Summary
assuming without deciding that the defendant "was not required to preserve error on this point by timely objection"
Summary of this case from Proenza v. StateOpinion
NO. 02-15-00127-CR
07-07-2016
OMAR BASHIR MOHAMMED APPELLANT v. THE STATE OF TEXAS STATE
FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
TRIAL COURT NO. 1359991D MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
In four issues, Appellant Omar Bashir Mohammed complains of his convictions for aggravated assault with a deadly weapon, aggravated assault causing serious bodily injury, injury to an elderly person, and failure to stop and render aid, all stemming from one incident. Tex. Penal Code Ann. § 22.02 (West 2011), § 22.04 (West Supp. 2015); Tex. Transp. Code Ann. § 550.021 (West Supp. 2015). We affirm the judgments of conviction for aggravated assault with a deadly weapon and injury to an elderly person. We delete the deadly weapon finding from the trial court's judgment of conviction for failure to stop and render aid, and we affirm that judgment as modified. We vacate the trial court's judgment convicting Appellant of aggravated assault causing serious bodily injury.
Background
On the morning of February 15, 2014, 73-year-old Terence Pinkston took his daily walk in Arlington. Pinkston, owner of a graphic design business, had been an avid runner since the 1960s, completing four marathons and numerous other races before taking his doctor's advice and trading running for walking due to ongoing knee problems. On this day, Pinkston was walking without his dog on a familiar route of three to four miles in distance.
At trial, Pinkston testified that when he walked with his dog, he would walk a shorter distance of only two miles, but on this day "luckily" his dog did not accompany him. According to Pinkston, the dog "wanted to stay home" that day, so he walked alone.
After crossing Ascension Boulevard and proceeding down the sidewalk along a curve in the street, the next thing Pinkston remembered was waking up in an ambulance and asking the attendant, "[W]hat's going on?" The attendant replied, "Well, you got hit by a car."
Although they did not witness the actual collision, William Komar and India Bailey, who lived in an apartment with a balcony overlooking the accident scene, heard the impact. At approximately 7:30 a.m., Komar described hearing an odd noise, "a thumping," that followed the sound of a car hitting the curb. Bailey described it as a loud "thunk, like a thunk like something hit something hard; a little bit of squealing of some brakes. Enough that it jolted [her] out of bed because it sounded very urgent." Komar, an avid hockey fan, was already out of bed, having risen early to watch an Olympic hockey game on television. He had opened the door to the balcony because of the unseasonably warm weather, and as soon as he heard the noise, Komar went out onto the balcony, where he saw a dark blue, two-door car in the grass on the side of Ascension Boulevard. Komar testified at trial that the car immediately "backed up and took off across the sidewalk."
Komar explained what he heard that day and his familiarity with the sound of a vehicle hitting the curb: "[T]here's a big curve there right below my balcony and sometimes cars will hit that curb. You can hear like a tire hitting a curb noise. Well, I heard that and then I heard something like a thumping. I thought it was very odd."
Bailey also came running out of the bedroom to the balcony, but by the time she arrived, the car had already left. She and Komar then noticed Pinkston lying on the ground below, between an electrical box and the stucco post attached to the fence surrounding the apartment complex. He was not moving, and from the balcony Komar could see a puddle of blood forming underneath Pinkston's head.
Still in her pajamas, Bailey grabbed her tennis shoes and a jacket, ran down three flights of stairs, and scaled the fence to get to Pinkston. When she was over the fence, Bailey noticed that Pinkston was moving. She also noticed a large hole in the stucco fencepost and blood running down Pinkston's face from what appeared to be a significant head injury. Bailey testified that she tried to keep Pinkston calm.
In the meantime, Komar called 9-1-1 and also ran downstairs and jumped over the fence. Komar described the situation at that point as "frantic," and when he initially reached Pinkston, Komar thought he was dead. Paramedics arrived quickly, and Pinkston was taken to John Peter Smith Hospital (JPS), where he remained for five or six days. Although Pinkston described himself as "blissfully ignorant of everything that was going on" during his stay at JPS, while he was there, the medical staff treated him for extensive injuries, including a skull injury involving several inches of missing skin from his scalp, a significant rupture in his right calf, multiple fractures—four in the ribs, two in the vertebrae, one in the pelvis and one in the tailbone—brain bleeds, and a collapsed lung. Pinkston testified that he did not remember anything about the collision. Upon release into a rehabilitation facility, Pinkston suffered a blot clot, requiring transportation back to a hospital where he was equipped with a vena cava filter designed to stop the blood clot from reaching his heart. Pinkston also developed a blood infection which required treatment.
The 9-1-1 recording was admitted at trial.
Pinkston described the procedure as painless, but nevertheless unsettling. "[T]hey go in through your jugular vein and they don't put you to sleep when they do it." He described the device as "a strange-looking little thing" with "a bunch of little holes in it" that "[l]ooked like a big thimble with legs on it." It remains in his body today.
At first, Pinkston was unable to walk at all. He remained in a wheelchair for two to three weeks, and then he graduated to a walker, during which time he wore a back brace, which he described as uncomfortable. Pinkston persevered in reclaiming his mobility and eventually transitioned to walking through use of a cane, and finally, to walking without any assistance at all. Physical therapy ended on June 1, 2014, but Pinkston never returned to his pre-accident condition. Pinkston attributed acute onset of memory problems to the collision, and he also testified that his inability to continue working forced him into early retirement.
On the day of the incident, Komar described the car that he had observed leaving the scene as a blue, two-door Chevrolet Cavalier. So, in the hours and days that followed, the Arlington Police Department (APD) searched for any car matching the description of a blue, two-door car. Because the case received a lot of media attention, the APD received a number of tips that the officers investigated. Three days after the incident, on February 18, the APD received a tip that a vehicle matching Komar's description was located at a house at 202 Slaughter in Arlington.
Komar, a GM employee, explained at trial that he saw a "subcompact, compact two-door, blue two-door" vehicle and that at the time he "equated it to a car that [he was] familiar with," the Chevrolet Cavalier. He testified that, in his opinion, Honda Civics and Chevrolet Cavaliers are "very similar size cars."
On that same day, Arlington Police Officer Jared Hawthorne was dispatched to the location, where he observed a blue, two-door Honda Civic parked next to a carport structure on the east side of the house and in front of two other cars parked in the driveway. Officer Hawthorne testified that the car was consistent with the description that the anonymous tipster had provided to him and was parked in plain view. When Officer Hawthorne approached the car and examined it, he observed a dent on the passenger side of the hood and glass shards inside and outside of the car around the windshield area. The windshield did not appear damaged, so the presence of the glass shards led Officer Hawthorne to believe that the windshield had been recently damaged and replaced. His belief was reinforced by the fact that the vehicle-identification-number (VIN) window on the windshield was out of alignment with the VIN number plate on the dashboard, suggesting that the windshield was not made for that specific vehicle. Officer Hawthorne noticed that the front bumper was cracked from the license plate to the headlight.
Officer Hawthorne explained, and the photograph of the Civic's windshield admitted into evidence confirms, that the bottom of the windshield has a "black portion" that is not see-through. That portion of the windshield contains a rectangular "cutout" or "window" that allows an individual outside of the car to read the VIN number printed on the dashboard inside the car.
Private surveillance footage of Appellant driving the Civic out of his apartment complex at 7:33 a.m. on February 15 was admitted at trial. In the video, Appellant's vehicle had a State of Texas registration sticker on the windshield and a bumper sticker on the back of the car, both of which were missing from the car when Officer Hawthorne observed it in the driveway.
Officer Hawthorne then knocked on the front door of the home and spoke to Bashir Mohammed, Appellant's father, who he described as cooperative during the conversation. According to Officer Hawthorne, Mohammed related to him that the Civic belonged to Appellant and that Appellant lived at Verandas Apartments, which were located at the intersection of Ascension Boulevard and Green Oaks, less than half a mile from the accident site.
After Officer Hawthorne left the house at 202 Slaughter, APD Officer Neal Landfield was dispatched to the location to "freeze the scene" while other officers attempted to secure a search warrant for the vehicle. While he was there, he spoke with the Appellant's father. According to Officer Landfield, he spoke with Mohammed generally about "the nature of the criminal justice process in terms of the process of obtaining arrest warrants or grand jury indictments and search warrants, and the difference between a crime in progress and a crime that is no longer in progress." Specifically, Officer Landfield explained to Mohammed that since the situation no longer involved a crime in progress, Appellant could not be arrested because the police did not have an arrest warrant for him at the time. Officer Landfield advised Mohammed that Appellant should voluntarily speak to the police and provide "his side of the story," and he cautioned Mohammed that Appellant "should not leave the country in light of the investigation against him." The Civic was seized later that evening pursuant to a search warrant.
According to Officer Landfield, "freezing the scene" means that "police officers are going to be at the location to prevent people from interfering with an object or property that we are seeking a warrant to search. So we're not going to search during that time. Instead, we'll make sure that no one interferes."
That next day, Mohammed and two other men, one later identified as Appellant, went to a local travel agency and used $2,500 in cash to purchase—in Appellant's name—a one-way airplane ticket to Jordan, scheduled to depart from Dallas-Fort Worth airport (DFW) at 4:05 p.m. on the following day, February 20. Also on February 19, the APD obtained an arrest warrant for Appellant for the offense of failure to stop and render aid. Appropriate authorities were notified of the arrest warrant, including authorities at DFW, where Appellant was arrested the next evening attempting to leave the United States with the ticket purchased the day before.
Eman Arnaout, an employee of ASA Travel agency in Arlington, identified Appellant as one of the young men who accompanied Mohammed when the ticket was purchased. However, Mohammed testified that Appellant did not accompany him there but that Appellant's cousin and his brother Anas went to the travel agency with him that afternoon to purchase the ticket.
The jury convicted Appellant of aggravated assault causing bodily injury, aggravated assault with a deadly weapon, injury to an elderly person, and failure to stop and render aid. Both convictions for aggravated assault and the conviction for failure to stop and render aid were enhanced with deadly weapon findings.
Discussion
I. Standing to contest search of father's property
In his first issue, Appellant argues that the trial court erred by denying his motion to suppress evidence obtained in a "warrantless search of his vehicle following the State's trespass and intrusion onto private property."
We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give almost total deference to a trial court's rulings on questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor, but we review de novo application-of-law-to-fact questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002).
Although Appellant initially phrases his first issue as a "warrantless search of his vehicle," his argument focuses on Officer Hawthorne and the other officer's actions in entering Appellant's father's property to view the Civic parked in the driveway. He argues that the car was not visible from the street, that Officer Hawthorne crossed over the property without going to the front door, and that Officer Hawthorne had to go "all the way on the property" to see inside the car. His argument then focuses upon whether the driveway area in which the car was parked qualified as part of the home's curtilage. See, e.g., Florida v. Jardines, 133 S. Ct. 1409, 1417-18 (2013) (holding that police officers' use of drug-sniffing dog on front porch of home was a trespassory invasion of the curtilage of the home and constituted a search for Fourth Amendment purposes). Thus, at issue here is not Appellant's expectation of privacy in the car itself; rather, the issue is whether Appellant met his burden to establish that he had a reasonable expectation of privacy in his father's property. The State argues that Appellant does not have standing to assert a Fourth Amendment right in relation to the home because it was Appellant's father's house, not Appellant's. We agree with the State.
Appellant does not contest that a warrant was obtained to search the interior of the vehicle.
The State did not present this argument to the trial court but was not required to do so in order to argue it on appeal. Kothe v. State, 152 S.W.3d 54, 60 (Tex. Crim. App. 2004); Wilson v. State, 692 S.W.2d 661, 668-69 (Tex. Crim. App. 1984).
It is the defendant's burden to show that he personally had a reasonable expectation of privacy that the government invaded and that he was a "victim" of the unlawful search or seizure. Kothe, 152 S.W.3d at 59 (citing Rakas v. Illinois, 439 U.S. 128, 139, 99 S. Ct. 421, 428 (1978); Alderman v. United States, 394 U.S. 165, 174, 89 S. Ct. 961, 966-67 (1969)). To carry his burden the defendant must normally prove (a) "that by his conduct, he exhibited an actual subjective expectation of privacy, i.e., a genuine intention to preserve something as private; and (b) that circumstances existed under which society was prepared to recognize his subjective expectation as objectively reasonable." Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). A defendant has no standing to complain about the invasion of someone else's personal rights. Kothe, 152 S.W.3d at 59. We review the issue of standing de novo. Id.
Appellant points us to only one case which is arguably on point—a case where a non-owner claimed standing to assert Fourth Amendment rights as to another's property. Washington v. State, 152 S.W.3d 209, 211 n.1 (Tex. App.—Amarillo 2004, no pet.) (noting that the house in question belonged to defendant's mother and defendant was living in it at the time). Nevertheless, other cases instruct us that evidence of ownership is not essential, but merely a factor, in establishing a reasonable expectation of privacy. See State v. Betts, 397 S.W.3d 198, 204 (Tex. Crim. App. 2013) (holding that defendant had a reasonable expectation of privacy in the fenced-in area of his aunt's backyard because he and his dogs had previously lived there, his dogs continued to live there, he accessed the property daily to care for the dogs, and the housing of animals is a common private use of a backyard); see also Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 1791 n.11 (1968) (noting that defendant had standing to contest search of grandmother's home in which defendant lived); Wilson, 692 S.W.2d at 671 (holding defendant had a reasonable expectation of privacy in vehicle borrowed from its owner). As the Supreme Court explained in Minnesota v. Olson, even an overnight guest may have a legitimate expectation of privacy in his host's home:
In all other cases relied upon by Appellant, the defendant was the owner of the property that was searched without a warrant. See, e.g., Oliver v. United States, 466 U.S. 170, 174, 104 S. Ct. 1735, 1739 (1984) (addressing warrantless search of defendant's field); Gutierrez v. State, 221 S.W.3d 680, 683 (Tex. Crim. App. 2007) (addressing warrantless search of defendant's home); Gonzalez v. State, 588 S.W.2d 355, 357 (Tex. Crim. App. 1979 [Panel Op.]) (same); Sayers v. State, 433 S.W.3d 667, 671 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (op. on reh'g) (same); Duhig v. State, 171 S.W.3d 631, 634 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (same).
From the overnight guest's perspective, he seeks shelter in another's home precisely because it provides him with privacy, a place where he and his possessions will not be disturbed by anyone but his host and those his host allows inside. We are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings. It is for this reason that, although we may spend all day in public places, when we cannot sleep in our own home we seek out another private place to sleep, whether it be a hotel room, or the home of a friend.495 U.S. 91, 99, 110 S. Ct. 1684, 1689 (1990).
To determine whether a person has a legitimate expectation of privacy, we must examine the totality of the circumstances surrounding a search and be guided by a non-exhaustive list of factors, including (1) whether the accused had a property or possessory interest in the place invaded, (2) whether he was legitimately in the place invaded, (3) whether he had complete dominion or control and the right to exclude others, (4) whether, before the intrusion, he took normal precautions customarily taken by those seeking privacy, (5) whether he put the place to some private use, and (6) whether his claim of privacy was consistent with historical notions of privacy. Matthews v. State, 431 S.W.3d 596, 606-07 (Tex. Crim. App. 2014).
With regard to the first Matthews factor, Appellant did not argue to the trial court, nor does he argue to this Court, that he had any property or possessory interest in Mohammed's home or the premises. Appellant's father testified that Appellant told him that something was wrong with the Civic's transmission when Appellant parked the car at his father's house on Saturday, February 15—the day of the accident—and borrowed Mohammed's van. Appellant did not return to Mohammed's house again until Monday, February 17, when he stayed there overnight while his wife recuperated from wisdom-tooth surgery at her parents' home in DeSoto that night, but he left again the next morning to return to work. Three days after the collision, Mohammed told Officer Hawthorne that Appellant lived at the Verandas Apartments, and he reiterated that fact at trial, testifying that Appellant was not living with him at the time of the incident, but "[h]e was living in his home." The record contains no evidence that Appellant had any property or possessory interest in Mohammed's home or the premises. At most, Appellant's relationship to the property at 202 Slaughter was nothing more than as an occasional overnight guest.
In its brief to this court, the State argued that we should take into account testimony by Appellant made during the punishment stage of the trial because Appellant's counsel reurged the motion to suppress at the close of the guilt-innocence phase of the trial, relying upon Black v. State. 362 S.W.3d 626, 635 (Tex. Crim. App. 2012) ("If the parties consensually broach the suppression issue again before the fact-finder at trial, the reviewing court should also consider the evidence adduced before the fact-finder at trial in gauging the propriety of the trial court's ruling on the motion to suppress."). In Black, the suppression issue was reurged during the guilt-innocence phase of the trial, and thus the court of criminal appeals held that evidence introduced after the first suppression hearing—during the guilt-innocence phase of trial—could also be considered in reviewing the trial court's ultimate ruling on the suppression issue. Id. However, the court of criminal appeals in Black did not go so far as to hold that a reviewing court can also consider evidence introduced during the punishment phase of the trial, which is what the State urges us to do. Id.; but see Jacobson v. State, 398 S.W.3d 195, 196 (Tex. Crim. App. 2013) (holding that a defendant that testifies at the punishment stage and admits his guilt does not forfeit his right to complain on appeal about errors occurring during the guilt stage). However, we do not need to address whether Black should be extended to the facts present here, because on this point the evidence introduced during the punishment phase of the trial is cumulative, adding no additional probative evidence related to standing.
Likewise, regarding the third Matthews factor Appellant did not argue to the trial court—or to this court—that he had the authority to exercise any dominion, control, or right to exclude others from the premises. And there is no evidence in this record that Appellant did exercise any dominion or control over the premises. Applying the first and the third Matthews factors, Appellant did not show a legitimate expectation of privacy in his father's home. See, e.g., Villarreal, 935 S.W.2d at 139 (holding defendant did not have a reasonable expectation of privacy in home when there was "no evidence that appellant had a property or possessory interest in, or unrestricted access to, the . . . residence.").
With regard to the second Matthews factor—whether Appellant was legitimately in the place invaded—Appellant makes no argument whether his vehicle was legitimately present on the property or not. See Matthews, 431 S.W.3d at 607. Nevertheless, Mohammed did not testify that he had any objection to the presence of the Civic in his driveway, and Mohammed allowed his other two children to park their cars at his home. Thus, while there was no direct evidence that Appellant had permission to park the Civic at Mohammed's house, there is an implication from the evidence that he did.
Under the fourth Matthews factor, we examine whether, in leaving the Civic parked at Mohammed's house, Appellant took normal precautions customarily taken by those seeking privacy. See id. Matthews explained this factor in the context of a person driving a borrowed car: "Unless [the driver] flings open the doors or hands the keys to a mere passer-by, the borrower likely uses the normal precautions customarily taken by those seeking privacy in their cars." Id.; see also Buchanan v. State, 175 S.W.3d 868, 873-74 (Tex. App.—Texarkana 2005) (holding that defendant's act of using a metal pole to support a car door that was off of its hinges would not be considered a normal or customary precaution to seek privacy), overruled on other grounds, 207 S.W.3d 772 (Tex. Crim. App. 2006). Appellant points us to no evidence that he took any particular precautions to ensure the privacy of the vehicle. For example, he did not place a cover over the vehicle, erect a barrier to it, or place any other object in its path to obscure it from plain view. See Myrick v. State, 412 S.W.3d 60, 65-66 (Tex. App.—Texarkana 2013, no pet.) (holding defendant took no steps to establish his right to expect privacy and did not take normal precautions where he left the gate open to the area where he parked his truck, was playing loud music and singing, and had his truck windows and the garage door open). Thus, there is no evidence that Appellant took precautions customarily taken by those seeking privacy with regard to vehicles.
As to the fifth of the Matthews factors, Appellant did not argue, here or before the trial court, that he put the driveway to a private use. See, e.g., Matthews, 431 S.W.3d at 607 ("[U]nless the borrower [of a vehicle] abandons the vehicle or converts it to a public bus, he likely puts the vehicle to private use."); Granados v. State, 85 S.W.3d 217, 226 (Tex. Crim. App. 2002) (noting defendant put apartment to some private use when he kept his belongings in the apartment and established phone service in his name), cert. denied, 538 U.S. 927 (2003); Hollis v. State, 219 S.W.3d 446, 458 (Tex. App.—Austin 2007, no pet.) (holding that an abandoned dance hall was put to private use as a clandestine methamphetamine lab). There is no evidence in this record that Appellant ever used the driveway or the vehicle again for any purpose—public or private—after parking the Civic and switching to his father's van for transportation. Thus, as to the issue of "private use" of the property, the evidence falls short of establishing any reasonable expectation of privacy.
The sixth and final Matthews factor is whether Appellant's claim of privacy is consistent with historical notions of privacy. See Matthews, 431 S.W.3d at 607. Appellant argues to us only that his father, as the owner of the premises, had a reasonable expectation of privacy in the driveway of his property. But as the Supreme Court in Olson has made clear, it is the guest's expectation of privacy, not the homeowner's, which is relevant to this determination. 495 U.S. at 99, 110 S. Ct. at 1689 ("That the guest has a host who has ultimate control of the house is not inconsistent with the guest having a legitimate expectation of privacy."). Therefore, under the facts of this case, the question focuses not on Mohammed's expectation of privacy but on whether Mohammed's adult child had a reasonable expectation of privacy in property he neither owned nor controlled. In Villarreal, the court of criminal appeals held that "American society [was] not willing to sanction as objectively reasonable the subjective expectation of privacy" of an individual who, after being invited into a home to conduct a drug transaction, rushed back into the home almost two hours later to avoid arrest. 935 S.W.2d at 139. For similar reasons, we are not prepared to hold that, as a general rule, an adult child has a reasonable expectation of privacy in his parent's driveway for the purpose of stashing a car in an attempt to avoid police detection. See Hollis, 219 S.W.3d at 458 (holding that the private use of a dance hall as a clandestine methamphetamine lab "is not a private use consistent with historical notions that society is prepared to protect").
Finally, we must consider the totality of the circumstances surrounding the search. Matthews, 431 S.W.3d at 606-07. Officer Hawthorne testified that he could see the blue vehicle from the street. No fence surrounded it, nor did any other barrier impede Officer Hawthorne's access to it. See, e.g., Buchanan v. State, 129 S.W.3d 767, 773 (Tex. App.—Amarillo 2004, pet. ref'd) (holding that no reasonable expectation of privacy in dirt driveway was established where evidence showed that, although the area was surrounded by a fence there was a "rather large, open gate" in the fence). Other than the fact that Officer Hawthorne had to walk past two other vehicles parked in front of the house—both of which were also visible from the street—there is no evidence that the carport area was an area in which Appellant "reasonably [could] expect that the area in question should be treated as the home itself." United States v. Dunn, 480 U.S. 294, 300-01, 107 S. Ct. 1134, 1139 (1987) (describing four factors to be considered in resolving curtilage questions: (1) proximity of the area claimed to be curtilage to the home, (2) whether the area is included within an enclosure surrounding the home, (3) the nature of the uses to which the area is put, and (4) the steps taken by the resident to protect the area from observation by people passing by); see also United States v. Beene, 818 F.3d 157, 162 (5th. Cir. 2016) (holding driveway was not part of curtilage of home where it was open and observable from street, and although fences encircled part of the driveway, nothing blocked its access or obstructed its view from the street, and there were no "no trespassing" signs posted), petition for cert. filed, (U.S. June 8, 2016) (No. 15-9651).
As discussed above, that Appellant parked his car, in which the State does not dispute he had a reasonable expectation of privacy, at his father's property does not by itself entitle him to an expectation of privacy in his father's property. See, e.g., Rawlings v. Kentucky, 448 U.S. 98, 104-05, 100 S. Ct. 2556, 2561-62 (1980) (holding defendant had not shown a reasonable expectation of privacy in a purse containing his drugs when the purse, over which he had no control and in which he had no subjective expectation of privacy, belonged to someone else, whom he had known for only a few days); Hollis, 219 S.W.3d at 458 (holding that hiding a methamphetamine lab in an abandoned dance hall does not in itself give rise to an expectation of privacy); Meridyth v. State, 163 S.W.3d 305, 310 (Tex. App.—El Paso 2005, no pet.) (holding defendant did not have privacy interest in his brother's barn, where he attempted to hide drug paraphernalia when police entered the barn). Appellant must articulate and prove the basis for such reasonable expectation. Villarreal, 935 S.W.2d at 138. Here, Appellant did not meet his burden to establish that he held a reasonable expectation of privacy in the premises owned by his father to correspondingly establish standing to contest the officers' entry onto his father's property to view the Civic as it was parked in the driveway. As such, we affirm the trial court's denial of Appellant's motion to suppress. See Wilson, 692 S.W.2d at 671 ("A defendant may fail even to produce evidence on the issue of standing, or the correct interpretation of the evidence produced may be that it fails to establish standing."). We therefore overrule Appellant's first issue.
The State argues that Appellant lacks standing additionally because he abandoned the Civic at his father's house by leaving it there and later attempting to flee to Jordan. However, there was no evidence that at the time police entered Appellant's father's property and seized the car, Appellant intended to flee the country or to abandon his vehicle. His airline ticket to Jordan was not purchased until the day after the police located and seized the car. See Matthews, 431 S.W.3d at 610 (holding that appellant had a reasonable expectation of privacy in the borrowed van up until the time he fled the police and abandoned the vehicle).
II. Failure to stop and render aid and deadly weapon finding
In his second issue, Appellant argues that the evidence was insufficient to support the deadly weapon finding associated with the conviction for failure to stop and render aid.
In our due-process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979).
A deadly weapon is defined as "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Penal Code Ann. § 1.07(a)(17)(B) (West Supp. 2015). An automobile can be a deadly weapon if it is driven in a manner that endangers lives. Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003). And Appellant does not challenge the deadly weapon finding as to the vehicle with regard to the underlying assault on Pinkston that morning.
However, the gravamen of the offense of failure to stop and render aid is the act of leaving the scene of an accident. Id. Therefore, in determining whether an automobile was used as a deadly weapon, the relevant time period begins after the incident has already occurred. Id.; Sheridan v. State, 950 S.W.2d 755, 759 (Tex. App.—Fort Worth 1997, no pet.). In examining that time period, it is not enough that there was "merely a hypothetical potential for danger if others had been present." Cates, 102 S.W.3d at 738 (citing Mann v. State, 13 S.W.3d 89, 92 (Tex. App.—Austin 2000), aff'd, 58 S.W.3d 132, 132 (Tex. Crim. App. 2001) (adopting part of Third Court's "opinion dealing with the merits of appellant's deadly weapon finding . . . as [its] own")). Thus, the issue is whether the evidence supports a finding that he used the vehicle after hitting Pinkston in such a way that actually endangered lives. We hold that it does not.
Appellant argues that Sheridan supports his argument. In Sheridan, we held that the defendant did not use his vehicle as a deadly weapon in failing to stop and render aid where there was no evidence that he used the vehicle after the collision that was the basis of the failure to stop and render aid conviction. 950 S.W.2d at 757-59. But the facts in Sheridan are not comparable to the facts here. Appellant did use his car after he hit Pinkston.
To prove what occurred during the relevant time period, there was only one source of evidence at trial—Komar, the only known eyewitness to the manner in which Appellant operated his vehicle after striking Pinkston with it. The entirety of Komar's testimony on this point consisted of
[The vehicle] was stopped. It had almost hit the fence and it was—the fence is like this (indicating), was at an angle like that (indicating); kind of backed up and took off across the sidewalk and took a left on Brown.Komar did not testify how quickly Appellant drove away from the scene or otherwise describe the manner in which he observed Appellant driving after the accident. Komar testified that at that time in the morning on a Saturday, the traffic on Ascension Boulevard is "not real heavy" and is "relatively quiet." Bailey testified that by the time she joined Komar on the balcony, the vehicle had already left the scene and that there was no one else in the area when they reached Pinkston on the side of the road—no other vehicles or pedestrians.
. . . .
[A]s soon as I got out there, [the vehicle] had just come to a stop almost hitting the fence, backed up right away and took off.
Komar and Bailey noted one driver did stop to help at one point.
The State argues that Appellant could have hit Pinkston again as he was lying on the ground, but the evidence indicates that Pinkston was positioned between an electrical box and the stucco post of the fence along the side of the apartment complex. Both Bailey and Komar testified to his position, and Bailey noted that "it's a little bit of a tight spot." Komar testified that there were tire marks where the vehicle had come to a rest and where it had backed up and pulled across the sidewalk when it "took off." The photographs of the scene that were admitted into evidence show those tire marks, as well as the space between the fencepost and the electrical box. Assuming Pinkston's body was situated where Bailey and Komar indicated and that the vehicle backed up as Komar described, then the photographs demonstrate that Pinkston's body was not in the path of the Civic after the initial collision.
In Cates, the court of criminal appeals considered the quantum of proof necessary to support a deadly weapon finding in the context of a conviction for failure to stop and render aid. 102 S.W.3d at 738. In that case, the only evidence in the record was a witness's testimony that she and her husband drove 85 to 90 miles per hour when they chased the defendant's truck after it left the scene of an accident. In holding that the deadly weapon finding there was not supported by the evidence, the court observed that the speed necessary for the pursuers' vehicle to catch up to the truck did not prove that the truck was also traveling at an excessive speed. Id. (noting that the "chase" ended quickly, the witnesses caught up to the truck at a traffic light, the truck was found just five minutes away from the accident scene, and there was no other traffic that night).
The evidence in this case of how the Civic was operated after Pinkston was struck is much less substantial than the facts present in Cates. The State argues that Komar's testimony that when the car left the scene, it left behind tire marks "provid[es] strong evidence of . . . [the] deadliness in Appellant's driving" after his failure to stop and render aid. We disagree, and even if we were to accept the State's argument, there is no evidence of reckless driving or that any other pedestrian or vehicle was in or near the roadway at the time Appellant left the scene. See, e.g., id. Because the evidence in this record regarding the manner or use of the vehicle after the accident amounts to no more than "a hypothetical potential for danger if others had been present," it is insufficient to support the deadly weapon finding. Id.; compare Soto v. State, No. 02-12-00058-CR, 2012 WL 6049112, at *2 (Tex. App.—Fort Worth Dec. 6, 2012, no pet.) (mem. op., not designated for publication) (holding that no evidence supported the deadly weapon finding where no witness claimed to have observed the defendant driving recklessly from the scene of the accident), and Delgadillo v. State, No. 08-01-00455-CR, 2004 WL 1375404, at *8 (Tex. App.—El Paso 2004, pet. ref'd) (not designated for publication) (holding that vehicle was not used as a deadly weapon in commission of failure to stop and render aid offense when witnesses described the defendant driving the vehicle off the road in the desert at twenty to thirty miles per hour with the hood up), with Rodriguez v. State, No. 04-09-00291-CR, 2010 WL 3505102, at *3 (Tex. App.—San Antonio Sept. 8, 2010, pet. ref'd) (mem. op., not designated for publication) (holding deadly weapon finding was supported by the evidence that, after colliding with a motorcycle, the defendant was traveling at an excessive rate of speed in a construction zone on a San Antonio highway during midmorning traffic).
Komar did not testify regarding the speed at which the vehicle left, but simply that it "took off."
The tire marks appearing at the scene do not in and of themselves denote that Appellant left at a high rate of speed, and there is no evidence in the record from which to draw that conclusion. The photographs of the accident scene do not reveal whether the marks depicted were caused by mud or dirt or from rapid acceleration. Nor was any expert testimony received into evidence on this point.
We hold that the evidence is insufficient to support the deadly weapon finding in connection with the conviction for failure to stop and render aid. Having sustained Appellant's second issue, we order the judgment of conviction for failure to stop and render aid reformed to delete the deadly weapon finding in connection with that conviction and affirm that judgment as modified.
III. Aggravated assault convictions and double jeopardy
In his third issue, Appellant argues that his Fifth Amendment right against double jeopardy was violated when he was convicted of both aggravated assault causing serious bodily injury and aggravated assault with a deadly weapon. Tex. Penal Code Ann. § 22.02(a)(1), (2). The State concedes the double jeopardy violation.
When a defendant has been prosecuted and convicted in a single criminal action of two or more offenses that constitute the same offense, thus violating the principle of double jeopardy, the reviewing court should apply "the most serious offense test" in determining the appropriate remedy, specifically, which count should be upheld and which count should be vacated. Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006). The "most serious" offense is the offense for which the greatest sentence was assessed. Id. at 338 (overruling Landers v. State, 957 S.W.2d 558, 559-60 (Tex. Crim. App. 1997), which held that other factors—such as the degree of the felony, range of punishment, and rules governing parole eligibility and awarding of good-conduct time—should be used in that determination); see also Evans v. State, 299 S.W.3d 138, 141 (Tex. Crim. App. 2009); Bigon v. State, 252 S.W.3d 360, 373 (Tex. Crim. App. 2008).
In this case, the punishments for both convictions were identical. Appellant was sentenced to five years for each aggravated assault conviction, and both sentences were suspended while Appellant was placed on community supervision for six years. Both convictions included a deadly weapon finding. When a defendant has been prosecuted and convicted in a single criminal action of two or more offenses that constitute the same offense, in violation of double jeopardy, and both offenses carry the same punishment, the appellate court may strike either conviction. See Martinez v. State, 225 S.W.3d 550, 555 (Tex. Crim. App. 2007). In conceding this issue, the State requested we retain the conviction of aggravated assault with a deadly weapon and strike the conviction for aggravated assault causing bodily injury. Appellant did not object or express a preference to the contrary. Therefore, we will strike the conviction for aggravated assault causing bodily injury. See, e.g., Almaguer v. State, No. 13-12-00605-CR, 2014 WL 5088386, at *4-7 (Tex. App.—Corpus Christi Oct. 9, 2014, pet. ref'd) (op. on reh'g) (remanding the case to the trial court "for the local prosecutor's office to decide which conviction should be retained as the 'most serious'").
An affirmative deadly weapon finding has a negative impact on a defendant's eligibility for community supervision, parole, and mandatory supervision. Sierra v. State, 280 S.W.3d 250, 254 (Tex. Crim. App. 2009).
We sustain Appellant's third issue, order that the conviction for aggravated assault with a deadly weapon be retained, and vacate the conviction for aggravated assault causing bodily injury.
IV. Trial court's comments during voir dire
In his fourth issue, Appellant complains of certain comments made by the trial court during voir dire. Specifically, Appellant complains that the trial court made the following remarks:
Now, you've noticed that—I told you Mr. Mohammed's name is Omar Bashir Mohammed. By that, I also want you to understand that by the way he looks, he looks a little different from the rest of us. I don't want anybody to take that and use that against him. All right? I don't want anybody to be prejudiced because he might be a Muslim, he might be from a different country. I don't want anybody to do that. All right? And if I have anybody who feels that they can't be fair because of this, I want you to tell me now. I won't hold that against you. I just want you to be fair with everybody.
Anybody over on this side? What about in the middle? What about on this side? All right. Real good.
While the words imparted by the trial judge to the veniremen do appear in the record, they are the only words that appear in the record of voir dire proceedings before us. Appellant did not request, and we did not receive, a record of what occurred either prior or subsequent to the court's remarks. Assuming that Appellant has not waived any error by failing to comply with rule 34.6(c) of the rules of appellate procedure in filing a request for a partial reporter's record, Appellant admits that he did not object to the trial court's statements at the time they were made. Instead, citing Blue v. State, he argues that an objection was not required to preserve error because the comments by the trial court were so prejudicial that they "'vitiated the presumption of innocence' before the venire, adversely affecting [A]ppellant's right to a fair trial." 41 S.W.3d 129, 132 (Tex. Crim. App. 2000) (plurality op.).
We note that Appellant's heavy reliance on the Blue decision may be misplaced. The court of criminal appeals has noted that Blue has no precedential value. Unkart v. State, 400 S.W.3d 94, 99-101 (Tex. Crim. App. 2013) (noting that fractured decisions like that in Blue may constitute binding authority if a majority holding can be ascertained from the various opinions in the case but holding that it is "not possible to ascertain a majority holding" in Blue); see also Blue, 41 S.W.3d at 138 (Keasler, J., concurring) (noting that the court "rarely see[s] such statements" as those made by the trial court in that case and that, generally, "an objection is required to preserve error").
Even if we are to further assume—without deciding—that Appellant was not required to preserve error on this point by timely objection, we do not agree that the trial court's comments harmed the Appellant, especially not to the degree that it contributed to his conviction or punishment. See Tex. R. App. P. 44.2(a); see also Jasper v. State, 61 S.W.3d 413, 420 (Tex. Crim. App. 2001) (evaluating complaint regarding comments by the trial judge as violating the defendant's right to a fair trial by an impartial jury as a fundamental or constitutional error). The question is whether the trial court's statements were harmless beyond a reasonable doubt. See Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997). In applying the "harmless error" test, our primary question is whether there is a "reasonable possibility" that any error might have contributed to the conviction. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).
Our harmless error analysis should not focus on the propriety of the outcome of the trial; instead, we should calculate as much as possible the probable impact on the jury in light of the rest of the record. See Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944 (2001). We "should take into account any and every circumstance apparent in the record that logically informs an appellate determination whether 'beyond a reasonable doubt [that particular] error did not contribute to the conviction or punishment,'" and if applicable, we may consider the nature of the error, the extent that it was emphasized by the State, its probable collateral implications, and the weight a juror would probably place on the error. Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim. App. 2011) (quoting Tex. R. App. P. 44.2(a)). This requires us to evaluate the entire record in a neutral, impartial, and even-handed manner, not "in the light most favorable to the prosecution." Harris v. State, 790 S.W.2d 568, 586 (Tex. Crim. App. 1989), disagreed with in part on other grounds by Snowden, 353 S.W.3d at 821-22.
Our review of the effect of the trial court's statement is hindered by Appellant's failure to provide us with a complete record of the voir dire proceedings. By including only an excerpt of the trial court's purported statements in his brief, Appellant has denied us the opportunity to examine the context surrounding the statements and to consider the effect they may or may not have had on the venire panel, especially in light of the unique role that trial court judges play in ensuring that every defendant receives a fair and impartial trial, untainted by bias or prejudice as to the race, religion, or ethnicity of the accused. See Henley v. State, 576 S.W.2d 66, 73 (Tex. Crim. App. 1978) ("The dictates of due process and [Texas law] necessitate that a defendant's right to an impartial jury and fair trial be protected [i]n the first instance [b]y the trial court."); see also Armstrong v. State, 897 S.W.2d 361, 369 (Tex. Crim. App. 1995) ("The purpose of the voir dire examination is to expose any bias or interest of the prospective jurors which might prevent full consideration of the evidence presented at trial.") (citing Price v. State, 626 S.W.2d 833, 835 (Tex. App.—Corpus Christi 1981, no pet.)).
In our review of the record before us, we note that Appellant repeatedly referenced the same or similar matters that he contends were addressed by the trial court—namely, his ethnic and religious background. Appellant's counsel elicited testimony from Eman Arnaout, the travel agent who sold Appellant's family the one-way ticket to Jordan, that Arnaout spoke to Appellant's family in Arabic. Appellant's counsel showed Arnaout a photo of Appellant's father and two men who accompanied him to Arnaout's office and asked Arnauot about the men's appearances and whether they "appear[ed] to be of Arabic descent." During his direct examination of Appellant's father, Appellant's counsel elicited testimony about Appellant's father speaking in Arabic.
During his closing argument in the guilt phase, Appellant's counsel specifically referred to the very statements with which he now takes issue:
This is not a reckless case, it's not intentional, it's not knowingly. It's a Muslim, as the Judge suggested to you, a man that doesn't look like us, a man that may not be from here who has a failure to stop and render aid, which is an accident . . . that causes bodily injury and freaks out and flees.[Emphasis added.]
During the punishment phase, Appellant testified to his Muslim faith and prayer practices. He also testified to his fear of discrimination based on his middle-eastern background and his last name, Mohammed. His wife also testified to their Muslim faith and the discrimination she has faced in her life as a result during the punishment phase of the trial.
Appellant testified, "My last name is Mohammed, I am from [the] Middle East, I will spend my whole life in jail."
Appellant cannot, on the one hand, complain of the trial court's admonition to the potential jury members that they were not to treat Appellant differently because of his ethnicity or his religion, and then, on the other hand, introduce evidence of his ethnicity and religion himself in his own defense. Cf. Harrington v. State, Nos. 2-08-00423-CR, 02-08-00424-CR, 2010 WL 1137046, at *2 (Tex. App.—Fort Worth 2010, no pet.) (mem. op., not designated for publication) (holding appellant did not preserve error when he introduced similar evidence of an unadjudicated extraneous offense).
Based upon the record before us, we do not agree that the statements attributed to the trial court during voir dire constituted harmful error to a degree that would require reversal. We therefore overrule Appellant's fourth issue.
Conclusion
Having sustained Appellant's second issue, we delete the deadly weapon finding from the trial court's judgment of conviction for failure to stop and render aid and affirm that judgment as modified. Having partially sustained Appellant's third issue, we vacate the trial court's judgment convicting Appellant of aggravated assault causing serious bodily injury. Having overruled Appellant's first and fourth issues, we affirm the trial court's judgments of conviction for aggravated assault with a deadly weapon and injury to an elderly person.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE PANEL: GARDNER, GABRIEL, and SUDDERTH, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: July 7, 2016