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Flores v. State

Court of Appeals of Texas, Fourth District, San Antonio

November 15, 2017

Antonio R. FLORES, Appellant
v.
The STATE of Texas, Appellee

         From the 226th Judicial District Court, Bexar County, Texas Trial Court No. 2016CR0432 Honorable Sid L. Harle, Judge Presiding

          Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Patricia O. Alvarez, Justice

          OPINION

          Karen Angelini, Justice

         AFFIRMED

         Antonio 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.

         Background

         On 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.

         At the 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.

         The 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.

         Witnesses 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."

         Ilene 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.

         Jillian 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."

         Flores 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.

         Motion to Set Aside Amended Indictment

         After 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 . . . .

         Flores then moved to set aside the amended indictment, and the trial court denied his motion.

         Flores 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).

         A. Sixth Amendment's Notice Requirement

         Flores 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. (citation omitted).

         The 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.

         There 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.

         First, 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.

         B. Texas Notice Requirements: Does the amended indictment provide sufficient notice pursuant to article 21.15 of the Texas Code of Criminal Procedure?

         Having 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.

         The 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.

         Further, 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 sufficient ...


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