Perez, Orlando Javier v. State

NUMBER 13-97-095-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

ORLANDO JAVIER PEREZ

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

___________________________________________________________________

On appeal from the 103rd District Court

of Cameron County, Texas.

____________________________________________________________________

O P I N I O N

Before Justices Dorsey, Hinojosa, and Rodriguez

Opinion by Justice Rodriguez

This case is before us on remand from the Texas Court of Criminal

Appeals. As a result of his involvement in a drive-by shooting, a jury

convicted appellant, Orlando Javier Perez, of aggravated assault with

a firearm (1) and assessed his punishment at fifteen years imprisonment.

By four issues Perez complains that: (1) the evidence is legally and

factually insufficient; (2) article 44.46 of the Texas Code of Criminal

Procedure conflicts with the Texas Constitution; (3) the court abused its

discretion when it required a co-defendant to refuse to take the oath in

the presence of the jury; and (4) the court erred in admitting tainted

eyewitness identifications. We affirm.

In our original opinion, we concluded article 44.46 of the Texas

Code of Criminal Procedure was in conflict with article XVI, section 2 of

the Texas Constitution, and reversed and remanded for a new trial. See

Perez v. State , 973 S.W.2d 759, 762, 762 (Tex. App.--Corpus Christi

1998), rev'd , 11 S.W.3d 218, 221 (Tex. Crim. App. 2000) (en banc).

The court of criminal appeals granted the State's petition for

discretionary review, reversed our judgment on the constitutionality of

article 44.46 as applied to Perez, and remanded this issue for our

reconsideration in a manner consistent with its opinion. See Perez , 11

S.W.3d at 221 .

By his second issue, Perez asserts that article 44.46 of the Texas

Code of Criminal Procedure is incompatible with the Texas Constitution

because it undermines the right to trial by a qualified jury. After

reconsideration consistent with the court of criminal appeals' opinion,

we overrule this issue.

Perez filed a motion for new trial alleging, inter alia , that a

disqualified juror sat on the jury panel. At the hearing on his motion,

Perez and the State entered into the following stipulations: (1) one of

the jurors had a final conviction for felony driving while intoxicated; and

(2) this information was not ascertained until after the verdict was

rendered. The trial court overruled Perez's motion for new trial on the

basis that Perez failed to make a showing of "significant harm," as

mandated by article 44.46(2).

The Texas Constitution provides that "laws shall be made to

exclude from . . . serving on juries . . . those who may have been or

shall hereafter be convicted of bribery, perjury, forgery, or other high

crimes." Tex. Const. art. XVI, § 2. Perez argues that felony driving

while intoxicated is a "high crime," and, thus, the juror should have

been constitutionally disqualified.

The Texas Code of Criminal Procedure, article 44.46, sets out

statutory juror disqualifications. It provides:

A conviction in a criminal case may be reversed on appeal on

the ground that a juror in the case was absolutely

disqualified from service under Article 35.19 of this code only

if:

(1) the defendant raises the disqualification before

the verdict is entered; or

(2) the disqualification was not discovered or

brought to the attention of the trial court until

after the verdict was entered and the defendant

makes a showing of significant harm by the

service of the disqualified juror.

Tex. Code Crim. Proc. Ann. art. 44.46 (Vernon Supp. Pamph. 2001).

Article 35.19 provides that "no juror shall be impaneled when it appears

that he is subject to the second, third or fourth ground of challenge for

cause in Article 35.16, though both parties may consent." Tex. Code

Crim. Proc. Ann. art. 35.19 (Vernon 1989). Article 35.16 provides, in

relevant part:

(a) A challenge for cause is an objection made to a particular

juror, alleging some fact, which renders him incapable or

unfit to serve on the jury. A challenge for cause may be

made by either the state or the defense for any of the

following reasons:

* * * * *

2. That he has been convicted of theft or any

felony;

3. That he is under indictment or other legal

accusation for theft or any felony;

4. That he is insane. . . .

Tex. Code Crim. Proc. Ann. art. 35.16(a) (Vernon 1989).

The Texas Court of Criminal Appeals recently determined in this

case that felony driving while intoxicated cannot reasonably be

characterized as a "high crime" because it does not have the same type

of moral corruption and dishonesty inherent in those specified offenses

of bribery, forgery and perjury. See Perez , 11 S.W.3d at 221 (citing

Perez , 973 S.W.2d at 763-64 (Dorsey, J., dissenting)); see also Tex. Pen.

Code Ann. §§ 49.04 , 49.09(b) (Vernon Supp. 2001). Thus, felony driving

while intoxicated is not a constitutional disqualification; rather, it is a

statutory disqualification. See Perez , 11 S.W.3d at 221 . Accordingly,

we conclude there is no conflict between article XVI, section 2 of the

Texas Constitution and article 44.46 of the Texas Code of Criminal

Procedure. (2)

Because we have determined that the juror disqualification in this

case is a statutory disqualification, and that it was not discovered until

after the verdict was entered, Perez must show "significant harm by the

service of the disqualified juror." See Tex. Code Crim. Proc. Ann. art.

44.46(2) (Vernon Supp. Pamph. 2001). Perez complains that the juror-felon's service demonstrated significant harm, and that it was harmful

per se . However, Perez points us to nothing in the record, makes no

argument, and cites no authority to support his contention. See Tex. R.

App. P. 38.1(h)(appellant's brief to contain clear and concise argument

for contentions made with appropriate citations to authorities and to

record). An assertion without argument, authority or record cites

presents nothing for our review. (3) See id .; McFarland v. State , 928

S.W.2d 482, 512 (Tex. Crim. App. 1996). We conclude that Perez's

allegations regarding significant harm are inadequately briefed. Further,

a conviction alone does not constitute "significant harm" within the

meaning of article 44.46. See State v. Read , 965 S.W.2d 74, 77 (Tex.

App.--Austin 1998, no pet.); Hernandez v. State , 952 S.W.2d 59, 71

(Tex. App.--Austin 1997, pet. granted), vacated on other grounds , 957

S.W.2d 851 (Tex. Crim. App. 1998). Perez's second issue is overruled.

By his first issue, Perez argues the evidence is neither legally nor

factually sufficient to establish he knew of the intent of the shooter, or

that he did anything with the specific intent to aid the shooter in

committing the assault.

When reviewing the legal sufficiency of the evidence, we review

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 offense beyond a reasonable doubt. See Jackson v.

Virginia , 443 U.S. 307, 319 (1979); Johnson v. State , 23 S.W.3d 1, 7

(Tex. Crim. App. 2000); Skinner v. State , 956 S.W.2d 532, 536 (Tex.

Crim. App. 1997). In conducting this review, we do not weigh the

evidence tending to establish guilt and innocence or assess the

credibility of the witnesses on each side. See Ex parte Elizondo , 947

S.W.2d 202 , 205 (Tex. Crim. App. 1996). The jury is the sole trier of

fact, and may judge the credibility of the witnesses, reconcile conflicts

in the testimony, and accept or reject any or all of the evidence on either

side. See Chambers v. State , 805 S.W.2d 459, 461 (Tex. Crim. App.

1991); see also Cain v. State , 958 S.W.2d 404, 408-09 (Tex. Crim. App.

1997). If there is evidence that establishes guilt beyond a reasonable

doubt, and the trier of fact believes that evidence, the appellate court

does not reverse the judgment on legal sufficiency grounds. See

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

When reviewing factual sufficiency, we view all of the evidence

without the prism of "in the light most favorable to the prosecution"

and set aside the verdict only if it is so contrary to the overwhelming

weight of the evidence as to be clearly wrong and unjust. See Johnson ,

23 S.W.3d at 11 ; Cain , 958 S.W.2d at 407 ; Clewis v. State , 922 S.W.2d

126, 135 (Tex. Crim. App. 1996). The review must be appropriately

deferential so as to avoid substituting this Court's judgment for that of

the jury. See Cain , 958 S.W.2d at 407 .

A person commits the offense of aggravated assault if he uses or

exhibits a deadly weapon while intentionally or knowingly threatening

another with imminent bodily injury. See Tex. Pen. Code. Ann. §

22.02(a) (Vernon 1994). A person is criminally responsible as a party

to an offense if the offense is committed by his own conduct, the

conduct of another for which he is criminally responsible, or both. See

Tex. Pen. Code Ann. § 7.01 (a). A person is criminally responsible for an

offense committed by another if, acting with intent to promote or assist

the commission of the offense, he solicits, encourages, directs, aids, or

attempts to aid the other person to commit the offense. See Tex. Pen.

Code Ann. § 7.02 (a)(2). Sufficiency of the evidence is measured by the

elements of the offense as defined by the "hypothetically correct jury

charge for the case." See Malik v. State , 953 S.W.2d 234, 240 (Tex.

Crim. App. 1997).

In determining attempts to aid the other person to commit the

offense, the fact finder may consider events occurring before, during or

after the commission of the offense. See Beardsley v. State , 738

S.W.2d 681, 684 (Tex. Crim. App. 1987). Furthermore, circumstantial

evidence may be sufficient to show that one is a party to an offense.

See id . Finally, intent may be inferred from circumstantial evidence

such as the acts, words, and conduct of the accused. See Wolfe v.

State , 917 S.W.2d 270, 275 (Tex. Crim. App. 1996); Patrick v. State ,

906 S.W.2d 481, 487 (Tex. Crim. App. 1995).

The evidence in this case reveals that a white Grand Marquis, an

older model gray Grand Marquis, and a green truck were involved in the

shooting incident. Amos Gonzalez, a passenger in the back seat of the

truck, drove with his friends to Morningside Park on the evening of the

incident. They stopped in a parking lot about ten yards from five or six

females and three males who were walking towards their cars. The

females drove away in the gray Grand Marquis, the males in the white

Marquis. Before they drove away, Gonzalez saw Perez walk to the

white Grand Marquis, open its door, and stare at the truck before

getting into the driver's seat of the car. Gonzalez testified he saw

Perez's face in adequate lighting from the stadium lights. Gonzalez

identified Perez as the driver in a photo lineup and made an in-court

identification of Perez.

Gonzalez testified that the gray Marquis, the white Marquis, and

the truck, in that order, left the park and turned onto Central Avenue.

The white Marquis slowed down to five miles per hour and moved to

the shoulder of the road. The truck then passed the white Marquis.

Gonzalez next saw the white Marquis pull up beside the truck, traveling

along the center of the road. Gonzalez saw the window of the white

Marquis roll down, and he heard gunshots. The truck window broke

and glass fell on his arm. The car drove off and turned right at the next

street. Ricardo Rios, another passenger in the truck, was bleeding.

Rosenda Garza, the owner and driver of the truck, testified that

when she and her friends arrived at Morningside Park, she saw two

cars; four males were in a white Marquis and several females were in

another car. Garza testified the white Marquis and the truck passed

each other several times along Central Avenue, until the white Marquis

pulled up beside her truck and the shooting started. Three bullets hit

the truck. One hit the roof, the second the driver's door, and the third

a window. Rios was hit by one of the bullets. Garza did not identify

the driver of the white Marquis.

Rios testified that when he and his friends arrived at Morningside

Park the lights were on at the playing fields. They stopped to see if they

knew any of the females waving to them. When the females left the

park in their car, followed by several males in their own car, Rios and

his friends also followed. At some point, the white Marquis moved to

the side of the road and the truck passed it. The next thing Rios

realized, he had been shot in the face. He testified the bullets came

from the left, but he did not see who shot him.

Melba Murillo, one of the females in the gray Marquis, also

testified about the events leading up to the shooting. From a photo

lineup, Murillo identified Perez as the driver of the white Marquis.

Based on the foregoing evidence, and viewing it in the light most

favorable to the trial court's judgment, a rational trier of fact could have

found that Perez was the driver of the white Marquis, and could have

inferred that Perez was a party to the offense by driving the car, pulling

over to allow the truck to pass, pulling alongside the truck to allow the

shooter to fire shots, passing the truck and then turning off of Central

Avenue at the next corner. We conclude the evidence is legally

sufficient to support Perez's conviction.

Further, viewing all of the evidence without the prism of "in the

light most favorable to the prosecution," and granting appropriate

deference to the jury's verdict, the judgment is not so contrary to the

overwhelming weight of the evidence as to be clearly wrong and

unjust. We conclude that the evidence is factually sufficient to support

the conviction. Perez's first issue is overruled.

By his third issue, Perez complains that the trial court abused its

discretion by requiring Guadalupe Flores, a co-defendant, to claim his

right not to incriminate himself in the presence of the jury. Perez also

contends that this procedure unfairly prejudiced the proceeding against

him in violation of Texas Rule of Evidence 403.

Flores had already been convicted for his actions in the drive-by

shooting. The record reveals that the State granted Flores use

immunity. That is, the State agreed that any testimony Flores gave as

a witness would not be used against him in a retrial, or any other

proceeding he might pursue related to his case. A prosecutor may bind

himself to an agreement for use immunity. See Graham v. State , 994

S.W.2d 651, 656 (Tex. Crim. App. 1999). In doing so, the prosecutor

agrees to refrain from using particular evidence against the witness.

See id . A witness who has been granted use immunity for his

testimony, does not have a valid basis for refusing to testify. See Coffey

v. State , 796 S.W.2d 175, 179 (Tex. Crim. App. 1990) (citations

omitted). Because Flores had been granted use immunity for his

testimony, he did not have a valid basis for refusing to be sworn in by

the trial court. Accordingly, the State had the right to compel Flores's

testimony and the trial court did not err in requiring Flores to take the

witness stand.

We next consider whether calling Flores as a witness unfairly

prejudiced Perez. See id . at 177 n.4 (it could have been error had the

State asked witness a series of damaging questions in such a way as

to invite jury to assume answers to each question would have been in

the affirmative). Perez relies on Vargas v. State , 442 S.W.2d 686 (Tex.

Crim. App. 1969) and Washburn v. State , 299 S.W.2d 706 (Tex. Crim.

App. 1956), to support his contention that the proceeding prejudiced

him.

In Vargas , the court held it was error to call a convicted co-indictee

to the stand knowing he would invoke his fifth amendment privilege

against self-incrimination. See Vargas , 442 S.W.2d at 687 . The co-indictee claimed the privilege against self-incrimination throughout

examination by the prosecutor. See id . After the witness's first refusal

to answer, the prosecutor said: "This man has no right to refuse to

testify on the grounds of incrimination. He's already been convicted of

the offense for which he is to be questioned. " See id . (emphasis in

original). The court found error in the State calling the co-indictee as a

state witness. See id . (citing Washburn , 299 S.W.2d at 706 (to place

witness on stand and wring from him a refusal to testify, affording to

jury an opportunity to consider refusal as circumstance of guilt, has

been said to be "certainly prejudicial")). The Vargas court did not

address the fact that the co-indictee had no valid fifth amendment

privilege to invoke. See Coffey v. State , 744 S.W.2d 235, 238 (Tex.

App.--Houston [1st Dist.] 1987), aff'd , 796 S.W.2d 175, 180 (Tex. Crim.

App. 1990). The court also found reversible error in the prosecutor's

statement that the co-indictee had already been convicted for the same

offense. See Vargas , 442 S.W.2d at 787 (citations omitted).

In Washburn , the State offered the co-defendant witness immunity

from any prosecution involving the transaction in the case. See

Washburn , 299 S.W.2d at 707 . This offer was for transactional

immunity, not use immunity, and required approval of the court. See

id . Because the prosecution failed to show the court's approval,

immunity was not established. See id . Therefore, the co-defendant had

a valid fifth amendment privilege to invoke. See id . Further, by asking

fact-laden questions of the co-defendant witness, "the state was

permitted to plant in the jury's mind full details as to how they claimed

this crime was committed, and yet the only substantive evidence which

they were producing was the answer of the witness that he refused to

answer on the ground that his answers might tend to incriminate him.

. . ." Id . at 451. The court of criminal appeals determined that "[s]uch

refusal to testify was prejudicial because it could be used as an

incriminating fact against the appellant." Id .

Washburn and Vargas are distinguishable. Washburn involved a

witness who invoked a valid fifth amendment privilege. Further, in each

case the State asked questions of the witness. In Washburn , the State

asked fact-laden questions to suggest how the crime was committed.

In Vargas , although the court did not set out the State's line of

questioning, it relied on Washburn concluding the proceeding was

prejudicial. This suggests that it was not the calling of the witness who

claimed his fifth amendment privilege but the questioning that

influenced the courts' conclusions. We also note that the Vargas court

found reversible error in the State's comment following the witness's

first refusal to answer. Importantly, "the fatal flaw in appellant's

reasoning is the unstated assumption that any negative inference made

by a jury when a witness refuses to testify is improper." Coffey , 796

S.W.2d at 178 .

In this case, Flores had no valid fifth amendment privilege to claim.

He refused to be sworn in by the trial court. Therefore, to the extent the

State could have sought to compel Flores's testimony, Perez was not

unfairly prejudiced. Further, unlike Washburn and Vargas , the State

asked no fact-laden questions of Flores from which the jury could have

inferred Perez's guilt, and the State did not comment on the witness's

refusal to answer. Accordingly, we conclude Perez was not unfairly

prejudiced. Perez's third issue is overruled.

In his fourth issue, Perez contends the trial court erred in denying

his motion to suppress the identifications made by Murillo and

Gonzalez. Perez claims that the photographic lineup, containing one

"light-skinned" man (Perez) and five "coffee-colored" men, gave rise to

a very substantial likelihood of irreparable misidentification. Perez

argues Murillo's out-of-court identification was based on the

suggestive photo lineup, and Gonzalez's in-court identification was

tainted by the suggestive photo lineup. We disagree.

The standard for appellate review of a trial court's ruling on a

motion to suppress allegedly tainted eyewitness identification is set out

in Loserth. See Losert h v. State , 963 S.W.2d 770, 771 (Tex. Crim. App.

1998)(applying Guzman v . State , 955 S.W.2d 85 (Tex. Crim. App.

1997), standard to eyewitness identification)). First, we consider

whether the pretrial photographic identification was impermissively

suggestive, and if so, we then consider whether the procedure gave rise

to a substantial likelihood of irreparable misidentification. See Loserth ,

963 S.W.2d at 771 -72 (citing Simmons v. United States , 390 U.S. 377,

384 (1968)). When a reviewing court finds a lineup suggestive, it

should consider the five Biggers factors (4)

as issues of historical fact and

give almost total deference to the trial court's ruling considering the

evidence relative to those factors in the light most favorable to the trial

court's ruling. See Loserth , 963 S.W.2d at 773-74 . The factors, viewed

in this light, should then be weighed de novo against "the corrupting

effect" of the suggestive pretrial identification procedure. See id .

We have reviewed State's exhibit number 4, which is the original

of the photographic spread shown to Murillo and Gonzalez. It contains

photographs of head shots of six Hispanic males. All of the young men

are of comparable age and facial features. All have short, dark hair.

When presented with these pictures, both Murillo and Gonzalez picked

Perez's picture as the driver of the white Marquis. The skin color

difference between appellant and the other five men is, in our view,

minimal. We find the photographic lineup was not so impermissibly

suggestive such that it would influence the pre-trial identifications made

by Murillo and Gonzalez. Having found the line up was not

impermissibly suggestive, we need not reach the second prong of

Loserth. We conclude the trial court properly allowed the admission of

the identification testimony. Issue four is overruled.

Accordingly, the judgment of the trial court is AFFIRMED.

NELDA V. RODRIGUEZ

Justice

Publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 11th day of January, 2001.

1. See Tex. Pen. Code Ann. § 22.02 (a) (Vernon 1994). Perez was

found guilty based on the law of parties. See Tex. Pen. Code Ann. §§

7.01 , 7.02(a)(2) (Vernon 1994).

2. Perez also asserts error on the following bases: (1) the

disqualification is constitutional and only a constitutional amendment

could change it, not a mere statute; and (2) article 44.46 offends the

constitutional separation of powers by altering the burden of proof on

the issue of harm. Having concluded there is no conflict between the

constitution and statute, we need not address these assertions.

3. Further, Perez urges ineffective assistance of counsel, yet he

provides this Court with no argument, authority or record cites for this

contention. See Tex. R. App. P.38.1(h).

4. In assessing reliability, the linchpin in determining admissibility

of identification, the following five non-exclusive factors should be

considered and weighed against the corrupting effect of any suggestive

identification procedure:

1. the witnesses's opportunity to view the defendant;

2. the witness's degree of attention;

3. the accuracy of the witness's description;

4. the witness's level of certainty at the confrontation;

and

5. the length of time between the offense and the

confrontation.

See Losert h v. State , 963 S.W.2d 770, 772 (Tex. Crim. App. 1998(

(citing Neil v. Biggers , 409 U.S. 188, 199 (1972)); Webb v. State , 760

S.W.2d 263, 269 (Tex. Crim. App. 1998) (citing Manson v. Brathwaite ,

432 U.S. 98, 114 (1977)).