Opinion
NUMBER 13-14-00060-CR
01-22-2016
WILLIAM SANCHEZ, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 319th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Chief Justice Valdez
A jury found appellant William Sanchez guilty of evading arrest in a motor vehicle, enhanced by two prior felony convictions, and the trial court sentenced him to twenty-seven years in prison. See TEX. PENAL CODE ANN. § 38.04 (West, Westlaw through 2015 R.S.). By three issues, Sanchez contends: (1) the evidence is legally and factually insufficient to support the jury's rejection of his affirmative defense of duress; (2) the trial court committed fundamental error by making a comment during jury selection; and (3) he received an illegal sentence. We affirm.
I. BACKGROUND
On October 2, 2012, at around 6 o'clock in the morning, Sanchez led police officers on a two-and-a-half-mile car chase after fleeing a Walmart parking lot with his passenger who had just stolen merchandise from the store. Near the end of the car chase, Sanchez's passenger jumped out of his car and continued to flee on foot. Sanchez continued driving for approximately two city blocks until he came to a complete stop, ending the police chase. Sanchez's passenger was never found. Thereafter, the State charged Sanchez with evading arrest in a motor vehicle.
At trial before a jury, Sanchez all but admitted that he fled from police officers while they were attempting to lawfully arrest or detain him. However, Sanchez raised the defense of duress, claiming that his passenger forced him at knife point to drive away from the Walmart parking lot and to lead police officers on a car chase. Sanchez testified that he only knew his passenger by his first name, George; that he met George at a friend's house the day before the car chase; and that George asked him for a ride to work the next morning. Sanchez further testified that on the morning of the car chase, George asked him to stop at a Walmart to get some tools before work. According to Sanchez, George went inside the Walmart while he waited in the car for George to return. Sanchez testified that when George returned to the car with the tools, some people came out of the store after him. Sanchez testified that George then put a knife to his stomach and said, "Just drive the car." Sanchez testified that George held him at knife point until he jumped out of the car. The police did not find a knife in Sanchez's car. Sanchez testified that after the car chase, he could not find George or the friend at whose house he and George met.
At the close of the evidence, the trial court instructed the jury on the law applicable to the case, including the defense of duress. After deliberations, the jury rejected Sanchez's duress defense and found him guilty of evading arrest in a motor vehicle. The trial court found the enhancements true and sentenced Sanchez to twenty-seven years in prison as a habitual felony offender. This appeal followed.
II. DISCUSSION
A. Legal and Factual Sufficiency of Affirmative Defense
By his first issue, Sanchez contends that the evidence is legally and factually insufficient to support the jury's rejection of his duress defense.
Duress is an affirmative defense that excuses the defendant from criminal responsibility. See TEX. PENAL CODE ANN. § 8.05(c) (West, Westlaw through 2015 R.S.). It requires the defendant to prove by a preponderance of the evidence that he committed the offense "because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another." Guia v. State, 220 S.W.3d 197, 205 (Tex. App.—Dallas 2007, pet. ref'd) (quoting TEX. PENAL CODE ANN. § 2.04(d) (West, Westlaw through 2015 R.S.)); Edwards v. State, 106 S.W.3d 833, 843 (Tex. App.—Dallas 2003, pet. ref'd). To establish compulsion, the defendant must prove that "the force or threat of force rendered a person of reasonable firmness incapable of resisting the pressure." TEX. PENAL CODE ANN. § 8.05(c); Edwards, 106 S.W.3d at 843.
When a defendant challenges the legal sufficiency of the evidence to support the jury's rejection of duress, we first examine the record for evidence that supports the jury's negative finding regarding duress while ignoring all evidence to the contrary. Cleveland v. State, 177 S.W.3d 374, 387-88 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd); Cover v. State, 913 S.W.2d 611, 619 (Tex. App.—Tyler 1995, pet. ref'd). If no evidence supports the jury's rejection of duress, we then examine the entire record to determine whether duress was established as a matter of law. Cleveland, 177 S.W.3d at 387.
When a defendant challenges the factual sufficiency of the evidence to support the jury's rejection of duress, we consider all the evidence in a neutral light to determine whether the jury's negative finding regarding duress is so against the great weight and preponderance of the evidence that it is "manifestly unjust, conscience-shocking, or clearly biased." Matlock v. State, 392 S.W.3d 662, 671 (Tex. Crim. App. 2013).
In this case, Sanchez sought to prove duress by showing that George held him at knife point and forced him to flee the police. Because George escaped and no knife was recovered at the scene, the viability of Sanchez's defense rested exclusively on the credibility of his testimony and the testimony of the police officers. In other words, if the jury believed Sanchez's story that George threatened him with a knife, then he had a viable defense to evading arrest. However, if the jury found his story not credible, then it could reasonably reject his defense and hold him criminally responsible. In reviewing a legal or factual sufficiency point, we must defer to the jury's determination concerning witness credibility and the weight to give the evidence. Smith v. State, 355 S.W.3d 138, 147-48 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd) (citing Cleveland, 177 S.W.3d at 388-89).
Here, the jury heard conflicting circumstantial evidence concerning the credibility of Sanchez's story. Sanchez testified that during the car chase, he took his hands off the steering wheel and pointed down in an effort to signal to one of the pursuing officers that George had a knife to his stomach. However, the pursuing officer to whom Sanchez allegedly made this signal testified that Sanchez did not take his hands off the steering wheel and made no such signal. Sanchez also testified that he told two officers about George's knife immediately after the car chase ended. However, when asked at trial, neither officer could confirm or deny that Sanchez ever stated that George had a knife. Instead, the officers testified that if Sanchez had told them that George had a knife, it would have been included in their police reports and that no such information was included in their reports—thereby allowing the jury to infer that Sanchez was not telling the truth. Additionally, the police officer who encountered Sanchez immediately after the car chase testified that Sanchez appeared "calm" and that in the officer's experience, Sanchez's demeanor was inconsistent with someone who had just been threatened with a knife. Furthermore, Sanchez's claim of duress was inconsistent with the evidence showing that he continued to drive for some distance even after George—the alleged source of Sanchez's duress—jumped out of his car. Maestas v. State, 963 S.W.2d 151, 157 (Tex. App.—Corpus Christi 1998), aff'd, 987 S.W.2d 59 (Tex. Crim. App. 1999) (concluding that the jury's rejection of duress was not so against the overwhelming weight of the evidence as to be manifestly unjust and clearly wrong when the testimony supporting duress was self-serving and attempted to cast the blame for her actions on the codefendant).
To support the sufficiency of his duress defense, Sanchez points to evidence in the record indicating that he obeyed the speed limit throughout the car chase, did not take "evasive" maneuvers in his car, and ended the chase shortly after George jumped out of his car. Although this evidence may circumstantially support a finding of duress, we cannot agree that it conclusively establishes or overwhelmingly preponderates in favor of a finding of duress. We conclude that the jury's rejection of Sanchez's duress defense was supported by legally and factually sufficient evidence. See Matlock, 392 S.W.3d at 671; Cleveland, 177 S.W.3d at 387. We overrule Sanchez's first issue.
B. Trial Court's Comment During Voir Dire
By his second issue, Sanchez contends that the trial judge committed fundamental error when he made a comment during jury selection that allegedly diminished the credibility of his defense in the presence of the jury. Specifically, Sanchez's complaint is predicated on the following exchange that occurred between his trial counsel and the trial judge after trial counsel concluded his voir dire presentation just in time for lunch:
[Trial Counsel]: Told you [my voir dire presentation] wasn't going to take long, Judge.
[The Trial Judge]: Well, I thought you might have been lying to me.
The procedure for preserving error regarding improper comments by the trial judge includes: "(1) objecting; (2) requesting an instruction to disregard if the prejudicial event has occurred; and (3) moving for a mistrial if a party thinks an instruction to disregard was not sufficient." Proenza v. State, 471 S.W.3d 35, 51 (Tex. App.—Corpus Christi 2015, pet. filed). However, in Unkart v. State, the court of criminal appeals left the door open for a judicial comment that can rise to the level of "fundamental error" and alleviate the need to follow the above procedure for preserving error. See 400 S.W.3d 94, 99 (Tex. Crim. App. 2013); see also Proenza, 471 S.W.3d at 51. A trial judge's comment does not constitute fundamental error unless it rises to "such a level as to bear on the presumption of innocence or vitiate the impartiality of the jury." Proenza, 471 S.W.3d at 52 (quoting Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001)).
Acknowledging that no objection to the trial judge's comment was made at trial, Sanchez asserts that the judge's comment amounted to fundamental error and therefore did not require an objection to be preserved for review. Thus, the question is whether the judge's comment rose to such a level as to bear on Sanchez's presumption of innocence or vitiate the impartiality of the jury. See id.
The record indicates that before the State's attorney and Sanchez's counsel conducted their respective voir dire presentations, the trial judge told the panel that he hoped to select a jury before noon, depending on "how the voir dire process goes[.]" The trial judge's hope of selecting a jury before noon came true when Sanchez's counsel—the last attorney to conduct voir dire—finished his presentation before noon. This apparently prompted Sanchez's counsel to remind the trial judge that his voir dire presentation was not long, to which the trial judge remarked, "Well, I thought you might have been lying to me."
The cold record before us provides no indication regarding the trial judge's intonation or inflection when he made the complained-of comment, but we believe the comment is susceptible to two different interpretations. First, the jury might have understood the judge's comment as a lighthearted response to counsel's casual remark that reminded the judge about the shortness of his voir dire presentation. This understanding is reinforced by the fact that nothing in the content or context of the judge's comment directly referenced Sanchez's duress defense in any substantive way; instead, the comment was made during jury selection and addressed only the length of counsel's voir dire presentation. When viewed in this context, the jury understood the comment as a lighthearted banter between counsel and the trial judge, rather than an attack on the credibility of Sanchez's defense over the shoulders of his counsel. See Jasper, 61 S.W.3d at 421; Greenlee v. State, 03-02-00618-CR, 2004 WL 1114467, at *5 (Tex. App.—Austin May 20, 2004, no pet.) (mem. op., not designated for publication).
Second, the jury might have read into the judge's comment a suggestion that at some point before jury selection began, the judge suspected counsel of lying about the length of his voir dire presentation. However, even if the judge's comment carried that suggestion, the fact that counsel concluded his voir dire presentation before noon seemed to dispel the judge's previously-held suspicion rather than reinforce it. Thus, if anything, it would seem that the judge's comment actually supported (rather than diminished) the credibility of Sanchez's defense. And to the extent that the jury understood the judge's comment as expressing a previously-held irritation with counsel, the court of criminal appeals has held that judicial comments revealing irritation at defense counsel do not rise to the level of fundamental error. Jasper, 61 S.W.3d at 420-21 (concluding that trial court's statement "Come on. . . knock it off" regarding defense counsel's questioning was not fundamental error).
Because neither interpretation of the judge's comment affected Sanchez's presumption of innocence or vitiated the impartiality of the jury, we hold that fundamental error did not occur. Because fundamental error did not occur and Sanchez did not object to the judge's comment at trial, nothing is presented for review on appeal. See TEX. R. APP. P. 33.1(a) (providing that a timely request, objection, or motion must be made and ruled upon by the trial court to preserve a complaint for appellate review). We therefore overrule Sanchez's second issue.
C. Illegal Sentence
By his third issue, Sanchez contends that he received an illegal sentence for evading arrest in a motor vehicle. Specifically, Sanchez argues that the 2011 amendments to section 38.04 of the Texas Penal Code were ambiguous and resulted in two conflicting offense classifications for evading arrest using a vehicle. According to Sanchez, the 2011 amendments made evading arrest in a motor vehicle a state-jail felony rather than a third-degree felony. However, in Salazar v. State, we recently rejected Sanchez's interpretation of the 2011 amendments to section 38.04 and followed our sister courts by holding that evading arrest with a motor vehicle is a third-degree felony. See No. 13-14-00563-CR,___S.W.3d___, 2015 WL 5162922, at *5 (Tex. App.—Corpus Christi Sept. 1, 2015, no pet.); see also Mims v. State, 434 S.W.3d 265, 270 (Tex. App.—Houston [1st Dist.] 2014, no pet.); State v. Sneed, No. 07-13-00155-CR, 2014 WL 4755502, at *4 (Tex. App.—Beaumont, Sept. 24, 2014, pet. ref'd) (mem. op., not designated for publication); Wise v. State, No. 11-13-00005-CR, 2014 WL 2810097, at *5 (Tex. App.— Eastland Jun. 19, 2014, pet. ref'd) (mem. op., not designated for publication); Scott v. State, No. 10-13-00159-CR, 2014 WL 1271756, at*3 (Tex. App.—Waco Mar. 27, 2014, no. pet.) (mem. op., not designated for publication); Peterson v. State, No. 07-13-00155-CR, 2014 WL 546048, at *2 (Tex. App.—Amarillo Feb. 10, 2014, pet. ref'd) (mem. op., not designated for publication). Because we find no compelling reason to reinterpret the 2011 amendments to section 38.04, we overrule Sanchez's third issue.
III. CONCLUSION
We affirm the judgment of the trial court.
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice Do Not Publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 22nd day of January, 2016.