Enrique Sanchez Salazar v. State
474 S.W.3d 832
| Tex. App. | 2015Background
- On July 19, 2013, police pursued a minivan that crashed; Salazar and others exited and fled on foot; Salazar was later found hiding and arrested.
- At state trial Salazar was charged with evading arrest while using a motor vehicle under Tex. Penal Code § 38.04(b).
- The State admitted Salazar’s federal plea agreement (in which he admitted driving the vehicle transporting undocumented aliens) through his federal defense counsel, who was ordered to testify.
- Salazar requested a jury instruction on the lesser-included offense (evading arrest on foot); the trial court refused and the jury convicted him of evading with a motor vehicle.
- Salazar elected judge sentencing; the court found two prior felonies true (including a 2009 aggravated-assault conviction labeled a state-jail felony) and imposed 38 years’ imprisonment under habitual-offender enhancement.
- Salazar appealed, raising: (1–3) jury-charge and attorney-client privilege concerns over lesser-included instruction; (4) improper use of a state-jail felony for enhancement; and (5) statutory ambiguity in § 38.04’s 2011 amendments.
Issues
| Issue | Plaintiff's Argument (Salazar) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether trial court erred by refusing lesser-included instruction (evading on foot) | Evidence (shirt color discrepancy; no direct eyewitness to driving) raised fact issue that he was not driving, so lesser offense instruction was warranted | Evading with vehicle under § 38.04(b) requires only that defendant "used" a vehicle while fleeing, not that he drove it; Salazar admitted being in the vehicle during chase | No error — evading on foot not a valid rational alternative because evidence established Salazar used the vehicle while fleeing; court affirmed denial of instruction |
| Whether testimony from Salazar’s federal counsel violated attorney-client privilege and tainted proof of driving | Counsel’s compelled testimony produced the only direct statement that Salazar drove the van, violating privilege and warranting relief | Any error is harmless because driving is immaterial under § 38.04(b) (use of vehicle suffices) | Overruled — even if privileged testimony issue existed, it is harmless because driving is not required to convict under subsection (b) |
| Whether the 2009 aggravated-assault (labeled a state-jail felony) could be used to enhance under § 12.42(d) | The 2009 judgment labeled the offense a state-jail felony, so it cannot be used to enhance under § 12.42(d) if it was under § 12.35(a) | The underlying offense was an aggravated state-jail felony punishable under § 12.35(c) (aggravated variant), and the 4-year sentence fits § 12.35(c) — thus it is usable for enhancement | Overruled — legally sufficient evidence that the prior was an aggravated state-jail felony under § 12.35(c), so it could be used for habitual-offender enhancement |
| Whether 2011 statutory amendments to § 38.04 created ambiguity/conflict so evading-with-vehicle should be a state-jail felony (or interpreted in Salazar’s favor) | Multiple 2011 amendments conflicted; ambiguity requires rule of lenity and a construction favoring lesser punishment (state-jail felony) | The 2011 bills can be harmonized under the Code Construction Act; SB 1416 modifies punishment making evading with vehicle a third-degree felony | Overruled — courts can harmonize the amendments; evading with a vehicle is a third-degree felony; rule of lenity not applied |
Key Cases Cited
- Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (standard for jury-charge error and harm analysis)
- Rice v. State, 333 S.W.3d 140 (Tex. Crim. App. 2011) (two-step lesser-included-offense analysis)
- Barrios v. State, 283 S.W.3d 348 (Tex. Crim. App. 2009) (Almanza application; harmless/some-harm standard)
- Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007) (lesser-included offense and evidence required)
- Bignall v. State, 887 S.W.2d 21 (Tex. Crim. App. 1994) (insufficient for lesser instruction when no direct evidence germane to lesser offense)
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (standard for sufficiency of the evidence review)
- Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) (Jackson standard applied in Texas)
- Webb v. State, 12 S.W.3d 808 (Tex. Crim. App. 2000) (classification of aggravated state-jail felony under § 12.35(c))
- Campbell v. State, 49 S.W.3d 874 (Tex. Crim. App. 2001) (use of aggravated state-jail felony for enhancement)