                          NUMBER 13-16-00439-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


FABIAN IGNACIO FAZ FLORES,                                                 Appellant,

                                           v.

THE STATE OF TEXAS,                                                        Appellee.


                    On appeal from the 93rd District Court
                         of Hidalgo County, Texas.


                          MEMORANDUM OPINION

          Before Justices Rodriguez, Contreras, and Benavides
              Memorandum Opinion by Justice Contreras

       Appellant Fabian Ignacio Faz Flores was convicted of the first-degree felony

offenses of attempted capital murder (Count I) and aggravated assault of a public servant

(Count II).   See TEX. PENAL CODE ANN. §§ 15.01, 19.03(a)(1), 22.02(b)(2)(B) (West,

Westlaw through 2017 1st C.S.). He was sentenced to concurrent forty-year prison terms.
In this appeal, appellant argues that: (1) his conviction on Count I was “based upon legal

and factual grounds never submitted to the jury”; (2) the jury charge as to Count I omitted

essential elements of the charged offense; (3) the trial court made an improper comment

at the punishment stage; (4) the trial court erred in denying his request for an instruction

on a lesser-included offense to Count I; (5) the evidence was insufficient to support

conviction; and (6) his two convictions violate double jeopardy.

        The State concedes that the two convictions violate double jeopardy and that one

must be vacated. For the reasons set forth herein, we will reverse the judgment of

conviction and render judgment of acquittal on Count I, modify the judgment on Count II,

and affirm the judgment on Count II as modified.

                                           I. BACKGROUND

        The indictment in this case alleged that, on or about June 11, 2015, appellant drove

his vehicle toward Donna, Texas police officer Christopher Guerra while attempting to

flee from the officer. The State later filed notice of its intent to use two prior felony

convictions for punishment enhancement purposes.                      See id. § 12.42(c)(1) (West,

Westlaw through 2017 1st C.S.) (providing that, if it is shown at a first-degree felony trial

that the defendant has previously been finally convicted of a felony other than a state jail

felony, on conviction the defendant shall be punished by imprisonment for life or for any

term of 15 to 99 years and may be fined up to $10,000).1 Appellant pleaded not guilty to

the charged offenses and “not true” to the enhancement allegations.


        1 Although the State alleged that appellant had been previously been convicted of two felonies, the
judgments of conviction for those alleged felonies were rendered on the same date. Accordingly, the
habitual felony offender enhancement did not apply. Cf. TEX. PENAL CODE ANN. § 12.42(d) (West, Westlaw
through 2017 1st C.S.) (requiring, for habitual felony offender enhancement, that “the second previous
felony conviction is for an offense that occurred subsequent to the first previous conviction having become
final”).

                                                    2
       At trial, Guerra testified that he was patrolling in Donna on the night in question

when he was dispatched to a residence on Tranquility Drive in response to a report of “a

male subject assaulting a female.” He later received a report from dispatch that there

were children witnessing the assault. Guerra testified that he was heading southbound

on Tranquility Drive and approaching the residence when he observed the following:

       [T]here’s a vehicle without headlights traveling, about to pass me; and
       another truck that was stationary flashes the high beams, which indicates,
       by experience of law enforcement and other calls, a lot of times signaling
       possible suspect vehicle leaving the area. Well, the suspect is leaving the
       area without headlights. So, I turn. I make a quick u-turn and I see that the
       vehicle does not have his headlights on still. I turn on my lights and sirens,
       signaling the vehicle to stop. Like I said, the lights were on. I just turned on
       the sirens. The vehicle disregards a stop sign that’s on Tranquility and
       Lunar, that little cul de sac, and starts traveling eastbound.

       Still refuses to stop. I’m calling out already a pursuit. I see another patrol
       unit, which is later on Officer [Candelario] Hernandez arriving on Hutto and
       Lunar. I see the vehicle still accelerating at good rates. It turns, misses
       Officer Hernandez’s patrol cruiser; and from there I lost visual because of
       the lights of his unit kind of blinded me.

Guerra testified that the suspect vehicle “looked like it was being fixed” because it was a

pickup truck with no bed, and it was painted with “gray primer.”

       The suspect vehicle then drove into a “grassy” area, at which point Guerra and

Hernandez positioned their units in front of the suspect, but not blocking the suspect from

driving forward. Guerra got out of his unit and, using his open driver’s side door for cover,

commanded the suspect to get out of his vehicle. Guerra testified:

       I tell him to get out. I could see a clear view of the suspect inside that
       vehicle, turn on the ignition, use his right arm, indicating to me that he’s
       grabbing the shifter. He has his left arm on the steering wheel. He drops it
       down, the shifter, revs his engine and goes directly at me. When he’s going
       directly at me, I do a quick unholster on my weapon, which I shot. I shot
       consecutively around seven shots. He passes on me. I’m going backwards
       when I’m shooting. I’m back peddling when I’m shooting to take cover
       behind my unit. He[] takes off. And continues to go south, a couple of feet
       and he stops.

                                              3
At that point, the suspect, bleeding, emerged from his vehicle and got on the ground.

Guerra identified the suspect in the courtroom as appellant.

       When asked why he shot at appellant, Guerra testified that appellant “came at me

with his vehicle. So, I tried to eliminate the threat.” He stated his life was threatened and

that he feared for his life. Guerra further testified that appellant looked “upset” and “angry”

as he drove toward him.

       On cross-examination, Guerra testified that he was not injured in the incident, but

his patrol unit was damaged when he shot through the driver’s side window. He stated

that he was told by other officers that appellant’s vehicle made contact with his patrol unit,

causing a scratch on the door, but he agreed that there was no head-on collision. He

explained that this was the first time in his five years of experience as a patrol officer that

he had to use deadly force against a suspect. Guerra acknowledged that several of the

rounds that he fired impacted the side of appellant’s vehicle; however, he stated that once

appellant’s vehicle passed him completely, he stopped firing. He denied shooting at

appellant from behind the patrol unit, and he denied that appellant’s vehicle was parked

when he started firing.

       Hernandez, the second officer to arrive on the scene, testified that appellant

disobeyed his command to get out of his truck. He stated that appellant drove his truck

at Guerra and made contact with the door of Guerra’s patrol unit.

       Five days after the incident, following his release from the hospital, appellant gave

a recorded statement to Texas Ranger Donato Vela. The recording, part of which was

translated from Spanish to English, was played for the jury and transcribed into the record.

In the recording, appellant stated that he understood his rights to have an attorney



                                              4
present, to remain silent, and to terminate the interview at any time. Appellant proceeded

to explain that, on the night in question, he was at his friend Mateo’s house, which was

“four or five houses down the street” from the house on Tranquility Drive where his

common-law wife and children lived. Appellant then stated:

      I was on the motorcycle. So, around like 1:00 or 2:00, I think—I’m not too
      sure what time it was. I drive home like right around the corner. So, I drive
      to my house on the motorcycle. . . . And I get home and my wife’s mad
      because I was drinking a couple of beers and I’m not supposed to be
      drinking. So, she starts slapping me on my motorcycle and she pushed
      me—I’m sitting on my motorcycle. She pushed, making me fall, right? So,
      I tried to push her away to stop hitting me. So, I finally get her off me and I
      wound up pushing my bike to my neighbors because she said she’s calling
      the cops.

      So, I go back and get my—my truck. And as soon as I leave—I’m trying to
      go to my mom’s house in Weslaco. . . . I get to a stop sign and I see a
      vehicle coming southbound on—before I—on Armstrong I think the street
      is. . . . I see an unmarked vehicle coming this way. So, I see him coming,
      right, so I go this way to come this way, but—but he got in the way, the car
      and I lost control and hit a fence or a ditch there and my truck is facing
      southbound already.

      So, that’s when the cop turned the lights on and I know it was a cop. So,
      that’s why—well, I stopped, like, what do I do with a cop? So, I put my
      hands up. And the truck was already off. So, before I even get out of the
      car, the cop didn’t even told me anything [sic]. He just started shooting at
      me. Well, I heard the shots, but I didn’t know what he was shooting until I
      felt my hand, like—like, man, this guy’s shooting at me. So, I turned my
      truck back on and I tried to get away because he’s shooting at me for no
      reason. So, I go this way, back south, but he’s on the other side of the car.
      I think I recall he’s never in my way or anything. So, I just keep going, not
      even like half a block away. I couldn’t drive anymore. I just put the truck in
      park and fell to the floor. And that’s when the officers got there and stopped
      the bleeding and stuff.

Appellant further told Vela that he “did a little coke” before he went home on his

motorcycle. After the incident, appellant was taken to the hospital where he underwent

surgery to treat his bullet wounds. He denied that his truck ever touched any officer’s

vehicle, and he denied attempting to harm the officer, stating:


                                            5
       I might have lost control when he tried to stop me, but I never tried to—if I
       would have tried to hurt him, I would have crashed right in front of him, face
       to face, or hit him or something, and I didn’t never, ever try to hurt him or
       never tried to do anything. I was just trying to get away because he was
       (inaudible).

Later in the interview, appellant stated that he made a “wrong decision” in “trying to get

away” because he “had no reason to run away” except that he did not want his truck to

be impounded.

       The jury found appellant guilty of attempted capital murder and aggravated assault

against a public servant. See id. §§ 15.01, 19.03(a)(1), 22.02(b)(2)(B). Following the

punishment phase, the jury found the State’s enhancement allegation true and assessed

punishment at forty years’ imprisonment on each count. This appeal followed.

                                        II. DISCUSSION

A.     Double Jeopardy

       We first address appellant’s sixth issue, by which he argues that his convictions,

both of which were based on the same alleged actions on the night of June 11, 2015,

violate the constitutional prohibition against double jeopardy.

       The Double Jeopardy Clause, contained within the Fifth Amendment and

applicable to the states through the Fourteenth Amendment, protects an accused against

a second prosecution for the same offense. U.S. CONST. amends. V, XIV; Littrell v. State,

271 S.W.3d 273, 275 (Tex. Crim. App. 2008).              Generally, where the same act or

transaction constitutes a violation of two distinct statutory provisions, the test to be applied

to determine whether there are two offenses or only one is “whether each provision

requires proof of a fact which the other does not.” Littrell, 271 S.W.3d at 276 (citing

Blockburger v. United States, 284 U.S. 299, 304 (1932)). The focus is on the elements

alleged in the charging instrument, not on the offense as defined in the penal code.
                                               6
Garfias v. State, 424 S.W.3d 54, 58 (Tex. Crim. App. 2014); Ex parte Denton, 399 S.W.3d

540, 546 (Tex. Crim. App. 2013).

        The State concedes that the two convictions violate double jeopardy because they

constitute multiple punishments for the same offense, and it agrees with appellant that

only one of the convictions may stand.2

        When a defendant is convicted in a single criminal trial of two offenses that are

considered the same for double jeopardy purposes, the remedy is to vacate one of the

convictions. Bien v. State, 550 S.W.3d 180, 188 (Tex. Crim. App. 2018). The Texas

Court of Criminal Appeals has held that the conviction which should be retained is the

one for the “most serious offense,” which is the offense for “which the greatest sentence

was assessed.” Id.; Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006)

(citing Landers v. State, 957 S.W.2d 558, 559–60 (Tex. Crim. App. 1997)).                            Here,

appellant was sentenced to forty years’ imprisonment for each first-degree felony count.

However, the aggravated assault conviction contained an affirmative finding that

appellant used or exhibited a deadly weapon in committing the offense; the attempted

capital murder conviction did not contain such a finding.                    The aggravated assault

conviction, therefore, is the judgment which must be retained in this case. See Villaneuva

v. State, 227 S.W.3d 744, 749 (Tex. Crim. App. 2007) (holding, where identical prison

terms and fines were assessed for two counts in violation of double jeopardy, the

conviction that should be retained is the one which contained an affirmative finding of use



        2  Appellant did not object on double jeopardy grounds at trial; however, such a claim may be raised
for the first time on appeal when “(1) the undisputed facts show the double-jeopardy violation is clearly
apparent from the face of the record, and (2) enforcement of the usual rules of procedural default serves
no legitimate state interest.” Garfias v. State, 424 S.W.3d 54, 58 (Tex. Crim. App. 2014). The State does
not dispute that both prongs apply here.

                                                     7
of a deadly weapon).3

        We sustain appellant’s sixth issue. Because the conviction on Count I will be

vacated, appellant’s first, second, and fourth issues are overruled as moot. See TEX. R.

APP. P. 47.1.

B.      Sufficiency of the Evidence

        By his fifth issue, appellant challenges the sufficiency of the evidence to support

the convictions. In reviewing evidentiary sufficiency, we consider the evidence in the light

most favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Griffin v. State,

491 S.W.3d 771, 774 (Tex. Crim. App. 2016); see Brooks v. State, 323 S.W.3d 893, 895

(Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319

(1979)). We resolve any evidentiary inconsistencies in favor of the verdict, keeping in

mind that the jury is the exclusive judge of the facts, the credibility of the witnesses, and

the weight to give their testimony. Brooks, 323 S.W.3d at 899; see TEX. CODE CRIM. PROC.

ANN. art. 38.04 (West, Westlaw through 2017 1st C.S.). We determine, based upon the

cumulative force of all of the evidence, whether the necessary inferences made by the

jury are reasonable. Griffin, 491 S.W.3d at 774.

        Sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex.



        3 When a defendant is sentenced to exactly the same punishment for two offenses in violation of
double jeopardy, and no tie-breakers apply, the State may elect which conviction to vacate. Bien v. State,
550 S.W.3d 180, 188 (Tex. Crim. App. 2018); Almaguer v. State, 492 S.W.3d 338, 349 (Tex. App.—Corpus
Christi 2014, pet. ref’d). However, as set forth above, the sentences are not precisely equal in this case
because one contains an affirmative deadly weapon finding. See Villaneuva v. State, 227 S.W.3d 744, 749
(Tex. Crim. App. 2007). Even if we were to defer to the State’s election, the State has elected to retain the
aggravated assault conviction, so the result would be the same.

                                                     8
Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). “Such a

charge is one that accurately sets out the law, is authorized by the indictment, does not

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability, and adequately describes the particular offense for which the

defendant was tried.” Villarreal, 286 S.W.3d at 327; Malik, 953 S.W.2d at 240. In this

case, a hypothetically correct jury charge would instruct the jury to find appellant guilty as

charged in Count II if he: (1) intentionally or knowingly (2) threatened Guerra with

imminent bodily injury; (3) used or exhibited a deadly weapon during the commission of

the assault; and (4) knew that Guerra was then and there lawfully discharging an official

duty as a public servant. See TEX. PENAL CODE ANN. §§ 22.01(a)(2) (West, Westlaw

through 2017 1st C.S.), 22.02(a)(2), (b)(2)(B). A person acts intentionally with respect to

the nature of his conduct when it is his conscious objective or desire to engage in the

conduct. Id. § 6.03(a) (West, Westlaw through 2017 1st C.S.); Landrian v. State, 268

S.W.3d 532, 536 (Tex. Crim. App. 2008) (noting that assault by threat is a conduct-

oriented offense). A person acts knowingly with respect to the nature of his conduct when

he is aware of the nature of his conduct. TEX. PENAL CODE ANN. § 6.03(b); Landrian, 268

S.W.3d at 536.

       Appellant argues specifically that there was insufficient evidence that his actions

“could have been perceived as objectively threatening imminent bodily injury under the

circumstances,” given that appellant “drove towards but never actually close to” Guerra.4



       4  Appellant also contends by this issue that the evidence was insufficient to show that he: (1)
harbored the specific intent to commit capital murder; or (2) engaged in conduct he knew with reasonable
certainty would result in death. However, these elements pertain only to the attempted capital murder
count, and we have already concluded that conviction on this count must be vacated. Accordingly, these
sub-issues are moot. See TEX. R. APP. P. 47.1.

                                                   9
       We disagree. “Threat” is defined as “[a] communicated intent to inflict harm or loss

on another or on another’s property . . . .” Olivas v. State, 203 S.W.3d 341, 346 (Tex.

Crim. App. 2006) (citing BLACK’S LAW DICTIONARY 1203 (7th ed. 2000)). The “crucial

inquiry” is “whether the assailant acted in such a manner as would under the

circumstances portend an immediate threat of danger to a person of reasonable

sensibility.” Id. at 347 (quoting Anthony v. United States, 361 A.2d 202, 206 (D.C. 1976)).

Here, Guerra testified that, as he was positioned behind his driver’s-side door for cover,

appellant drove his truck “directly at” him, and Hernandez corroborated this account.

Guerra stated that he feared for his life and that appellant’s truck made contact with his

patrol unit. Although appellant testified that he was merely attempting to escape, that he

did not attempt to harm the officer, and that his truck did not make contact with the officer’s

vehicle, the jury was entitled to disbelieve this testimony and instead believe the testimony

of the officers. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008)

(“Because the jury is the sole judge of a witness’s credibility, and the weight to be given

the testimony, it may choose to believe some testimony and disbelieve other testimony.”)

       Appellant maintains that his conduct, as established by the evidence, did not

“authorize [an officer] to unholster and re-enact ‘the Gun Fight at the OK Corral’ like

Officer Guerra did here.” But we are not presented with the question of whether Guerra’s

actions were prudent or justified; rather, we are merely asked whether appellant, by his

conduct, threatened Guerra with imminent bodily injury. The evidence was sufficient to

support the jury’s finding beyond a reasonable doubt that he did. Appellant does not

argue that the evidence was insufficient to support the other elements of the offense. We

therefore overrule appellant’s fifth issue.



                                              10
C.      Improper Comment

        By his third issue, appellant complains about a remark made by the trial court

during the punishment phase of trial. The record reflects that, immediately after the State

rested, the trial court stated: “All right. Then the Court does go ahead and find beyond a

reasonable doubt that the offenses to which the defendant has been previously convicted

and that the evidence has been offered [sic].” The defense then rested and the trial court

began to read the punishment charge to the jury. Before the trial court finished reading

the charge, defense counsel moved for mistrial based on the above remark, and the trial

court denied the motion. The trial court also denied appellant’s motion for new trial made

on the same basis.

        On appeal, appellant contends that the trial court’s comment deprived him of his

constitutional rights to due process and a fair trial.5 See U.S. CONST. amends. V, XIV.

The State concedes that the comment was improper and constituted error. See TEX.

CODE CRIM. PROC. ANN. art. 38.05 (West, Westlaw through 2017 1st C.S.) (providing that

a trial judge may not, “at any stage of the proceeding previous to the return of the verdict,

make any remark calculated to convey to the jury his opinion of the case”). The State

argues, though, that the error was harmless under the appropriate standard.

        The comment at issue was apparently an inadvertent misstatement which, though

ambiguous, could have easily been interpreted by the jury as an opinion on the veracity



        5 Appellant further contends that the trial court’s comment constituted “structural error” which need

not be preserved for appeal by trial objection. See Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App.
1993) (“Some rights are widely considered so fundamental to the proper functioning of our adjudicatory
process as to enjoy special protection in the system . . . . A principle characteristic of these rights is that
they cannot be forfeited. That is to say, they are not extinguished by inaction alone.”). However, the State
concedes that defense counsel preserved the issue by timely moving for mistrial. See Griggs v. State, 213
S.W.3d 923, 927 (Tex. Crim. App. 2007) (“A motion for mistrial is timely only if it is made as soon as the
grounds for it become apparent.”).

                                                     11
of the enhancement allegation. Nevertheless, assuming that the remark constituted error,

we agree with the State that appellant has not shown he has been harmed to the requisite

degree.

       Because appellant alleges constitutional error, we must reverse the judgment as

to punishment unless we determine “beyond a reasonable doubt that the error did not

contribute to the . . . punishment.” TEX. R. APP. P. 44.2(a); cf. Proenza v. State, 541

S.W.3d 786, 802 (Tex. Crim. App. 2017) (holding, where appellant complained of

improper trial court remarks but asserted only statutory error, that the applicable harm

standard is for non-constitutional error under Texas Rule of Appellate Procedure 44.2(b)).

Here, defense counsel declined to cross-examine the only punishment witness, a

fingerprint expert who testified that appellant’s fingerprints matched those appearing on

the pen packet exhibiting the prior conviction. Moreover, immediately after defense

counsel brought the complained-of remark to the trial court’s attention, the trial court

concluded reading the punishment charge as to Count I and admonished the jury as

follows:

       Now, in this charge of the Court, ladies and gentlemen, you are instructed,
       as I read to you earlier, that any remarks or rulings that a Court may make
       are not to be considered by you as any indication of the Court’s opinion as
       to the punishment of the defendant. And I’ve read the entire charge to you.
       And previous to the reading of the Charge, the Court may have made a
       comment about the Court finding—making any findings. The findings are
       for you and you alone to make. So, if the Court did, indeed, make such a
       finding, you are instructed that it is not the comments of this Court that will
       govern your actions but the Charge of the Court, which specifically say[s]
       that you and you alone are the ones that are to make the determinations in
       the Charge of the Court. So, you are instructed to disregard rulings or
       comments that the Court may have made on the basis of the evidence
       which you and you alone will decide.

Additionally, the written punishment charges each stated:

       During your deliberations, you are instructed that you should not consider
                                             12
       the remarks, rulings or actions of the presiding judge during this trial as any
       indication of the Court’s opinion as to the punishment of the Defendant. The
       remarks, rulings and actions of the presiding judge were upon matters of
       the law only and were not upon the facts which you, and you alone, must
       determine.

       Considering the state of the record, we find that these instructions were sufficient

to cure the error, and we conclude beyond a reasonable doubt that the error did not

contribute to appellant’s punishment. See TEX. R. APP. P. 44.2(a); Colburn v. State, 966

S.W.2d 511, 520 (Tex. Crim. App. 1998) (observing that reviewing courts “generally

presume the jury follows the trial court’s instructions in the manner presented”);

Aschbacher v. State, 61 S.W.3d 532, 539 (Tex. App.—San Antonio 2001, pet. ref’d)

(observing that an “instruction by the trial judge to the jury to disregard any comments

made by him or her is generally sufficient to cure any error arising from his or her

statements”). Appellant’s third issue is overruled.

D.     Modification

       The judgment as to Count II states that appellant pleaded “TRUE TO ONE” of the

State’s enhancement allegations. The record reflects, however, that appellant pleaded

“not true” to the allegations.

       Although the issue is not raised by any party, we may modify a judgment sua

sponte to correct the record when we have the necessary information to do so. See

Banks v. State, 708 S.W.2d 460, 461 (Tex. Crim. App. 1986). Accordingly, we hereby

modify the judgment as to Count II to reflect that appellant pleaded “not true” to the

enhancement allegations.

                                      III. CONCLUSION

       We reverse the trial court’s judgment of conviction as to Count I, attempted capital

murder, and we render a judgment of acquittal as to that count. The trial court’s judgment
                                             13
of conviction as to Count II, aggravated assault of a public servant, is affirmed as modified

herein. See TEX. R. APP. P. 43.2(b).

                                                                DORI CONTRERAS
                                                                Justice


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

Delivered and filed the 29th
day of November, 2018.




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