Court of Appeals of Texas, Fourth District, San Antonio
Antonio R. FLORES, Appellant
The STATE of Texas, Appellee
the 226th Judicial District Court, Bexar County, Texas Trial
Court No. 2016CR0432 Honorable Sid L. Harle, Judge Presiding
Bryan Marion, Chief Justice Karen Angelini, Justice Patricia
O. Alvarez, Justice
R. Flores was charged with two counts of manslaughter after
his car collided with a work truck pulling a long trailer and
two passengers in his car died from injuries they sustained
in the collision. After a jury trial, Flores was found guilty
of both counts of manslaughter and was sentenced to ten years
of imprisonment on each count to run concurrently. On appeal,
Flores brings nine issues. His first two issues relate to the
trial court's denial of his motion to set aside the
amended indictment. In his third and fourth issues, Flores
argues the trial court's jury charge did not ensure a
unanimous verdict. In his fifth through ninth issues, Flores
complains of testimony by various witnesses. We affirm the
judgment of the trial court.
February 19, 2013, nineteen-year-old Flores and three other
high school students left the school campus for lunch. Flores
drove the car. Monique Castaneda sat in the front passenger
seat. Gabriella Lerma and Georgina Rodriguez sat in the back.
At the intersection of the access road to Loop 1604 and West
Hausman, Flores's car veered into a left-turn only lane,
allegedly in an attempt to go around a work truck that was
pulling a long trailer. When the truck legally turned left
from the middle lane, Flores's car and the truck
collided. The two passengers in the back seat, Gabriella
Lerma and Georgina Rodriguez, died.
hospital, Flores told officers that when the collision
happened, he was attempting to turn left from the access road
onto West Hausman Road. Flores admitted he and the other
passengers had been listening to music in the car and that he
was a little distracted, but he denied that he had been
racing another car.
driver of the truck, Rick Sandoval, had traveled to San
Antonio from Crystal City so that he could pick up a load of
pipe. His last memory before waking up in the hospital was
turning left from the access road to West Hausman Road. He
did not remember seeing the car that struck him. Oscar Rios,
the passenger in Sandoval's truck, testified that just
before the collision, Sandoval had exited Loop 1604 and had
slowed down the truck as it approached a red light at the
intersection of the access road to Loop 1604 and West Hausman
Road. Sandoval's truck was in the middle lane. According
to Rios, he was navigating and had told Sandoval to make a
left turn on West Hausman Road, which he could legally do
from the middle lane. As Sandoval approached the
intersection, the light turned green. Rios testified,
Well, we slowed down to give enough room for the cars to take
off, the cars from in front of us. And as we were about to
turn, Mr. Sandoval looks back; I look back towards my left
side and we - so we didn't see anything. As soon as my
head turned right, we got hit.
traveling in other cars had different vantage points and
offered different estimates of how fast Flores was driving in
comparison to the 45 mile-per-hour speed limit on the access
road. Five students who were traveling on the access road and
saw Flores's car approach from behind all testified that
Flores was driving very fast. Connor Shannon estimated Flores
was driving 70 miles per hour and was driving "very
fast" in comparison to the relative speeds of the other
cars, which were slowing down as they approached the light at
the intersection. Shelby Herr estimated Flores's car was
going around 70 to 90 miles per hour on the access road.
Benjamin Ludolph estimated 70 to 80 miles per hour. Max Feng
estimated 65 miles per hour or higher. Hanzhi Guo estimated
Flores was driving at least 70 miles per hour. These five
witnesses also testified to seeing a blue car in the lane
next to Flores that was traveling at about the same speed.
Herr testified she believed Flores then moved from the middle
lane into the left-turn only lane to "cut in front of
the truck, but the truck had turned."
Hoyos, who was stopped at a red light on West Hausman Road
facing Loop 1604 testified that she saw Flores's car
collide with the work truck. She believed Flores was
attempting to go straight through the left-turn only lane at
a speed of 65 to 75 miles per hour. She described
Flores's car as traveling "fast, " "just
flying through." Hoyos testified she did not know one
way or the other whether Flores had been racing another car.
Detective Mathew Murray testified about statements he had
taken from various witnesses after the accident. According to
Detective Murray, some of the witnesses told him they had not
seen a blue car racing Flores on the access road.
Higgins, a teacher at the high school, testified she was a
passenger in a car that was traveling on the access road and
approaching the intersection of Loop 1604 and West Hausman
Road. She heard the sound of engines "revving"
coming from behind her car. She looked out of the window and
saw cars pass her going "very fast." The blue car
went through the intersection, while Flores's car changed
lanes to the left and collided with a work truck. Higgins
testified she had told police that Flores car had been
traveling "at least 50 miles per hour because [it was]
going faster than we were and [she] estimated [she was]
driving 45, which is the speed limit."
was charged with two counts of manslaughter. In Count I, he
was charged with the reckless killing of Gabriella Lerma. In
Count II, he was charged with the reckless killing of
Georgina Rodriguez. After a jury trial, Flores was found
guilty of both counts of manslaughter and sentenced to ten
years of imprisonment. Flores appeals.
to Set Aside Amended Indictment
the two counts of the original indictment were filed, Flores
moved to set the indictment aside. The State dismissed the
original case and re-indicted. Flores then moved to set aside
the new indictment. The State opposed Flores's motion,
but also moved to amend the indictment. The trial court
denied Flores's motion to set aside, and granted the
State's motion to amend. Both counts of the amended
indictment follow the same language:
on or about the 19th Day of February, 2013, Antonio Flores,
hereinafter referred to as defendant, did recklessly cause
the death of an individual, namely, . . ., hereinafter
referred to as complainant, by driving and operating a motor
vehicle at an excessive rate of speed above the posted speed
limit, or by driving and operating a motor vehicle straight
through a left-turn only lane in an attempt to pass another
motor vehicle, or by racing another motor vehicle in a public
place, or by any combination of said three acts, thereby
causing a motor vehicle to collide with another motor vehicle
. . . .
then moved to set aside the amended indictment, and the trial
court denied his motion.
brings two issues with respect to the trial court's
denial of his motion to set aside the amended indictment. He
argues the trial court erred in denying his motion to set
aside the amended indictment because it denied him notice of
the particular offense with which he was charged in violation
of the Sixth and Fourteenth Amendments to the Constitution.
He further argues the amended indictment did not allege with
reasonable certainty the acts relied upon to constitute
recklessness in violation of article 21.15 of the Texas Code
of Criminal Procedure. We review the trial court's denial
of a motion to quash a charging instrument de novo. State
v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).
Sixth Amendment's Notice Requirement
argues in a conclusory fashion that the trial court
"erred when it denied [his] motion to set aside the
amended indictment because it denied him notice of the
particular offense with which he was charged in violation of
the Sixth and Fourteenth Amendments to the United States
Constitution." See U.S. Const. amend VI, XIV.
The Supreme Court has identified two constitutional
requirements for an indictment. First, it must contain
"the elements of the offense charged and fairly inform
a defendant of the charge against which he must defend."
United States v. Resendiz-Ponce, 549 U.S. 102, 108
(2007) (citation omitted). Second, it must "enable him
to plead an acquittal or conviction in bar of future
prosecutions for the same offense." Id.
court of criminal appeals has held that, generally, these
constitutional notice requirements are met when a charging
instrument tracks the statutory text of an offense. State
v. Zuniga, 512 S.W.3d 902, 907 (Tex. Crim. App. 2017).
In this case, Flores was charged with manslaughter and the
amended indictment tracked the statutory language of section
19.04(a) of the Texas Penal Code. See Tex. Penal
Code Ann. § 19.04(a) (West 2011). And, the language of
the amended indictment would enable Flores to plead an
acquittal or conviction in bar of future prosecutions for the
manslaughter of the two victims. See Resendiz-Ponce,
549 U.S. at 108. Thus, as a general rule, the amended
indictment was sufficient to provide constitutional notice.
See Zuniga, 512 S.W.3d at 907.
are some exceptions to this general rule; that is, in some
cases, an indictment that tracks statutory language may be
insufficient to provide a defendant with adequate notice.
Zuniga, 512 S.W.3d at 907. According to the court of
criminal appeals, to determine whether such a charging
instrument is sufficient, a reviewing court must "engage
in a two-step analysis." Id. First, "the
reviewing court must identify the elements of the
offense." Id. Second, "it must consider
whether the statutory language is sufficiently descriptive of
the charged offense." Id.
the essential elements of manslaughter are (1) a person (2)
recklessly (3) causing the death of an individual. Ramos
v. State, 407 S.W.3d 265, 267, 271 (Tex. Crim. App.
2013) (rejecting appellant's argument that the essential
elements of manslaughter would include the act or acts relied
upon to constitute recklessness); Cavazos v. State,
382 S.W.3d 377, 383 (Tex. Crim. App. 2012). Second, in
considering whether this statutory language sufficiently
described the charged offense, we note that
"recklessly" is defined by the Penal Code. See
Zuniga, 512 S.W.3d at 907 (explaining that statutory
language may not provide adequate notice when the statute
"uses an undefined term of indeterminate or variable
meaning requir[ing] more specific pleading in order to notify
the defendant of the nature of the charges against
him"). Section 6.03(c) provides that a "person acts
recklessly, or is reckless, with respect to circumstances
surrounding his conduct or the result of his conduct when he
is aware of but consciously disregards a substantial and
unjustifiable risk that the circumstances exist or the result
will occur." Tex. Penal Code Ann. § 6.03(c) (West
2011). "The risk must be of such a nature and degree
that its disregard constitutes a gross deviation from the
standard of care that an ordinary person would exercise under
all the circumstances as viewed from the actor's
standpoint." Id. We conclude this definition of
"recklessly" is sufficiently descriptive to notify
Flores of the manslaughter charge against him. See
Ramos, 407 S.W.3d at 271 (holding appellant was put on
notice of the specific offense of manslaughter). Therefore,
we hold the amended indictment provided Flores with notice as
required by the Sixth Amendment.
Texas Notice Requirements: Does the amended indictment
provide sufficient notice pursuant to article 21.15 of the
Texas Code of Criminal Procedure?
determined Flores was provided with notice as required by the
Sixth Amendment, we must now consider whether the amended
indictment provided Flores with notice under article 21.15 of
the Texas Code of Criminal Procedure. Like the United States
Constitution, the Texas Constitution "guarantees an
accused the right to demand the nature and cause of action
against him, and to have a copy thereof." State v.
Mays, 967 S.W.2d 404, 405 (Tex. Crim. App. 1998).
"Thus, the charging instrument must be specific enough
to inform the accused the nature of the accusation against
him so that he may prepare a defense." Moff,
154 S.W.3d at 601.
Texas Code of Criminal Procedure also gives a defendant
statutory rights to notice. Articles 21.03, 21.04, and 21.11
of the Texas Code of Criminal Procedure contain requirements
that (1) "[e]verything should be stated in an indictment
which is necessary to be proved, " Tex. Code Crim. Proc.
Ann. art. 21.03 (West 2009); (2) "[t]he certainty
required in an indictment is such as will enable the accused
to plead the judgment that may be given upon it in bar of any
prosecution for the same offense, " id. art.
21.04; and (3) "[a]n indictment shall be deemed
sufficient which charges the commission of the offense in
ordinary and concise language in such a manner as to enable a
person of common understanding to know what is meant, and
with that degree of certainty that will give the defendant
notice of the particular offense with which he is charged,
and enable the court, on conviction, to pronounce the proper
judgment, " id. art. 21.11.
in cases where acts of recklessness are alleged, like they
are here, article 21.15 of the Texas Code of Criminal
Procedure provides an additional requirement:
Whenever recklessness or criminal negligence enters into or
is a part or element of any offense, or it is charged that
the accused acted recklessly or with criminal negligence in
the commission of an offense, the complaint, information, or
indictment in order to be sufficient in any such case must
allege, with reasonable certainty, the act or
acts relied upon to constitute recklessness or criminal
negligence, and in no event shall it be sufficient to allege
merely that the accused, in committing the offense, acted
recklessly or with criminal negligence.
Tex. Code Crim. Proc. Ann. art. 21.15 (West 2009) (emphasis
added). Here, Flores argues that he was not provided