                                        iioz-ts
                                 N0.PD-1102-15


o n \ C \M &I                           IN THE                                     RECEIVED SN
UKlVD*^^1-                                                                     COURT OF CRilWAL APPEALS
                       COURT      OF   CRIMINAL       APPEALS

                                                                                    NOV 02 2015
                                       OF   TEXAS



                                                                                        >sta,

                                  BENITO      GARZA,
                                                       Appellant/Petitioner

                                            VS.


                            THE    STATE      OF    TEXAS/
                                                       Appellee/Respondent




        APPELLANT'S   PRO   SE   PETITION FOR DISCRETIONARY REVIEW




                                                                                   FILED IN
                      in Appeal No .04-14-00682-CR                        COURT OF CRIMINAL APPEALS
                                       from the                                 ^y Q2^
                                 Court of Appeals
                                                   . . ,     .                Abel Acosta, Clerk
                  for the Fourth Judicial District                                        'wcm

                             San       Antonio/Texas




                      ( ORAL ARGUMENT REQUESTED                  )




                                                                 Benito    Garza

                                                                 TDCJ# 01957561

                                                                 3001 S. Emily Dr.
                                                                 Beeville,    TX 78102
                               TABLE   OF   CONTENTS

                                                               Pg.

STATEMENT REGARDING ORAL ARGUMENT                              1

STAEMENT OF CASE                                               2

STATEMENT OF PROCEDURAL HISTORY                                3

GROUNDS FOR REVIEW                                             4


GROUND   ONE:


The Court of Appeals erred by holding that the trial court
did not err in denying a unanimity instruction in the jury
sharge                                                         5-8

GROUND   TWO    AND   THREE:


Garza was denied the effective assistance of counsel a trail
and on appeal,        (trial one ;appealtwo)                   9-11

PRAYER FOR RELIEF                                              12

CERTIFICATE OF SERVICE                                         13

APPENDIX   "A"
(Memorandum Opinion from Court of Appeals)

APPENDIX   "B"
(RR3,pgs.91-118, "robbery testimony")

APPENDIX   "C"
(RR4,pgs.206-208, "request for lesser included offense instruction)


                 [Appendix A,B, and C in Original Copy only]




                                       II
                              INDEX OF   AUTHORITIES

                                                                 Pg.
Blott v. State,588 S.W.2d 588,592
(Tex.Crim.App.1979)                                              10
Hernandez v. State,726 S.W.2d 53,57
(Tex,Crim.App.1986). .                                           9,10
Kitchens v. State, 823 S.W.2d 256,258
(Tex.Crim. App.1991) .                          ."               6
Mercado v.   State,615 S.W.2d 225,228
(Tex.Crim.App.1981) . ..,                                        9
Mitchell v. State,6.8 S. W.3d640,642
(Tex.Crim.App.2002)                                              9
Narvaiz v. State,      840 S.W.2d 415,434
.(Tex.Crim.App.1992)                                             9
Ngo v.   State,175 S.W.3d 738
(Tex.Crim.App.2005)                                        . . . 6,7
Richardson V.   U.S.,119 S.Ct.1707
(1999)                                                         .5
Schad v.   Arizona,    111 S.Ct.2491                             5
Solis v. State,    792 S.W.2d 95,100
(Tex.Crim.App.1991)                                              10
Strickland v. Washington,466 U.S.668,686
(1984)                                                           9,10
White v.   State,308 S.W.3d 467
(Tex.Crim.App.2006)                                              5


                            STATUTES / CONSTITUTIONS
Tex.Penal Code §1.07(23)                                        8
Tex,Penal Code § 19.02(b)(3)                                    6,7
Tex.Penal Code §38.04(b)(3)                                     11,12
Texas Code of Criminal Procedure Art.          36.29(a)   .... 7
Tex.Const.Art.I,      §10                                       9
Tex.Const.Art.V,§13                                             7




                                     III
                           NO.    PD-11Q2-15



                                   IN    THE


                     COURT   OF   CRIMINAL       APPEALS


                                  OF    TEXAS




                             BENITO      GARZA,
                                                  Appellant/Petitioner

                                       vs.



                          THE    STATE    OF    TEXAS,
                                                  Appellee/Respondent




      APPELLANT'S   PRO   SE PETITION        FOR DISCRETIONARY REVIEW




TO THE COURT OF CRIMINAL APPEALS OF TEXAS:

   Appellant/Petitioner respectfully submits this Petition for

Discretionary Review and moves that this Honorable Court grant

review of this cause and offers the following in support thereof:



                STATEMENT    REGARDING         ORAL   ARGUMENT


   The Appellant/Petitioner requests oral argument in this case

because such argument may assist the Court in applying the facts

to the issues raised.     It is suggested that oral argument may

help clarify the issues due to the liklihood that Appellant/
Petitioner failsto convey his points in written form due to the

fact that he is not a lawyer or paralegal.
                          STATEMENT   OF   CASE


   This case involves jury instruction error on unanimity, in a

Felony Murder charge under TEX.PENAL CODE §19.02(b)(3) , naming

two alternate felonies,   EVADING ARREST IN A VEHICLE and ROBBERY

THREATS.   The victim in this case died as a result of injuries

sustained in a motorcycle accident. On appeal Garza raised two
points of error addressing jury unanimity and erroneous jury

instruction. This case is distinguished from the case relied

upon by the Court of Appeals in affirming the conviction. The

Appellant/Petitioner is not a lawyer or paralegal and is pro

ceeding pro se to advance his claims seeking relief.
                 STATEMENT   OF   PROCEDURAL   HISTORY




   In Cause No.2013-CR-9168, Garza was charged with the offense

of Felony Murder under TEX.PENAL CODE §19.02(b)(3).         Garza was

convicted by a jury and sentenced to 60 years in prison.         A timely

appeal was taken to the Fourth Court of Appeals,         San Antonio under

cause no. 04-14-00682-CR.    The Appeals Court Affirmed the trial

court's judgment in an opinion by Justice Patricia O.Alvarez,

delivered and filed on August 5,2015.      No motion for rehearing

was filed. On this p(6 day of QCToQfc (I ,2015, this Petition
for Discretionary Review was timely forwarded to the Court of

Criminal Appeals for filing pursuant to Rule 9.2(b), Texas Rules

of Appellate Procedure.
                                    GROUNDS    FOR   REVIEW



           i


                                              ONE. (RR3-pgs.90-119)

  The Court of Appeals erred by holding that the trial court

did not err in denying a unanimity instruction in the jury charge




                                              TWO. (RR4-206-208) (RR3-pg90-119)

   Garza       was   denied   the   effective       assistance   of   counsel   at   trial




  Garza was denied the effective assistance of counsel on appeal




                                               A.
                              GROUND    ONE    FOR    REVIEW


   The Court of Appeals erred by holding that the trial court

did not error in denying a unanimity instruction in the jury charge.



                            Argument and Authorities

   In the instant case,.:the court of appeals relied on White v.

State,    308 S.W.3d 467. This case is distinguished from that case

by the difference in the underlying felonies.                         In White,     the

underlying felonies are unauthorized use of a vehicle and evading

arrest    or   detention.     The    White    Court    held    that   those   felonies

were basically morally and conceptually equivalent,                        and there

fore jury unanimity was not required.                   The White Court went on

to erroneously redefine the word "felony" as "manner or means that

make up the felony element in §19.02(b) (.3) ." The Supreme Court in

Richardson v.       U.S.,   119 S.Ct.1707(1999).          Stated that the Constitu

tion itself limits a State's power to define crimes in ways that

would permit juries to convict while disagreeing about means,                             at

least    where    the   definition    risks    serious    unfairness       and    lacks


support in history and tradition. Schad v. Arizona,501 U.S.at

632-633,       111 S.Ct.2491 (plurality opinion)

   The main point of this case is that the Petitioner is actually

innocent of the Robbery Threat offense,                  which is one of the two

named underlying felonies in the insdictment.(see RR3,pgs 90-119,

Appendix "B",       "robbery" testimony).             The prosecutors charged the

robbery as an underlying felony as a means of submitting preju

dicial extraneous offense evidence,                  to taint the jury.           The state

had no intention of relying on this offense to obtain a conviction
".^"c^'."u "since general verdicts will stand if at least one of the

'theories' alleged is proved." Kitchens v. State,823 S.W.2d 256,

258 (Tex.Crim.App.1991).      When the White Court redefined the

'felony' in Section 19.02(b)(3) dispensing with jury unanimity,

it opened the door for prosecutors over-charging a offense to

maximize the crime in the minds ,of the jurors, with an obligation

of only proving one of however many paragraphs are applied.

   Petitioner would    show that   the White   case   conflicts   with    its

prior holdings in Ngo v. State, 175 S.W.3d 738 (Tex.Crim.App.

2005).   The Ngo case involved credit card abuse based on an               ;.

indictment alleging seperate acts of stealing credit card,               reciev-

ing stolen card, and fraudulently presenting it. [all are manner

or means of commiting credit card abuse][emphasis mine throughout]

Defendant in that case appealed alleging denial of right to a

unanimous verdict.     The Eastland Court of Appeals reversed and

remanded.    State's petition for review was granted.         The Court of

Criminal Appeals held en banc,      Cochran,J that:

   (1) instruction was erroneous in failing to require juror

   unanimity on at least one of the three disjunctively submitted

offenses,   i.e.,stealing credit card, recieving stolen card,            or

fraudulently presenting it, and

   (2)   the error caused egregious harm.

Petitioner points out that the holdings of the Court of Criminal

Appeals in Ngo    fit the circumstances of this case because the

underlying offenses named in the indictment require different

elements of proof to connct them to the cause of death.             A look

at the   indictment   in this case will    reveal   the manner and means

that did not require jury unanim ity.          It was the multiple ways




                                      6.
of operating a motor vehicle in a dangerous way.       (see Mem.Op.

pgs.2-3,Appendix "A")       "The phrase "manner or means"   for an offense

describes   "how" the defendant committed the specific statutory

criminal act,   but   it   does not mean that the state can rely upon

a laundry list of different criminal acts and let the individual

jurors take their pick on which each believes the defendant

committed." Vernon:'s Ann-Texas Const .Art. 5§13 ; Vernon's Ann.

CC.P. art.36.29(a). see Ngo v. State,        175 S.W.3d 738,745-47

(Tex.Crim.App.2005).

   In the instant case,       the victim dies as a result of injuries

sustained in a car wreck.        The "dangerous act" that caused the

death was alleged in the indictment as "multiple "ways of driving

dangerously, (see Mem.Op.pgs.2-3, Appendix "A").

   The charged offense is murder, which is a "specific" statutory

criminal act. The "how" or "manner or means of casuing death is

the operation of a motor vehicle. Therefore "Robbery" cannot be a

manner or means of committing murder.       You cannot operate a motor

vehicle by "robbing" it. The same principle applies to evading          •:

arrest. You can operate a vehicle to evade arrest, but you cannot

evade arrest as a "manner or means" of operating that vehicle.

   Petitioner would contend, that the "felony" named in §19.02(b)(3)

is the offense that provides culpability to the offense and

designates the elements to be proven beyond a reasonable doubt.

In this case, the Robbery, and the Evading Arrest were "seperate"

offenses, and should have been charged as- seperate "counts" not

under sperate "paragraphs."
   This case is a reminder of "why" juror unanimity was established

in the first place.            So a jury would decide a case based on the

evidence presented in "ONE" charge.                    By dispensing with juror

unanimity there is no way to prevent potentially prejudicial

evidence from coming before the jury under the "guise" of a

"theory" or different way of committing the same offense.                               This

undermines the whole concept of Due Process and Rules of evidence.

   Based   on    the   issues    raised    in   this   Petition.     Garza    has   shown

this   Court    that   there    are    issues related     to   the   denial    of   a

unanimity instruction that must be addressed by this Court.

Somehow there needs to be precedent that prevents dispensing

with jury unanimity on seperate felonies charged under a single

count.     A jury should be limited to hearing evidence "only on

those elements it will base its verdict on."                     Paragraphs should

not be used to present evidence that the state is not required

to prove to obtain a conviction.

   White v. State, unlawfully dispenses with juror unanimity by

redefining a word that is clearly defined in the Penal Code in

which it is useed.         Tex.Penal Code § 1.07 "Felony" means an offense

so designated by law or punishable by death or confinement in a

penitentiary.

                                        Conclusion

   Garza was entitled by right to a unanimity instruction.                               It

was error to deny that instruction and the Court of Appeals erred

when it found no error.               Garza was egregiously harmed by the

denial of that right and the ability for the state to unalwfully

charge an offense it didn't have to prove affecting the verdict.
                   GROUNDS   TWO   AND   THREE   FOR   REVIEW


     Garza was denied the effective assistance of counsel at trial

and on appeal. U.S.C.A.6

                       Argument and Authorities

     The United States Supreme Court held in Strickland v. Washington,

466 U.S.668, 686 (1984), that the benchmark for judging any claim

of   ineffective assistance   of   counsel    is whether    counsel's   conduct

so undermined the proper functioning of the adversarial process

that the trial cannot be relied upon as having produced a just

result.     The Court in Strickland set forth a two-part standard,

which has been adopted by Texas. See Hernandez v. State,726 S.W.

2d 53, 57(Tex.Crim.App.1986).        First,      the defendant must prove

by the preponderance of the evidence that counsel's representation

fell below an objective standard of reasonableness. Mitchell v.

State, 68 S.W.3d 640,    642(Tex.Crim.App.2002); Narvaiz v. State,

840 S.W.2d 415,434(Tex.Crim.App.1992)(citing Strickland v. Washing

ton,   466 U.S. at 688). Reasonably effective assistance of counsel

does not require error-free counsel, or counsel whoce competency

is judged by hindsight. Mercado v. State, 615 S.W.2d 225, 228

(Tex.Crim.App.1981). Second, there must be a reasonable probability

that, but for counsel's unprofessional errors, the result of the

proceeding would have been different. I_d. A "reasonable probability"
is " a probability sufficient to undermine confidence in the

outcome."    Id.


     Article I,Section 10 of the Texas Constitution also requires

that a criminal defendant recieve effective assistance of counsel.

However,    the Texas constitutional provision does not create a ?:. :




                                         9.
standard that is more protective of a defendant's rights than

that established in S-tr:rck3raad      Black v.   State,   816,   S.W.2d 350,357

(Tex.Crim.App.1986)) citing Hernandez v. State, 726 S.W.2d 53 (Tex.

Crim.App.1986). Therefore,an analysis of the effectiveness of

the applicant's trial counsel in the primary case pursuant to the

Strickland standard does not satisfy either the federal or state

constitutional requirement.

   The court will not use hindsight to second-guess a tactial

decision made by trial counsel, nor will the fact that another

attorney might have pursued a different course support a finding

of ineffectiveness.   Solis v.       State,792 S.W.2d 95,     100(Tex.Crim.

App,1990); Blott v. State,588 S.W.2d 588,592 (Tex.Crim.App.1979).

When;'.evaluating an ineffective assistance claim, the reviewing

court looks at the totality of the representation and the particu

lar circumstances of the performance, the court indulges a strong

presumption that he acted within the wide range of reasonable

professional assistance.    Id.

                                At    Trial;...

   Garza hereinnraises    the   ineffective assistance of counsel          for

not subjecting the State's case to meaningful adversarial testing

on the robbery offense alleged in the indictment as a underlying

felony.   It can be discerned from the record (RR3-pgs.90-119)
that Garza was unlawfully charged with Robbery. Trial Counsel

made no effort to quash the indictment based on the robbery

allegation, nor did he make an attempt to sever the robbery charge

fromv.ithe evading arrest charge.        The prejudicial affect of the

extraneous offense evidence presented "through" the robbery charge




                                 10
seriously affected the jury's decision making process and it

would be unwise to think that it made no difference in the length

of the sentence imposed by that jury.        The fact that the robbery

charge required different elements to be proven, was enough to

move a reasonable attorney to use some form of challenge to sever

the robbery.    The failure to challenge this through a motion to

quash or some similar pre-trial motion potentially forfieted

Garza's ability to challenge this robbery issu on appeal.

   Trial counsel also failed to object to the jury charge after

being denied a unanimity instruction as well as lesser included

offense instructions. (Appendix C)        It is reasonable to expect

trial counsel to object and preserve for appeal issues that he

himself raised to   the court.

   "':: -- -•                    On Appeal

   Garza was denied the effective assistance on appeal when the

appellate attorney appointed by the court failed to raise the

insufficiency of evidence on the robbery charge and demonstrate

the prejudicial affect that charge had on thejury.        The robbery

charge being found insufficiently supported by evidence would

"support" the error and harm on the grounds raised addressing

jury unanimity.

   Appellate counsel also failed to raise the denial by the court

of the lesser included offense under §38.04 (see Appendix C).

These errors by the appellate counsel potentially prejudiced his

ability to challenge these issue by any other menas. It is not

reasonable to forfiet reversible error by failing to raise it

on direct appeal.




                                     11
                           PRAYER   FOR   RELIEF


  WHEREFORE,   PREMISES CONSIDERED,       Petitioner prays that this

Court grant this Petition for Discretionary Review,             and that

the case be set   for submission;    that   after submission this      Court

reverse the judgement of the Court of Appeals and reform the

judgement to.reflect a remand to the trial court for new trial

on the single count of Evading Arrest Causing Death under Texas

Penal Code §38.04(3)(3).




                                             Respectfully submitted,




                                          Benito Garza,      Pro se

                                          TDCJ#    1957561

                                          3001 S. Emily Dr.
                                          Beeville,    TX 78102




                                    12.
                          CERTIFICAT    OF   SERVICE


   The undersigned Appellant/Petitioner hereby certifies that a

true and correct copy of the foregoing Petition for Discretionary

Review has been mailed, U.S. mail, postage prepaid, to the District

Attorney's Office Bexar County,Texas at Paul Elizondo Tower,

101 W.   Nueva Street,   San Antonio,    TX 78205.      And also to the

Office of the State Prosecuting Attorney(Attn.Lisa McMinn),P.O.

Box 12405, Austin, TX 78711, on this the 2J& day of OCT0ft£R> 2015


                                                       r^Jl^A) s<zrc*sj
                                                   Benito   Garza
                                                                          ^
    APPENDIX   A


"Memorandum Opinion"
                               F ourth Court ofAppeals
                                      S an Antonio, T exas

                                 MEMORANDUM OPINION

                                         No. 04-14-00682-CR


                                           Benito GARZA,
                                              Appellant

                                                 v.



                                        The STATE of Texas,
                                             Appellee

                     From the 187th Judicial District Court, Bexar County, Texas
                                     Trial Court No. 2013CR9168
                            Honorable Raymond Angelini, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice
                  Jason Pulliam, Justice

Delivered and Filed: August 5, 2015

AFFIRMED


           Appellant Benito Garza was charged by indictment with felony murder. The jury convicted

Garza and assessed punishment at sixty years' confinement in the Institutional Division of the

Texas Department of Criminal Justice. On appeal, Garza contends the trial court erred by failing

to provide a unanimity instruction in the court's charge. Because the unanimity requirement is not

violated by instructing the jury on alternative legal theories of committing the same offense, we

affirm the trial court's judgment.
                                                                                   04-14-00682-CR
                                                                                                     \
                                    Factual Background


       On September 21, 2012, San Antonio police officers responded to a home invasion in the

Indian Creek subdivision in San Antonio, Texas. The suspect left the subdivision in a small gray

Kia vehicle. Officer Nathan Zachary was in route to the location when he witnessed a small gray

Kia traveling the opposite direction on Five Palms Drive. Officer Zachary activated the overhead

lights and sirens on his marked vehicle and attempted to stop the Kia. Officer Zachary continued

to follow the Kia through a gas station parking lot and down Old Pearsall Road where the Kia ran

a red light. The officer suspended his chase when the Kia entered the exit ramp of Interstate Loop

410 traveling the wrong direction into oncoming traffic.

       The Kia ran head-on into a motorcycle carrying Roxana and Pedro Tenorio. Pedro was

killed on impact and Roxana survived the collision, but lost her leg. The driver of the Kia exited

his vehicle carrying a shotgun and was apprehended in a nearby school bus parking lot. The driver

of the vehicle was identified as Appellant Benito Garza.

       Garza was charged by indictment with felony murder, with an enhancement paragraph

alleging a prior felony conviction and a deadly weapon enhancement.          The two paragraph

indictment alleged:

                                        PARAGRAPH A
       on or about the 21st Day of September, 2012, BENITO GARZA, hereinafter
       referred to as defendant, did then and there commit or attempt to commit the felony
       offense of EVADING ARREST IN A VEHICLE, and while in the course of or in
       furtherance of or in immediate flight from the commission or the attempted
       commission of this offense, the defendant did then and there commit or attempt to
       commit an act clearly dangerous to human life, to wit: DRIVING A MOTOR
       VEHICLE AT A SPEED THAT WAS NOT REASONABLE OR PRUDENT
       UNDER THE CIRCUMSTANCES THEN EXISTING, DRIVING A MOTOR
       VEHICLE AND FAILING TO APPLY THE BRAKES IN A TIMELY AND
       REASONABLE MANNER AND /OR DRIVING THE MOTOR VEHICLE INTO
       ONCOMING TRAFFIC, DRIVING A MOTOR VEHICLE AND ATTEMPTING
       TO PASS ANOTHER MOTOR VEHICLE WHEN IT WAS NOT REASONABLE
       AND PRUDENT UNDER THE CIRCUMSTANCES THEN EXISTING,
       DRIVING A MOTOR VEHICLE AND FAILING TO MAINTAIN A SINGLE
                                                                                    04-14-00682-CR



       LANE OF TRAFFIC, DRIVING A MOTOR VEHICLE AND FAILING TO
       TAKE NECESSARY EVASIVE ACTION TO AVOID COLLIDING WITH
       ANOTHER VEHICLE IN/ON WHICH THE COMPLAINANT WAS A DRIVER
       OR PASSENGER WHICH CAUSED THE DEATH OF AN INDIVIDUAL,
       NAMELY: PEDRO TENORIO;

                                        PARAGRAPH B
       on or about the 21st Day of September, 2012, BENITO GARZA, hereinafter
       referred to as defendant, did then and there commit or attempt to commit the felony
       offense of ROBBERY THREATS, and while in the course of or in furtherance of
       or in immediate flight from the commission or the attempted commission of this
       offense, the defendant did then and there commit or attempt to commit an act clearly
       dangerous to human life, to wit: DRIVING A MOTOR VEHICLE AT A SPEED
       THAT      WAS     NOT     REASONABLE          OR    PRUDENT        UNDER       THE
       CIRCUMSTANCES THEN EXISTING, DRIVING A MOTOR VEHICLE AND
       FAILING TO APPLY THE BRAKES IN A TIMELY AND REASONABLE
       MANNER AND /OR DRIVING THE MOTOR VEHICLE INTO ONCOMING
       TRAFFIC, DRIVING A MOTOR VEHICLE AND ATTEMPTING TO PASS
       ANOTHER MOTOR VEHICLE WHEN IT WAS NOT REASONABLE AND
       PRUDENT UNDER THE CIRCUMSTANCES THEN EXISTING, DRIVING A
       MOTOR VEHICLE AND FAILING TO MAINTAIN A SINGLE LANE OF
       TRAFFIC, DRIVING A MOTOR VEHICLE AND FAILING TO TAKE
       NECESSARY EVASIVE ACTION TO AVOID COLLIDING WITH ANOTHER
       VEHICLE IN/ON        WHICH THE COMPLAINANT WAS A                     DRIVER OR
       PASSENGER WHICH CAUSED THE DEATH OF AN INDIVIDUAL,
       NAMELY: PEDRO TENORIO;

The trial court's charge tracked the language of the indictment, providing the two alternative

theories of committing felony murder under section 19.02(b)(3). See Tex. Pen. Code Ann.

§ 19.02(b)(3).

       A person commits an offense if he commits or attempts to commit a felony, other
       than manslaughter, and in the course of and in furtherance of the commission or
       attempt, or in immediate flight from the commission or attempt, he commits or
       attempts to commit an act clearly dangerous to human life that causes the death of
       an individual.


Id. During the charge conference, defense counsel's request for the lesser included offense of

criminally negligent homicide was denied. No other objections were made to the court's charge.

       The jury found Garza guilty of the charged offense and made an affirmative finding of a

deadly weapon. Garza entered a plea of true to the enhancement allegation, and the jury assessed
                                                                                      04-14-00682-CR




punishment at sixty years' confinement in the Institutional Division of the Texas Department of

Criminal Justice.


       On appeal, Garza complains the guilt-innocence charge provided two separate theories as

to how Garza committed the murder of Pedro Tenorio without providing the jury with a unanimity

instruction. Garza contends the trial court's error allowed the jury not to be unanimous on the

question of how Garza committed felony murder.           Garza further contends the error caused

egregious harm.

                                   Unanimity Instructions


A.     When Jury Charge Must Include Unanimity Instruction

       "Under our state constitution, jury unanimity is required in felony cases, and, under our

state statutes, unanimity is required in all criminal cases." Ngo v. State, 175 S.W.3d 738, 745 (Tex.

Crim. App. 2005); see also Leza v. State, 351 S.W.3d 344, 356 (Tex. Crim. App. 2011) ("Jury

unanimity is required on the essential elements of the offense but is generally not required on the

alternate modes or means of commission."). While "the jury must unanimously agree about the

occurrence of a single criminal offense,... they need not be unanimous about the specific manner

and means of how that offense was committed." Youngv. State, 341 S.W.3d 417,422 (Tex. Crim.

App. 2011); see also Pizzo v. State, 235 S.W.3d 711, 714 (Tex. Crim. App. 2007); Ngo, 175

S.W.3d at 745-46.


       The trial court properly charges a jury with a general verdict form when an "indictment

[does] not allege different offenses but only allege[s] different ways of committing the same

offense." Aguirre v. State, 732 S.W.2d 320, 326 (Tex. Crim. App. [Panel Op.] 1982) (op. on

reh'g); accord Zavala v. State, 401 S.W.3d 171, 182 (Tex. App—Houston [14th Dist.] 2011, pet.

ref d). Importantly, however, alternative methods of committing the same offense are properly

submitted in the disjunctive, in a general verdict form, if the evidence is legally sufficient to

                                                -4-
                                                                                    04-14-00682-CR




support a finding ofthe offense under any ofthe theories submitted. Kitchens v. State, 823 S.W.2d

256, 258 (Tex. Crim. App. 1991); accord Finster v. State, 152 S.W.3d 215, 218 (Tex. App.—

Dallas 2004, no pet.).

B.      White v. State


       The Texas Court of Criminal Appeal's case, White v. State, 208 S.W.3d 467 (Tex. Crim.

App. 2006), is instructive on this issue. In White, the defendant was convicted of felony murder

under section 19.02(b)(3). Id. at 467. The evidence presented at trial supported that White was

driving a stolen car during a high-speed chase when his vehicle collided with another vehicle,

killing the driver. Id. The two paragraph indictment alleged White caused the victim's death

during the commission of a state-jail felony, either unauthorized use of a motor vehicle or evading

arrest or detention. Id. at 467-68. "The jury charge authorized the jury to convict appellant if it

unanimously found that he caused the victim's death during the commission of either one ofthese

two felonies without having to unanimously find which felony appellant was committing." Id. at

468. Like Garza, White claimed for the first time on appeal that the court's charge violated his

right to a unanimous jury verdict. Id.

       The White court explained the term felony under section 19.02(b)(3):

       The term "felony" is clearly an element of Section 19.02(b)(3), thus requiring a jury
       to unanimously find that the defendant committed a "felony." And, in cases like
       this, where some ofthe jurors might believe that the defendant committed felony A
       and the rest of the jurors might believe that he committed felony B, the jury has
       unanimously found that the defendant committed a "felony." In addition, the
       transitive verb of the portion of Section 19.02(b)(3) at issue here is "commits"
       followed by the term "felony." This indicates that the prohibited conduct about
       which a jury must be unanimous is that the defendant commit a "felony," and not
       one specific felony out of a combination of felonies.

Id. (internal citations omitted); accord Contreras v. State, 312 S.W,3d 566, 584 (Tex. Crim. App.

2010); see also Jefferson v. State, 189 S.W.3d 305, 312-14 (Tex. Crim. App. 2006).

        We see no distinction in the case presented before us today.
                                                                                    04-14-00682-CR




C.     Application

       Garza was charged with felony murder in a two-count indictment with "felony A" being

evading arrest and "felony B" being robbery threats. Thus, because Garza's indictment alleged

two felonies under section 19.02(b)(3), the actual felonies of evading arrest and robbery threats

are not elements on which the jury must be unanimous. See White, 208 S.W.3d at 469; Contreras,

312 S.W.3d at 584. Instead, "[t]hese felonies constitute the manner or means that make up the

'felony' element of Section 19.02(b)(3)." White, 208 S.W.3d at 469; see also Jefferson, 189

S.W.3d at 311 n.7 (explaining the unanimity question turns on whether a particular term in the

statute is an element and thus requires unanimity, or whether the term is "an underlying brute fact

or means of committing an element" and does not require juror unanimity). Accordingly, the trial

court did not err in failing to include a unanimity instruction in the court's charge. Having found

no error, we need not address Garza's remaining issue on appeal. The trial court's judgment is

affirmed.



                                                 Patricia O. Alvarez, Justice

DO NOT PUBLISH
 APPENDIX   "B"


(RR3-Pgs.90-119)
                                                                                           91




         1        A.         Yes,    ma'am.

        2         Q.         --    in regards to that.         Would it help you as we

         3   go through your testimony to be able to refresh your

         4   memory from it?

         5        A.         Yes,    ma'am.

         6                           MS.    SCHULZE:     May   I approach,   Your Honor?

         7                           THE    COURT:     Sure.


         8        Q.         (By Ms.       Schulze)     Do you recognize this?

         9                           (Proffered to the witness.)

        10        A.         Yes.


        11           Q.      Is that your       signature?

        12           A.      Yes,    ma'am.

        13           Q.      Okay.     Feel free to refresh your memory,            if you

        14   need to.        So,    back on September 21st,         2012,    who all lived

        15   with you at 5150 Sagamore -- 5159 Sagamore?

        16           A.      My brother,       my ex-fiancee,      and my dad.

        17           Q.      What was       your brother's name?

        18           A.      Jesus    Leo    Flores,    Junior.

        19           Q.      And what was       your    fiance's name?

        20           A.      Lucia    Guerrero.


        21           Q.      Were you guys all present at 5159 on September

        22   21st?


        23           A.      Not my dad.

        24           Q.      And when the incident happened,             what time of

        25   day was       it?




                          BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
                          187TH JUDICIAL DISTRICT COURT (210-335-2517)
    %
^
                                                                                    92




 1       A.       I    think    it   was   around     seven   o'clock.


 2        Q.      Was    it    still   light    outside?

 3       A.       Yes.


 4        Q.      And what were you doing?

 5        A.      I was       shaving.

 6        Q.      Inside       the   home?

 7        A.      Yes.


 8        Q.      And what       called your attention to the fact that

 9   something was going on in your home?

10        A.      My brother.          He was    kind of speaking loudly,

11   something that was going on.                And when I walked out,         I

12   noticed him laying on the               floor.

13        Q.      What was he doing laying on the floor?

14        A.      He    was    scared.

15        Q.      Why was he scared?

16        A.      Because we had just been robbed.

17        Q.      What did you do at            that point?

18        A.      I ran outside and I saw the person that                 had

19   robbed us    running down the            street.

20        Q.      And how did you know that was the person who

21   had robbed you?

22        A.      My brother told me            --

23                        MR.    BALDERAS:       Objection,      Your Honor,

24   hearsay.

25                        THE COURT:          Sustained.




               BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
               187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                                                          93




 1          Q.         (By Ms.    Schulze)         So you see a man running down

 2   your street.             What do you do at that point?

 3          A.         I ran inside and grabbed my keys.

 4          Q.         My keys    to what?

 5          A.         My vehicle.

 6          Q.         And what did you do then?

 7          A.         I jumped in my vehicle and I started to pursue

 8   him.


 9          Q.         Pursue    who?

10          A.         The guy that robbed us.              The guy that was

11   running on foot.

12          Q.         Okay.     And where did you pursue him to?

13          A.         As    I left,    I started going down towards

14   Sagamore.

15          Q.         I want to direct your attention to State's

16   Exhibit      4,    which should be on the monitor                  in front   of

17   you.

18                             (Exhibit      shown on monitor        screen.)

19          Q.         It's    a map of the        area.    And do      you   see where

20   your house         is    located on that map?

21          A.         Yes.     Yes,    I   see   it.

22          Q.         Is    it here where        the   red dot   is?

23                             (Counsel indicating.)

24          A.         Yes,    ma'am.

25          Q.         So,    how do you proceed?




                 BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
                 187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                                                        94




1            A.      As     I backed out,     I went down towards         Painted

2    Teepee.

 3           Q.      And then what did you do?

 4           A.      As     I started getting close,         I noticed,     like,   a

 5   vehicle blocking me.

 6           Q.      And how -- describe         to us     how the vehicle was

 7   blocking you.

 8           A.      As     I got to the stop sign --

 9           Q.      Let me       slow you down -- Mr.       Flores,   let me   slow

10   you down for a second.                When you got to what stop sign?

11   Where    was    it     located?


12           A.      Sagamore and Painted Teepee.

13           Q.      Okay.        So,   you reached this stop sign,         what do

14   you   see?

15           A.      A gray four-door vehicle.

16           Q.      Small or large vehicle?

17           A.      A    small    one.

18           Q.      Okay.        When you see this vehicle,        how was that

19   vehicle positioned on the                roadway?

20           A.      He was       kind of taking up both lanes.

21           Q.      Could you pass in your vehicle?

22           A.       No,    I   couldn't.

23           Q.       So what did you do at that point?

24           A.       I kind of honked at him a            few times and then he

25   moved out the way.                 He turned to the left.




                  BETTINA J. WILLIAMS,       OFFICIAL COURT REPORTER
                  187TH JUDICIAL DISTRICT COURT          (210-335-2517)
                                                                                     95




 1          Q.      Okay.       And then what did you do?

 2          A.      I turned to the             right   on   Painted Teepee.

 3          Q.      All right.          And did you have the person that

 4   was running on foot in view at that time?                       Could you see

 5   that person?

 6          A.      Yes,    I   could     see    him.

 7          Q.      And what was          he doing?

 8          A.      He was      turning the corner on Painted Teepee and

 9   Gray Buffalo,         right    around there.

10          Q.      And once he         turned the corner at         Painted Teepee

11   and Gray Buffalo what did you do?

12          A.      I   chased     him.


13          Q.      In your vehicle             still   --

14          A.      Yes,    in my vehicle.

15          Q.      Then what       happens?

16          A.      When I got to the corner of Gray Buffalo and

17   Painted Teepee,            he had already stopped.            He noticed me

18   following him.

19          Q.      How could you tell that he noticed that                    you

20   were   behind      him?

21          A.      Because when          I started turning onto Painted

22   Teepee,      he was barely turning on Gray Buffalo and he was

23   there waiting,         like,    he was there looking -- he was there

24   looking back.

25          Q.      When you say he was looking,                 was he looking




                 BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
                 187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                                                                    96




 1   towards         you or away           from you?

 2             A.        I think he         was   looking at      the    gray car.

 3             Q.        Okay.        Then what happened?

 4             A.        And then as          I turned,   he     noticed me.          And as    I

 5   turned onto Gray Buffalo,                     he started shooting at me.

 6             Q.        Shooting at you.            What did you do?

 7             A.        I kept       on going.

 8             Q.        Kept on going?

 9             A.        Yeah,       I chased him a       little bit more         until    he

10   got into the middle of the street,                          which I got halfway,

11   three-quarters down the street and he,                             like,   he focused

12   in   on    me.


13             Q.        And how did you know he was                   focusing in on you?

14             A.        Because he closed his             eye.        He closed one eye

15   and then he           just --

16             Q.        Demonstrate          for the   jury and for us          --

17             A.        Right.           He closed one eye and he just had his

18   gun out.            He closed one eye just perfectly and he just

19   looked right              at    me.

20                                  (Witness demonstrating.)

21             Q.        With       his    arm straight    out    --

22             A.        Right.           With his arm straight out,            right in the

23   middle         of   the    street.

24             Q.        And this is the same guy that had been running

25   on foot         from your home?




                    BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
                    187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                                                             97




 1           A.      Right.

 2           Q.      Okay.        Just     to be clear,       do you   see the gray

 3   car at       this point?

 4           A.      No,    I   don't.

 5           Q.      So what happens             after he     focused --

 6           A.      He    --


 7           Q.      I'm sorry,           but you have to wait until            I finish

 8   asking the question,                 then you can answer.         All   right?

 9   This lady here is              typing up everything that we're saying

10   Okay?

11                              Once you see him focusing in on you,                  what

12   do you do?

13           A.      I put       it in reverse.            I lean over.      I put my

14   car,    like,        in reverse and I just reversed straight back.

15           Q.      Straight back to where?

16           A.      Straight back on Gray Buffalo and I passed

17   Painted Teepee.

18           Q.      All     right.        And then what do you do?

19           A.      I —        like,     I slammed my brakes.          I put    it   in

20   drive,       and as     I go to turn,           that silver car is blocking

21   Painted Teepee and it's blocking the whole street.

22           Q.      And how did you get by this car?

23           A.       I    honked    at    him   a   few   times.

24           Q.      And did the           car move?

25           A.       He pulled into the driveway right in front of




                  BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
                  187TH JUDICIAL DISTRICT COURT (210-335-2517)
 1   it   a   little       bit,    like    --    I   don't    know how   fast       it    could

 2   have     been.


 3            Q.      Then what did you do?

 4            A.      I went home.              As   I was going home,            my little

 5   brother was           running down the            street.

 6            Q.      Which       --

 7            A.      Which       is    Sagamore.

 8            Q.      Your     little      brother,       Jesus?

 9            A.      Jesus.           Because they heard the gunshots.

10            Q.      Okay.

11            A.      So    I told him to get             back home.         So    I go home

12   and I think I parked in front of the house.                                  And then as

13   I go over to the side -- and as                         I go into my yard,            my

14   little brother is running up and my fiancee                              is on the

15   phone.

16            Q.      Okay.        What do you do at that point?

17            A.      I just --          I'm on the phone -- I don't                 know --        I

18   don't     remember who             I was    on the phone with,           but    as we're

19   there,        like,    talking,       I    kind of      just,   like,    stared.           I

20   noticed the gray car coming back up the street,                                 up

21   Sagamore.

22            Q.      And was this the same gray car that had blocked

23   Painted Teepee?

24            A.       Correct.


25            Q.       Okay.       So when you see this car coming towards




                   BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
                   187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                                                                 99




 1   you again,          what do you do             at   that point?

2            A.      I told my little brother and my fiancee,                             they

 3   need to go inside.                    They need to go inside.

 4           Q.      And what do you do?

 5           A.      I told them to go inside because they're coming

 6   back.


 7           Q.      Okay.        And why did you feel they needed to go

 8   inside?


 9           A.      Because          I started to,            like,   figure     out that

10   that    was    the       driver.


11           Q.      Okay.        The driver of what?

12           A.      The driver that was supposed to pick up the guy

13   running from me -- running from me.

14           Q.      Okay.        So you tell your little brother and your

15   fiancee to go inside.                       What do you do then?

16           A.      I    have    a    next       door   lot    that   has   a   cement   slab

17   and I went          on top of it.

18           Q.      Is       there    a    house    on that      lot?

19           A.      There's          not    a    house.


20           Q.      So you go next door to this empty lot with this

21   slab,    what       do    you do?

22           A.       I also have a phone                  in my hand.

23           Q.      Okay.

24           A.       So,      as he pulls up,             he's asking me if I'm okay,

25   if everything is             okay.




                  BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
                  187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                                                          100




 1           Q.      Okay.

 2           A.      And I'm like,      "Yeah,    everything is okay,

 3   everything is okay."             And then I'm like,          "We're going to

 4   call the cops."            At that point I yell at           my neighbors

 5   that they just robbed us.

 6           Q.      Okay.      And what     else do you yell out?

 7           A.      "That    we've   been    robbed."


 8           Q.      Okay.      And do you call the cops?

 9           A.      No.


10           Q.      What    does   the man    in the    silver    car    do   at   that

11   point?

12           A.      He starts      freaking out.

13           Q.      He starts      freaking out?        How could you tell by

14   looking at him that he was freaking out?

15           A.      Because he told me,         "Why are you calling the

16   cops?        What are the calling the cops            for?"

17           Q.      Okay.      And after he tells you that,              what do you

18   do   then?


19           A.      I'm walking back.          I'm walking       on my    lot.      My

20   neighbor has the truck parked,               so I'm walking.              The whole

21   time that this          is going on,      I'm walking towards that

22   vehicle.


23           Q.      And what were you planning on doing when you

24   got to the vehicle?

25           A.       Hiding.




                  BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
                  187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                                                             101




 1           Q.      Hiding.       And why were you hiding?

 2           A.      Because       I didn't      feel    right   --    it didn't      feel

 3   right.        We had just gotten robbed,                 you know,       just gotten

 4   shot    at,    so.

 5           Q.      All     right.     What do you recall             this    individual

 6   that got out of the gray car wearing?

 7           A.      Gloves.


 8           Q.      And what else?             Do   you remember -- only if you

 9   can    remember.


10           A.      No,     I don't    remember.         I just remember him just

11   pulling up -- he pulled up in front of my neighbor's

12   house,       he opened up the door and he got                    out.    And when he

13   picked up his hand to,               like,      reach,    like,    for the door to

14   get    out,    I saw the glove.

15           Q.      So when you're saying that he reached to the

16   top of the door to open it                  to get out --

17           A.      Right.       As    he swung it open,         he    reached to,

18   like,    to pull himself out.

19           Q.      And     so   you   could    see    the   glove?

20           A.      Right.

21           Q.      Were you able to see this person's                       face?

22           A.      Yes.


23           Q.      And do you see that person that got out of the

24   silver car and approached you in the courtroom today?

25           A.       Yes.




                  BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
                  187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                                                        102




 1          Q.       Would you please point to him and identify him

 2   by an article of clothing.

 3          A.       Blue    shirt.

 4                           (Witness    indicating.)

 5                           THE   COURT:      The    record    will   reflect   that


 6   he    identified       the    Defendant    in    this    cause.

 7                           MS.    SCHULZE:     I'll pass the witness.

 8                           (Statement proffered to counsel.)

 9                           (Counsel perusing statement.)

10                           MS.    SCHULZE:     I'm sorry,       Judge,   may I just

11   ask him one more             question?

12                           THE    COURT:     Sure.


13           Q.      (By Ms.       Schulze)     I forgot to mention this,           but

14   Mr.    Flores,    you are currently on felony probation;

15   correct ?


16           A.      Correct.


17           Q.      And what       kind of case are you on felony

18   probation       for?

19           A.      Drug.

20           Q.      And what Court          is that out of?

21           A.      175th.


22           Q.      Thank you.

23                           MR.    BALDERAS:        May I have a second,        Your

24   Honor?


25                           THE COURT:        Yes,    sir.




                  BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
                  187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                                                              115




 1   gave    you?

 2           A.      Yes.


 3           Q.      One    of the       conditions         was   to   stay out   of

 4   trouble,       don't commit any further offenses;                      right?

 5           A.      Correct.


 6           Q.      Do not be around people who can get you into

 7   trouble.        Wasn't       that    one    of   the    conditions?

 8           A.      I   don't        remember    the   conditions.

 9           Q.      Well,       if    it was    one of the conditions,            that you

10   were not supposed to be around people who could get you

11   into trouble,          living in a home out of which drugs are

12   being sold is a violation of                     your probation;        isn't that

13   true?


14           A.      Yes.


15           Q.      Now,    you were testifying about the incident

16   that proceeded all of what you testified about earlier,

17   the incident at             your home.           The person -- you said it was

18   a person with tattoos on his face;                           is that correct?          You

19   testified       —


20           A.      Can you --          I don't       understand.what part            --

21           Q.      All    right.        The person in your home -- you saw

22   a person in your home;                is    that correct?

23           A.       I didn't         see him in my home.

24           Q.      All right.           Where did you see him?

25           A.      On    the    street.




                  BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
                  187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                                                                  116




 1          Q.      On the     street.           So    he    had not       entered your

 2   house?


 3          A.      He entered my house,                    left the house.

 4          Q.      All     right.        You saw him enter the house?

 5          A.      I   didn't      see    him    enter       the    house.


 6          Q.      Well,     then,       if you didn't             see him enter the

 7   house --
           -  all you know is                   that you were chasing

     somebody -- you were chasing an individual?

 9          A.      Can I speak to my attorney,                       because this is

10   getting really confusing.

11                           (Discussion off-the-record.)

12                           THE COURT:           Question him again.                    Let's   go.

13                           MR.    BALDERAS:           May I have          just a second?

14                           (Discussion off-the-record.)

15          Q.       (By Mr.       Balderas)           So,    it's true,          sir,    that you

16   yourself never saw anyone enter your home;                               is that

17   correct ?


18          A.      No.


19          Q.      Yes,     it's    correct          or,    no,    it's    not    correct?

20   Yes,   it's correct,           you never saw anybody enter your home?

21          A.      Yes,     never    saw nobody.

22          Q.      All     right.        So,    we're talking about two

23   individuals;         isn't that        correct,          sir?

24          A.       Yes.


25          Q.       Isn't    that    correct?




                 BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
                 187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                                                     117




 1           A.      Yes.


 2           Q.      The person in the gray car never entered your

 3   home;       isn't   that   true?

 4           A.      Yes.


 5           Q.      The person in the gray car -- let me backtrack

 6   a    little    bit.

 7                           (Discussion off-the-record.)

 8           Q.      So,    the only thing you saw,        sir,       was a gray car

 9   in    the    street?


10           A.      Yes.


11                           MR.   BALDERAS:       I'll pass the witness,

12   Judge.

13                                  REDIRECT-EXAMINATION


14   BY    MS.    SCHULZE:


15           Q.      Back on September 21st,           2012,    was    your younger

16   brother,       Jesus,      a victim of a robbery at         your home?

17           A.      Yes.


18                           MR.    BALDERAS:      Objection,    Your Honor,       only

19   if he has personal             knowledge.

20                           THE COURT:       Overruled.       You brought    it up.

21           Q.       (By Ms.      Schulze)     And the person that robbed

22   your brother,          was he,     in fact,    running down 51 --

23   Sagamore -- the 5100 block of Sagamore --

24                           MR.    BALDERAS:      Object to leading,       Your

25   Honor.




                  BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
                  187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                                                       118




 1                            THE    COURT:     It's    overruled.

 2          Q.         (By Ms.      Schulze)     The person that was fleeing

 3   down the      street,       was   that the person that had robbed your

 4   brother?


 5          A.         Yes.


 6          Q.         And was that the person that you followed in

 7   your   car?

 8          A.         Yes.


 9          Q.         And was the person in the gray car,                  that you've

10   identified to me            in this      courtroom today,       was    he   the

11   driver      for    the person --

12                            MR.    BALDERAS:        Objection,    calls    for

13   speculation.

14                            THE    COURT:     Sustained.

15          Q.         (By Ms.      Schulze)     From the events that happened

16   that day,         was it your belief that the driver of the gray

17   vehicle was helping out the man that entered your home?

18                            MR.    BALDERAS:        Objection,    Your Honor --

19                            THE    COURT:     Sustained.

20                            MS.    SCHULZE:     Nothing       further,    Your Honor.

21                            MR.    BALDERAS:        Nothing    further,    Judge.

22                            THE COURT:        You may step down.           Thank you,

23   Mr.    Flores.       And thank you,         Mr.    Bunk.

24                            MR.    BUNK:     Yes,    Judge.

25                            (Witness excused.)




                 BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
                 187TH JUDICIAL DISTRICT COURT (210-335-2517)
      APPENDIX   "C"


(RR     -Pgs.206-208)
                                                                                            206




 1   anybody?

 2                         MR.   BALDERAS:        Yes,    Your   Honor.        In

 3   addition to the Charge,             we would ask for the -- the

 4   underlying offense for this             indictment,         Your Honor,         is

 5   evading in a motor vehicle and then causing death.

 6   Evading in a motor vehicle             is the initial charge or

 7   offense that        leads to the death of            a person while he's

 8   fleeing;     so,    therefore,      we want -- we're requesting a

 9   Charge of evading in a motor vehicle,                   one.

10                         THE COURT:       Just    for a    lesser of evading?

11                         MR.   BALDERAS:        And evading causing serious

12   bodily injury and evading causing death.

13                         THE COURT:       Evading causing death is what

14   we're here about.           Causing serious bodily injury is what

15   we're   here   about    when   he    caused    the    death.        I   don't


16   understand what you're asking.

17                         MR.   BALDERAS:        Thirty-eight -- the

18   second-degree felony of evading,                causing the death would

19   be   Penal   Code    38.04(b)(2)(a).

20                         THE COURT:       Thirty-eight what?

21                         MR.   BALDERAS:        3 8.04(b)(2)(a).            And    I'll

22   refer to you a case that the State actually gave me,

23   Palacios v.        State,   [phonetic]       Your Honor.

24                         THE   COURT:     (B)    what?

25                         MR.   BALDERAS:        38.04(b)(2)       --




             BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
             187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                                                                     207




 1                              THE COURT:        Big B or little B?

 2                              MR.    BALDERAS:        Little       B.


 3                              (Proffered to         the     Court.)

 4                              (Court perusing document.)

 5                              THE COURT:        That's       kind of       interesting.

 6                              MR.    BALDERAS:        I got       it    from the State,

 7   Your   Honor


                                THE COURT:        I don't       care if you got              it

     from   the     State.        It    doesn't      matter.


10                              It's talking about criminally negligent

11   homicide       is    the    issue.     State,       what do y'all have                 to    say?

12                              MS.    GREEN:     The State's position is that

13   evading arrest under 38.04(b)(2)(a)                            is    not a lesser

14   included offense of felony murder,                         because it            requires a

15   higher mental state than felony murder does.                                     It is along

16   the    lines    of    Palacios       and   Driver v.           State,       at   358

17   Southwest       3rd    270.

18                              THE    COURT:     Let    me    have       that    case.


19                              (Proffered      to    the     Court.)

20                              (Court perusing document.)

21                              THE COURT:        Okay.        Your request is denied.

22                              Anything else?

23                              MR.    BALDERAS:        So,    as    to the underlining

24   offense of what makes this a felony murder is                                    the

25   underlying offense is evading arrest and murder,                                       you're




              BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
              187TH JUDICIAL DISTRICT COURT (210-335-2517)
                                                                                     208




 1   denying that,       Your Honor,     under   38.04?

 2                        THE COURT:      Uh-huh.    They still        got    to

 3   prove it,    yes,    but they still got to prove it beyond a

 4   reasonable doubt       that he was doing that,           no matter what,

 5                        MR.   BALDERAS:    Okay.     Just    so   I can be

 6   clear,    you're    denying --

 7                        THE COURT:      I'm denying it,       yes.

                          MR.   BALDERAS:    Thank you,       Your Honor.

 9                        THE COURT:      Anything   further is what           I'm

10   asking?

11                        MR.   BALDERAS:    Nothing      further,     Your

12   Honor.


13                        MS.   GREEN:    Nothing from the State.

14                        THE COURT:      Twenty minutes       a side.        9:30

15   tomorrow.


16                        (Court Adjourned.)

                          *_*_*_*_*_*_*_
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              BETTINA J. WILLIAMS, OFFICIAL COURT REPORTER
              187TH JUDICIAL DISTRICT COURT (210-335-2517)
