Lorena Vela Guerra v. The State of Texas--Appeal from 79th Judicial District Court of Brooks County

MEMORANDUM OPINION

MEMORANDUM OPINION

No. 04-07-00012-CR

Lorena Vela GUERRA,

Appellant

v.

The STATE of Texas,

Appellee

From the 79th Judicial District Court, Brooks County, Texas

Trial Court No. 04-08-08963-CR

Honorable Richard C. Terrell, Judge Presiding

Opinion by: Rebecca Simmons, Justice

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Rebecca Simmons, Justice

Delivered and Filed: March 5, 2008

AFFIRMED

Appellant Lorena Vela Guerra was found guilty of failing to stop and render aid pursuant to Transportation Code section 550.023 and assessed punishment at one year in the county jail and a fine in the amount of $5,000.00. On appeal, Guerra contends: (1) the stop and render aid statute is unconstitutional; (2) the trial court erred in its instructions to the jury; (3) the evidence is factually and legally insufficient to support the conviction; and (4) trial counsel provided ineffective assistance. We affirm the judgment of the trial court.

Background

On March 21, 2004, Victor DeLeon was struck and killed by a vehicle which failed to stop following the incident. Enrique Johnson testified that sometime between 10:30 p.m. and 10:45 p.m., shortly after the evening news had finished, he heard a loud thump as if someone was being struck by an automobile. As he went out his front door, he observed a vehicle driving away at a high rate of speed. Police Officer William Knowlin arrived at the scene at 10:48 p.m. and discovered DeLeon s body. Shortly thereafter, at approximately 11:46 p.m., Appellant Lorena Guerra called 911 to report the theft of her Ford Expedition. When a dispatcher called Guerra back to discuss the stolen car further, Guerra offered that (1) she was driving, (2) hit somebody, (3) there was damage to her vehicle, (4) there was blood on the vehicle and (5) there was a high fence nearby.[1] The officers eventually located Guerra s vehicle which had damage to the front end. DNA testing revealed the blood on the vehicle matched DeLeon s.

Constitutional Issues

In issues one, two, six and eight, Guerra attacks the constitutionality of section 550.023(3) of the Transportation Code. Tex. Transp. Code Ann. 550.021, 550.023(3) (Vernon 1999). Appellant argues that section 550.023(3) violates her rights under the First, Fourth, Fifth, Ninth and Fourteenth Amendments to the U.S. Constitution, is void for vagueness and violative of her Due Process rights under Article I, Sec. 10 and Sec. 19 of the Texas Constitution. Finally, Appellant argues that section 550.023 is unconstitutional because it sponsors religious conduct and therefore violates the Establishment Clause of the First Amendment.

Sections 550.021 and 550.023 of the Transportation Code are often referred to as the basis for the duty to stop and render aid. Section 550.021 requires the operator of a vehicle, involved in an accident resulting in injury or death of a person, to immediately stop the vehicle at the scene or as close as possible and to comply with section 550.023. Tex. Transp. Code Ann. 550.021. Section 550.023 requires the operator of a vehicle, involved in an accident resulting in injury or death of a person, to provide any person injured in the accident reasonable assistance.[2] Tex. Transp. Code Ann. 550.023(3).

When confronted with an attack upon the constitutionality of a statute, we presume that the statute is valid and that the Legislature has not acted unreasonably or arbitrarily. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002). The burden rests upon the individual challenging the statute to establish its unconstitutionality. Id. In the absence of contrary evidence, we will presume that the Legislature acted in a constitutionally sound fashion. Moreover, we uphold a statute if we can determine a reasonable construction that will render it constitutional and carry out the legislative intent. Sheldon v. State, 100 S.W.3d 497, 500 (Tex. App Austin 2003, pet. ref d).

Guerra attacks the constitutionality of the statute on its face. A facial challenge to the statute is difficult because the challenger must establish that no set of circumstances exists under which the statute will be valid. Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992); Reger v. State, 222 S.W.3d 510, 514 (Tex. App. Fort Worth 2007, pet. ref d), cert. denied, 128 S. Ct. 917 (2008).

A. Fundamental Rights Violations

Guerra claims section 550.023 is unconstitutional because it violates her fundamental rights of liberty, expression and privacy, thereby depriving her of her fundamental right to be let alone. Taken to its logical conclusion, Guerra is asserting a fundamental right to hit someone with her vehicle and not stop and provide any assistance to the victim. No cases or references are cited in support of Guerra s claims and we have found no cases holding that the requirement to provide assistance when involved in an accident involving personal injury or death implicates any fundamental rights. Accordingly, we hold that Transportation Code section 550.023 does not implicate any rights that the Supreme Court has heretofore classified as fundamental.

B. Due Process, Vagueness and Establishment Clause Violations

Guerra next argues that the statute is unconstitutional because section 550.023(3) requires that the operator of the vehicle provide any person injured in the accident reasonable assistance and the term reasonable assistance is not defined and the statute is, therefore, void. A criminal statute that either fails to provide a person of ordinary intelligence reasonable notice of what is prohibited or required or establishes determinate guidelines for law enforcement officers is unconstitutionally vague. Long v. State, 931 S.W.2d 285, 287-88 (Tex. Crim. App. 1996). A statute is not vague because the words used in the statute are not specifically defined. Sheldon, 100 S.W.3d at 500. Moreover, [a] statutory provision need not be mathematically precise; it need only give fair warning in light of common understanding and practices. State v. Fry, 867 S.W.2d 398, 401 (Tex. App. Houston [14th Dist.] 1993, no pet.) (citing Grayned v City of Rockford, 408 U.S. 104, 110-111 (1972)).

The meaning of the term reasonable assistance is enumerated within the Transportation Code to include: transporting or making arrangements for transporting the person to a physician or hospital for medical treatment if it is apparent that treatment is necessary, or if the injured person requests the transportation. Tex. Transp. Code Ann. 550.023(3). On the most basic level, Guerra was driving, hit someone, did not stop and did not provide any assistance. Because section 500.023(3) is not impermissibly vague in all its applications, Guerra s vagueness challenge fails. Moreover, when challenging a statute for vagueness, a defendant must show that the statute as it applies to her in her situation is unconstitutional. In this case, there is no dispute that the conduct Guerra allegedly committed is prohibited by section 500.023(3).

In her sixth issue, Guerra complains that the statute violates her due process rights by placing the burden on the defendant to rebut the charge that she failed to render reasonable assistance after the accident in the indictment. We disagree. A plain reading of the Transportation Code requires the State prove each element of the offense and does not place any burden on the defendant. The jury instructions further emphasized the State s burden of proof. More specifically, the charge required the State prove each and every element of the offense charged beyond a reasonable doubt, and if it failed to do so, the jury was instructed that it must acquit the defendant. Because the State bore the burden to prove each element of the offense, we overrule this issue.

C. Establishment Clause

With regard to her Establishment Clause argument, Guerra contends that section 550.023(3) is nothing more than the codification of Christian principles and that the legislature is imposing Christian conduct, custom, philosophy and principles to all drivers to be Good Samaritans. This argument is without merit. The Establishment Clause prohibits the government from making laws either establishing a religion or prohibiting the free exercise thereof. U.S. Const. amend. I. A statute does not violate the Establishment Clause just because it is consistent with religious views. Harris v. McRae, 448 U.S. 297, 319-20 (1980). Accordingly, we overrule this issue.

Trial Court Instructions

In points of error three and ten through fifteen, Guerra complains of the court s charge to the jury. It is important to note that defense counsel made no objections to the charge and offered no additional language for the charge. When reviewing a jury charge, an appellate court first examines the charge for error. See Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005) (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)). If error occurred, we must determine whether the error caused harm. See id. Where, as here, the defendant does not object to the charge, he must show egregious harm to be entitled to reversal. See Ngo, 175 S.W.3d at 743-44 (citing Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim. App. 2004)); De Los Santos v. State, 219 S.W.3d 71, 78 (Tex. App. San Antonio 2006, no pet.).

A. Reliability Instruction

Guerra asserts the trial court erred in not providing a reliability instruction to the jury in regard to a 911 audio tape.[3] During trial, the State offered two recordings of 911 calls relating to the incident. The first call was placed by Guerra to 911 reporting her car stolen. The second recording, at issue here, was of a subsequent conversation between the 911 dispatcher and Guerra relating to the incident.[4] Guerra however, never objected to the portion of the second recording played to the jury and admitted by the court. Tex. R. App. P. 33.1 ( As a prerequisite to presenting a complaint for appellate review, the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion . . . ). We overrule this issue.

2. Definition of Conduct

Guerra next complains that the definition of conduct in the trial court s jury instruction was incomplete resulting in a lessening of the State s burden of proof. The trial court provided the following instruction to the jury: The word conduct as used herein means an act or omission and its accompanying mental state. No objection was lodged by defense counsel. Even if Guerra had objected to the court s charge, this language is taken directly from Section 1.07 (a)(10) of the Texas Penal Code. Tex. Pen. Code 107(a)(10). Guerra complains, however, that the instruction is incomplete and vague since accompanying mental state is not defined. The remainder of the charge specifically denotes the mental state required for the offense and instructs the jury that the burden of proof rests solely on the State. Because Guerra failed to object to the jury charge and the language sufficiently tracks the Penal Code, we overrule this issue. Tex. R. App. P. 33.1.

3. Guilt Instruction

Guerra also contends the trial court erred by not providing the following instruction: You are required to vote not guilty, if you have not reached a subjective state of near certitude of the guilt of the accused, do all of you understand this? Guerra cites to no authority that mandates such language. By failing to properly brief the issue presented, Guerra has presented nothing for us to review. Tex. R. App. P. 38.1(h) (stating that appellant s brief must include a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record ).

4. Dynamite Charge

Guerra next complains that the trial court erred in giving a dynamite or Allen charge to the jury. Normally a dynamite charge refers to a charge given to a deadlocked jury in an attempt to remove obstacles to the return of a unanimous verdict.[5] Here, Guerra is referring to language in the charge provided to the jury at the beginning of their deliberations, and there was no deadlocked jury in this case. Once again, however, Guerra did not object before the trial court and failed to preserve error on this point. Tex. R. App. P. 33.1.

Even assuming preservation of error, the language to which Guerra objects is: In the course of deliberations, a juror should not hesitate to re-examine their own views and change their opinion if convinced it is erroneous. Guerra s citation is incomplete. The charge goes on to state: However, no juror should surrender their honest conviction as to the weight or effect of the evidence solely because of the opinion of their fellow jurors or for the mere purpose of returning a verdict. Guerra contends that this is coercive language which was given prematurely in the initial jury charge. However, the language is identical to that found in a number of cases including Galvan v. State, 995 S.W.2d 764, 766 (Tex. App. San Antonio 1999, no pet.), Garza v. State, 974 S.W.2d 251, 255-56 (Tex. App. San Antonio 1998, pet. ref d), and Love v. State, 909 S.W.2d 930, 936 (Tex. App. El Paso 1995, pet. ref d). Notably, the objectionable language was held in Garza to encourage the jury to deliberate with a view of reaching an agreement. Garza, 974 S.W.2d at 256. The Garza court specifically held that the remainder of the language in the charge including the precise language complained of by Guerra sufficed to eliminate any potential for collusion. Id. Thus, consistent with the outcome in Garza, we conclude that the instructions in this case were not coercive. Because the instructions were not coercive, the trial court did not err in including the instructions in the charge. We, therefore, overrule this point of error.

5. Knowledge of Occurrence of Accident

Guerra contends the trial court erred by not providing an instruction on the appropriate culpable mental state. Specifically, Guerra complains that the trial court did not define that knowledge of the occurrence of an accident is necessarily the culpable mental state required for conviction for failure to render assistance. Without such an instruction Guerra argues the State s burden of proof was lessened. We disagree.

Once again, assuming preservation of error, the court s instructions included a requirement that the State establish beyond a reasonable doubt that defendant did thereafter, knowing said accident had occurred, intentionally or knowingly fail to render Victor Lee Ismael Deleon reasonable assistance . . . . Because the issue was not preserved and the instruction properly identified the burden, we overrule this point of error. Tex. R. App. P. 33.1.

Ineffective Assistance of Counsel

In point sixteen, Guerra complains that trial counsel rendered ineffective assistance of counsel for failing to file and request an instruction on the admissibility of the second 911 tape and for failing to request a jury instruction that knowledge of occurrence of accident is a necessary culpable mental state. Guerra also complains that her counsel failed to retain a defense DNA expert to perform an independent test on DNA physical evidence obtained by the State.

A. Standard of Review

The standard for determining whether a defendant has been deprived of his right to effective assistance of counsel is the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668 (1984). To establish ineffective assistance of counsel, a convicted defendant must show: (1) his trial counsel s performance was deficient in that counsel made such serious errors that he was not functioning effectively as counsel; and (2) the deficient performance prejudiced the defense to such a degree that the defendant was deprived of a fair trial. Id. at 687. A claim of ineffective assistance of counsel must be firmly founded in the record and the record must affirmatively demonstrate the meritorious nature of the claim. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Counsel s conduct is reviewed with great deference and without the deleterious effects of hindsight. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

We note that a direct appeal is usually an inadequate vehicle for raising an ineffective assistance of counsel claim because the record is generally undeveloped, providing no explanation for counsels actions. Goodspeed, 187 S.W.3d at 392. [T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). In the absence of a developed evidentiary record which adequately reflects the motives behind counsel s action and inaction, it is extremely difficult to prove that counsel s performance was deficient. Id. Absent record evidence to the contrary, we must presume that counsel s conduct fell within the wide range of reasonable professional assistance. Goodspeed, 187 S.W.3d at 392 ( Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was so outrageous that no competent attorney would have engaged in it. ).

B. Analysis

We have previously reviewed the lack of instructions related to the 911 tape and to the culpability complained of by Guerra and held that the lack of such instructions was not error. Moreover, there is no record by which we can determine a deficient performance or sufficient prejudice. As to the DNA, Guerra asserts that if counsel had obtained a blood sample from the victim and retested the blood found on Guerra s bumper and the DNA reflected it was not from the victim, then it would have exonerated her. Such speculation, however, is unwarranted based on this record. There is no evidence that this was not a strategic decision of counsel and that there is a reasonable probability that, but for counsel s omission the result of the proceeding would have been different. Strickland, 466 U.S. at 694. This issue is overruled.

Diminished Capacity and Insufficient Evidence

A. Diminished Capacity

In issue number seven, Guerra complains that under the diminished capacity or diminished responsibility doctrine she should not be held accountable. Guerra asserts that she was suffering from an emotional disturbance and taking medications and, therefore, lacked the specific intent to knowingly fail to render aid. Guerra points to the second 911 call wherein Guerra was evidently upset and disturbed because of the incident. Guerra claims her testimony establishes she was under the influence of numerous medications and beer at the time of the incident.

We first note that, according to the record, the incident occurred several hours before the second 911 call. In her testimony, Guerra asserted that she no longer drank beer because of her medications. Yet, in her statement to the police, she indicated that she consumed a six pack of beer that night. Guerra testified that she took several medications for her lupus but there was no testimony that the medications affected her mental state. Texas does not recognize diminished capacity as an affirmative defense. Jackson v. State, 160 S.W.3d 568, 573 (Tex. Crim. App. 2005). As in Jackson, the real complaint urged by Guerra is a failure of proof of her defense that the State failed to prove that Guerra had the required state of mind at the time of the offense. In fact Guerra argues: the State failed to prove the intent requirement in the indictment and appellant is entitled to an acquittal on appeal. We, therefore, turn to an analysis of the sufficiency of the evidence.

B. Insufficient Evidence

Guerra complains that the evidence is factually and legally insufficient to sustain a conviction. In a legal sufficiency review, we examine the evidence in the light most favorable to the verdict, and ask whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (en banc). For a factual sufficiency review, we look at all the evidence in a neutral light to determine if the evidence is so weak that the jury s verdict seems clearly wrong and manifestly unjust, or that the great weight and preponderance of the evidence contradicts the jury s verdict. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006).

To prove the failure to stop and render assistance, the State has to prove as follows: (1) an operator of a vehicle; (2) intentionally or knowingly; (3) involved in an accident; (4) resulting in personal injury or death; (5) fails to stop and render reasonable assistance. McCown v. State, 192 S.W.3d 158, 162 (Tex. App. Fort Worth 2006, pet. ref d); Steen v. State, 640 S.W.2d 912, 915 (Tex. Crim. App. 1982). The last element is satisfied upon proof that an operator of a vehicle knowingly involved in an accident involving injury or death failed to provide any person injured in the accident reasonable assistance if it was apparent that treatment was necessary. McCown, 192 S.W.3d at 162; Tex. Transp. Code Ann. 550.021(a), (c), 550.023.

Here, it is undisputed that the DeLeon was hit by a vehicle that did not stop. Scientific evidence established that the blood on Guerra s vehicle matched that of the victim. After Guerra reported her car stolen, she spoke to the 911 dispatcher and stated that she had hit a boy, although she ultimately testified at trial that it was a different boy from the victim. We, therefore, conclude that there was legally sufficient evidence to convict Guerra. Additionally, because the jury was free to believe one witness testimony over another, we cannot conclude that the evidence is so weak that the jury s verdict seems clearly wrong and manifestly unjust, or that the great weight and preponderance of the evidence contradicts the jury s verdict. Accordingly, we hold that there was factually sufficient evidence to convict Guerra.

Conclusion

Guerra failed to establish any constitutional rights were violated in this case. The instructions given by the trial court were not erroneous and the record does not support Guerra s ineffective assistance of counsel claim. Additionally, there was legally and factually sufficient evidence to uphold the guilty verdict. We therefore affirm the judgment of the trial court.

Rebecca Simmons, Justice

DO NOT PUBLISH

 

 

[1] States Exhibits 24 and 25, which consisted of 911 recordings, were not transcribed by the court reporter and are not included in the record before this court. The description of the contents of the tape comes from Guerra s testimony.

[2] Texas Transportation Code section 550.021 provides:

(a) The operator of a vehicle involved in an accident resulting in injury to or death of a person shall:

(1) immediately stop the vehicle at the scene of the accident or as close to the scene as possible;

(2) immediately return to the scene of the accident if the vehicle is not stopped at the scene of the accident; and

(3) remain at the scene of the accident until the operator complies with the requirements of Section 550.023.

Tex. Transp. Code Ann. 550.021.

Texas Transportation Code section 550.023 provides:

The operator of a vehicle involved in an accident resulting in the injury or death of a person or damage to a vehicle that is driven or attended by a person shall:

(1) give the operator's name and address, the registration number of the vehicle the operator was driving, and the name of the operator's motor vehicle liability insurer to any person injured or the operator or occupant of or person attending a vehicle involved in the collision;

(2) if requested and available, show the operator's driver's license to a person described by Subdivision (1); and

(3) provide any person injured in the accident reasonable assistance, including transporting or making arrangements for transporting the person to a physician or hospital for medical treatment if it is apparent that treatment is necessary, or if the injured person requests the transportation.

Tex. Transp. Code Ann. 550.023.

[3] Guerra contends the trial court was mandated to instruct the jury that before the jury could accept the accuracy and reliability of the second 911 tape, it had to find the State had proven beyond a reasonable doubt that the tape was accurate and reliable.

[4] A portion of the second recording was suppressed by the trial court.

[5] A dynamite or Allen charge is a charge sometimes given to a deadlocked jury. See Barnett v. State, 189 S.W.3d 272, 277 n. 13 (Tex. Crim. App. 2006); Garza v. State, 974 S.W.2d 251, 255 n. 1 (Tex. App. San Antonio 1998, pet. ref d).