NUMBER 13-11-00442-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

DAVID SAMARIPAS JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 272nd District Court 

of Brazos County, Texas.

 

OPINION1

Before Justices Rodriguez, Benavides, and Perkes 

Opinion by Justice Perkes

Appellant, David Samaripas Jr., appeals his conviction for the offense of 

engaging in organized criminal activity, habitual offender. See TEX. PENAL CODE ANN. § 

71.02(a) (West 2011).2 The jury found appellant guilty of the offense and that he used 

 

1

This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to 

an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).

2

Appellant was previously tried and found guilty for this offense. Samaripas v. State, No. 10-09-

00044-CR, 2010 Tex. App. LEXIS 812 (Tex. App.—Waco 2010, pet. ref’d) (mem. op., not designated for 
2

or exhibited a deadly weapon, namely a firearm, during its commission. Enhanced by 

two prior offenses,

3

the jury assessed punishment at fifty-three years confinement in the 

Texas Department of Criminal Justice, Institutional Division. By four issues, appellant 

contends that: (1) the evidence is insufficient to prove that the offense was committed 

with the intent to establish, maintain, or participate as a member of a criminal street 

gang; (2) the trial court abused its discretion in limiting appellant’s voir dire examination 

of a veniremember; (3) the trial court erred by instructing the jury on the law of parties; 

and (4) appellant’s sentence was improperly enhanced with a state jail felony 

conviction. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

At approximately 1:30 a.m. on October 7, 2007, Onelia Lara exited the house

located at 1605 South College in Bryan, Texas. Immediately after closing the door, 

Lara felt uneasy because she saw a Chevrolet Suburban on the street and “a little black 

car” with its headlights turned off directly behind the Suburban. Lara walked toward her 

green Toyota Avalon. Suddenly, gunshots were fired in rapid succession from the front 

passenger side of the Suburban. Lara ducked behind her car as several shots were 

fired in her direction, hitting the house and a car parked in front of the house. 

Inside the house, Joe Luis Lopez heard the gunshots and the bullets “going 

through the house.” Lopez looked out the window and observed a “light-color SUV” 

driving away with its passenger side facing the house. Lopez ran outside. A police car 

 

publication). The Waco Court of Appeals, after concluding that appellant was egregiously harmed by 

errors in the charge to the jury, reversed and remanded the case for a new trial. Id. at *19.

3

 See TEX. PENAL CODE ANN. § 12.42(d) (West 2011). 
3

arrived within seconds, and Lopez told the officers in which direction the Suburban had 

driven. The officers drove away in that direction. 

Officers Steve Spillars and Mahoney4 were the officers in the police car. They 

were patrolling in that part of town because of recent gang violence in the area. The 

two most prominent street gangs in Bryan, Texas at that time were the “Surenos” and 

the “Latin Kings.” The two gangs were rivals. The residence at 1605 South College 

was considered “a known gang member house.” Andrew Lopez-Lucio, a Surenos 

member, lived at 1605 South College. Lara, who was “associated” with the Surenos, 

was his girlfriend, and Lopez, also a Surenos member, was his brother. 

Just hours before this shooting, a Latin Kings member shot four Surenos

members or affiliates, who were taken to the emergency room at Bryan’s Saint Joseph’s 

Hospital. An injured member of the Latin Kings was also at the hospital. Lucio had shot 

him a few days earlier. At approximately 11:00-11:30 p.m. that night, a different 

Surenos member was shot while leaving the hospital. The police were notified that a 

black car was connected to that shooting. 

Officer Spillars is a member of Bryan’s Police Department’s “Directed 

Deployment Team” (DDT), a vice unit that investigates street gangs and keeps

databases of known gang members. On the night of October 6, Officers Spillars and 

Mahoney were assigned to patrol certain areas of town, including the 1600 block of 

South College in Bryan. At approximately 1:30 a.m. on October 7, the officers were 

about three blocks away from 1605 South College. Upon hearing the gunshots, they 

rushed toward the 1600 block of South College.

 

4

 Officer Mahoney’s first-name was not provided in testimony.
4

Lopez described the Suburban to Officer Spillars and told him the direction in 

which it drove away. Driving in that direction, the officers saw a Suburban matching 

Lopez’s description about a half mile away. The officers, now joined by another police 

unit, “initiated a traffic stop by turning on our overhead lights.” The Suburban did not 

stop.

Officers Spillars and Mahoney pursued the Suburban as it made frequent turns, 

ran a red light, drove through residential areas of town, and then drove on a highway 

heading toward Burleson County at speeds “[r]ang[ing] from 60 miles an hour to 90 

miles an hour.” As the Suburban crossed the bridge over the Brazos River, Officer 

Spillars saw “something” get thrown out the front passenger window, over the rail, and 

toward the Brazos River. The chase continued into Burleson County, but dispatch had 

already informed deputies in that county that the chase was “fast approaching their 

location.” The deputies placed “stop sticks”5on the highway. The Suburban ran over 

the stop sticks and eventually came to a stop. Jeronimo Guedea Jr. (a/k/a Gudea)6 was 

the driver, and appellant was the front seat passenger. 

On the following day, Officer William Joseph Cross of the Bryan Police 

Department was dispatched to the Brazos River near the bridge to recover the item that 

had been thrown from the Suburban during the chase. Officer Cross found a black 

zipper bag with the words “ConvaTec Ostomy Care” on it on a bank of the river. Officer 

 

5

 Officer Spillars explained that “stop sticks” contained hollow, pointed steel rods that, when 

driven over, punctured a vehicle’s tires, causing the tires to deflate. 

6

 The spelling of Guedea’s name varies in the record. “Gudea” appears in the heading 

introducing his testimony. References to him in other testimony and exhibits are spelled “Guedea.”
5

Cross opened the colostomy bag and found a black nine-millimeter Beretta handgun, 

three firearm magazines, a cell phone, and two quarters. 

The colostomy bag belonged to appellant. He had been shot about one month 

before this event during an altercation between Surenos and Latin Kings members. As 

a result of his injury, appellant began using a colostomy bag. A police investigation into 

appellant’s injury resulted in Lucio’s arrest and subsequent indictment for engaging in 

organized criminal activity. The underlying offense for that charge was Lucio’s assault 

on appellant. Appellant informed the investigating officer that Lara had also been 

present at that altercation. Detective Lance Matthews, a detective with the Criminal 

Investigations Division at the Bryan Police Department, was the investigating officer in 

that shooting, and he provided testimony at appellant’s trial regarding the details of that 

investigation. 

Officer Mike Kneese works in the Criminal Intelligence Unit at the Bryan Police 

Department. He testified as an expert on criminal street gangs and told the jury that 

appellant was a member of the Latin Kings. Emil Carlos Garza Sr., a “Program 

Supervisor One with the Security Threat Management Office” at the TDCJ, also testified 

that appellant was a member of the Latin Kings. Detective Stephen Fry, who works in 

the Major Crimes Unit in the Criminal Investigations Division of the Bryan Police 

Department, testified to what appellant told him during appellant’s post-arrest interview.7

Among other things, appellant told Detective Fry that Guedea was not involved in the 

offense. 

 

7

 Appellant waived his Miranda rights and talked freely with Officer Fry.
6

Officer Jean Guzman works in the Patrol Division of the Bryan Police 

Department. She testified that she found eleven cartridge cases on the side of the 

street where 1605 South College was located—the side of the street that the passenger 

side of the Suburban had faced. Jamie Becker, a firearm and tool mark examiner 

working as a senior criminalist at the Tarrant County Medical Examiner’s Office, testified 

that the Beretta handgun shot the bullets and ejected the cartridge cases recovered 

from the crime scene. A DVD recording, which was recorded by a camera in Officer 

Spillars’s patrol unit, was played for the jury. Guedea testified, claiming all responsibility 

for the shooting and flight from the police. 

The jury found appellant guilty of engaging in organized criminal activity. This 

appeal followed.

II. SUFFICIENCY OF THE EVIDENCE

By his second issue,8appellant argues that the evidence was insufficient to 

prove that the offense was committed with the intent to establish, maintain, or 

participate as a member of a criminal street gang. We disagree. 

A. Standard of Review

“The standard for determining whether the evidence is legally sufficient to 

support a conviction is ‘whether, after viewing the evidence in the light most favorable to 

the prosecution, any rational trier of fact could have found the essential elements of the 

crime beyond a reasonable doubt.’” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex.

Crim. App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in 

original); see Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality 

 

8

 We reorganized appellant’s issues so as to first address the issue seeking the greatest relief.
7

op.). The fact-finder is the exclusive judge of the credibility of witnesses and of the 

weight to be given to their testimony. Anderson v. State, 322 S.W.3d 401, 405 (Tex.

App.—Houston [14th Dist.] 2010, pet. ref’d) (citing Lancon v. State, 253 S.W.3d 699, 

707 (Tex. Crim. App. 2008)). Reconciliation of conflicts in the evidence is within the 

fact-finder’s exclusive province. Id. (citing Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim.

App. 2000)). We must resolve any inconsistencies in the testimony in favor of the 

verdict. Id. (citing Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000)).

We measure the sufficiency of the evidence by the elements of the offense as 

defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 

(Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 

1997)). Such a charge is one that accurately sets out the law, is authorized by the 

indictment, does not unnecessarily increase the State’s burden of proof or 

unnecessarily restrict the State’s theories of liability, and adequately describes the 

particular offense for which the defendant was tried. Id. 

A person commits the offense of engaging in organized criminal activity if, with 

the intent to establish, maintain, or participate in a combination or in the profits of a 

combination or as a member of a criminal street gang, he commits or conspires to 

commit one or more of certain enumerated offenses. TEX. PENAL CODE ANN. § 71.02(a) 

(West 2011); see Smith v. State, 36 S.W.3d 908, 909 (Tex. App.—Houston [1st Dist.] 

2001, pet. ref’d). Relevant to this appeal, one of the enumerated offenses is “Deadly 

Conduct,” and one of the manners in which a person commits “Deadly Conduct” is by 

knowingly discharging a firearm at or in the direction of one or more individuals or a 
8

habitation or vehicle and being reckless as to whether the habitation or vehicle is 

occupied. See TEX. PENAL CODE ANN. §§ 22.05(b), 71.02(a) (West 2011). 

B. Analysis

Appellant does not dispute being a member of the Latin Kings or even that he 

was the actor who committed the deadly conduct offense. Appellant challenges the 

sufficiency of the evidence to show that he acted with the intent to establish, maintain, 

or participate in a criminal street gang, namely the Latin Kings. Appellant contends that 

the evidence, at best, supports a conclusion that the offense was a retaliatory assault or 

a private vendetta by appellant against Lucio, the person who had shot appellant one 

month earlier. 

It is true that in order to sustain appellant’s conviction, the evidence must prove 

more than that he was a gang member and committed one of the enumerated offenses; 

the evidence must satisfy both of the statute’s mental-state requirements: the mental 

state for the commission of the enumerated offense and the mental state to establish, 

maintain, or participate in the criminal street gang. See Hart v. State, 89 S.W.3d 61, 

63–64 (Tex. Crim. App. 2002) (en banc); see also Zavala v. State, Nos. 13-10-00254-

CR, 13-10-00255-CR, 2012 Tex. App. LEXIS 1447, at *13 (Tex. App.—Corpus Christi 

Feb. 23, 2012, no pet.) (mem. op., not designated for publication). Direct evidence of a 

requisite intent, however, is not required. Hart, 89 S.W.3d at 64. “A jury may infer 

intent from any facts which tend to prove its existence, including the acts, words, and 

conduct of the accused, and the method of committing the crime . . . .” Id. (quoting 

Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999) (J. Meyers concurring)) 
9

(internal quotation marks omitted); Trevino v. State, 228 S.W.3d 729, 736 (Tex. App.—

Corpus Christi 2006, pet. ref’d). 

In this case, the jury had sufficient evidence to find that appellant committed the 

offense with the intent to establish, maintain, or participate in the criminal street gang. 

Detective Matthews testified about his investigation into appellant’s injury that occurred 

one month before the shooting at 1605 South College. Detective Matthews contacted 

appellant while he was still in the hospital, but appellant was “uncooperative at that 

time.” Appellant, however, did tell him that he had been shot during an altercation 

between some Surenos and Latin Kings members. Appellant directed Detective 

Matthews to a person who could help identify the person who shot appellant. After 

talking to that person, Detective Matthews obtained an arrest warrant for Lucio for 

“organized criminal activity with [the] underlying charge being assault or aggravated 

assault” of appellant. Appellant also mentioned Lara, and later told Detective Matthews 

that she was “the one going around shooting up people in her little green car.”

Appellant later informed Detective Matthews that someone other than Lucio shot 

him. Appellant told Detective Matthews that he was injured while protecting Lucio and 

some other Surenos members who were “getting beat up” by some Latin Kings‘s

members. He further told Detective Matthews that he informed one of his friends, “This 

s__t is getting old. I can’t do this s__t because I’m going to retaliate. I’m not y’all. Y’all 

let this s__t ride. Y’all need to cut it out.” The indictment against Lucio was 

subsequently dismissed for lack of sufficient evidence. 

Detective Matthews testified, “[m]ost of the time when we work these ganginvolved shootings, we don’t get any cooperation by the victim when the victim is a gang 
10

member because they want to retaliate or take care of it on their own.” He noted that 

the Latin Kings follow a code, which includes the rule against cooperating with the 

police. 

Officer Kneese explained that the rule against talking to the police was 

established to “conceal illegal activity,” including retaliation. In Officer Kneese’s expert 

opinion, the motivation for the October 5, 2007 shooting was retaliation against the 

Surenos. On cross-examination, defense counsel asked Officer Kneese, “[t]he 

retaliation that we’re talking about is essentially Andrew [Lucio] shot David [appellant]; 

therefore, the Kings are going to shoot up the Sureno house. Is that pretty much your 

opinion?” Officer Kneese responded, “That’s part of it, yes.”

Detective Fry also concluded that appellant’s response was to retaliate. 

Appellant told him that he almost got a tattoo on the back of his head “that said ‘911’ 

scratched out” with “‘I retaliate’” written underneath it. Detective Fry testified that 

appellant told him that he had received a phone call informing him that “the Surenos 

were giving up names and vehicle descriptions of the people that were involved in that 

first shooting”—the one that occurred on the evening of October 6. Detective Fry read 

into evidence the following statement from appellant regarding the Surenos:

Them motherf___rs are a bunch of a g__d__n wetbacks, illegal 

alien motherf___rs that are running around here shooting motherf___rs all 

g__d__n day. And because a motherf___r has too much pride to call the 

cops and say, hey, they just shot at me, like a little f__king p___y q___r, 

we’re getting jammed up.

. . . .

. . . [Y]ou know how many times them motherf___rs have shot at 

somebody? You know how many times? . . . 
11

. . . .

On two different occasions my s__t got shot up, man. When did 

y’all ever hear me call y’all? Motherf___r, if you’re going to be a G in the 

g__d__n street, be a motherf__king G. Otherwise, b___h, if you’re going 

to tuck your nuts every time something bad happens to you, get your 

b___h a__ on, man.

But, what the f__k, he goes to calling y’all. Man, I be honest with 

you, man. I don’t start s__t. I finish s__t, baby. That is my—my—that is 

my motto. That is the way I keep things. I don’t start nothing. I finish.

. . . .

Man, what the f__k, man. I didn’t come to y’all, man. I didn’t go to 

y’all, f__king with y’all. I didn’t try to get y’all involved. I didn’t try to do 

s__t, man. But these dudes have got a lot of bad coming towards them, 

man.

Detective Fry explained that “G” means “a gangster,” and appellant’s comment 

about “G in the . . . street” reflects the common code amongst gangs to not “call the 

police [and] keep it in the streets[.]” While discussing the Surenos, appellant frequently 

used diction such as “us” and “we” when describing the Latin Kings and “they” or “them” 

when discussing the Surenos. Appellant told Detective Fry that “them” shot him. 

Appellant informed Officer Fry, “One of them [the Surenos] is going to die before it’s all 

over.”

Based on the foregoing evidence, we hold that a rational trier of fact could have 

found that appellant acted with the intent to establish, maintain, or participate in a 

criminal street gang. See Johnson, 364 S.W.3d at 293–94; Anderson, 322 S.W.3d at 

405; see also Samaripas v. State, No. 10-09-00044-CR, 2010 Tex. App. LEXIS 812 

(Tex. App.—Waco 2010, pet. ref’d) (mem. op., not designated for publication). We 

overrule appellant’s second issue. 
12

III. COMMITMENT QUESTIONS ON VOIR DIRE

Appellant argues that the trial court abused its discretion by limiting appellant’s 

voir dire examination of a veniremember. During voir dire, defense counsel asked a 

veniremember, “What type of evidence would you expect the State of Texas to bring to 

you in order to convince you that somebody committed an offense beyond a reasonable 

doubt?” The State objected to the question as an improper commitment question, and 

the trial court sustained the objection. Defense counsel rephrased the question: “What 

type of evidence would you expect to hear? What type of evidence do you expect the 

State of Texas to bring you . . . in an effort to prove to you beyond a reasonable doubt 

that someone committed an offense?” The State again objected, and the trial court 

sustained the objection. The following discussion took place at the bench:

COURT: You’re going to bind them to a certain level of evidence.

DEFENSE: Just asking them what do they expect the State of Texas to 

bring them evidence wise.

COURT: I don’t have a problem with that question. Ask it that way. 

Sustained.

. . . .

COURT: I can’t let them get committed to a certain proof in order to 

find somebody.

DEFENSE: I understand that.

Defense counsel again rephrased the question, “In a criminal case . . . what type 

of evidence would you expect to hear period?” The veniremember responded, 

“Factual.” Defense counsel probed further, “What type of factual evidence . . . ?” Other 

veniremembers provided examples, such as eyewitness testimony, physical evidence, 
13

or expert testimony. The State objected on the same grounds. The following exchange 

took place at the bench:

COURT: Make clear to them in your question that your question is 

predicated that there’re [sic] many different kinds of evidence 

some of it which you can hear, some of which you cannot 

hear. In other words, what you’re doing now, again, is 

binding them to hear certain evidence before they can say 

guilty.

DEFENSE: I respectfully disagree, your Honor. I’m just asking them 

their expectations for the trial.

COURT: Well, phrase it clearly that these may or may not be 

necessary to find reasonable doubt, please.

DEFENSE: Yes, sir. 

Defense counsel then informed the venire panel “that these items of evidence 

that we’re talking about here may or may not create reasonable doubt, may or may not 

convince you beyond a reasonable doubt . . . .” 

Assuming without deciding that the trial court abused its discretion by prohibiting 

defense counsel from asking a proper question about a proper area of inquiry, appellant 

did not object to the trial court’s ruling. In fact, other than disagreeing with trial court’s 

characterization of the question as a commitment question, defense counsel complied 

with the trial court’s rulings and rephrased the questions to better reflect his expressed 

intent to elicit the veniremember’s general expectations about the trial process. 

Defense counsel neither discussed nor challenged the ruling’s effect on the scope of 

voir dire until this appeal. Accordingly, appellant has failed to preserve this issue. 

Preservation of error is a systemic requirement that a first-level appellate court 

should ordinarily review on its own motion. See Archie v. State, 221 S.W.3d 695, 698 
14

(Tex. Crim. App. 2007) (citing Jones v. State, 942 S.W.2d 1, 2 n.1 (Tex. Crim. App. 

2007)). To preserve error, an appellant must submit a timely objection into the trialcourt record. See TEX. R. APP. P. 33.1(a); TEX. R. EVID. 103(a)(1). The error alleged on 

appeal must comport with the objection submitted to the trial court. See TEX. R. APP. P. 

33.1(a); Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004) (“The legal 

basis of a complaint raised on appeal cannot vary from that raised at trial”). Appellant 

preserved nothing for review. See TEX. R. APP. P. 33.1(a). We overrule his first issue. 

IV. JURY CHARGE

By his third issue, appellant argues that the trial court erred by including an 

instruction on the law of parties in the jury charge because the law of parties was not 

alleged in the indictment. Appellant acknowledges that current law permits a trial court 

to instruct on the law of parties even if it has not been alleged in the indictment, but 

appellant asserts that the caselaw establishing this policy is incorrectly decided and 

violates his statutory and constitutional rights. We disagree. 

A. Standard of Review

When an appellate court is presented with an argument that a trial court 

committed jury-charge error, the reviewing court must conduct a two-step inquiry: “First, 

the reviewing court must determine whether the jury charge contains error. Second, the 

court must determine whether sufficient harm resulted from the error to require 

reversal.” Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998) (en banc); see 

Benn v. State, 110 S.W.3d 645, 648 (Tex. App.—Corpus Christi 2003, no pet.). Once 

an appellate court finds jury-charge error, it applies one of the two following standards 

of review: “Where there has been a timely objection made at trial, an appellate court 
15

will search for only ‘some harm.’ By contrast, where the error is urged for the first time 

on appeal, a reviewing court will search for ‘egregious harm.’” Mann, 964 S.W.2d at 

641 (quoting Abdnor v. State, 871 S.W.2d 726, 731–32 (Tex. Crim. App. 1994)).

B. Analysis

“The purpose of the jury charge is to ‘apply the law to the facts raised by the 

evidence.’” Benn, 110 S.W.3d at 649 (quoting Williams v. State, 547 S.W.2d 18, 20

(Tex. Crim. App. 1977)). The law is well-settled that if the evidence presented at trial 

supports an instruction on the law of parties, the trial court “may charge on the law of 

parties even though there is no such allegation in the indictment.” Pitts v. State, 569 

S.W.2d 898, 900 (Tex. Crim. App. 1978) (en banc); see Marable v. State, 85 S.W.3d 

287, 287 (Tex. Crim. App. 2002) (“[I]t is well-settled that the law of parties need not be 

pled in the indictment.” (citing Malik v. State, 953 S.W.2d 234, 239 (Tex. Crim. App. 

1997); Jackson v. State, 898 S.W.2d 896, 898 (Tex. Crim. App. 1995); Fisher v. State, 

887 S.W.2d 49, 57 (Tex. Crim. App. 1994); Swope v. State, 805 S.W.2d 442 (Tex. Crim.

App. 1991); Montoya v. State, 810 S.W.2d 160, 165 (Tex. Crim. App. 1989); Crank v. 

State, 761 S.W.2d 328, 352 (Tex. Crim. App. 1988); Pitts, 569 S.W.2d at 900))); Gomez 

v. State, 13-09-00619-CR, 2010 Tex. App. LEXIS 10250, at *7–8 (Tex. App.—Corpus 

Christi Dec. 30, 2010, pet. ref’d) (mem. op., not designated for publication). 

Appellant maintains that the case precedent allows the State to constructively 

amend indictments rather than pursue the statutory amendment process,9and to 

thereby allow a jury to convict a defendant on a non-indicted basis in violation of 

 

9

 See TEX. CODE CRIM. PROC. ANN. art. 28.10(c) (West 2006) (providing method to amend 

indictment). 
16

statutory and constitutional law. Appellant concludes that there is an “irreconcilable 

conflict” between the principle that a defendant should only be tried for an offense 

actually alleged in an indictment and the principle that allows for inclusion of the law of 

parties without being alleged in the indictment. Appellant avers that Pitts and its 

progeny lead to a violation of his right to an indictment in a felony case; his right to full 

and fair notice of the offense charged under the Fifth and Fourteenth Amendments to 

the Constitution of the United States and Article I, Section 10 of the Texas Constitution;

and his rights under the “Fifth, Sixth, Eighth, and Fourteenth Amendments to the 

Constitution of the United States” and Article I, Sections 10 and 19 of the Texas 

Constitution. Appellant further characterizes the policy allowing for instruction on the 

law of parties without it being alleged in the indictment as inconsistent with articles 

21.0110 and 21.0311 of the Texas Code of Criminal Procedure and sections 

1.07(a)(22),12 2.01,13 and 7.01(c)14 of the Texas Penal Code. 

Appellant supports his constitutional-rights claim by citing In re Winship, which 

states, “[W]e explicitly hold that the Due Process Clause protects the accused against 

conviction except upon proof beyond a reasonable doubt of every fact necessary to 

constitute the crime with which he is charged.” 397 U.S. 358, 364 (1970). Appellant 

 

10

 “An ‘indictment’ is the written statement of a grand jury accusing a person therein named of 

some act or omission which, by law, is declared to be an offense.” TEX. CODE CRIM. PROC. ANN. art. 

21.01 (West 2009). 

11

 “Everything should be stated in an indictment which is necessary to be proved.” Id. art. 21.03. 

12

 This section defines “elements of offense.” See TEX. PENAL CODE ANN. § 1.07(a)(22) 

(West 2011). 

13

 This section requires proof beyond a reasonable doubt for conviction. See id. § 2.01. 

14 This section abolished the distinction between accomplices and principals. See id. § 7.01(c). 

This was the section elaborated upon in Pitts v. State. See 569 S.W.2d at 900. 
17

also references Apprendi v. New Jersey, which held that the Sixth and Fourteenth 

Amendments, “[t]aken together . . . entitle a criminal defendant to ‘a jury determination 

that [he] is guilty of every element of the crime with which he is charged, beyond a 

reasonable doubt.’” 530 U.S. 466, 477 (2000) (citing U.S. v. Gauldin, 515 U.S. 506, 510 

(1995); Sullivan v. Louisiana, 508 U.S. 275, 278 (1993); In re Winship, 397 U.S. at 

364)).

Appellant’s argument is similar to the one made by the defendant in Soto v. 

State, wherein the defendant alleged that “the State’s failure to indict him as a party to 

the offense [and the trial court’s instruction on it] violated his constitutional right to due 

process under In re Winship, Apprendi v. New Jersey and their progeny.” 173 S.W.3d 

469, 476 (Tex. Crim. App. 2005). In that case, the court of criminal appeals overruled 

the defendant’s issue, noting that many of the cases supporting the policy that a trial 

court can instruct a jury on the law of parties without it being alleged in the indictment 

were decided after Apprendi. Id. at 476 n.23. 

Appellant’s argument has already been rejected by the Texas Court of Criminal 

Appeals and presents nothing new for our review. See id. at 476. The policy allowing a 

trial court to instruct a jury on the law of parties when it has not been included in the 

indictment is well-established, not only under Texas caselaw, but under federal caselaw 

as well. See Adames v. State, 353 S.W.3d 854, 861 (Tex. Crim. App. 2011) (citing TEX. 

PENAL CODE § 7.01(c); U.S. v. Osborne, 286 F.Supp.2d 891, 902 (E.D. Tenn. 2003)); 

Marable, 85 S.W.3d at 292 (citing U.S. v. Renner, 238 F.3d 810, 814 (7th Cir. 2001); 

U.S. v. Bradstreet, 135 F.3d 46, 53–54 (1st Cir. 1998); U.S. v. Neal, 951 F.2d 630, 633 

(5th Cir. 1992); U.S. v. Clark, 980 F.2d 1143, 1146 (8th Cir. 1992)). 
18

Here, the evidence warranted an instruction on the law of parties. See Pitts, 569 

S.W.2d at 900 (permitting instruction on law of parties when evidence supports such 

instruction). Guedea provided testimony which sought to exculpate appellant of any 

wrongdoing and which characterized him as a hapless observer who neither knew 

about nor contributed to the offense; whereas appellant told Detective Fry that Guedea 

was innocent and sought to exculpate Guedea of the crime. In addition, several police

officers testified that appellant and Guedea were active members of the Latin Kings;

evidence was found in a colostomy bag belonging to appellant; and the primary victim of 

the offense was someone whom appellant identified as being affiliated with the Surenos 

and whom was dating the person who was originally charged with shooting appellant. 

We overrule appellant’s third issue. 

V. SENTENCE ENHANCEMENT

By his fourth issue, appellant argues that the trial court improperly enhanced his 

punishment under Texas Penal Code section 12.42(d) because one of the convictions 

used for enhancement was a state jail felony. See TEX. PENAL CODE ANN. § 12.42(d) 

(West 2011). He contends that section 12.42(e) prohibits the use of state jail felonies

for enhancement in section 12.42(d). See id. § 12.42(d), (e).15 We disagree.

A. Standard of Review

Issues of statutory interpretation are reviewed de novo. See Williams v. State, 

253 S.W.3d 673, 677 (Tex. Crim. App. 2008); Edwards v. State, 273 S.W.3d 919, 921 

(Tex. App.—Houston [14th Dist.] 2009, no pet.); Brooks v. State, 226 S.W.3d 607, 610 

 

15

 Effective September 1, 2011, the Texas Legislature repealed section 12.42(e), incorporated its 

text into section 12.42(d), and changed the language “punished” to “punishable.” See Act of May 25, 

2011, 82nd Leg., R.S., ch. 834 §§ 4, 6, 2011 Tex. Gen. Laws 834 (current version at Tex. Penal Code

Ann. § 12.42(d) (West Supp. 2011)). 
19

(Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing State v. Jimenez, 148 S.W.3d 574, 

576 (Tex. App.—El Paso 2004, pet. ref’d)); see also Sims v. State, 84 S.W.3d 768, 779 

(Tex. App.—Dallas 2002, pet. ref’d) (applying de novo review in considering propriety of 

prior offense for use in sentencing enhancement). “When interpreting statutory 

language, we focus on the collective intent or purpose of the legislators who enacted 

the legislation,” starting with the text itself, which “provides the best means to determine 

the fair, objective meaning of that text at the time of its enactment.” Clinton v. State, 

354 S.W.3d 795, 800 (Tex. Crim. App. 2011) (citing Boykin v. State, 818 S.W.2d 782, 

785 (Tex. Crim. App. 1991)) (internal quotation marks omitted). We construe an 

unambiguous statute according to its plain meaning, unless such construction creates 

an “absurd result.” Id. (citing Boykin, 818 S.W.2d at 785–86). 

B. Analysis

Appellant’s indictment alleged two prior convictions for enhancement purposes. 

Appellant pleaded “true” to the first offense, but “not true” to the second offense—a 

state jail felony for evading arrest. See TEX. PENAL CODE ANN. § 38.04 (West 2011). 

The trial court admitted into evidence the indictment and judgment for appellant’s 

evading arrest conviction. The indictment for that offense alleged that appellant used a 

deadly weapon, namely his vehicle, while fleeing from a peace officer, and it included 

two prior offenses for enhancement. As a result of a plea bargain, the State did not 

pursue a deadly weapon finding. In that case, appellant pleaded “true” to the 

enhancement and the offense was punished as a second-degree felony. See id. § 

12.42(a)(2). 
20

During the punishment phase, appellant objected to the trial court’s admission of 

his evading arrest conviction on the grounds that it was a state jail felony. Appellant 

argued that Section 12.42(e) precludes the use of state jail felonies from being used for 

enhanced punishment under section 12.42(d). Section 12.42(e) provides:

A previous conviction for a state jail felony punished under Section 

12.35(a) may not be used for enhancement purposes under Subsection 

(b), (c), or (d).

Id. § 12.42(e). Section 12.42(d) states:

[I]f it is shown on the trial of a felony offense other than a state jail felony 

punishable under Section 12.35(a) that the defendant has previously been 

finally convicted of two felony offenses, and the second previous felony 

conviction is for an offense that occurred subsequent to the first previous 

conviction having become final, on conviction he shall be punished by 

imprisonment in the Texas Department of Criminal Justice for life, or for 

any term of not more than 99 years or less than 25 years.

Id. § 12.42(d). The trial court deferred its decision on the matter. During the 

punishment phase, the court admitted copies of the evading arrest indictment and 

judgment. Appellant renewed his objection before the court charged the jury. The court 

overruled his objection. The jury found both prior offenses to be true, and appellant was 

assessed punishment as a habitual offender under Texas Penal Code section 12.42(d). 

Much of appellant’s argument is premised upon the principle that an enhanced 

punishment under section 12.42(a)(2) increases the range of punishment, but not the 

degree of the primary offense. See Ford v. State, 334 S.W.3d 230, 234 (Tex. Crim. 

App. 2011) (holding that the language “shall be punished,” which appears throughout 

section 12.42, indicates that only punishment is enhanced and not the offense level).16 

 

16

 Appellant’s reliance on Fite v. State, 60 S.W.3d 314 (Tex. App.—Houston [14th Dist.] 2001, 

pet. ref’d), Arriola v. State, 49 S.W.3d 374 (Tex. App.—Fort Worth 2000, pet. ref’d), and Hadnot v. State, 

851, S.W.2d 378 (Tex. App.—Houston [1st Dist. 1993, writ ref’d) is misplaced. Those cases analyzed the 
21

Appellant contends that his prior state jail felony, which received enhanced punishment

under section 12.42(a)(2), remained a state jail felony and could not therefore be used 

for enhancement under 12.42(d). 

The language included in section 12.42(e) is different from the “shall be 

punished” diction analyzed in Ford, a case concerning multiple enhancement (i.e. 

offense level and applicable punishment range) by a prior offense. See Ford, 334 

S.W.3d at 231–32. Section 12.42(e) prohibits use of a “state jail felony punished under

Section 12.35(a)” for enhancement under section 12.42(d). See TEX. PENAL CODE ANN. 

§ 12.42(e) (West 2011) (emphasis added). However, appellant’s prior state jail felony 

conviction was not punished under 12.35(a), but rather under 12.42(a)(2). The 

proscription in section 12.42(e) is therefore inapplicable. Nothing in subsections (d) or 

(e) of section 12.42 precludes the use of a state jail felony for enhancement if the state 

jail felony was not punished under section 12.35(a). See id. § 12.42(d), (e). 

By definition, a state jail felony is a felony. See id. § 12.04(a)(5). Unless 

otherwise excluded, state jail felonies qualify as a “previous felony conviction” in section 

12.42(d). See id. § 12.42(d); see also Campbell v. State, 49 S.W.3d 874, 876 (Tex. 

Crim. App. 2001) (en banc) (allowing for a “more specific ‘state jail felony’” to be carved 

out from “the more general ‘felony’” where the statutory language requires it). Punishing 

a defendant more severely after repeated behavior that has escalated beyond the level 

of an unenhanced state jail felony offense is neither absurd, nor is its application. Had

the Legislature intended to exclude state jail felonies that received enhanced 

 

effect of Texas Penal Code Section 12.44(a), which provides a trial court discretion to punish a state jail 

felony as a misdemeanor on subsequent enhancement. See TEX. PENAL CODE ANN. § 12.44(a) (West 

2011). We decline appellant’s invitation to extend our sister courts’ interpretations of that statute to a 

context which is beyond the scope of those opinions. 
22

punishment under section 12.42(a)(2) from being used for enhancement, it would have 

done so. Instead, the Legislature delineated a very specific subcategory of state jail 

felonies for exclusion. See TEX. PENAL CODE ANN. § 12.42(e) (West 2011). We

overrule appellant’s fourth issue.

VI. CONCLUSION

We affirm the trial court’s judgment. 

 

GREGORY T. PERKES

Justice

Publish

TEX. R. APP. P. 47.2 (b)

Delivered and filed the 

17th day of January, 2013.