TEOFILO NORBERTO FLORES v. THE STATE OF TEXAS--Appeal from County Court at Law No 2 of Cameron County

NUMBER 13-03-050-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

  TEOFILO NORBERTO FLORES, Appellant,

v.

  THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the County Court at Law No. 2

of Cameron County, Texas.

_ _________________________________________________________________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Justice Rodriguez

Appellant, Teofilo Norberto Flores, was charged with the offense of terroristic threat. See Tex. Pen. Code Ann. ' 22.07(a)(2) (Vernon Supp. 2004-05) (stating "[a] person commits an offense if he threatens to commit any offense involving violence to any person or property with intent to . . . place any person in fear of imminent serious bodily injury"). The jury found appellant guilty of the charged offense, and the trial court assessed punishment at confinement in the Cameron County Jail for six months, suspended to twelve months community supervision. The trial court has certified that this case is not a plea bargain case and the defendant has the right of appeal. See Tex. R. App. P. 25.2(a)(2). By twelve issues, Flores complains that the trial court erred when it (1) allowed the amendment of the information on the day of trial, (2) refused to include a self-defense instruction in the charge, (3) refused to declare a mistrial that was based on alleged jury misconduct, (4) denied his motion for new trial and his motion to reconsider its ruling on his motion for new trial, (5) allegedly commented on the weight of the evidence, and (6) admitted an extraneous offense into evidence. Flores also urges ineffective assistance of counsel and asks this Court to remand for clarification of the judgment. We affirm.

I. Facts

All issues of law presented by this case are well settled, and the parties are familiar with the facts. Therefore, we will not recite the law or the facts in this memorandum opinion, except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.

II. Analysis

A. Amendment of Charging Instrument

In his first issue, Flores complains that the trial court erred in overruling his objection to the trial court's amendment of the charging instrument on the day the trial began.[1] The trial court, however, did not overrule his objection; it granted his request for an additional ten days to prepare for trial on the terroristic threat charge. See Tex. Code Crim. Proc. Ann. art. 28.10(a) (Vernon 1989) (providing "[o]n the request of the defendant, the court shall allow the defendant not less than 10 days, or a shorter period if requested by the defendant, to respond to the amended indictment or information"). The second charge of unlawfully carrying a weapon by a concealed handgun license holder was not amended, however, and was ready for trial. Flores elected to proceed to trial on both charges and, thus, waived his right to additional time to respond to the amended charging instrument. See id. at art. 1.14(a) (Vernon 2005) (stating "[t]he defendant in a criminal prosecution for any offense may waive any rights secured him by law"). Flores's first issue is overruled.

B. Self-Defense

By issues two through five and issue eight, Flores generally challenges the trial court's rulings and defense counsel's performance related to self-defense. More specifically, Flores contends trial counsel was ineffective because he did not request an instruction on self-defense, that the evidence was insufficient to disprove self-defense, and that the trial court's alleged failure to instruct the jury on self-defense was egregious error. We disagree.

Self-defense is a justification defense under chapter nine of the penal code. See Tex. Pen. Code Ann. ' 9.31 (Vernon 2003). When a defendant categorically denies committing the charged offense, his argument does not present evidence of a justification defense. See Young v. State, 991 S.W.2d 835, 839 (Tex. Crim. App. 1999) (en banc) (defense of necessity); East v. State, 76 S.W.3d 736, 738 (Tex. App.BWaco 2002, no pet.) (self defense); Gilmore v. State, 44 S.W.3d 92, 96 (Tex. App.BBeaumont 2001, pet. ref'd) (self defense) ("The logical corollary to being entitled to an instruction informing the jury that the charged conduct was excusable under the law is that the accused admit to having committed the charged conduct in the first place.").

Flores testified that "[he] was just telling [the victim], 'Just stay away from me and my boy. I am just leaving.'" Testimony also revealed that Flores had a gun in his jacket and that Flores opened his jacket when he advised the victim he had a gun and would use it if he was attacked. Flores testified he did not pull the gun out of his pocket. Flores pleaded not guilty to the charge of terroristic threat. On appeal, Flores continues to contend that his statements, which he alleges constitute a conditional threat, do not satisfy the intent element of terroristic threat. Compare Bryant v. State, 905 S.W.2d 457, 460 (Tex. App.BWaco 1995, pet. ref'd) (concluding there was no evidence that the conditional threat was accompanied with a threat of serious bodily injury to be inflicted imminently) with Cook v. State, 940 S.W.2d 344, 348-49 (Tex. App.BAmarillo 1997, pet. ref'd) (holding cumulative effect of threats gave credence to the jury's finding that appellant intended to place his victim in fear of imminent serious bodily injury).

We conclude that because Flores categorically denied committing any offense and continues to do so on appeal, he was not entitled to a self-defense charge. See Sanders v. State, 707 S.W.2d 78, 81 (Tex. Crim. App. 1986) (en banc) (concluding that "evidence which constitutes a defense requires the accused to admit the commission of the offense, but to justify or excuse his actions so as to absolve him of criminal responsibility for engaging in conduct which otherwise constitutes a crime"); Ford v. State, 112 S.W.3d 788, 794 (Tex. App.BHouston [14th Dist.] 2003, no pet.) (holding that to raise the issue of self-defense, appellant must admit he committed the offense and then offer self-defense as a justification defense). The court, therefore, did not err in denying Flores's requested charge on self-defense, the record does not support his ineffective assistance claim, and it is unnecessary for us to reach the sufficiency issues. We overrule Flores's second, third, fourth, fifth and eighth issues.

C. Extraneous Offense

Flores contends by his sixth issue that the trial court erred in admitting, over objection, a non-final extraneous offense of unlawfully carrying a weapon. However, our review of the record reveals that the trial court did not admit Flores's testimony regarding the extraneous offense, but rather sustained his objection.

Flores complains about the following exchange:

State: Were you ever arrested [for] unlawful carrying of a weapon?

Flores: Yes, I was.

Defense

Counsel: Your Honor, I am going to have to object. Counsel is not B may we approach, Your Honor?

The Court: You may. What was the question?

(At the Bench, off the record)

* * * * *

Defense

Counsel: Your Honor, I would object to that question, and I will move for a mistrial at this time.

The Court: I am going to deny the mistrial.

Defense

Counsel: Will you grant the objection?

The Court: I will grant the objection. I will sustain the objection.

Although Flores failed to request an instruction to disregard his response that he had been previously arrested for unlawfully carrying a weapon, he did move for a mistrial. Therefore, we construe this sixth issue as one complaining of the trial court's alleged error in failing to grant a mistrial.

A mistrial is a remedy appropriate for a narrow class of highly prejudicial and incurable errors. Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). In light of the arguments that were before the trial court at the time it denied a motion for mistrial, see Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004), an appellate court reviews the denial under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). In this case, error, if any, in denying the motion for mistrial was not clearly prejudicial to Flores and of such character as to suggest the impossibility of withdrawing the impression produced in the minds of the jurors had an instruction been requested and given.[2] See id. Therefore, in light of the arguments before the trial court when it ruled, the trial court did not abuse its discretion in denying Flores's motion for mistrial. We overrule Flores's sixth issue.

D. Jury Misconduct

In issue seven, Flores complains that the trial court erred in denying his request for a mistrial that was based on jury misconduct. Flores asserts that jury deliberations occurred outside the jury room. However, the record does not disclose that any deliberation took place prior to the jury retiring for deliberations. It reflects that the trial court admonished two jurors by saying, "You are not allowed to speak to each other . . . especially about the case." Flores's counsel stated that he would object "if the jurors are discussing the case and not keeping an open mind." There is nothing in the record that establishes the content of the jurors' conversation. The trial court did not inquire as to the nature of the jurors' conversation, and no hearing for the purposes of examining the jurors accused of misconduct was held. See Granados v. State, 85 S.W.3d 217, 235-37 (Tex. Crim. App. 2002); see also Quinn v. State, 958 S.W.2d 395, 403 (Tex. Crim. App. 1997) (concluding "an inquiry is appropriate to determine the juror's intent"). We have nothing presented for our review, therefore, we cannot conclude the trial court erred in denying Flores's request for a mistrial. Flores's seventh issue is overruled.

E. Motion for New Trial

In issues nine and ten, Flores complains that the trial court erred by denying his motions for new trial and his motion to reconsider without holding hearings to address counsel's alleged failure to request a self-defense instruction. Flores, however, was entitled to a hearing on his motions for new trial only if the motions and accompanying affidavits "raise[d] matters not determinable from the record, upon which the accused could be entitled to relief." Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003) (en banc) (quoting Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993) (en banc)).

As set out above in issues two through five and eight, the record from the trial court clearly reflects Flores denied having committed the offense of terroristic threat, and, therefore, he was not entitled to a self-defense instruction. See Ford, 112 S.W.3d at 794. The trial court did not abuse its discretion in denying a hearing on his motions. We overrule issues nine and ten.

F. Comment on the Weight of the Evidence

Flores argues, in his eleventh issue, that the trial court's questioning of Flores constituted a comment on the weight of the evidence. However, nothing is presented for our review because Flores did not object to the complained-of questioning. See Mestiza v. State, 923 S.W.2d 720, 724 (Tex. App.BCorpus Christi 1996, no pet.) (holding timely proper objection was necessary to preserve error concerning trial court's comment on weight of evidence); Lookingbill v. State, 855 S.W.2d 66, 77 (Tex. App.BCorpus Christi 1993, pet ref'd) (holding defendant must object to judicial comment on evidence at trial in order to preserve error for appellate review). Accordingly, we overrule appellant's eleventh issue.

G. Pronouncement of Guilt and Re-sentencing

In his twelfth issue, Flores complains that because the trial court did not formally pronounce his guilt we should remand for formal pronouncement of guilt and re-sentencing. However, without objection, the trial court, in open court on December 11, 2002, accepted the jury's finding of guilty and sentenced Flores to six months in jail, probated the sentence for one year, assessed a fine of $500.00 and court costs, and ordered sixteen hours of community service. See Jones v. State, 795 S.W.2d 199, 201-02 (Tex. Crim. App. 1990) (A "defendant has been adjudged guilty when the verdict convicting him has been received and accepted by the trial judge. No further ritual or special incantation from the bench is necessary . . . beyond the pronouncement of sentence as required by law."). The trial court's order reflecting the above pronouncement was signed on January 13, 2003. We overrule Flores's twelfth issue.

III. Conclusion

Accordingly, we affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P.47.2(b).

Memorandum Opinion delivered and

filed this 18th day of August, 2005.

[1]The State sought to amend the date of the incident that formed the basis of the terroristic threat charge from April 9, 2002 to February 28, 2002.

[2]We note Flores did not request an instruction. See Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999) (setting out that the asking of an improper question will seldom call for a mistrial, because, in most cases, any harm can be cured by an instruction to disregard).