04-15-00172CR 

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IN THE COURT OF APPEALS 

FOR THE 

FOURTH SUPREME JUDICIAL DISTRICT 

OF TEXAS 

SAN ANTONIO, TEXAS 

FELIX FLORES, 

 Appellant 

v. 

STATE OF TEXAS 

 Appellee 

Trial Cause Number 2013-CR-10149 

Appeal from the 290th District Court 

Bexar County, Texas 

BRIEF FOR THE APPELLANT

 JOHN M. ECONOMIDY 

 Attorney for Appellant 

 111 Soledad Street, Suite 348 

 San Antonio, Texas 78205 

 (210) 299-7685 

 economidy@att.net

 State Bar No. 06404500 

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ACCEPTED

04-15-00172-CR

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

7/22/2015 8:40:01 AM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 7/22/2015 8:40:01 AM KEITH E. HOTTLE Clerk
Identity of Parties and Counsel

Pursuant to TEX. R. APP. PROC. 38.1(a), appellant identifies the 

following parties and counsel: 

(1) Felix Flores (Defendant and Appellant) 

 TDCJ No. 1990293 

 Garza West 

 4250 Highway 202 

 Beeville, Texas 78102 

(2) State of Texas (Plaintiff and Appellee) 

 By and through 

 Appellate Division 

 Bexar County District Attorney 

 101 W. Nueva Street 

 San Antonio, Texas 78205 

(3) Honorable Melisa Skinner (Trial Judge) 

 290th District Court 

 Cadena-Reeves Justice Center, Fourth Floor 

 300 Dolorosa 

 San Antonio, Texas 78205 

(4) Ms. Wendy Wilson (SBOT No. 24003241) (Lead Prosecutor) 

 Mr. Eduardo Flores (SBOT No. 24068686) (Prosecutor) 

 Bexar County District Attorney’s Office 

 Paul Elizondo Tower, Fourth Floor 

 101 W. Nueva Street 

 San Antonio, Texas 78205 

(5) Juan P. Aguilera (SBOT No. 00936700) (Trial Defense Counsel) 

 111 Soledad Street, Suite 300 

 San Antonio, Texas 78205 

i 
(6) Appellate Division (Appellate Government Counsel-Appellee) 

 Bexar County District Attorney’s Office 

 Paul Elizondo Tower, Seventh Floor 

 101 W. Nueva Street 

 San Antonio, Texas 78205 

(7) John M. Economidy (SBOT No. 0404500) 

 Riverview Tower Suites (Appeals Counsel for Appellant) 

 111 Soledad St., Suite 348 

 San Antonio, Texas 78205 

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Table of Contents

Page

Identity of Parties and Counsel ........................ i 

Table of Contents ......................................... iii 

Table of Authorities ...................................... v 

Statement of the Case .................................... 1 

Oral Argument Not Requested ......................... 3 

Issues Presented ........................................... 3 

 Appellant’s First Point of Error

The trial judge erred by advising jurors 

they had a right to disagree with the law. 3 

Appellant’s Second Point of Error

The trial judge’s ruling on Juror 25 

prevented defense counsel from developing 

a challenge for cause 3 

Statement of the Facts ...................................... 3-7 

Issue One ............................................. 3-4 

Issue Two ............................................ 4-7 

Summary of the Argument ................................ 7 

Argument .................................................... 7-10 

Issue One ............................................. 7-8 

Issue Two ............................................. 8-10 

Prayer ......................................................... 10 

iii. 
Certificate of Compliance ................................. 11 

Certificate of Service ....................................... 11-12 

iv 
Table of Authorities

Page

Cases

Anderson v. State, 633 S.W.2d 851, 853 

(Tex. Crim. App. 1982) ...................................... 8 

Chapman v. California, 386 U.S. 18, 24, 

87 S. Ct. 824 (1967) ........................................... 8, 10 

Franklin v. State , 986 S.W.2d 349 

(Tex. App.—Texarkana 1999) ............................... 9 

Franklin v. State, 12 S.W.3d 437, 479 

(Tex. Crim. App. 2000)(Franklin I) ......................... 10 

Franklin v. State, 23 S.W.3d 81, 83 

(Tex. App.—Texarkana 2000) .............................. 10 

Franklin v. State, 138 S.W.3d 351 

(Tex. Crim. App. 2004)(Franklin II)...................... 9, 10 

Feldman v. State, 70 S.W.3d 738, 744 

 (Tex. Crim. App. 2002) ....................................... 8 

Howard v. State, 941 S.W.2d 102, 108 

(Tex. Crim. App. 1996) ....................................... 9 

Howard v. State, 333 S.W.3d 137, 139-140 

(Tex. Crim. App. 2011) ........................................ 3 

Threadgill v. State, 146 S.W.3d 654, 667 

(Tex. Crim. App. 2004) ....................................... 7 

v. 
Statutes and Constitutions

TEX. CODE CRIM. PROC. art. 35.16(b)(3) & (c)(2) ............... 7 

TEX. CONST. art. 1, § 10 .............................................. 9 

TEX. CONST. art. 1, § 15 .............................................. 8 

TEX. R. APP. PROC. 44.2(a) .......................................... 8, 10 

vi. 
IN THE COURT OF APPEALS 

FOR THE 

FOURTH SUPREME JUDICIAL DISTRICT 

OF TEXAS 

SAN ANTONIO, TEXAS 

FELIX FLORES, 

 Appellant 

v. 

STATE OF TEXAS 

 Appellee 

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TO THE COURT OF APPEALS FOR THE FOURTH SUPREME 

JUDICIAL DISTRICT OF TEXAS: 

This brief is filed on behalf of appellant. 

Statement of the Case

A Bexar County Grand jury indicted appellant Felix Flores on three 

counts of aggravated robbery and a repeater enhancement in Cause No. 

2013-CR-10149 (CR 5-6). He used a handgun to rob three young women 

at a car wash near Ingram Mall on May 25, 2013 and to leave with their car 

and purses. An initial trial began June 23, 2014, but it resulted in a mistrial 

on June 24, 2014 (CR 19, paragraph 1). 

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The second trial began on February 17, 2015, and appellant elected to 

be punished by the trial judge in the event of conviction (RR, Vol. II, page 5; 

CR 11) On the record, Appellant rejected a plea bargain offer of eight years 

imprisonment with no finding of a deadly weapon (RR, Vol. II, page 9). 

Voir dire was conducted (RR, Vol. II, page 11 passim). Appellant pleaded 

not guilty to the three counts (RR, Vol. III, page 10, line 13). After hearing 

the evidence presented at trial, jurors returned a finding of guilt on all three 

counts (RR, Vol. IV, Page 127; CR 63-68). Sentencing was held on March 

24, 2015 (RR, Vol. IV, page 1). Prosecution, defense counsel, and appellant 

stipulated that the repeater enhancement was true (RR, Vol. V, pages 5-6). 

District Judge Melisa Skinner sentenced appellant to 25 years confinement 

(RR, Vol. V, page 22; judgments at CR 63-68). The trial judge also entered 

an affirmative finding of use of a deadly weapon in the commission of the 

offenses (RR, Vol. V, page 23). The trial court certified that defendant had a 

right to appeal (CR 82). Appellant timely filed a notice of appeal on March 

24, 2015 (CR 70). On March 26, 2015, District Judge Skinner appointed 

John M. Economidy to represent appellant on this appeal (CR 77). 

Statement on Oral Argument

Oral argument is not requested. 

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Issues Presented

Appellant’s First Point of Error

The trial judge erred by advising jurors 

they had a right to disagree with the law. 

Appellant’s Second Point of Error

The trial judge’s ruling on Juror 25 

prevented defense counsel from developing 

a challenge for cause. 

Appellant’s Third Point of Error--Abandoned*

Statement of the Facts—Point I

The trial judge instructed jurors they could disagree with the law in 

the following colloquy (RR, Vol. II, pages 15-18): 

 And let me say this too, at the outset, you have the absolute 

right to disagree with the law. That’s one of the many, many, 

many great things about this country. It makes our country 

great that you can say you know what, I know that’s the law 

here, but I don’t agree. You can say I know that’s the concept 

of the Constitution, and I don’t agree. You have the right to 

 

*

 Appellate Counsel seriously considered raising the lack of sufficient evidence for Count 

III, as trial defense counsel had (RR, Vol. IV, page 94). However, the apprehension of 

fear goes to the culpable mental intent of the robber, not the victim. Howard v. State, 333 

S.W.3d 137, 139-140 (Tex. Crim. App. 2011). 

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that as citizens of this country and by way of the Constitution. 

So you’re going to be asked a bunch of questions, and 

you have the right to disagreed with the law, right. And a lot of 

times, people walk in and say or they think, well, I can’t say 

I’m not going to follow the law. Or, I can’t say I don’t agree

with the law it’s the law, but, yes, you can. By nature of your 

citizenship, you certainly can. 

* * * 

That’s the reason, by the way also there’s 65 of you 

because you can disagree with the law that applies to this case. 

The trial judge did not put her comments in context or limit them to 

voir dire. Neither prosecutor nor defense counsel objected. In her final 

charge to jurors, the trial judge gives a contradictory statement and tells 

jurors, “you are bound to received the law from the Court which is herein 

given to you and be governed by that law. (RR, Vol. III, page 105, lines 8- 

10).

Statement of the Facts—Point 2

The State rested its case (RR, Vol. IV, page 75, line 5). Defense 

counsel then called witnesses Mary Lou Flores (RR, Vol. IV, page 75) and 

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Amanda Alemon (RR, Vol. IV, page 79). Suddenly, one of the jurors (Juror 

25, seated as Juror # 8 [RR, Vol. II, page 109] provoked the following 

conversation (RR, Vol. IV, pages 89-90): 

THE JUROR: Can I speak to you? 

THE COURT: Yes. Let’s do it this way, I’m going to have 

them (other jurors) taken out with the exception of this juror 

here. We have to do it on the record with the attorneys present. 

All right. Let’s have everyone else out. 

(Jury not present) 

THE COURT: What is your name, sir? 

THE JUROR: Aaron Gabriel Garcia. 

THE COURT: And you’re the former Juror Number 25, 

Aaron Gabriel Garcia? What did you need to say, sir? 

THE JUROR: I just realized that I used to be a former 

neighbor of the defendant. 

THE COURT: Of the defendant’s. Is that going to effect 

(sic) you in any way? 

THE JUROR: It should not. 

THE COURT: I just wanted to make sure that that wouldn’t 

be an issue. All right, sir. Thank you very much for letting us 

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know. As long as it’s not an issue with you and it will not 

effect (sic) how you judge this case, then it’s not an issue with 

us. 

THE JUROR: Okay. 

THE COURT: So everything is fine then? You’re going to be 

able to judge this case based only on evidence that you hear 

from the witness stand? 

THE JUROR: (Nods affirmatively) 

THE COURT: That has to be a yes or no. 

THE JUROR: Yes. 

THE COURT: Okay. Thank you very much 

Seconds later, trial defense counsel objected to this disposition (RR, 

Vol. IV, page 98): 

MR. AGUILERA: Apparently the juror that indicated that he 

knew someone in the family. He had an altercation with them, 

that’s where he knows him from. 

THE COURT: Well, he’s indicated he can still be fair in this 

case. He has indicated that he can still be fair and that it wasn’t 

going to effect his judgment, so. 

MR. AGUILERA: We’d object to him continuing as a juror, 

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Judge, just based on that information. 

The Court requested input from the State and declared that “we’re 

proceeding.” Defense Counsel declared, “Note our exception, Judge.” 

(RR, Vol. IV, page 98). 

Summary of the Argument

In Issue No. 1, the defendant was denied his right to have jurors 

were not biased on the law. The conflicting instructions that the trial judge 

gave left significant doubt that jurors would follow the law. 

In Issue No. 2, the defendant was denied his constitutional right to 

inquire of the objectionable juror in order to strike the juror or move for a 

mistrial. 

Argument—Point of Error No. 1

It is fundamental that both prosecution and defense are entitled to 

jurors who lack a bias or prejudice against the law. TEX. CODE CRIM. 

PROC. art. 35.16(b)(3) and (c)(2). The test is whether the bias or prejudice 

would substantially impair the prospective juror’s ability to carry out his 

oath and instructions in accordance with the law. Threadgill v. State, 

146 S.W.3d 654, 667 (Tex. Crim. App. 2004). The law must be explained to 

the jurors, and the jurors must be asked whether they can follow the law 

regardless of their personal views. Id. at 667. 

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The right of trial by jury is inviolate in Texas. TEX. CONST. art. 1, 

§ 15. This constitutional right means the right to an impartial jury. A 

prospective juror who has a bias or prejudice against any phase of the law 

upon which a party is entitled to rely is properly challengeable for cause. 

Feldman v. State, 70 S.W.3d 738, 744 (Tex. Crim. App. 2002). 

By instructing jurors that they could disagree with the law, without 

giving context or limitation to the statement or clarifying the matter in the 

final jury charge, the trial judge committed error. Such conflicting 

instructions denied jurors guideposts for an informed deliberation. The 

judge’s telling jurors that they were “bound to receive the law from the 

Court which is herein given to you and be governed by that law” is a vague 

and nebulous statement at best. Under the circumstances, defendant was 

denied jurors who knew that they must obey the law. Instead, 

defendant was subject to juror caprice. This was error in a constitutional 

sense, TEX. R. APP. PROC. 44.2(a), and the error was not harmless beyond a 

reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824 

(1967). 

Argument—Point of Error No. 2

The mere fact that a juror knows someone in the case is not a 

sufficient basis for disqualification. Anderson v. State, 633 S.W.2d 851, 853 

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(Tex. Crim. App. 1982)(Juror knew victim). 

Article I, § 10 of the Texas Constitution guarantees the right to 

counsel, which includes the right of counsel to question members of the 

venire panel in order to intelligently exercise peremptory challenges. 

Howard v. State, 941 S.W.2d 102, 108 (Tex. Crim. App. 1996). 

The situation for defendant Flores is similar to the aggravated sexual 

assault case of Franklin v. State, 138 S.W.3d 351 (Tex. Crim. App. 

2004)(Franklin II). In Franklin, as here, the jury had been impaneled and 

evidence was being heard. Once the victim took the stand, a juror realized 

that the victim was a member of the girl scout troop of which she was the 

assistant leader and for which her daughter was a member. 

In Franklin, as here, the juror told the trial judge she could judge the 

case only on evidence she heard from the stand. Id. at 352. Compare with

RR, Vol. IV, p. 90, pages 9-14. The trial court in Franklin denied a defense 

request to question the juror. Franklin was convicted. 

On appeal, the Court of Appeals found that the trial court erred in 

refusing further questioning, but error was not preserved. Franklin, 986 

S.W.2d 349 (Tex. App.—Texarkana 1999). 

The Court of Criminal Appeals granted a petition for discretionary 

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review. Franklin v. State, 12 S.W.3d 437, 479 (Tex. Crim. App. 2000) 

(Franklin I). The Court held the accused preserved error and remanded the 

case back to the Court of Appeals for a harm analysis. 

On remand, the Court of Appeals determined the error was of 

constitutional dimension and reversed Franklin’s conviction. Franklin v. 

State, 23 S.W.3d 81, 83 (Tex. App.—Texarkana 2000). The Court of 

Criminal Appeals granted the State’s petition for discretionary review. 

The Court of Criminal Appeals in Franklin II agreed with the Court of 

Appeals that the proper standard is the constitutional standard. 138 S.W.3, 

at 357. 

As in Franklin, defense counsel should have been given the 

opportunity to question juror on his equivocal response of “It should not.” 

This was error in a constitutional sense, TEX. R. APP. PROC. 44.2(a), and 

the error was not harmless beyond a reasonable doubt. Chapman v. 

California, 386 U.S. 18, 24, 87 S. Ct. 824 (1967). 

Prayer

Harmful constitutional error occurred at the trial level. Appellant 

prays that his conviction be reversed and that the case be remanded for a 

new trial. 

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Respectfully submitted, 

LAW OFFICE OF JOHN M. ECONOMIDY 

Riverview Towers 

111 Soledad, Suite 348 

San Antonio, Texas 78205 

Work: (210) 299-7685 

E-mail: economidy@att.net

/s/ 

JOHN M. ECONOMIDY 

Attorney for Appellant 

Certificate of Compliance

Pursuant to Texas Court of Criminal Appeals Order Misc. Dkt 13-003, 

Rule 9.4 (i)(3), I certify that this appellant’s brief has been electronically 

filed in PDF format on the date of service listed below. I certify that the 

brief has but 12 pages and is under the 25-page limit and has 1,933 words 

versus the 7,500 word limit. The front is Times New Roman, and the font 

size is 14 points. Computer is Microsoft XP. I certify that I have complied 

with the privacy requirements of Rule 9.10(a), (b), and (d). 

/s/ 

JOHN M. ECONOMIDY 

Certificate of Service

I hereby certify that on the below referenced date that I handdelivered Appellant’s brief to counsel for appellee: 

 Appellate Division 

 Bexar County District Attorney’s Office 

 Paul Elizondo Tower, Seventh Floor 

 101 W. Nueva Street 

 San Antonio, Texas 78205 

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and mailed a copy to the appellant: 

 Felix Flores 

 TDCJ No. 1990293 

 Garza West 

 4250 Highway 202 

 Beeville, Texas 78102 

 /s/ 

JOHN M. ECONOMIDY 

Date: July 22, 2015 

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