Opinion

Gustavo Aybar v. State

Court: Texas Court of Appeals, 1st District (Houston)
Filed: Jul 18, 2019
Status: Published
Cited by: 0 cases
Authority: More cited than 8.3%

stating that, to be deficient, attorney’s conduct must “so outrageous that no competent attorney would have engaged in it”

How later courts described this case

stating that, to be deficient, attorney’s conduct must “so outrageous that no competent attorney would have engaged in it”
concluding that, when trial court erroneously includes certain amounts as court costs in judgment, appeals court should modify judgment to delete erroneous amount
setting forth procedure for appellate review of claim of jury charge error
reaffirming that under precedent of Court of Criminal Appeals, unpreserved jury charge error does not require new trial unless error causes “egregious harm”

Written by the judges who cited it.

The opinion

Opinion issued July 18, 2019

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-18-00018-CR

NO. 01-18-00019-CR

NO. 01-18-00020-CR

———————————

GUSTAVO AYBAR, Appellant

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Case No. 1493128, 1500417 & 1500418

MEMORANDUM OPINION

Following a joint trial on three separate indictments, a jury found Gustavo

Aybar guilty of the offenses of child endangerment, manslaughter, and aggravated

assault.1 After finding enhancement allegations regarding prior felony convictions

to be true in each case, the jury assessed the following punishment for Aybar: 2

years in prison for the child-endangerment offense, 27 years in prison for the

manslaughter offense, and 12 years in prison for the aggravated-assault offense.2

Aybar appeals each judgment of conviction. In the child-endangerment case,

he challenges the sufficiency of the evidence to support his conviction, and he

asserts charge error. In the manslaughter and aggravated-assault cases, he contends

that he received ineffective assistance of counsel. In all three appeals, Aybar

challenges the assessment of various costs and fees.

We affirm the judgment of conviction in the manslaughter case, and we

affirm as modified the judgments of conviction in the child-endangerment and

aggravated-assault cases.

Background

Around 6:00 p.m. on December 26, 2015, Charles Futrell and his wife,

Yolanda, were traveling west on Interstate 10 (I-10) through Houston to attend a

family Christmas celebration in Katy. Charles was driving their Nissan Versa, and

See TEX. PENAL CODE § 22.041(c) (child endangerment); id. § 19.04

(manslaughter); id. § 22.02 (aggravated assault).

Appellate cause number 01-18-00018-CR corresponds to trial court cause number

1493128 (child endangerment). Appellate cause number 01-19-00018-CR

corresponds to trial court cause number 1500417 (manslaughter). Appellate cause

number 01-18-00020-CR corresponds to trial court cause number 1500418

(aggravated assault).

Yolanda was in the passenger’s seat. They were in the high-occupancy vehicle lane

(HOV) lane, traveling around 60 miles per hour with the flow of traffic.

To get to their destination, the Futrells needed to take the Barker Cypress

exit from I-10. Charles moved from the HOV lane and began to make his way into

the stream of traffic on the freeway to reach the Barker Cypress exit.

At that time, Aybar was also on I-10. He was not far behind the Futrells. He

was driving a white Cadillac with his three-year-old son, G.A., in the backseat.

Unlike the Futrells, Aybar was not driving with the flow of traffic. Aybar was

driving his Cadillac around 100 miles per hour, weaving in and out of traffic,

cutting off cars, and driving on the shoulder. Other motorists had called 9-1-1 to

report Aybar’s highspeed, erratic driving.

M. Henry was also on I-10 behind the Futrells. Henry later testified that he

was driving 60 miles per hour. He said that traffic was moderate and flowing

continuously.

As he drove, Henry looked in his rearview mirror. He saw Aybar’s Cadillac

and a Toyota Camry coming up fast behind him, weaving through traffic. He

estimated that the two cars were traveling at 90 to 100 miles per hour. Henry

thought that the two cars were racing because they were moving from lane to lane

trying to pass other cars. The Camry made it through traffic and passed Henry, but

Aybar’s Cadillac did not. In his rearview mirror, Henry saw Aybar coming up fast

directly behind him. To avoid hitting Henry, Aybar swerved to the left. Henry then

saw Aybar’s Cadillac clip the back-passenger side of the Futrell’s Nissan Versa.

The Futrell’s vehicle flipped, flew over the hood of Henry’s car, and rolled across

the roadway, landing on its roof on the other side of the freeway. Aybar’s Cadillac

hit the concrete barrier bordering the HOV lane, bounced off the barrier, and hit

the back of Henry’s car.

Motorists stopped at the scene to help. They flipped the Futrell’s Nissan over

right-side up. Yolanda Futrell was already dead, having died from the injuries she

sustained in the accident. An autopsy showed that the cause of Yolanda’s death

was blunt trauma to her head, torso and extremities, with multiple fractures and

brain injuries.

Charles Futrell survived the crash but was injured. An artery in Charles’s

arm was severed during the accident, and he suffered a broken neck and shoulder.

Charles was airlifted from the accident scene by helicopter to a level-one trauma

hospital. At trial, Charles indicated that he had healed from his physical injuries

but still had difficulty with his equilibrium.

Henry bumped his head in the accident but did not receive medical

treatment. Aybar’s son, G.A., who was in the backseat of the Cadillac, had a facial

abrasion after the accident.

Aybar was indicted for the offenses of child endangerment, manslaughter,

and aggravated assault. With respect to child endangerment, the indictment alleged

that Aybar had “intentionally and knowingly engage[d] in conduct that placed

[G.A.], a child younger than fifteen years of age . . . in imminent danger of bodily

injury, namely, by weaving in and out of traffic at a high rate of speed.” The

manslaughter indictment alleged that Aybar had “recklessly cause[d] the death of

Yolanda Futrell by failing to control speed, failing to maintain a single lane, failing

to keep a proper lookout, and by driving his motor vehicle and causing it to collide

with a motor vehicle occupied by Yolanda Futrell.” The aggravated assault

indictment alleged that Aybar had “recklessly cause[d] serious bodily injury to

Charles Futrell . . . by failing to control speed, failing to maintain a single lane,

failing to keep a proper lookout, and by driving his motor vehicle and causing it to

collide with a motor vehicle occupied by [Charles Futrell].”

Among the State’s witnesses were Charles Futrell, eyewitnesses to the crash,

first responders, law enforcement officers who had investigated the crash, and the

assistant medical examiner. The State’s evidence also included 9-1-1 calls,

describing Aybar’s driving before the accident and indicating that Aybar had

caused the crash. In addition, crash data recorded by Aybar’s Cadillac showed that,

four seconds before the crash, Aybar was going 103 miles per hour.

Aybar testified in his own defense during the guilt-innocence phase. He

stated that, at the time of the accident, he was taking his three-year-old son, G.A.,

to a birthday party. He said that his friend, Latrell, was in the front-passenger seat

of the car and that he and Latrell had smoked a half a cigar of marijuana about 30

minutes before the crash. Aybar claimed that marijuana makes him “focused” and

that he felt focused while driving before the accident.

Aybar testified that he routinely drives fast while weaving in and out of

traffic. And he said that he has driven other cars at over 100 miles per hour, but he

had never driven the Cadillac that fast. Aybar did not deny that he was going over

100 miles per hour before the accident, but he said that he was not looking at his

speedometer that night.

Aybar explained why he was driving so fast and erratically at the time of the

accident. He denied that he was racing with the Camry before the accident. Aybar

said that he did not know the directions to the birthday party, so he was following

his friend, K. Melton, who was driving the Camry. He said that Melton was driving

fast and weaving in and out of traffic. Aybar claimed that he was trying to keep up

with her and to not lose sight of the Camry, causing him to drive fast and mimic

Melton’s erratic driving. Aybar said that Melton entered the HOV lane, which

surprised him, and he was trying to keep pace with her. He claimed that the

accident occurred when Melton suddenly exited the HOV lane and cut across all

lanes of traffic. Aybar said that Melton’s action caused the cars in front of him to

brake. He then pushed hard on his brakes and steered the Cadillac to the left to

avoid hitting the car in front of him and cars to his right. He testified that he lost

control of his car and hit the concrete barrier to his left.

Aybar denied hitting any other car. Specifically, he denied hitting the

Futrells’ vehicle and Henry’s car. But he agreed that he had caused the accident.

When asked how, Aybar testified, “Me wrecking, me wrecking, me hitting the

[concrete barrier] wall and causing a big commotion, that’s what caused the wreck.

I admit that.”

On direct examination, Aybar indicated that he was not aware of the risks

that his driving posed to other drivers that night and he did not “think that this was

going to happen.” On cross-examination, however, Aybar acknowledged that he

was aware that driving in the manner he was that night could result in a crash and

that his son and other people could be injured.

The jury found Aybar guilty of the offenses of child endangerment,

manslaughter, and aggravated assault. After finding enhancement allegations to be

true, the jury assessed Aybar’s sentence at 2 years in prison for child

endangerment, 27 years in prison for manslaughter, and 12 years in prison for

aggravated assault.

Aybar appeals each of the three judgments of conviction.

Sufficiency of the Evidence

In his first issue in the child-endangerment case, Aybar claims that the

evidence was not sufficient to support his judgment of conviction.

A. Standard of Review

We review the sufficiency of the evidence establishing the elements of a

criminal offense for which the State has the burden of proof under a single

standard of review. Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013)

(citing Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)). This

standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307,

319 (1979). See Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013).

Pursuant to the Jackson standard, evidence is insufficient to support a

conviction if, considering all the record evidence in the light most favorable to the

verdict, no rational fact finder could have found that each essential element of the

charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at

319; In re Winship, 397 U.S. 358, 361 (1970); Laster v. State, 275 S.W.3d 512,

517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.

App. 2007). We can hold evidence to be insufficient under the Jackson standard in

two circumstances: (1) the record contains no evidence, or merely a “modicum” of

evidence, probative of an element of the offense, or (2) the evidence conclusively

establishes a reasonable doubt. See Jackson, 443 U.S. at 314, 318 & n.11, 320; see

also Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.

The sufficiency-of-the-evidence standard gives full play to the responsibility

of the factfinder to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at

319; see Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). An

appellate court presumes that the factfinder resolved any conflicts in the evidence

in favor of the verdict and defers to that resolution, provided that the resolution is

rational. See Jackson, 443 U.S. at 326.

In our review of the record, direct and circumstantial evidence are treated

equally; circumstantial evidence is as probative as direct evidence in establishing

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

establish guilt. Clayton, 235 S.W.3d at 778. Finally, “[e]ach fact need not point

directly and independently to the guilt of the appellant, as long as the cumulative

force of all the incriminating circumstances is sufficient to support the conviction.”

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

B. Elements of Child Endangerment

A person commits the offense of child endangerment if he intentionally,

knowingly, recklessly, or with criminal negligence, by act or omission, engages in

conduct that places a child younger than 15 years in imminent danger of death,

bodily injury, or physical or mental impairment. TEX. PENAL CODE § 22.041(c).

Here, as modified by the indictment, the State was required to prove beyond a

reasonable doubt that Aybar “intentionally and knowingly engage[d] in conduct

that placed [his son] a child younger than fifteen years of age . . . in imminent

danger of bodily injury, namely, by weaving in and out of traffic at a high rate of

speed[.]” See TEX. PENAL CODE § 22.041(c). The indictment did not allege that

Aybar had committed child endangerment recklessly or with criminal negligence.

C. Analysis

Aybar asserts that the evidence is legally insufficient to support his

conviction because the offense of endangering a child is a result-of-conduct

offense, and the State failed to prove beyond a reasonable doubt that Ayba

intentionally or knowingly endangered his son.

Courts “distinguish offenses into three different categories of offenses based

on the offense-defining statute’s gravamen, or focus: ‘result of conduct,’ ‘nature of

conduct,’ or ‘circumstances of conduct’ offenses.” Robinson v. State, 466 S.W.3d

166, 170 (Tex. Crim. App. 2015). Result-of-conduct offenses concern the product

of certain conduct. Robinson, 466 S.W.3d at 170. Nature-of-conduct offenses are

defined by the act or conduct that is punished, regardless of any result that might

occur. Id. Lastly, circumstances-of-conduct offenses prohibit otherwise innocent

behavior that becomes criminal only under specific circumstances. Id.

Aybar asserts that child endangerment is a result-of-conduct offense. For a

result-of-conduct offense, the culpable mental state relates not to the nature or

circumstances surrounding the charged conduct, but to the result of that conduct.

See Schroeder v. State, 123 S.W.3d 398, 400 (Tex. Crim. App. 2003). For this

reason, Aybar asserts that, as charged in the indictment, the State was required to

prove that he intentionally or knowingly placed his three-year-old son in imminent

danger of bodily injury. Even if we assume (without deciding) that child

endangerment is a result-of-conduct offense, as Aybar asserts, the evidence

presented at trial was sufficient to support Aybar’s conviction.3 Specifically, the

evidence was sufficient to show that Aybar knowingly placed his three-year-old

son in imminent danger of bodily injury.

A person acts “knowingly” with respect to a result of his conduct when he is

aware that his conduct is reasonably certain to cause the result. TEX. PENAL CODE

§ 6.03(b). Intent, being a question of fact, is within the sole purview of the jury.

The State disagrees with Aybar’s characterization of child endangerment as a

result-of-the conduct offense; it asserts that it is a nature-of-the conduct offense.

We note that courts have disagreed regarding whether child endangerment is a

“nature of conduct” or “result of conduct” offense. Compare Walker v. State, 95

S.W.3d 516, 520–21 (Tex. App.—Fort Worth 2002, pet. ref’d) (concluding that

child endangerment is nature-of-the-conduct offense because Section 22.041(c)

expresses clear legislative intent that a person commits child endangerment if he

intentionally or knowingly “engages in conduct” that places child in imminent

danger of death, bodily injury, or physical, or mental impairment), with Millslagle

v. State, 81 S.W.3d 895, 897 n.1 (Tex. App.—Austin 2002, pet. ref’d) (concluding

that, even though Section 22.041(c) contains phrase “engages in conduct,” child

endangerment appears to be “result of conduct” offense).

Brown v. State, 122 S.W.3d 794, 800 (Tex. Crim. App. 2003). Criminal intent may

be inferred from the defendant’s conduct and the surrounding circumstances.

Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).

In his brief, Aybar recognizes as follows:

It [is] undisputed that [Aybar] was driving at a high rate of speed and

was weaving in and out of traffic before the crash. Multiple 911 calls

were introduced into evidence that reported the [Aybar’s] Cadillac

was erratically driving at a least 100 miles per hour and caused the

accident. Multiple witnesses also testified as to [Aybar’s] speeding

and weaving in and out of traffic and one witness also believed that

the [Aybar] and the driver of the Camry were racing.

During cross-examination, Aybar acknowledged that he had been driving

erratically at high speeds “off and on” over the course of many miles before the

crash. Aybar also testified as follows:

[The State:] And you know that people in a car that’s speeding along

at a hundred miles per hour that they could get into a crash, right?

[Aybar:] Yes, sir.

Q. And they could suffer bodily injury as a result of it, right?

A. Yes, sir.

Q. And you were aware that you or Latrell or even [your son, G.A.]

could have been injured in a crash?

A. Yes, sir.

Q. And you were aware that other people could have been injured in a

crash as well?

A. Yes, sir.

Q. Based upon you weaving in and out of traffic, right?

A. Yes, sir.

Q. Based upon you traveling at a high rate of speed, right?

A. Yes, sir.

....

Q. You didn’t know that if you hit another car doing a hundred that that

person might suffer bodily injury?

A. Oh, yes, sir, yes, sir.

Q. So you’re aware of all of these things, right?

A. Yes, sir.

We are mindful that juries are free to “use common sense and apply

common knowledge, observation, and experience gained in the ordinary affairs of

life when giving effect to the inferences that may reasonably be drawn from the

evidence.” Aguilar v. State, 263 S.W.3d 430, 434 (Tex. App.—Houston [1st Dist.]

2008, pet. ref’d). Based on the evidence showing that Aybar was speeding and

driving erratically and his acknowledgment that he was aware of the risks of

driving in such a manner, including the risk of injury, the jury could have

rationally inferred that Aybar knew that he was placing his three-year-old son in

imminent danger of bodily injury.

In his brief, Aybar points to portions of his own testimony to support his

claim that the evidence was not sufficient. He relies on testimony in which he

“described himself as a fast driver whose practice was to weave in and out of lanes

while he was driving” and in which he claimed that he had driven other cars more

than 100 miles per hour without incident. He also points to his testimony indicating

that he was speeding and weaving in and out of traffic because he was following

Melton to a birthday party, and Melton was driving fast and erratically. He

indicated that he was mirroring her driving to keep up with her because he did not

know the route to the party. Aybar also testified that he did not hear other cars

honking at him, but he admitted that he had the music so loud in his car that he

would not have heard the honking. Aybar points out that he testified that he did not

know how fast he was driving that night because he did not look at the

speedometer. He also indicated in his testimony that he felt “confident” and

“focused” while driving that evening. And he points out that he testified that “he

was not aware of the risks that his driving posed for other drivers that night as he

did not think this would happen.”

Aybar’s arguments focus on the evidence favorable to him rather than

viewing the evidence in the light most favorable to the verdict, as we are required

to do. See Jackson, 443 U.S. at 319. And his arguments do not specifically address

his state of mind as it relates to the awareness he had regarding endangering his

son. His arguments also ignore the jury’s ability to believe or disbelieve all or part

of his testimony, resolve conflicts in the evidence, and draw reasonable inferences

from the evidence. See Murray v. State, 457 S.W.3d 446, 448–49 (Tex. Crim. App.

2015). We must presume that the factfinder resolved any conflicting inferences in

favor of the verdict, and we defer to that resolution. Id.; see Jackson, 443 U.S. at

326.

Given the evidence presented at trial and viewing it as we must, we conclude

that a rational trier of fact could have found beyond a reasonable doubt that Aybar

knowingly placed his three-year-old son in imminent danger of bodily injury. See

TEX. PENAL CODE § 22.04(c). We hold that the evidence is sufficient to support the

judgment of conviction for the offense of child endangerment.

We overrule Aybar’s first issue in the child-endangerment case.

Jury Charge Error

In his second issue in the child-endangerment case, Aybar contends that the

trial court erred by failing to properly tailor the definitions of the culpable mental

states in the jury charge to the applicable conduct element of the offense and,

because of this error, he suffered egregious harm. We disagree.

A. Standard of Review

We review alleged jury charge error in two steps: first, we determine

whether error exists; if so, we then evaluate whether sufficient harm resulted from

the error to require reversal. Arteaga v. State, 521 S.W.3d 329, 333 (Tex. Crim.

App. 2017); Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005). The

degree of harm required for reversal depends on whether the jury charge error was

preserved in the trial court. Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim.

App. 2016); see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)

(setting forth procedure for appellate review of claim of jury charge error). If the

jury charge error has not been properly preserved by an objection or request for

instruction, as here, the error must be “fundamental” and requires reversal only if it

was “so egregious and created such harm that the defendant was deprived of a fair

and impartial trial.” Marshall, 479 S.W.3d at 843; accord Almanza, 686 S.W.2d at

171.

B. Analysis

A trial court is statutorily obligated to instruct the jury on the “law

applicable to the case.” See TEX. CODE CRIM. PROC. art. 36.14; Arteaga, 521

S.W.3d at 334. Each statutory definition that affects the meaning of an element of

the offense must be communicated to the jury. Villarreal v. State, 286 S.W.3d 321,

329 (Tex. Crim. App. 2009). The jury charge should tell the jury what law applies

and how it applies to the case. See Delgado v. State, 235 S.W.3d 244, 249 (Tex.

Crim. App. 2007).

The trial court’s duty to instruct the jury on the “law applicable to the case”

exists even when defense counsel fails to object to inclusions or exclusions in the

charge. Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013); Taylor v.

State, 332 S.W.3d 483, 486 (Tex. Crim. App. 2011). The trial court is “ultimately

responsible for the accuracy of the jury charge and accompanying instructions.”

Vega, 394 S.W.3d at 518.

Penal Code Section 6.03 sets out four culpable mental states: intentionally,

knowingly, recklessly, and criminally negligently. TEX. PENAL CODE § 6.03

Section 6.03 also delineates three “conduct elements” that can be involved in an

offense: (1) the nature of the conduct, (2) the result of the conduct, and (3) the

circumstances surrounding the conduct. Id; see Robinson, 466 S.W.3d at 170;

McQueen, 781 S.W.2d at 603.

An offense may contain any one or more of these three conduct elements,

which alone or in combination form the overall behavior that the legislature has

intended to criminalize, and it is those essential conduct elements to which a

culpable mental state must apply. McQueen, 781 S.W.2d at 603. The Court of

Criminal Appeals has determined that, “[i]n a jury charge, the language in regard

to the culpable mental state must be tailored to the conduct elements of the

offense.” Price v. State, 457 S.W.3d 437, 441 (Tex. Crim. App. 2015).

When “specific acts are criminalized because of their very nature, a culpable

mental state must apply to committing the act itself.” McQueen, 781 S.W.2d at

603. “On the other hand, unspecified conduct that is criminalized because of its

result requires culpability as to that result.” Id. “A trial court errs when it fails to

limit the language in regard to the applicable culpable mental states to the

appropriate conduct element.” Price, 457 S.W.3d at 441 (citing Cook v. State, 884

S.W.2d 485, 491 (Tex. Crim. App. 1994)).

Here, in the abstract portion of the jury charge, the trial court defined the

indicted child-endangerment offense as follows: “[A] person commits an offense if

he intentionally or knowingly, by act, engages in conduct that places a child

younger than fifteen years in imminent danger of bodily injury.” See TEX. PENAL

CODE § 22.041(c). The trial court then provided the following definitions regarding

the culpable mental states of “intentionally” and “knowingly”:

A person acts intentionally, or with intent, with respect to the nature

of his conduct or to a result of his conduct when it is his conscious

objective or desire to engage in the conduct or cause the result.

A person acts knowingly, or with knowledge, with respect to the

nature of his conduct or to circumstances surrounding his conduct

when he is aware of the nature of his conduct or that the

circumstances exist. A person acts knowingly, or with knowledge,

with respect to a result of his conduct when he is aware that his

conduct is reasonably certain to cause the result.

These definitions track the language of Penal Code Section 6.03 and encompass all

three “conduct elements.” See id. § 6.03.

Aybar maintains that the offense of child endangerment involves only one

conduct element: result of the conduct. On appeal, Aybar asserts that “the inclusion

of nature-of-conduct instructions within the definition of intentionally and the

inclusion of nature-of-conduct and circumstances-of-conduct instructions within

the definition of knowingly were error.” In short, Aybar contends that, because

child endangerment is result-of-conduct offense, the trial court erred by not

limiting the culpable mental states of intentionally and knowingly to the result of

his conduct.

Even if we assume that the trial court erred by not limiting the culpable

mental states of intentionally and knowingly to the result of his conduct, we still

must determine whether Aybar was harmed by that error. Aybar did not object at

trial to the non-tailored definitions of the culpable mental states in the jury charge.

Consequently, the jury charge error was not preserved, and reversal is required

only if the error was “so egregious and created such harm that the defendant was

deprived of a fair and impartial trial.” See Marshall, 479 S.W.3d at 843; Villarreal,

453 S.W.3d at 433; Almanza, 686 S.W.2d at 171; see also State v. Ambrose, 487

S.W.3d 587, 595 (Tex. Crim. App. 2016) (reaffirming that under precedent of

Court of Criminal Appeals, unpreserved jury charge error does not require new

trial unless error causes “egregious harm”).

Jury charge error is egregiously harmful if it affects the very basis of the

case, deprives the defendant of a valuable right, or vitally affects a defensive

theory. Arteaga, 521 S.W.3d at 338; Marshall, 479 S.W.3d at 843; Arrington v.

State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015). “Egregious harm is a ‘high

and difficult standard’ to meet, and such a determination must be ‘borne out by the

trial record.’” Villarreal, 453 S.W.3d at 433 (quoting Reeves v. State, 420 S.W.3d

812, 816 (Tex. Crim. App. 2013)). We will not reverse a conviction unless the

defendant has suffered “actual rather than theoretical harm.” Id.

Neither party has the burden to show harm or lack of harm; rather, we must

examine the record and make an independent determination whether an appellant

suffered actual harm as opposed to theoretical harm. Marshall, 479 S.W.3d at 843.

In examining the record to determine whether jury charge error has resulted in

egregious harm, we consider four factors: (1) the entirety of the jury charge, (2) the

state of the evidence, including the contested issues and weight of probative

evidence, (3) the arguments of counsel, and (4) any other relevant information

revealed by the trial record as a whole. Arteaga, 521 S.W.3d at 338; Marshall, 479

S.W.3d at 843; Villarreal, 453 S.W.3d at 433; Almanza, 686 S.W.2d at 171.

Entirety of the Jury Charge

We begin the harm analysis by looking at the charge in its entirety. Although

the charge did not limit the culpable mental states to the result of Aybar’s conduct,

the abstract portion of the charge did define the culpable mental states of

intentionally and knowingly as they relate to the result of Aybar’s conduct.

The charge’s application paragraph contained the statutory elements of child

endangerment as modified by the indictment, thereby instructing the jury on the

law applicable to the case. See TEX. PENAL CODE § 22.041(c). The application

paragraph instructed the jury to find Aybar guilty of the offense of child

endangerment if it found “from the evidence beyond a reasonable doubt that the

defendant, Gustavo Aybar . . . intentionally or knowingly engage[d] in conduct that

placed [G.A.], a child younger than fifteen years of age, in imminent danger of

bodily injury, namely, by weaving in and out of traffic at a high rate of speed.”

However, neither the application paragraph nor any other part of the charge

apprised the jury that the culpable mental states were limited to the result of

Aybar’s conduct. Thus, assuming Aybar is correct about the complained-of error,

consideration of the entirety of the charge weighs in favor of finding egregious

harm. See, e.g., Arrington, 451 S.W.3d at 841 (concluding first factor weighed in

favor of finding egregious harm because entirety of charge did not apprise jury of

unanimity requirement).

State of the Evidence

The second factor requires us to review the state of the evidence, including

the contested issues and weight of probative evidence. Villarreal, 453 S.W.3d at

433. Under this factor, “we look to the state of the evidence to determine whether

the evidence made it more or less likely that the jury charge caused appellant

actual harm.” Arrington, 451 S.W.3d at 841.

Much of the evidence was uncontroverted, showing that Aybar drove at high

rates of speed, topping 100 miles per hour, as he wove through traffic on a Houston

freeway. The evidence largely focused on the danger Aybar posed to other

motorists that night, including the Futrells. The contested issue at trial primarily

centered on whether Aybar had the culpable mental state of recklessness needed to

convict him of manslaughter and aggravated assault. The State’s position was that

Aybar acted recklessly in causing Yolanda Futrell’s death and Charles Futrell’s

bodily injury. Aybar asserted that he acted only negligently with respect to those

offenses.

Some evidence, however, was offered relating specifically to the offense of

child endangerment. Aybar admitted that he knew that his son was in the backseat,

and he knew that “a car that’s speeding along at a hundred miles per hour” could

crash, and people in the car “could suffer bodily injury as a result.” He also

admitted that he knew that his son could have been injured in a crash. Although he

indicated that he was not aware of the risks that his driving posed to other drivers

that night, Aybar admitted that he was aware of the risk of injury to his son that his

high-speed, erratic driving posed. The evidence specifically probative of the

offense of child endangerment was not directed at Aybar’s conduct, rather it

focused on whether Aybar knew that his conduct endangered his son. In this

regard, the evidence focused the jury on the result of Aybar’s conduct with respect

to child endangerment. Thus, the state of the evidence did not make it likely that

the complained-of charge error caused Aybar actual harm.

Arguments of Counsel

We also consider whether any statements during the trial by the State, the

defense, or the trial court may have exacerbated or ameliorated the error in the jury

charge. Arrington, 451 S.W.3d at 844.

Although the closing arguments of the State and the defense focused

primarily on the offenses of manslaughter and aggravated assault, each side made

remarks pertinent to the offense of child endangerment. Defense counsel argued

that, immediately before the accident, Aybar took evasive maneuvers to avoid

hitting the cars to his right because Aybar knew that he had “his little boy sitting

there,” and “he is going at a high rate of speed.” The defense’s argument

highlighted the risk of danger (the result) of which Aybar knew he had placed his

son by his conduct.

Regarding the offense of child endangerment, the State made the following

statement:

[Child endangerment] doesn’t have to actually result in bodily injury

to that child, it just has to have conduct that places a child younger

than 15 years in imminent danger of that bodily injury. So, that bodily

injury, that hurt, that ouch doesn’t have to happen. The fact that he put

his own son in a situation where it was imminent that that could have

occurred, that’s sufficient under the law.

The State’s argument does not mention the required culpable mental states

of intentionally or knowingly. But the argument did focus on the result of conduct

necessary to prove child endangerment. The State explained to the jury that, to find

Aybar guilty of child endangerment, the result of his conduct did not need to be

actual bodily injury to his son; rather, the result of his conduct needed to be placing

his son in imminent danger of bodily injury. At two other points in its argument,

the State argued that, by his conduct, Aybar put his son in danger of bodily injury

that night. The State’s argument indicated that Aybar knew the danger to his son

but “didn’t care.” In short, the State’s argument highlighted the result of Aybar’s

conduct with respect to placing his son in danger of bodily injury. Thus, after

considering the arguments of counsel, the third factor weighs against a finding of

egregious harm.

Any other relevant information

Finally, our review of the record has disclosed no other relevant information

that requires our consideration in the egregious-harm analysis.

Conclusion Regarding Harm

In his brief, Aybar writes that “[i]f this Court agrees with [his] contention

that endangering a child is a result-of-conduct offense, this potentially would have

caused the jury confusion as to which definition of intentionally or knowingly to

apply.” Perhaps Aybar is correct. However, potential or theoretical harm is not

enough; the harm must be actual. See Marshall, 479 S.W.3d at 843.

Of the four factors, only the first—the charge itself—weighs in favor of a

finding of egregious harm. See Arrington, 451 S.W.3d at 845. After reviewing the

record and considering the required factors, we conclude that any harm Aybar

suffered from the trial court’s failure to limit the culpable mental states of

knowingly and intentionally to the result of Aybar’s conduct in the abstract portion

of the charge was theoretical, not actual. We hold that the charge error, if any, did

not egregiously harm Aybar.

We overrule Aybar’s second issue in the child-endangerment case.

Ineffective Assistance of Counsel

In his first issue in both the manslaughter and aggravated-assault cases,

Aybar contends that the he received ineffective assistance of counsel during the

punishment phase of trial. Aybar asserts that his trial counsel should have objected

to a portion of the State’s closing argument, which Aybar contends amounted to a

comment on his failure to testify during the punishment phase of trial.

A. Applicable Legal Principles

To prevail on a claim of ineffective assistance of counsel, an appellant must

show the following: (1) counsel’s performance fell below an objective standard of

reasonableness and (2) a reasonable probability exists that, but for counsel’s errors,

the result would have been different. See Strickland v. Washington, 466 U.S. 668,

687–88, 694 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).

“A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694. In reviewing counsel’s performance, we

look to the totality of the representation to determine the effectiveness of counsel,

indulging a strong presumption that counsel’s performance falls within the wide

range of reasonable professional assistance or trial strategy. See Robertson v. State,

187 S.W.3d 475, 482–83 (Tex. Crim. App. 2006).

Aybar has the burden to establish both prongs by a preponderance of the

evidence. See Jackson v. State, 973 S.W.2d 954, 956–57 (Tex. Crim. App. 1998).

“An appellant’s failure to satisfy one prong of the Strickland test negates a court’s

need to consider the other prong.” Williams v. State, 301 S.W.3d 675, 687 (Tex.

Crim. App. 2009).

B. Analysis

During closing argument in the punishment phase, the State discussed

Aybar’s extensive criminal history. As part of that discussion, the State made the

following remarks of which Aybar now complains:

Because it’s all about that money. It’s all about power. It’s all about

respect. Because bitches ain’t shit.4 He doesn’t care about any of you,

about any person who he broke into their car, who he stole their car.

He does not care because he continues to do it.

On appeal, Aybar asserts that the State’s remarks were an improper

comment on his demeanor and his lack of remorse. He contends that such remarks

would have been understood by the jury as a comment on his failure to testify.

During the punishment phase, the State introduced into evidence photos of

Aybar’s tattoos. One photo shows a tattoo on the back of Aybar’s hand that reads,

“Bitches Ain’t Shit.”

Commenting on a defendant’s failure to testify does not fall within any of

the permissible categories of jury argument and violates the United States and

Texas Constitutions. Bustamante v. State, 48 S.W.3d 761, 764 (Tex. Crim. App.

2001); see U.S. CONST. amend. V; TEX. CONST. art. I, § 10. “A comment on a

defendant’s lack of remorse is an impermissible reference to the defendant’s failure

to testify because only the defendant can testify as to his own remorse.” Orellana

v. State, 489 S.W.3d 537, 549 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d).

“The defendant’s demeanor while in the courtroom is also an inappropriate subject

for the State to discuss because it concerns facts not in evidence.” Id. (citing Davis

v. State, 964 S.W.2d 14, 17 (Tex. App.—Tyler 1997, pet ref’d)).

Aybar claims that his trial counsel’s performance was deficient because he

did not object to the complained-of remarks by the State. Even if we assume,

without deciding, that the State’s remarks were an improper comment on Aybar’s

failure to testify, we cannot conclude, on this record, that counsel’s performance

was deficient.

Ordinarily, counsel should have an opportunity to explain his actions before

being held ineffective. Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App.

2003). Because no motion for new trial was filed, the record is silent regarding

why Aybar’s trial counsel did not object.

To satisfy the first prong of Strickland on a silent record, it must be apparent

“that counsel’s performance fell below an objective standard of reasonableness as a

matter of law, and that no reasonable trial strategy could justify trial counsel’s acts

or omissions, regardless of his or her subjective reasoning.” Lopez, 343 S.W.3d at

143; see also Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)

(stating that, to be deficient, attorney’s conduct must “so outrageous that no

competent attorney would have engaged in it”). Here, we do not have such a case.

It is possible that Aybar’s trial counsel chose not to object based on a reasonable

trial strategy. See Orellana, 489 S.W.3d at 550 (holding that it could have been

reasonable trial strategy for attorney not to object to State’s remarks that appellant

lacked remorse). “One such reasonably sound strategic motivation could have been

the desire to avoid drawing additional attention to the prosecutor’s opinion.” Kuhn

v. State, 393 S.W.3d 519, 539 (Tex. App.—Austin 2013, pet. ref’d); see Lopez v.

State, 565 S.W.3d 879, 887 (Tex. App.—Houston [14th Dist.] 2018, pet. filed)

(“[W]e have recognized that the failure to object to improper jury argument may be

based on a reasonable trial strategy: to avoid drawing attention to the prosecutor’s

statement.”).

In short, trial counsel has not been given a chance to explain his conduct.

We cannot say that the counsel’s conduct of not objecting to the complained-of

jury argument was so outrageous that no competent attorney would have engaged

in it. See Goodspeed, 187 S.W.3d at 392; Lopez, 565 S.W.3d at 887. For these

reasons, we conclude that Aybar has not demonstrated that his trial counsel’s

performance fell below an objective standard of reasonableness; thus, he has not

satisfied the first Strickland prong. We hold that Aybar has failed to show, by a

preponderance of the evidence, that he received ineffective assistance of counsel at

trial. See Strickland, 466 U.S. at 687–88, 694.

We overrule Aybar’s first issue in the manslaughter and aggravated-assault

cases.

Issues Related to Court Costs

In the remaining issues, Aybar challenges various costs assessed against him

in each of the appeals.

A. Duplicative Court Costs

In the third issue in the child-endangerment case and in the second issue in

the aggravated-assault case, Aybar correctly contends that, under Code of Criminal

Procedure article 102.073(a), the trial court erred in assessing duplicative court

fees in each of the three cases. See TEX. CODE CRIM. PROC. art. 102.073. Under the

statute, costs and fees may only be assessed once when, as here, a defendant is

convicted of multiple offenses arising from a single criminal action. See id. The

State agrees that the assessment of the duplicative costs in each judgment of

conviction was error.

Article 102.073 of the Code of Criminal Procedure provides, in relevant

part, as follows:

(a) In a single criminal action in which a defendant is convicted of

two or more offenses or of multiple counts of the same offense, the

court may assess each court cost or fee only once against the

defendant.

(b) In a criminal action described by Subsection (a), each court cost or

fee the amount of which is determined according to the category of

offense must be assessed using the highest category of offense that is

possible based on the defendant’s convictions.

Id.

In each of the three judgments of conviction, court costs are listed “as

assessed.” The bill of cost accompanying each of the judgments shows the

following identical fees and costs were assessed in each of the three cases:

• Sheriff’s Jury Fee ($5)

• Commitments ($5)

• Release ($5)

• District Clerk’s Fee ($40)

• Jury Fee ($40)

• Security Fee ($5)

• Consolidated Court Cost ($133)

• Jury Reimbursement Fee ($4)

• DC Records Preservation ($25)

• Support of Indg Defense ($2)

• Support of Judiciary Fee ($6)

• Court Technology Fee ($4)

• Electronic Filing State ($5)

These identical costs and fees total $279.

To determine in which case the costs and fees should be assessed, we first

determine which offense is the highest category offense. See id. art. 102.073(b). As

charged here, child endangerment is a state jail felony. See TEX. PENAL CODE

§ 22.041(c), (f). Manslaughter and aggravated assault, as charged, are second

degree felonies. See id. §§ 19.04 (manslaughter), 22.02(a)(2), (b) (aggravated

assault). Thus, manslaughter and aggravated assault are the higher-category

offenses.

Between the manslaughter and aggravated-assault cases, we assess the fees

in the case that has the lowest trial court cause number. See Williams v. State, 495

S.W.3d 583, 590 (Tex. App.—Houston [1st Dist.] 2016, pet. dism’d). Here, the

case with the lowest cause number is the manslaughter case.5 Accordingly, the

costs and fees listed above, totaling $279, should be assessed in the manslaughter

case. We modify the judgments in the child-endangerment and aggravated-assault

cases to delete these costs. See TEX. R. APP. P. 43.2(b) (providing that the court of

appeals may “modify the trial court’s judgment and affirm it as modified”); Cates

v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013) (concluding that, when trial

court erroneously includes certain amounts as court costs in judgment, appeals

court should modify judgment to delete erroneous amount).

The trial court cause number in the manslaughter case is 1500417; the cause

number in the aggravated assault case is 1500418.

We sustain Aybar’s third issue in the child-endangerment case and the

second issue in the aggravated-assault case

B. Constitutionality of “Summoning Witness/Mileage” Fees

In his fourth issue in the child-endangerment case and in his second issue in

the manslaughter case, Aybar complains that the “summoning witness/mileage”

fees, ordered to be collected from him as a court cost under Texas Code of

Criminal Procedure article 102.011(a)(3) and (b), violates the Separation of Powers

Clause of the Texas Constitution. See TEX. CONST. art. II, § 1. Our Court rejected

this constitutional challenge in Allen v. State, 570 S.W.3d 795, 808 (Tex. App.—

Houston [1st Dist.] Aug. 30, 2018, pet. granted) (op. on reh’g).6 Following Allen,

we reject Aybar’s constitutional challenge to the assessment of court costs for the

summoning witness/mileage fee. See id.; Hines v. State, 570 S.W.3d 297, 305

(Tex. App.—Houston [1st Dist.] 2018, no pet.) (applying Allen).

We overrule Aybar’s fourth issue in the child-endangerment case and his

second issue in the manslaughter case.

C. Jury Fee

Code of Criminal Procedure Article 102.004(a) authorizes the assessment of

a $40 jury trial fee as a court cost. See TEX. CODE CRIM. PROC. art. 102.004(a). In

The Texas Court of Criminal Appeals granted petition for review in Allen on

December 20, 2018. The case was submitted to the Court of Criminal Appeals on

March 27, 2019 and remains pending there as of the date of issuance of this

memorandum opinion.

his third issue in the manslaughter case, Aybar argues that Article 102.004(a) is

facially unconstitutional because it violates the separation-of-powers provision of

the Texas Constitution in that it does not serve a legitimate criminal justice

purpose. See Salinas v. State, 523 S.W.3d 103, 106–10 (Tex. Crim. App. 2017);