Alvaro Padilla v. the State of Texas

Affirmed and Memorandum Opinion filed August 20, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00312-CR

ALVARO PADILLA, Appellant
V.

THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court
Harris County, Texas
Trial Court Cause No. 1810565

MEMORANDUM OPINION

Appellant Alvaro Padilla appeals his murder conviction. In his first issue, he
challenges the sufficiency of the evidence to support the jury’s verdict that he is
guilty of murder under the law of parties. In his second issue, he contends the
twenty-five-year sentence imposed by the trial court violates his constitutional rights
because it is disproportionate to the ten-year sentence imposed on the shooter by a
jury in a different trial. Appellant asserts a third and final issue, which we construe
as a complaint that his due process rights were violated because the trial court failed
to include a deadly conduct lesser-included-offense instruction in the jury charge.

We overrule appellant’s issues and affirm the trial court’s judgment.

Background

A grand jury indicted appellant with the first-degree felony offense of murder.
Tex. Penal Code § 19.02(b). Appellant pleaded not guilty, and the case proceeded
to trial before a jury. The State’s theory was that appellant was guilty as a party to
murder. See id. §§ 7.01, 7.02. The following evidence was presented at appellant’s
trial.

On March 14, 2020, appellant and the complainant, Ryan Lincoln, were
involved in a road rage incident while driving southbound on I-45 in Harris County,
which culminated in a gun shot fired from appellant’s vehicle, striking Lincoln in
the neck and killing him. Appellant drove a black Dodge Ram 2500 truck, while
Lincoln drove a white Honda. Lincoln, a ride share driver, had mounted cameras on
the dashboard of his Honda. Camera footage captured events leading up to the
shooting, as well as the shooting itself, from two different angles—facing Lincoln
and facing the interstate. State’s Exhibit 107 contains the relevant video footage
from both angles.

Houston Police Department (“HPD”) Detective Dustin Crowder reviewed the
video and testified to its contents. Appellant and Lincoln were driving the same
direction in adjacent traffic lanes. Appellant’s truck indicated a right lane change
then merged in front of Lincoln’s vehicle. Detective Crowder determined that
appellant’s lane change was unsafe due to the close proximity of the vehicles.
Lincoln changed lanes to the left, accelerated past the driver’s side of appellant’s
truck, and “flipped off” appellant. Next, appellant passed Lincoln’s vehicle, quickly

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pulled in front of Lincoln, and braked. Detective Crowder described this maneuver
as “brake checking.” Lincoln passed appellant once again and brake checked
appellant in retaliation, forcing appellant to swerve his truck onto a grass median off
the right shoulder lane. The video then depicts appellant’s truck passing Lincoln on
the driver’s side again. As appellant drove past this time, a person occupying the
right rear passenger seat in appellant’s truck fired a gun toward Lincoln, striking him
in the neck. Appellant fled the scene rapidly, while Lincoln exited the freeway and
stopped his car.

HPD Officer Nicole Frerichs responded to the shooting and found Lincoln in
his vehicle with an actively bleeding gunshot wound to his neck. Lincoln was
transported to Ben Taub Hospital, where he died from his injuries. Dr. Roger Milton,
an assistant medical examiner, confirmed the cause of death was a gunshot wound.

HPD Officer Kelly Huey assisted in the investigation and located appellant’s
truck four days after the shooting. Officer Huey testified that officers conducted a
traffic stop on appellant’s truck after appellant failed to maintain a single lane and
caused another vehicle to stop. During the traffic stop, appellant and two other
occupants—appellant’s father, Antelmo Jimenez, and appellant’s brother, John
Padilla—were detained. Appellant, Antelmo, and John cooperated with the officers.
Kristi Young, a crime scene supervisor with the Houston Forensic Science Center,
recovered three guns from appellant’s truck, including the gun identified as the
murder weapon, which was found in plain sight at John’s feet. The other two guns
were located beneath the front passenger seat and on the rear center floorboard .
Young testified that no guns were found near appellant or the driver’s seat.

All three men were transported to an ATF facility to be interviewed regarding
the Lincoln incident. At the ATF office, appellant waived his rights and agreed to
an interview. Appellant claimed that Lincoln brake checked him numerous times,

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was driving very aggressively, and shot at his truck. Appellant claimed that he fired
a gun at Lincoln’s car only after Lincoln shot at him. None of these statements were
consistent with the dash camera video from Lincoln’s vehicle. When informed that
video captured the incident, appellant altered his statement to say that his cousin was
in the truck and had shot at Lincoln’s vehicle. After officers interviewed John,
however, appellant changed his story again and admitted that his brother John was
the shooter.

The indictment alleged that appellant: (1) intentionally and knowingly caused
Lincoln’s death by shooting him with a deadly weapon—a firearm; (2) intended to
cause serious bodily injury to Lincoln and caused Lincoln’s death by intentionally
and knowingly committing an act dangerous to human life by shooting Lincoln with
a deadly weapon—a firearm; or (3) committed and attempted to commit the felony
offense of deadly conduct by knowingly discharging a firearm at and in the direction
of Lincoln’s vehicle and was reckless as to whether the vehicle was occupied, and
while in the course and in furtherance of the commission, attempted commission,
and immediate flight from the deadly conduct, he committed an act clearly
dangerous to human life by discharging a firearm in the direction of Lincoln’s
vehicle and caused Lincoln’s death.

The jury charge instructed the jury to determine whether appellant
intentionally or knowingly caused Lincoln’s death, or whether John intentionally or
knowingly caused Lincoln’s death and appellant intended to promote or assist John
and in fact aided or attempted to aid John in committing the offense. The jury was
instructed to consider self-defense and the lesser offenses of manslaughter or
criminally negligent homicide if the evidence supported it. The jury found appellant
guilty of murder and the trial court assessed his punishment at twenty-five years’
confinement in the Texas Department of Criminal Justice, Institutional Division.

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Appellant timely appealed.

Analysis

Appellant presents three issues for our review: (1) whether the evidence is
sufficient to support the jury’s verdict; (2) whether appellant’s sentence violated the
Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution because
appellant’s sentence was significantly longer than the sentence another jury assessed
against the shooter, appellant’s brother John; and (3) whether appellant’s right to a
fair trial was violated when the trial court questioned the validity of submitting a
jury instruction for the lesser-included offense of deadly conduct.

A. Sufficiency of the Evidence

In issue one, appellant challenges the legal sufficiency of the evidence to
support the jury’s verdict. He does not contest the evidence that complainant was
murdered, but he challenges the sufficiency of the evidence to support the jury’s
finding that he is guilty as a party to the offense.

We review the legal sufficiency of the evidence under the familiar Jackson v.
Virginia standard. See 443 U.S. 307, 318-19 (1979); Temple v. State, 390 S.W.3d
341, 360 (Tex. 2013). Under that standard, we examine all the evidence in the light
most favorable to the verdict and determine whether a rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt. See
Jackson, 443 U.S. at 319. We presume that the jury resolved conflicting evidence
and inferences in favor of the verdict. See Braughton v. State, 569 S.W.3d 592, 607-
08 (Tex. Crim. App. 2018); Criff v. State, 438 S.W.3d 134, 136-37 (Tex. App.—
Houston [14th Dist.] 2014, pet. ref’d). In reviewing the evidence, we must remain
mindful that we defer to the jury’s determinations of the witnesses’ credibility and
the weight to be given their testimony, as the jury is the sole judge of those matters.

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Jackson, 443 U.S. at 326; see Braughton, 569 S.W.3d at 609. This standard applies
to both direct and circumstantial evidence. Criff, 438 S.W.3d at 136-37.

We consider both direct and circumstantial evidence, as well as any
reasonable inferences that may be drawn from the evidence. See Balderas v. State,
517 S.W.3d 756, 766 (Tex. Crim. App. 2016). Circumstantial evidence is as
probative as direct evidence in establishing the guilt of an actor, and circumstantial
evidence alone can be sufficient to establish guilt. See Hooper v. State, 214 S.W.3d
9, 13 (Tex. Crim. App. 2007).

We measure the evidence by the elements of the offense as defined by the
hypothetically correct jury charge. Braughton, 569 S.W.3d at 608. A person
commits the offense of murder if the person intends to cause serious bodily injury
and commits an act clearly dangerous to human life that causes the death of an
individual. See Tex. Penal Code § 19.02(b)(2).

In Texas, any party to an offense may be charged with commission of the
offense. See id. § 7.01(a), (b); Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App.
2016). Under the law of parties, a person is criminally responsible as a party to the
offense “if the offense is committed by his own conduct, by the conduct of another
for which he is criminally responsible, or by both.” Tex. Penal Code § 7.01(a). A
person is criminally responsible for an offense committed by the conduct of another
person if, acting with intent to promote or assist the commission of the offense, he
solicits, encourages, directs, aids, or attempts to aid the other person to commit the
offense. Id. § 7.02(a)(2); Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim. App.
2012). To establish appellant’s liability as a party, the State must prove illegal
conduct by the primary actor and that appellant “harbored the specific intent to
promote or assist the commission of the offense.” Rodriguez v. State, 521 S.W.3d
822, 828 (Tex. App.—Houston [1st Dist.] 2017, no pet.).

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In performing a legal sufficiency analysis in a law of parties case, “we should
look at events occurring before, during and after the commission of the offense and
may rely on actions of the defendant which show an understanding and common
design to do the prohibited act.” Padilla v. State, 326 S.W.3d 195, 201 (Tex. Crim.
App. 2010). “The jury may infer the requisite mental state from (1) the acts, words,
and conduct of the defendant, (2) the extent of the injuries to the victim, (3) the
method used to produce the injuries, and (4) the relative size and strength of the
parties.” Rhymes v. State, 536 S.W.3d 85, 95 (Tex. App.—Texarkana 2017, pet.
ref’d) (citing Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995)). But
without evidence of intentional participation by the accused, an accused may not be
convicted under the law of parties. Cary, 507 S.W.3d at 758.

Mere presence at the scene of a crime or flight from the scene is insufficient
to convict a defendant as a party to the offense. Gross, 380 S.W.3d at 186. However,
flight from the scene together with additional evidence showing a mutual
understanding and common design to commit the offense may be sufficient to
support a guilty verdict. See id. This understanding can be inferred from
circumstantial evidence, which includes the events “before, during, and after the
commission of the offense.” Id.

It is undisputed that John, appellant’s brother, shot Lincoln and that Lincoln
died. See Tex. Penal Code § 19.02(a)(1). The evidence shows that, at the time of
the shooting, appellant and Lincoln were engaged in what can fairly be described as
a road rage incident. After appellant and Lincoln cut each other off and “brake
checked” one another, appellant positioned his truck to the left of Lincoln’s vehicle,
providing John with a direct line of sight to Lincoln’s left side and enabling John to
fire the shot that struck and ultimately killed Lincoln. Immediately after John fired
the gun, appellant accelerated away. During his recorded interview, appellant

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claimed that Lincoln shot at his vehicle first, but this was untrue. Appellant also
falsely identified himself, then his cousin, as the shooter, only later admitting that
John fired the gun.

In determining whether the above evidence is sufficient to support the jury’s
guilty verdict, we consider persuasive decisions from our sister courts of appeals that
involved comparable road rage deaths. In Hoang v. State, the First Court of Appeals
concluded that evidence was sufficient to support appellant’s conviction as a party
to murder when the appellant assisted the shooter by giving him a loaded firearm
that killed the victim; drove his car parallel to, close to, and at about the same speed
as the victim’s car, which enabled the shooter to be in a position to shoot the victim;
drove away from the location after the shooting; and tried to cover up the crime .
See 263 S.W.3d 18, 23 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). Similarly,
in Miller v. State, the Third Court of Appeals determined that a witness’s testimony
that appellant, the driver of a vehicle, “pulled along the left side of [the victim’s] car
‘very slowly’ before the passenger fired a fatal shot” and then “immediately fled the
scene” provided evidence that the appellant “aided [the shooter] by positioning the
[vehicle] to facilitate the shooting.” 83 S.W.3d 308, 314 (Tex. App.—Austin 2002,
pet. ref’d).

Here too, appellant maneuvered his truck into a position that enabled John to
shoot at Lincoln; appellant quickly fled the scene immediately after the shooting;
appellant falsely claimed that Lincoln shot at his vehicle first; and appellant lied
about who fired the shot that ultimately killed Lincoln before admitting that his
brother John was responsible.

The above evidence is legally sufficient to support a finding that John
committed the offense of murder. The evidence supports a reasonable inference that
John intended to cause serious bodily injury to Lincoln and caused Lincoln’s death

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by intentionally or knowingly committing an act clearly dangerous to human life by
shooting Lincoln with a firearm. See Tex. Penal Code § 19.02(b)(2).

Viewing the evidence in the light most favorable to the jury’s verdict, we also
conclude that the evidence is sufficient to support a finding beyond a reasonable
doubt that appellant is criminally responsible for the murder committed by John
under the law of parties. Based on all of the evidence the jury could have reasonably
found credible, including the video, the jury reasonably could have found that
appellant aided or attempted to aid the murder. See Hoang, 263 S.W.3d at 23; Miller,
83 S.W.3d at 314-15; see also Humaran v. State, 478 S.W.3d 887, 896-97 (Tex.
App.—Houston [14th Dist.] 2015, pet. ref’d) (“Evidence is sufficient to convict
under the law of parties where the defendant is physically present at the commission
of the offense and encourages its commission by words or other agreement.”).

We overrule appellant’s first issue.

B. Unconstitutional Sentence

In his second issue, appellant contends that his sentence violates the Fifth,
Eighth, and Fourteenth Amendments to the United States Constitution. We
conclude, however, that appellant did not preserve this complaint for our review.

Before a complaint may be presented for appellate review, the record must
show that the appellant raised the complaint to the trial court by a timely request,
objection, or motion. Tex. R. App. P. 33.1(a)(1); see Kim v. State, 283 S.W.3d 473,
475 (Tex. App.—Fort Worth 2009, pet. ref’d). With the exception of complaints
predicated upon the violation of the narrow categories of absolute or waivable-only
rights, a defendant forfeits a complaint, even a constitutional complaint, if he does
not properly preserve it. See State v. Dunbar, 297 S.W.3d 777, 780 (Tex. Crim.

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App. 2009); Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004); see also
Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012).

The complaint appellant raises here—that his sentence violates the Fifth,
Eighth, and Fourteenth Amendments—is the kind of complaint that is forfeited if
not preserved. See, e.g., Banister v. State, 551 S.W.3d 768, 769 (Tex. App.—Fort
Worth 2017, no pet.); Cerna v. State, 441 S.W.3d 860, 867 (Tex. App.—Houston
[14th Dist.] 2014, pet. ref’d). A complaint that a sentence is grossly disproportionate
or constitutes cruel and unusual punishment may be preserved by objecting at the
punishment hearing or when the sentence is pronounced. Burt v. State, 396 S.W.3d
574, 577 (Tex. Crim. App. 2013); Kim, 283 S.W.3d at 475. An appellant may raise
a sentencing issue for the first time in a motion for new trial only if he did not have
an opportunity to object when the sentence was imposed. Burt, 396 S.W.3d at 577
n.4.

In this case, the record does not show that appellant objected on Fifth, Eighth,
or Fourteenth Amendment grounds when the sentence was pronounced at trial or
that he lacked an opportunity to raise these objections. Appellant elected for the trial
court to impose his sentence. After the trial judge pronounced a sentence of twenty-
five years’ confinement, appellant’s counsel asked several questions of the judge but
asserted no constitutional objections. Appellant did not raise his specific
constitutional complaints until he filed his motion for new trial, and he does not
claim on appeal that he lacked an opportunity to object on constitutional grounds
when the sentence was imposed. Thus, we hold that appellant did not properly
preserve this issue for our review. See Burt, 396 S.W.3d at 577 & n.4; see also Zeller
v. State, No. 14-22-00809-CR, 2024 WL 2364432, at *4 (Tex. App.—Houston [14th
Dist.] May 23, 2024, no pet.) (mem. op., not designated for publication) (defendant
did not preserve cruel and unusual punishment complaint when he raised it for the

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first time in his motion for new trial; he had the opportunity to timely object to his
sentence but did not).

We overrule appellant’s second issue.

C. Lesser-Included Instruction on Deadly Conduct

In his third issue, appellant contends that his due process rights were violated
by the trial court’s “questioning” of the validity of the lesser-included offense of
deadly conduct. We construe this issue as a complaint that the trial court erroneously
refused to submit a deadly conduct instruction in the jury charge.

A request for a lesser-included offense instruction is subject to the usual error
preservation requirements. See Williams v. State, 662 S.W.3d 452, 460-61 (Tex.
Crim. App. 2021). To be entitled to a lesser-included offense instruction, the
defendant must point “to evidence in the record that raises the lesser-included
offense,” unless such evidence is apparent. Id.; see also Olvera v. State,
__S.W.3d__, 2024 WL 1724454, at *4 (Tex. App.—Houston [14th Dist.] Apr. 23,
2024, no pet. h.).

Here, appellant requested lesser-included offense instructions for
manslaughter, criminally negligent homicide, and deadly conduct. However, he did
not point to any evidence supporting the propriety of a lesser-included instruction
for deadly conduct. When the State asserted that such an instruction would be
inappropriate because the evidence showed that Lincoln was killed, so “deadly
conduct wouldn’t be appropriate,” appellant responded, “I may have to withdraw
that, because the murder statute is a result.” The court then stated, “I will withdraw
the deadly conduct,” and appellant responded, “That’s fine, Your Honor.” Later,
appellant affirmatively stated he had no objection to the jury’s charge, which did not
include the deadly conduct instruction.

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Under these circumstances, appellant did not properly preserve a complaint
about the lack of a lesser-included instruction for deadly conduct. See Olvera, 2024
WL 1724454, at *4.

We overrule appellant’s third issue.

Conclusion

Having overruled appellant’s issues, we affirm the trial court’s judgment.

/s/ Kevin Jewell
Justice

Panel consists of Justices Jewell, Zimmerer, and Hassan.
Do Not Publish — Tex. R. App. P. 47.2(b).

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