                                                                             ACCEPTED
                                                                        13-14-00594-CR
                                                          THIRTEENTH COURT OF APPEALS
                                                                CORPUS CHRISTI, TEXAS
                                                                  4/16/2015 10:12:32 PM
                                                                       DORIAN RAMIREZ
                                                                                 CLERK

                       13-14-00594-CR

               IN THE COURT OF APPEALS          FILED IN
                                         13th COURT OF APPEALS
             THIRTEENTH JUDICIAL DISTRICT
                                      CORPUS CHRISTI/EDINBURG, TEXAS
                 CORPUS CHRISTI, TEXAS 4/16/2015 10:12:32 PM
                __________________________ DORIAN E. RAMIREZ
            ELENILSON FLORES RODRIGUEZ, Clerk
                         Appellant
                           VS.
                  THE STATE OF TEXAS,
                         Appellee
               ___________________________
       ON APPEAL FROM THE 389TH DISTRICT COURT
              OF HIDALGO COUNTY, TEXAS
              CAUSE NUMBER CR-4560-13-H
              ____________________________
       FIRST AMENDED BRIEF FOR THE APPELLANT
             ELENILSON FLORES RODRIGUEZ
              ____________________________

                         ROBERT D. PUENTE
                         LAW OFFICE OF ROBERT D. PUENTE
                         1315 W. POLK, STE 24
                         PHARR, TEXAS 78577
                         TEL.956- 502-5258
                         FAX.956-618-9904
                         SBN 24013359
                         robpuente@msn.com

ORAL ARGUMENT REQUESTED ATTORNEY FOR APPELLANT




                              1
                   TABLE OF INTERESTED PARTIES

Ms. Hope Palacios                    State’s Trial Counsel
Assistant District Attorney
100 N. Closner
Edinburg, Texas, 78539

Mr. Eloy I. Hernandez                Trial Counsel
Palacios & Associates
2724 W. Canton Rd.
Edinburg, Texas 78539

Hon. Leticia Lopez                   Trial Court Judge
Judge Presiding
389th District Court
Hidalgo County, Texas

Robert D. Puente                     Appellant’s Counsel
1315 W. Polk, Ste 24
Pharr, Texas 78577

Theodore C. Hake                     Appellee’s Counsel
Assistant District Attorney
100 N. Closner
Edinburg, Texas 78539




                                2
TABLE OF CONTENTS                 PAGE(S)

Table of Interested
Parties…………………………….………………………………….…….2
Table of
Contents……………………………………………………………………3
Table of Authorities…………………………………………………….… 4
Statement of the
Case……………..………………………………………………….………7
Issues Presented…………………………………………………………….8

Summary of the
Argument…………………………………………………………………...9
Appellant’s First Point of
Error…………………………………………………………………..……9
Appellant’s Second Point of
Error…………………………………………………………………..…..13
Appellant’s Third Point of
Error…………………………………………………………………..…..19
Appellant’s Fourth Point of
Error…………………………………………………………………..……25
Conclusion and
Prayer……………………………………………………………….……..30
Certificate of
Service……………………………………………………………….…….31
Certificate of
Compliance………………………………..………………………….…….31




                      3
                      TABLE OF AUTHORITIES
STATE CASES                                                  PAGE

Alvarado v. State, 853 S.W.2d 17, 20 (Tex. Crim. App. 1993)………25,26

Bokor v. State, 114 S.W.3d 558, 560 (Tex. App.-Fort Worth 2002, no
pet.)………………………………………………………………………17
Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)…………17

Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011)………..20-22

Clayton v. State, 235 S.W.3d 772, 778 (Tex Crim. App.
2007)……………………………………………………………………16

Davis v. State 947 S.W.2d 240, 245 (Tex. Crim. App. 1997)…………24-25

De La Paz v. State, 279 S.W.3d 336, 343-344, (Tex. Crim. App. 2003)..28

Earl v. State, 514 S.W.2d 273 (Tex. Cr. App., 1974)……………….17,22

Flores v. State, 888 S.W.2d 187, Tex. App.-Houston [1 Dist], 1994)…18

Griffin v. State, 614 S.W.2d 155 (Tex.Crim.App., 1981)………………..18

Hawkins v. State, 214 S.W.3d 668, 670 (Texas App.-Waco, 2007, no
pet.)………………………………………………………………………18

Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007)………..24

Hill v. State, 633 S.W.2d 520, 521 (Tex.Crim App. 1981)…………18,19

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed 2d 560
(1979)……………………………………………………………….16,20

Joseph v. State 865 SW2d 100, 102 (Tex. App-Corpus Christi, 1993) pet.
ref’d……………………………………………………………………25

Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996)……………30


                                    4
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)….20

Mann v. State, 642 S.W.2d 53, Tex.App. 6 Dist.,1982)…………22

Martinez v. State, 272 S.W.3d 615 (Tex. Crim. App 2008)….26-27

Montgomery v. State, 810 S.W.2d 372, 391(Tex. Crim. App.1990)…28

Moore v. State, 700 S.W.2d 193, 201 (Tex. Crim. App. 1985), cert. denied,
474 U.S. 1113,106 S.Ct 1167 (1986)…………………………………….30

Nolen v. State, 872 S.W.2d 807, 812 (Tex. App.-Fort Worth 1994), pet.ref’d,
897 S.W.2d 789 (Tex. Crim. App. 1995)…………………………..29-30

Parks v. State, 746S.W.2d 738, 740 (Tex. Crim. App. 1987)…….30

Patrick v. State, 906 S. W. 2d 481, 487 (Tex. Crim. App. 1995)……18

Plante v. State 692 S.W.2d 487,491-92 (Tex. Crim. App.1985)……30

Rankin v. State, 974 S.W.2d 707, 709 (Tex. Crim. App. 1996)……..29

Rowland v. State 744 S.W.2d 610, (Tex. Crim App. 1988)……………18

Santellan v. State, 939 S.W.2d 155, 168-69 (Tex. Crim. App. 1997)…..29

Smith v. State, 507 S.W.2d 779, 781 (Tex. Crim. App. 1974)………..27

State v. Avila, 910 S.W.2d 505, 508 (Tex. App.-El Paso 1994, pet.ref”d).25

State v. Ortiz, 346 S.W.3d 127, (Tex.App.–Amarillo, 2011)……….25-26

State v. Ross, 32 S.W.3d 853,856, (Tex. Crim App. 2000)……………23

Temple v. State, 390 S.W.3d 341, 360( Tex. App.
2013)……………………………………………………….…………16

Turner v. State, 715 S.W.2d 847, 852 (Tex. App-Houston [14th Dist.], 1986,
pet.ref”d)……………………………………………………………….29


                                     5
Vasquez v. State, 67 S.W.3d 229, 239-40 (Tex. Crim. App. 2002)….29

Villarreal v. State, 61 S.W.3d 673, (Tex.App.–Corpus Christi, 2001)….26

Ward v. State, 657 S.W.2d 133, 136 (Tex. Crim. App 1983)………….27

Williams v. State, 948 S.W.2d 954, 956 (Tex. App.-Waco 1997, pet.
ref”d)…………………………………………………………………...29

RULES

Tex. Penal Code Ann, section 31.01(2)(A)…………………………..17

Texas Penal Code 31.03 (a)………………………………………….17

Texas Rule of Evidence 404(b)……………………………………….28

Texas Rule of Evidence 403………………………………………….29

Texas Code of Criminal Procedure 38.22…………………………26-27




                                    6
                            NO. 13-14-00594-CR

ELENILSON FLORES RODRIGUEZ,                   §     IN THE COURT OF
Appellant                                     §     APPEALS, 13TH
v.                                            §     JUDICIAL DISTRICT
THE STATE OF TEXAS,                           §     CORPUS CHRISTI,
TEXAS
Appellee

                       STATEMENT OF THE CASE

To the Honorable Thirteenth Court of Appeals:

Now Comes, Elenilson Flores Rodriguez, appellant in the case herein, by

and through Robert D. Puente, and Attorney-at-Law, and files this brief in

cause number 13-14-00594-CR. The appellant was charged by way of an

indictment with the offense of Aggravated Robbery in cause number CR-

4560-13-H. Following a jury trial in 389th District Court, Hidalgo County

the appellant was found guilty of the offense as charged in the indictment.

The jury assessed punishment at twenty five (25) years of confinement in the

institutional division of the Texas Department of Corrections. Notice of

appeal was filed and this appeal, alleging four points of error, has followed.




                                       7
                           ISSUES PRESENTED

APPELLANTS FIRST POINT OF ERROR

      The trial court erred in not granting Appellant’s motion for directed

verdict as there was no evidence, or legally and factually insufficient

evidence, to meet the elements of aggravated robbery as stated in the

indictment, because no rational trier of fact could have found the substantive

elements of the underlying theft offense beyond a reasonable doubt.

APPELLANTS SECOND POINT OF ERROR

      The trial court erred in not granting Appellant’s motion for directed

verdict as there was no evidence, or legally and factually insufficient

evidence, to meet the elements of aggravated robbery as stated in the

indictment, because no rational trier of fact could have found the substantive

elements of the underlying theft offense beyond a reasonable doubt, as the

correct owner of the property was never identified.

APPELLANTS THIRD POINT OF ERROR

      The trial court erred in not granting Appellant’s motion to suppress

statements made by the accused, as there was no evidence, or legally and

factually insufficient evidence, that Appellant was not in custody and his

statements were a result of custodial interrogation made without benefit of

Miranda warnings and such statements resulted in harmful error.


                                       8
               APPELLANTS FOURTH POINT OF ERROR

      The trial court erred in not granting Appellant’s objection to allow

testimony concerning Defendant’s statement of false identity as this

statement did not fall under a Texas Rule of Evidence 404(b) exception and

such statement resulted in harmful error.




                                      9
              SUMMARY OF ARGUMENT

      Appellant contends that the State presented legally and factually

insufficient evidence of aggravated robbery. The Court erred in not granting

Appellant’s motion for directed as a jury could not find beyond a reasonable

doubt the elements of theft that form the gravamen of aggravated robbery.

The Court also erred in not granting Appellant’s motion for directed verdict

as the State never presented legally and factually sufficient evidence of the

owner of the property in the aggravated robbery. The Court erred in

improperly admitting statements that were the result of custodial

interrogation without benefit of the warnings of Texas Code of Criminal

Procedure 38.22 and improperly admitted evidence of a statement of a false

identity by the Appellant.

                          STATEMENT OF FACTS

Jessica Jasso, the victim, testified that Appellant tapped the door of the truck

she sat in with his gun and said open the door. CR Vol 16, p 189 line 7-16.

When the State asked what the Appellant said with reference to the vehicle,

she stated:


Q. Did he make any comments to you in reference to the vehicle?

A. He just kept telling me to open the door and I said, No.



                                       10
CR Vol 16, p.189, lines 13-16. The victim continued her testimony that the

Appellant attempted to pull the car door, but was distracted momentarily, at

which the victim backed the vehicle away. CR Vol 16, p. 189, lines 17-25;p.

190 lines 1-4. As the victim was backing the vehicle away, she stated that

the Appellant fired at her with his weapon. CR Vol 16, p.190, lines 4-5. The

victim later reaffirmed that the Appellant had stated to open the door,

without adding more. CR Vol 16, p.204, lines 3-7.

      Officer Manuel Flores, the McAllen Police officer who first

responded to the incident, stated that the call was “about a female stating

that somebody shot at her” CR Vol 16, p.19, lines 14-15. He provided no

further testimony concerning any theft, or what property was to be stolen.

The State’s other witnesses testified primarily about the victim’s

identification of Appellant and where the handgun allegedly used by

Appellant was found.

The indictment in the instant case read, in part:

      “that Elenilson Flores-Rodriguez, herein after styled defendant, on or
      about the 26th dayof October A.D. 2013, and before the presentment
      of this indictment in Hidalgo County, Texas did then and there while
      in the course of committing theft of property and with intent to obtain
      or maintain control of said property, intentionally and knowingly
      threatened or placed Jessica Jasso in fear of imminent bodily injury or
      death. And the defendant did then and there use or exhibit a deadly
      weapon, to wit: A firearm. Against the peace and dignity of the State,
      signed by the foreperson of the grand jury.”

                                       11
CR Vol 16, p.9, lines 13-24.

The State asked the victim, Jessica Jasso, several questions that assumed an

ownership. For example,


Q. Did you drive yourself to that location?
A. Yes, I did.

Q. What type of vehicle were you driving?
A. A 2006 Dodge Ram.

Q. What color was that vehicle?
A. White.
Q. Was anyone else with you in the vehicle?
A. No.

Q. Now, do you remember about what time, more or
less, you arrived at London's?
A. A little bit before midnight.

Q. And where, specifically, did you park your
vehicle?
A. It was on the north side of the building, which
is the back.

CR Vol 16, p.182, lines 24-25; p.183, lines 1-13. Jessica Jasso never

testified that she was the owner of the vehicle. The remainder of her

testimony concerned her encounter with the assailant, her description and

purported identification of the assailant, and her whereabouts before the

incident. CR Vol 16, pp.182-208. None of the McAllen Police officers and

Investigators called as witnesses testified that they ran a vehicle check on the


                                      12
truck purportedly driven by the victim to confirm the ownership of the

vehicle. CR Vol 16, pp.171-81 (Investigator Ismael Cruz); CR Vol 16,

pp.150-171(Sgt. Agapito Gonzalez) CR Vol 16, pp.15-38 (Off. Manuel

Flores); CR Vol 16, pp.63-105 (Off. Josue Mendez).

      Officer Josue Mendez, the first police officer to identify Appellant as

he was found near the scene of the incident, placed Appellant in handcuffs,

first for officer safety, then for investigative purposes. CR Vol 16, p.45, lines

12-20; p.46, lines 1-4. Officer Mendez stated that after he was handcuffed,

Appellant was not free to leave. CR Vol 16, p.45, lines 12-20. Appellant was

not read any warnings found in Texas Code of Criminal Procedure 38.22.Id.

Off. Mendez asked Appellant where he was coming from, to which

Appellant replied from a bar where he was drinking with an unnamed friend.

CR Vol 16, p.42, lines 12-25. Off. Mendez stated that before Appellant was

placed under arrest, he told Appellant he was under investigation for an

aggravated robbery. CR Vol 16, p.46, lines 1-15. Off. Mendez told

Appellant before the victim arrived that Appellant fit the description of the

assailant. CR Vol 16, p.46, lines 10-14. All of appellant’s statements were

made after he was handcuffed. CR Vol 16, p.47, lines 21-24. No Miranda

warnings were given to Appellant while in handcuffs.




                                       13
      Appellant was placed under arrest after the victim identified him at

the scene as the assailant, at which the following exchange occurred:


Q. Okay. So as he was advised that, he was placed
under arrest. Did the defendant say anything at that
time?
A. Yes, ma'am.

Q. Can you tell the Court specifically what the
defendant said?
A. Yeah, he quoted, How am I getting arrested if I
didn't have a gun?

Q. Was that in response to any type of questioning?
A. No. I mean, I never mentioned a gun or anything

      CR Vol 16, p.44, lines 4-13. The Court admitted Appellant’s

statement concerning the handgun, reasoning it was a voluntary statement

CR Vol 16, p.57, lines 20-27.

      Appellant was alleged to have given Officer Mendez a false name

when this officer encountered Appellant and handcuffed him. At trial,

Appellant objected to the false identity statement, under Texas Rules of

Evidence 404(b) and 403. CR Vol 16, p.54, lines 17-25; p.55, lines 1-16.

The court allowed the statement, reasoning that Appellant was not in

custody and was asked for identification. CR Vol 16, p.56, lines 25-26; p.57,

lines 1-4. The Court stated that the State would not be allowed to raise the

issue of Appellant’s arrest for false identity. Id. The Court suggested that a

                                       14
limiting instruction could be read regarding the false identity, allowing its

use to prove motive, opportunity, intent, and identity. CR Vol 16, p.61, lines

1-5. The Court read the aforementioned limiting instruction following the

latter testimony of Officer Josue Mendez. CR Vol 16, p.84, lines 11-21.



Q. Okay. And can you tell the jury, did you ask him
his name and date of birth?
A. Yes, ma'am.
Q. And what did he tell you his name was?
A. Okay. The first thing he identified himself as
Carlos Humberto Rodriguez, his date of birth, 11-25-69.
CR Vol 16, p.79, lines 18-23.


Q. (By Mrs. Palacios) During the course of the
investigation, Officer, was it determined that Carlos
Humberto Rodriguez was not the defendant's name?
A. Yes, ma'am.
Q. And can you tell the jury what his true and
correct name was or is?
A. It's Elenilson Flores-Rodriguez; date of birth,
11-25-69.
CR Vol 16, p.84, lines 3-10.




                                       15
                                    ARGUMENT

      APPELLANTS FIRST POINT OF ERROR


      The trial court erred in not granting Appellant’s motion for directed

verdict as there was no evidence, or legally and factually insufficient

evidence, to meet the elements of aggravated robbery as stated in the

indictment, because no rational trier of fact could have found the substantive

elements of the underlying theft offense beyond a reasonable doubt.


                         STANDARD OF REVIEW


When reviewing the legal sufficiency of the evidence, an appellate court

must ask “whether, after viewing the evidence in the light most favorable to

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

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443

U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed 2d 560 (1979). See Temple v. State,

390 S.W.3d 341, 360( Tex. App. 2013).This review standard requires an

examination of all the evidence, both properly and improperly admitted, to

determine whether the cumulative force of all the evidence (direct,

circumstantial, or both) supports the verdict when such evidence is viewed

in the light most favorable to that verdict. Clayton v. State, 235 S.W.3d 772,

778 (Tex Crim. App. 2007). A single standard applies to both legal and
                                      16
factual sufficiency. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App.

2010).

ARGUMENT AND AUTHORITIES

      While the indictment for an aggravated robbery need not include

specifically the elements of theft, the proof will involve proving up a theft or

attempted theft. Earl v. State, 514 S.W.2d 273, 274 (Tex. Crim App. 1974)

A person commits theft “if he unlawfully appropriates property with intent

to deprive the owner of property.” Tex. Penal Code Ann, section 31.03(a). In

a theft case, the State must prove that (1) a person (2) with intent to deprive

the owner (3) unlawfully appropriated (4) property. Id.;Bokor v. State, 114

S.W.3d 558, 560 (Tex. App.-Fort Worth 2002, no pet.). In the theft statute,

"'[a]ppropriate' means . . . to acquire or otherwise exercise control over

property other than real property." "'Deprive' means . . . to withhold property

from the owner permanently or for so extended a period of time that a major

portion of the value or enjoyment of the property is lost to the owner”. Tex.

Penal Code Ann, section 31.01(2)(A) (West Supp. 2012). Only the intent to

deprive, not the actual deprivation, must be proven to establish theft.

Hawkins v. State, 214 S.W.3d 668, 670 (Texas App.-Waco, 2007, no

pet.)(citing Tex. Penal Code Ann. § 31.01(4)(B)). A jury may infer an



                                       17
individual's intent from his conduct. Patrick v. State, 906 S. W. 2d 481, 487

(Tex. Crim. App. 1995).

      In cases where intent to deprive was found, the defendant would

appropriate the property temporarily and the property would be later found

abandoned. See Griffin v. State, 614 S.W.2d 155 (Tex.Crim.App., 1981)(

intent inferred where defendant ordered taxi cab driver out of car and then

drove car and later abandoned the car); Rowland v. State 744 S.W.2d 610,

(Tex. Crim App. 1988)( intent inferred where defendant borrowed a truck

from victim and promised to return it in three days, but never did): Hill v.

State, 633 S.W.2d 520, 521 (Tex.Crim App. 1981)( intent inferred where

defendant handled pistol at gun store and placed it under his shirt, before

leaving the gun and running out of the gun store). Conversely, where the

vehicle was returned quickly, robbery was not found, as the elements would

support an unauthorized use of vehicle charge. But see, Flores v. State, 888

S.W.2d 187, Tex. App.-Houston [1 Dist], 1994) (No intent to deprive of

motor vehicle where it was returned 3 hours later, damaged).

      The State failed to provide legally sufficient evidence that Appellant

intended to steal the vehicle driven by the victim, Jessica Jasso There was no

further evidence of what Appellant unlawfully appropriated nor what

property he intended to deprive. Moreover, the victim was never directly

                                      18
asked if she was the owner or special owner of the vehicle she was driving,

nor does the indictment make reference to the property to be stolen or the

owner of said property. There was no testimony that Appellant ever

exercised any control over the vehicle. See Hill v State at 521. To be sure,

the testimony presented could be consistent with other charges, such as

attempted aggravated assault. As such, no rational trier of fact could infer an

intent to deprive the owner of property, where there is no evidence, direct or

circumstantial, that Appellant attempted a carjacking. Therefore the

conviction should be reversed and rendered.


                  APPELLANTS SECOND POINT OF ERROR

The trial court erred in not granting Appellant’s motion for directed verdict

as there was no evidence, or legally and factually insufficient evidence, to

meet the elements of aggravated robbery as stated in the indictment, because

no rational trier of fact could have found the substantive elements of the

underlying theft offense beyond a reasonable doubt, as the correct owner of

the property was never identified.

STANDARD OF REVIEW

      Appellant incorporates the standard of review applied in Point of

Error 1, supra.



                                      19
ARGUMENT AND AUTHORITIES

      The Texas Court of Criminal Appeals considered a case where the

indictment read that the owner of the property stolen in a theft case was

named as Mike Morales, but the true owner in this shoplifting case was

Walmart. Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011). The Court

reasoned as follows:

      “In Jackson v. Virginia, supra, the Supreme Court held that federal
      due process requires that the State prove, beyond a reasonable doubt,
      every element of the crime charged. The Due Process Clause protects
      a person from conviction “except upon proof beyond a reasonable
      doubt of every fact necessary to constitute the crime with which he is
      charged.’ But the Court also stated that this constitutional standard
      “must be applied with explicit reference to the substantive elements of
      the criminal offense as defined by state law.” Thus, the “elements” or
      “facts necessary” to constitute a particular crime are determined by
      state law. Under Texas state law, we measure the sufficiency of the
      evidence “by the elements of the offense as defined by the
      hypothetically correct jury charge for the case.” 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.” Thus, we apply
      the Jackson standard of review to the hypothetically correct jury
      charge. But sometimes the words in the indictment do not perfectly
      match the proof at trial. Byrd at 246 (citing Jackson v. Virginia,
      443U.S.307, 316 (1979); Malik v. State, 953 S.W.2d 234, 240 (Tex.
      Crim. App. 1997)



      The Court in Byrd made a distinction between a variance, which is

where the name of the owner would be somewhat different than the owner


                                      20
proved a trial, but where the defendant had substantive notice, and where the

name is completely distinct. Id. At 247. The court compared the substance of

the charge and the indictment as: “the materiality of defects in indictments

and jury charges has been analyzed by looking to the essential elements of

the particular criminal offense— the gravamen of that offense— and the

hypothetically correct jury charge under the specific indictment or

information. In turn, the sufficiency of the evidence has been measured in

the same manner. Id at 247.

      Finding that the gravamen of theft included correctly naming the

owner of the property, the Court in Byrd declined to consider the State’s

argument of no harm inasmuch as everyone at the trial knew Walmart was

the correct owner of the property from the Walmart store, stating:

      “But is the State correct? " What's in a name? That which we call a
      rose/By any other name would smell as sweet." No matter what we
      call it, this flower is still a rose. But a rose does not smell like a
      pickle. Are roses and pickles interchangeable? Is the evidence legally
      sufficient under Jackson, Malik, and Fuller if everyone knew that it
      was really Wal-Mart who owned the stolen property, so it just did not
      matter who was alleged as the owner in the information and jury
      charge? The information could have alleged " Simon Legree," "
      Carnac the Magnificent," or " Macy's" for all we care, because it was
      undisputed at trial that Wal-Mart owned the property. No. The parties,
      the court, and the jury must know the identity of the owner, regardless
      of how the State names him”. Byrd at 253-254.




                                      21
      While other cases have been sustained, where the victim of an

aggravated robbery is implied in the indictment, in no other case identified

where the property owner is not named in either the indictment or in the case

in chief has the case been sustained. See e.g. Mann v. State, 642 S.W.2d 53,

Tex.App. 6 Dist.,1982 (Aggravated robbery indictment was not deficient on

ground that it failed to state who was owner of the stolen property, where it

recited that on a specified date the defendant while in the course of

committing theft and with intent to obtain motor vehicle from named

individual without effective consent of that individual and with intent to

deprive that individual of the property did intentionally and knowingly cause

serious bodily injury to the named individual by kicking him); Earl v. State,

514 S.W.2d 273 (Tex. Cr. App., 1974) (where indictment read “while in the

course of committing theft of Three hundred, twenty-eight dollars ($328.00)

current money of the United States of America, hereinafter called 'the

property' from Jack Hamblett”, court held sufficient notice of property and

person to sustain conviction).

      In the instant case, the owner is never confirmed through admissible

evidence. Like the property in Byrd, all witnesses assumed ownership of the

vehicle, but no testimony from the victim established ownership, nor did the

police corroborate ownership. Moreover, assuming arguendo that the


                                      22
allusions and assumptions peppered in the questions asked by the state

provide defendant with notice of ownership, the indictment does not name

the property that was allegedly stolen, nor does it state with sufficient

specificity that the property was owned by the victim. Therefore, there is

legally and factually insufficient evidence to sustain a conviction for

aggravated robbery. The case should be reversed and remanded to the trial

court for a new trial.



                 APPELLANTS THIRD POINT OF ERROR

The trial court erred in not granting Appellant’s motion to suppress

statements made by the accused, as there was no evidence, or legally and

factually insufficient evidence, that Appellant was not in custody and his

statements were a result of custodial interrogation made without benefit of

Miranda warnings and such statements resulted in harmful error.



STANDARD OF REVIEW

      In reviewing a trial court's ruling on a motion to suppress, we afford

almost total deference to the trial court's determination of the historical facts

that the record supports, especially when the trial court's findings turn on

evaluating a witness's credibility and demeanor. State v. Ross, 32 S.W.3d


                                       23
853,856, (Tex. Crim App. 2000). We afford the same amount of deference to

the trial court's ruling on “application of law to fact questions,” also known

as “mixed questions of law and fact,” if resolving those ultimate questions

turns on evaluating credibility and demeanor. Ross at 856. However, we

review de novo questions of law and “mixed questions of law and fact” that

do not turn on an evaluation of credibility and demeanor. Id. At 856 With

reference to a determination of whether the defendant was in custody at the

time the statements were made, more specifically, a trial court's ultimate

“custody” determination “presents a ‘mixed question of law and fact.’ ”

Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). Therefore,

we afford almost total deference to a trial court's “custody” determination

when the questions of historical fact turn on credibility and demeanor. Id. at

527. Conversely, when the questions of historical fact do not turn on

credibility and demeanor, we will review a trial judge's “custody”

determination de novo. Id.


      ARGUMENT AND AUTHORITIES

      Investigative stops must be temporary and last no longer than is

necessary to effectuate the purpose of the stop, and the investigative

methods employed should be the least intrusive means reasonably available

to verify or dispel the officer's suspicion in a short period of time. Davis v.
                                       24
State 947 S.W.2d 240, 245 (Tex. Crim. App. 1997). The constitutional

considerations for post-stop investigations are whether the detention was too

long in duration, whether police officers diligently pursued means of

investigation that were likely to confirm or dispel their suspicions quickly,

and whether police officers were unreasonable in recognizing less intrusive

alternative means by which their objectives might have been accomplished.

Joseph v. State 865 SW2d 100, 102 (Tex. App-Corpus Christi, 1993) pet.

ref’d. Where no findings of fact are filed by the trial court, “we view the

evidence in the light most favorable to the trial court's ruling and assume

that the trial court made implicit findings of fact that support its ruling as

long as those findings are supported by the record.” Ross at 855. If the trial

judge's ruling on a motion to suppress is correct on any theory of the law

applicable to the case, we will sustain it. State v. Avila, 910 S.W.2d 505, 508

(Tex. App.-El Paso 1994, pet.ref”d).

      If defendant is stopped and handcuffed, it’s a detention for Miranda

purposes. State v. Ortiz, 346 S.W.3d 127, (Tex.App.–Amarillo, 2011).

      The prosecution may not use statements stemming from custodial

interrogation of a defendant unless it demonstrates the use of procedural

safeguards effective to secure the privilege against self-incrimination.

Alvarado v. State, 853 S.W.2d 17, 20 (Tex. Crim. App. 1993). Limited


                                        25
statements made by a defendant post arrest may be admissible. Where the

defendant provides statements that directly lead to the discovery of

corroborating evidence, then the statement may be admissible,

notwithstanding the failure to meet the requirements of Texas Code of

Criminal Procedure 38.22. Villarreal v. State, 61 S.W.3d 673, (Tex.App.–

Corpus Christi, 2001).

      The statements provided by Appellant subsequent to his handcuffing

were made while in custody, without benefit of Texas Code of Criminal

Procedure 38.22 warnings. The Court erred in finding these statements

admissible, as Appellant was detained and not free to go. CR Vol 16, p.58,

lines 13-19. The answers Appellant provided were clearly responses to

questions posed by the police. As the court reasoned in Ortiz, where the

defendant is handcuffed and not free to go, as he was in the instant case, he

is detained for Miranda purposes. Ortiz at 127.

      But, as noted above, the police had already begun interrogating

Appellant before the formal arrest, even going as far as stating that

Appellant fit the description of the assailant. As such, given the totality of

circumstances, the “voluntariness” of the statement cannot be sustained, as it

was in reaction to prior interrogation. See Martinez v. State, 272 S.W.3d 615




                                       26
(Tex. Crim. App 2008)( pre arrest interrogation considered in determination

of voluntariness of post arrest, post Miranda statements)

      Moreover, the statement has no bearing on the credibility of the

accused as a witness, as required by Section 5 of Texas Code of Criminal

Procedure 38.22. Appellant did not testify, nor did Appellant offer any

statements he made previously into the record.

      To the extent the Court may have reasoned that the statement

concerning the firearm was res gestae of the arrest, there was no evidence

presented regarding the context of the statement. The record must show that

“the declarant was excited or emotionally stimulated or in the grip of a

shocking event so as to render the statement a spontaneous utterance.” Ward

v. State, 657 S.W.2d 133, 136 (Tex. Crim. App 1983). When determining

whether a statement is admissible as res gestae, the first concern is whether

Miranda requires its exclusion. Smith v. State, 507 S.W.2d 779, 781 (Tex.

Crim. App. 1974). In the instant case, there is no record of whether the

statement was made emotionally or in the grip of a shocking event. It is clear

that Appellant was not read his Miranda rights before the statement was

made. Therefore, the statement should be suppressed, the conviction

reversed, and the case remanded for a new trial.




                                      27
               APPELLANTS FOURTH POINT OF ERROR

The trial court erred in not granting Appellant’s objection to allow testimony

concerning Defendant’s statement of false identity as this statement did not

fall under a Texas Rule of Evidence 404(b) exception and such statement

resulted in harmful error.

STANDARD OF REVIEW

      We review the trial court's determination of admissibility for purposes

other than character conformity under an abuse of discretion standard.

Montgomery v. State, 810 S.W.2d 372, 391(Tex. Crim. App.1990).

      As long as the trial court's ruling is within the "zone of reasonable

disagreement," there is no abuse of discretion, and the trial court's ruling will

be upheld. De La Paz v. State, 279 S.W.3d 336, 343-344, (Tex. Crim. App.

2003) A trial court's ruling is generally within this zone if the evidence

shows that 1) an extraneous transaction is relevant to a material, non-

propensity issue, and 2) the probative value of that evidence is not

substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading of the jury. Id at 344. Proponent of the bad character

evidence must persuade Court that evidence “tends to establish some

elemental fact, such as motive, opportunity, or preparation, leading

inferentially to an elemental fact; or that it rebuts a defensive theory by
                                       28
showing, e.g. absence of mistake or accident” Santellan v. State, 939 S.W.2d

155, 168-69 (Tex. Crim. App. 1997). The introduction of such evidence also

depends on its relevancy to a fact of consequence i.e. an elemental fact or an

evidentiary fact. Relevancy is implied in the rule. Rankin v. State, 974

S.W.2d 707, 709 (Tex. Crim. App. 1996).

ARGUMENT AND AUTHORITIES

      Courts have held extraneous offenses may be admissible in proving

motive to commit the charged offense. Turner v. State, 715 S.W.2d 847, 852

(Tex. App-Houston [14th Dist.], 1986, pet.ref”d). See e.g. Vasquez v. State,

67 S.W.3d 229, 239-40 (Tex. Crim. App. 2002) (evidence of membership in

a gang admissible to show motive of a gang-related crime).

      Extraneous acts used to prove opportunity may be introduced to show

that the Defendant had the opportunity to commit the charged act, such as

evidence that Defendant had access to the crime scene, or possessed special

skills that were used in the commission of the crime. See Williams v. State,

948 S.W.2d 954, 956 (Tex. App.-Waco 1997, pet. ref”d)( defendant prior

two burglaries of the same home, where he entered without opening doors

used to prove opportunity where the same home was burned from the inside

without the doors being opened). The nexus between the extraneous offense

to knowledge or opportunity in the charged offense must be direct. Nolen v.
                                      29
State, 872 S.W.2d 807, 812 (Tex. App.-Fort Worth 1994), pet.ref’d, 897

S.W.2d 789 (Tex. Crim. App. 1995)( evidence of prior burglary conviction

where glassware was stolen too indirect to prove opportunity or knowledge

that drugs were manufactured in charged offense).

      Extraneous offense evidence is offered prove intent when intent

cannot be easily inferred by the conduct itself. Plante v. State 692 S.W.2d

487,491-92 (Tex. Crim. App.1985). The intent goes to the charged offense.

Parks v. State, 746S.W.2d 738, 740 (Tex. Crim. App. 1987)

      Identity and the rebuttal of defenses are both valid purposes for

admitting evidence under Rule 404(b). Id. At 388. An extraneous offense

may be admissible to show identity only when identity is an issue in the

case. Moore v. State, 700 S.W.2d 193, 201 (Tex. Crim. App. 1985), cert.

denied, 474 U.S. 1113,106 S.Ct 1167 (1986). Identity must be a disputed

issue. Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996)

      The false identity evidence did not meet any of the exceptions found

in the limiting instructions from the court. No evidence showing that

Appellant was motivated by secreting his name in the commission of an

aggravated robbery was offered. Here, hypothetical evidence of the assailant

being involved in a fight that night in another bar, or a fight with someone

who gave him a ride, would go to motive. The false identity could be given
                                      30
by someone who is avoiding a warrant or does not have legal status in the

United States- reasons far removed from a motive to commit aggravated

robbery. Nor does the provision of a false name prove opportunity to commit

aggravated robbery, as the statement sheds no probative light on whether, for

example, the Appellant had access to the crime scene, or possessed special

skills or characteristics unique to charged offense. If the opportunity proof is

to show that Appellant’s false identity is consistent with theft, which is an

elemental issue of aggravated robbery, the nexus is too indirect and

muddled, so as to confuse the jury.

        A false identity statement does nothing to prove an intent to commit

aggravated robbery. There is no reasonably direct connection between a

false name and the intent to rob someone with a gun. If the extraneous

offense had been a prior unauthorized use of vehicle, attempted carjacking,

or assault, then the inference of intent could be there, but not in the instant

case.

        Identity is an issue in the instant case, but only as it involves a witness

identification and the circumstances around this identification. Appellant did

not provide an alibi defense, nor did Appellant directly raise at trial that the

indictment named the wrong defendant, or that the police arrested the



                                         31
incorrectly named individual. As such, identity was not a disputed issue so

as to allow the admission of the aforementioned false name statement.

      Officer Mendez’ false identification testimony unfairly prejudiced the

jury to believe that a detained man who gave a false name was trying to hide

something, to conceal an important issue. Its probative value of an element

of the charged crime, as stated above, is nonexistent, and is greatly

outweighed by the seeds planted in the mind of the jury that Appellant is a

liar with something to hide. And that impression is harmful error.

      CONCLUSION AND PRAYER

      The errors identified in this brief require a reversal of the verdict and

for the first point of error, a rendering of decision to dismiss this case. For

the latter points of error, the case should be remanded for a new trial.




                                        32
                        CERTIFICATE OF SERVICE


I, Robert D. Puente, attorney for the appellant hereby certify that a true and
correct copy of the instant brief was delivered to Theodore Hake, Assistant
District Attorney, 100 N. Closner, Edinburg Texas, 78573, counsel for the
appellee, by hand delivery
the _7th day of April, 2015.


____/s/_____Robert D. Puente___
Robert Puente




                    CERTIFICATE OF COMPLIANCE


I, Robert D. Puente, hereby certify that the instant brief contains 4866
words.



_________/s/_____Robert D. Puente__________
Robert D.Puente




                                      33
