Delafuente v. State, 10-16-00376-CR

• Decision Date: 23 October 2019
• Docket Number: No. 10-16-00376-CR,10-16-00376-CR
• Parties: JESSE GALINDO DELAFUENTE, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

JESSE GALINDO DELAFUENTE, Appellant v. THE STATE OF TEXAS, Appellee

No. 10-16-00376-CR

STATE OF TEXAS IN THE TENTH COURT OF APPEALS

October 23, 2019

From the 19th District Court McLennan County, Texas

Trial Court No. 2016-419-C1

MEMORANDUM OPINION

Appellant, Jesse Galindo Delafuente, was convicted of evading arrest with a vehicle. See TEX. PENAL CODE ANN. § 38.04 (West 2016). On original submission, this Court dismissed appellant's appeal based on his failure to timely file his notice of appeal corresponding to a judgment granting shock probation and based on an analysis that the judgment granting shock probation mooted the original judgment of conviction. See generally Delafuente v. State, No. 10-16-00376-CR, 2018 Tex. App. LEXIS 4765 (Tex. App.— Waco June 27, 2018) (mem. op., not designated for publication), rev'd, 570 S.W.3d 729 (Tex. Crim. App. 2019). The Court of Criminal Appeals reversed this Court's decision, holding that the granting of shock probation does not undermine the validity of a timely filed notice of appeal from the original conviction. Delafuente, 570 S.W.3d at 729. Accordingly, this case was remanded to this Court for consideration of appellant's issues. Id. at 731.

Both appellant and the State have declined to file new appellate briefs in this matter. Instead, they rely on the briefs filed on original submission. In his original brief, appellant contended that: (1) the operative statute in this case—section 38.04 of the Penal Code—is unconstitutional due to the ambiguity of the term "flee"; (2) the trial court erred by denying him the right to be heard during voir dire and cross-examination of the State's sole witness; and (3) the trial court abused its discretion by denying his motion for new trial based on the purported unlawful withholding of evidence. Because we overrule all of appellant's issues on appeal, we affirm.

I. CONSTITUTIONALITY OF SECTION 38.04 OF THE PENAL CODE

In his first issue, appellant contends that section 38.04 is, on its face, unconstitutionally vague and overbroad. Appellant also asserts an as-applied challenge to section 38.04 on appeal. The record reflects that appellant made a single pre-trial objection to the constitutionality of section 38.04, asserting a facial challenge and that thestatute is vague and overbroad. Appellant did not assert an as-applied challenge to the constitutionality of section 38.04 in the trial court.

Constitutional challenges to a statute are generally forfeited by the failure to object at trial. Curry v. State, 910 S.W.2d 490, 496 & n.2 (Tex. Crim. App. 1995); see Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004). The constitutionality of a statute as applied must be raised in the trial court to preserve error. Curry, 910 S.W.2d at 496; see Flores v. State, 245 S.W.3d 432, 437 n.14 (Tex. Crim. App. 2008) (noting the "well-established requirement that appellant must preserve an 'as applied' constitutional challenge by raising it at trial"). Further, a defendant may not raise a facial challenge to the constitutionality of a statute for the first time on appeal. Kareney v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009).

As noted above, appellant did not raise an as-applied challenge to section 38.04 in the trial court; accordingly, we cannot say that he has preserved this complaint. See Curry, 910 S.W.2d at 496; see also Flores, 245 S.W.3d at 437 n.14. However, because he did assert a facial challenge to the statute in the trial court, we conclude that his arguments in support of his facial challenge to the constitutionality of the statute were preserved. See Kareney, 281 S.W.3d at 434.

With regard to his facial challenge, appellant argues that the statute is overbroad and vague. "Whether a statute is facially constitutional is a question of law that we review de novo." Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). We presume thata statute is valid and that the legislature did not act unreasonably or arbitrarily. Id. at 14-15. "The burden normally rests upon the person challenging the statute to establish its unconstitutionality." Id. at 15. In the absence of contrary evidence, we will presume that the legislature acted in a constitutionally-sound fashion. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002). The statute must be upheld if a reasonable construction can be ascertained that will render the statute constitutional and carry out the legislative intent. Shaffer v. State, 184 S.W.3d 353, 363 (Tex. App.—Fort Worth 2006, pet. ref'd); see Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. [Panel Op.] 1979). When an appellant challenges a statute as both unconstitutionally overbroad and vague, we address the overbreadth challenge first. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S. Ct. 1186, 1191, 71 L. Ed. 2d 362 (1982); Duncantell v. State, 230 S.W.3d 835, 843 (Tex. App.—Houston [14th Dist.] 2007, pet. ref'd).

"An overbreadth attack on a statute is recognized only in the context of a First Amendment challenge." Goyzueta v. State, 266 S.W.3d 126, 131 (Tex. App.—Fort Worth 2008, no pet.) (citing United States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987)); see State v. Johnson, 475 S.W.3d 860, 866 (Tex. Crim. App. 2015) ("And in Secretary of Maryland v. Joseph H. Munson Co., the United States Supreme Court made it clear that the overbreadth doctrine is in fact a part of substantive First Amendment law . . . ." (internal footnote omitted)). Because appellant does not invoke the First Amendment in this issue, and because he does not explain how the statute could implicate protectedconduct or speech, we reject appellant's overbreadth challenge to section 38.04. See Goyzueta, 266 S.W.3d at 131; see also Johnson, 475 S.W.3d at 866.

In light of the above, the remaining portion of appellant's first issue is his argument that section 38.04 is facially unconstitutionally vague. With respect to vagueness, statutes are not necessarily unconstitutionally vague because the words or terms employed in the statute are not specifically defined. See Engelking v. State, 750 S.w.2d 213, 215 (Tex. Crim. App. 1988); see Dahl v. State, 707 S.W.2d 694, 700 (Tex. App.—Austin 1986, pet. ref'd) ("That the statute is confusing is not enough to render it unconstitutional."); see also Briggs v. State, 740 S.W.2d 803, 806 (Tex. Crim. App. 1987) ("An enactment is not vague merely because it is imprecise." (internal citations & quotations omitted)). When a statute does not define the words used therein, we give the words their plain meaning. See Parker v. State, 985 S.W.2d 460, 464 (Tex. Crim. App. 1999); see also TEX. GOV'T CODE ANN. § 311.011(a) (West 2013) ("Words and phrases shall be read in context and construed according to the rules of grammar and common usage."). A statute will be invalidated if it fails to give a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited. See State v. Holcombe, 187 S.W.3d 496, 499 (Tex. Crim. App. 2006).

Moreover, because appellant makes a facial challenge to the statute, he must prove that the statute is unconstitutional in every application, and that the statute could never be constitutionally applied to any defendant under any set of facts or circumstances. SeeState v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013); Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992). Furthermore, if we determine that there is a reasonable construction which will render the statute constitutional, we must uphold the statute. Tarlton v. State, 93 S.W.3d 168, 175 (Tex. App.—Houston [14th Dist.] 2002, pet. ref'd).

Fatal to his facial vagueness challenge, appellant cites to numerous cases—many of which we cite to—that performed a sufficiency analysis of the evading statute and, as appellant concedes, "[u]nder such circumstances, the behavior of the accused conforms with the plain meaning of the word 'flee' as that term is defined by the dictionary." See Smith v. State, 483 S.W.3d 648, 654-55 (Tex. App.—Houston [14th Dist.] 2015, no pet.); Reyes v. State, 465 S.W.3d 801, 805-06 (Tex. App.—Eastland 2015, pet. ref'd); Jenkins v. State, 454 S.W.3d 712, 713-15 (Tex. App.—Corpus Christi 2015, no pet.); see also Blake v. State, No. 06-11-00097-CR, 2012 Tex. App. LEXIS 926, at **18-21 (Tex. App.—Texarkana Feb. 2, 2012, pet. ref'd) (mem. op., not designated for publication); Tolbert v. State, No. 08-10-00096-CR, 2011 Tex. App. LEXIS 6842, at **9-10 (Tex. App.—El Paso Aug. 26, 2011, pet. ref'd) (mem. op., not designated for publication); Valencia v. State, 13-10-00201-CR, 2011 Tex. App. LEXIS 3815, at **20-22 (Tex. App.—Corpus Christi May 19, 2011, no pet.) (mem. op., not designated for publication); Holloman v. State, No. 06-10-00113-CR, 2011 Tex. App. LEXIS 1954, at **5-7 (Tex. App.—Texarkana Mar. 18, 2011, no pet.) (mem. op., not designated for publication); Garcia v. State, No. 13-07-00566-CR, 2010 Tex. App. LEXIS 826, at **3-6 (Tex. App.—Corpus Christi Feb. 4, 2010, no pet.) (mem. op., not designatedfor publication). This concession demonstrates that there are circumstances in which section 38.04 can be constitutionally applied and that the term "flee" is not so vague that it fails to give a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited. See Rosseau, 396 S.W.3d at 557; Holcombe, 187 S.W.3d at 499; Santikos, 836 S.W.2d at 633; see also Tarlton, 93 S.W.3d at 175. Therefore, based on the foregoing, we reject appellant's constitutional challenges to section 38.04. See Ex parte Lo, 424 S.W.3d at 14-15. We overrule his first issue.

II. APPELLANT'S RIGHT TO BE HEARD

In his second issue, appellant argues that he was unfairly denied the right to be heard regarding appellant's intent. In particular, appellant asserts that his theory of the case was that his actions did not demonstrate an intent to "flee"; however, the trial court denied him the opportunity during voir...