                                    Catherine Stone, Chief Justice

PUBLISH




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