Authorities release names of theft, murder suspects in connection with fatal police pursuit

Case Number: 01-16-00120-CR

Judge: Rebeca A. Huddle

Court: In The Court of Appeals For The First District of Texas

Plaintiff's Attorney:

Eric Kugler
The Honorable Kim K Ogg
Daniel McCrory

Defendant's Attorney:

Juan Manuel Contreras
Cynthia Rayfield-Aguilar

Description: It was undisputed at trial that Howard and her friend, Racquel Gonzalez,
agreed to steal polo shirts from a department store. They recruited another friend,
Shiquinta Franklin, to help them steal the shirts by driving Howard’s vehicle as the
getaway car.
Howard picked up Gonzalez and Franklin, and they drove to the department
store. Howard and Gonzalez entered the store while Franklin waited in the driver’s
seat of the car. Howard and Gonzalez proceeded to grab sixteen shirts off a
clothing rack1 and run out of the store, setting off the theft-prevention sensors.
They jumped into the getaway car and told Franklin to go. Franklin sped out of the
parking lot, and, almost immediately, the police began to pursue them.
1 The department store security camera videotaped Howard taking six shirts and Gonzalez taking ten. The total value of the sixteen shirts was $2,200.

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In an attempt to evade arrest, they led the police on a dangerous, high-speed
chase on and off the highway and through residential areas, during which they ran
stop signs, reached speeds of over 100 miles per hour, and passed other vehicles on
the inside shoulder.
They eventually came to a red light at an intersection on the feeder road.
Gonzalez testified that she told Franklin to stop the car but that Howard told
Franklin to “keep going” because she “had too much to lose.” Franklin likewise
testified that Howard told her to “go, go, go” through the red light. Franklin ran the
red light at over sixty miles per hour and crashed into another vehicle passing
through the intersection, killing the vehicle’s driver, Rosalba Quezada, and injuring
her three children, one seriously.
Howard attempted to flee the accident scene on foot but was apprehended by
the police and taken to the hospital. At the hospital, she was questioned by Officer
R. Klementich. Howard admitted that she, Gonzalez, and Franklin had conspired to
steal the shirts and then tried to evade arrest when the police began to pursue them.
Howard was indicted for felony murder, tried, and convicted. She appeals.
Charge Error
In her first issue, Howard contends that the trial court instructed the jury to
convict under an erroneous theory of liability. The charge’s second application
paragraph instructed the jury to find Howard guilty of felony murder upon a
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predicate finding that Franklin caused Quezada’s death while acting in furtherance
of a conspiracy with Howard to commit state jail felony theft. Howard argues that
a conviction for felony murder cannot be based on a conspiracy to commit state jail
felony theft because such a conspiracy is not itself a felony but rather a
misdemeanor. The State responds that a conviction for felony murder can be based
on a conspiracy to commit a state jail felony under Section 7.02(b) of the Penal
Code, which establishes a conspiracy theory of party liability. According to the
State, under this statute, Howard may be convicted for Franklin’s felony murder of
Quezada because Franklin committed the felony murder while driving the getaway
car in furtherance of her and Howard’s conspiracy to commit felony theft.
A. Applicable law and standard of review
Under the Code of Criminal Procedure, the trial court must “deliver to the
jury . . . a written charge distinctly setting forth the law applicable to the case . . . .”
TEX. CODE CRIM. PROC. art. 36.14. “The purpose of the jury charge is to inform the
jury of the applicable law and guide them in its application to the case . . . .” Hutch
v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996). In reviewing a jury-charge
issue, we determine whether error exists and, if so, whether sufficient harm
resulted from the error to compel reversal. Ngo v. State, 175 S.W.3d 738, 743 (Tex.
Crim. App. 2005); Ryser v. State, 453 S.W.3d 17, 27 (Tex. App.—Houston [1st
Dist.] 2014, pet. ref’d).
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B. The charge correctly applied the law to the facts
Howard was prosecuted for felony murder. Section 19.02(b)(3) of the Penal
Code sets forth the offense of felony murder. It provides that a person commits
felony murder if he “commits or attempts to commit a felony, other than
manslaughter, and in the course of and in furtherance of the commission or
attempt, or in immediate flight from the commission or attempt, he commits or
attempts to commit an act clearly dangerous to human life that causes the death of
an individual.” TEX. PENAL CODE § 19.02(b)(3).
The State’s theory of liability, however, was not based on Section
19.02(b)(3). Instead, it was based on Section 7.02(b), which establishes a
conspiracy theory of party liability. Id. § 7.02(b). Section 7.02(b) provides that
“[i]f, in the attempt to carry out a conspiracy to commit one felony, another felony
is committed by one of the conspirators, all conspirators are guilty of the felony
actually committed, though having no intent to commit it, if the offense was
committed in furtherance of the unlawful purpose and was one that should have
been anticipated as a result of the carrying out of the conspiracy.” Id.; see Leal v.
State, No. 01-14-00972-CR, 2016 WL 796950, at *6 (Tex. App.—Houston [1st
Dist.] Mar. 1, 2016, pet. ref’d) (mem. op., not designated for publication) (“Under
Section 7.02(b), all the conspirators intending to commit one felony may be
convicted for any other felony actually committed in furtherance of the intended
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felony if such felony was one that should have been anticipated in the attempt to
carry out the intended felony.”).
The conspiracy here was a conspiracy to commit state jail felony theft.
Section 31.03(a) of the Penal Code defines “theft” as the unlawful appropriation of
property with the intent to deprive the owner of the property. TEX. PENAL
CODE § 31.03(a). At the time that Howard and Franklin conspired to steal the
shirts, the offense of theft was a state jail felony if the value of the property was
$1,500 or more but less than $30,000.2 The value of the shirts they conspired to
steal was $2,200. Therefore, their conspiracy was a conspiracy to commit state jail
felony theft.3
Franklin is guilty of felony murder because she caused Quezada’s death by
committing an act clearly dangerous to human life while in immediate flight from
the commission of felony theft. Id. § 19.02(b)(3). Because Howard conspired to
commit state jail felony theft with Franklin, and Franklin committed felony murder
while acting in furtherance of the theft conspiracy, and Franklin’s felony murder 2 See Act of June 20, 2015, 84th Leg., R.S., ch. 1251, § 10, 2015 Tex. Sess. Law Serv. 1251 (codified at TEX. PENAL CODE § 31.03(e)(4)(A)). Theft is now a state jail felony if “the value of the property stole is $2,500 or more but less than $30,000 . . . .” TEX. PENAL CODE § 31.03(e)(4)(A).

3 The offense of conspiracy to commit state jail felony theft would be a Class A misdemeanor. See id. § 15.02(d) (offense of criminal conspiracy “is one category lower than the most serious felony that is the object of the conspiracy, and if the most serious felony that is the object of the conspiracy is a state jail felony, the offense is a Class A misdemeanor”).

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should have been anticipated by Howard as a result of carrying out of the
conspiracy, Howard, as Franklin’s co-conspirator, is guilty of the felony murder of
Quezada as well. Id. § 7.02(b); see Lee v. State, No. 01-07-00992-CR, 2009 WL
1562861, at *4 (Tex. App.—Houston [1st Dist.] June 4, 2009, pet. ref’d) (mem.
op., not designated for publication) (holding that, “under the law of parties,
appellant became criminally responsible for the offense of felony murder by
conspiring to rob the complainant knowing that his friend was carrying a
firearm.”).
Conviction under Section 7.02(b) only requires a conspiracy to commit a
felony; it does not also require that the conspiracy itself constitute a felony. See
TEX. PENAL CODE § 7.02(b). Thus, Howard may be guilty of felony murder even
though the conspiracy itself, had she been charged with that offense, would have
been a misdemeanor. See id. § 15.02(d) (conspiracy to commit state jail felony
theft is misdemeanor).
The charge’s second application paragraph tracked the language of Section
7.02(b), instructing the jury to find Howard guilty upon finding that Franklin
caused Quezada’s death while acting in furtherance of a conspiracy to commit
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felony theft.4 Specifically, the application paragraph instructed the jury to find
Howard guilty of felony murder upon predicate findings that:
 Howard and Franklin conspired to commit felony theft;

 Howard and Franklin carried out their conspiracy to commit felony theft;

 while in the course of committing the felony theft, Franklin committed an act clearly dangerous to human life that caused the death of Rosalba Quezada—i.e., she ran a red light while attempting to evade arrest and crashed her vehicle into the vehicle driven by Quezada, causing Quezada’s death; and

 Franklin’s felony murder of Quezada was committed in furtherance of the conspiracy to commit felony theft and should have been anticipated by Howard as a result of carrying out the conspiracy.5

4 The second application paragraph stated: “If you find from the evidence beyond a reasonable doubt that the defendant, Ashley Mere Howard, and Racquel Gonzalez and/or Shiquinta Franklin entered into an agreement to commit the felony offense of theft of property owned by Leon Bauer, and pursuant to that agreement, if any, they did carry out their conspiracy and that in Harris County, Texas, on or about the 23rd day of May, 2013, while in the course of committing such theft of property owned by Leon Bauer, Racquel Gonzalez and/or Shiquinta Franklin committed an act clearly dangerous to human life that caused the death of Rosalba Quezada by running a red light while evading arrest or detention and causing her motor vehicle to strike the motor vehicle driven by Rosalba Quezada, and that the felony murder of Rosalba Quezada was committed in furtherance of the conspiracy and was an offense that should have been anticipated by the defendant as a result of carrying out the conspiracy . . . then you will find the defendant guilty of felony murder, as charged in the indictment.”

5 The abstract portion of the charge instructed the jury that “[a] person commits the offense of felony murder if she commits a felony, other than manslaughter, and in the course of and in the furtherance of the commission, or in immediate flight from the commission, she commits an act clearly dangerous to human life that causes the death of an individual.”
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Thus, the second application paragraph did not permit a misdemeanor
conspiracy to serve as the underlying offense for convicting Howard of felony
murder under the felony murder statute. Rather, it permitted a felony murder
committed by Howard’s co-conspirator, Franklin, to serve as the basis for
convicting Howard of felony murder under the conspiracy-liability statute.
Therefore, the second application paragraph correctly applied the law to the facts.
Accordingly, we overrule Howard’s first issue.
Motion to Suppress
In her second issue, Howard contends that the trial court erred by denying
her motion to suppress a videotape of the statement she made to Officer
Klementich while at the hospital in police custody. It is undisputed that Klementich
did not begin the interview by reading Howard her Miranda warnings. Instead, he
began with several minutes of questioning. Then he paused, warned her, obtained a
waiver, and continued questioning. The videotape presented to the jury started at
the point in the interview when Klementich began to read Howard her Miranda
warnings; it did not include her pre-warning statements.
Howard argues that the videotape was inadmissible because Klementich
deliberately employed a two-step “question first, warn later” interrogation strategy
without taking any “curative measures” before Howard made her post-warning
statements. The State responds that the videotape was admissible because
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Klementich’s pre-warning questioning was inadvertent and Howard knowingly and
voluntarily waived her rights before making her post-warning statements, which
were the only statements included as evidence.
A. Applicable law and standard of review
Under Texas criminal law, a statement made by a defendant during a
custodial interrogation is inadmissible unless two elements are satisfied. Joseph v.
State, 309 S.W.3d 20, 24 (Tex. Crim. App. 2010). First, before beginning the
interrogation, the police must give the defendant the proper Miranda warnings.
TEX. CODE CRIM. PROC. art. 38.22 §2(a); see Miranda v. Arizona, 384 U.S. 436,
444, 86 S. Ct. 1602, 1612 (1966). Second, after receiving the warnings, the
defendant must “knowingly, intelligently, and voluntarily” waive her rights. TEX.
CODE CRIM. PROC. art. 38.22 §2(b); see Miranda, 384 U.S. at 444, 86 S. Ct. at
1612.
“Midstream Miranda warnings are not permissible.” Ervin v. State, 333
S.W.3d 187, 212 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). The officer
may not begin by questioning the defendant, elicit inculpatory statements, and then
provide the warnings, obtain a waiver, and continue questioning. Id. If the officer
does so, the defendant’s post-warning statements, including those voluntarily
made, may be held inadmissible.
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To determine whether statements made after midstream warnings are
admissible, the trial court must first determine whether the officer’s pre-warning
questioning was inadvertent or deliberate. Carter v. State, 309 S.W.3d 31, 32 (Tex.
Crim. App. 2010). If the officer’s pre-warning questioning was inadvertent, the
defendant’s post-warning statements are admissible as long as they were
knowingly and voluntarily made. Id.; Ervin, 333 S.W.3d at 213. But if the officer’s
pre-warning questioning was deliberate and employed as part of a two-step
“question first, warn later” interrogation strategy, the officer must take “curative
measures” beyond the formal Miranda warnings before any post-warning
statement is made for that statement to be admissible. Martinez v. State, 272
S.W.3d 615, 626 (Tex. Crim. App. 2008); Ervin, 333 S.W.3d at 212–13. The
curative measures “should be designed to ensure that a reasonable person in the
suspect’s situation would understand the import and effect of the Miranda warning
and of the Miranda waiver.” Martinez, 272 S.W.3d at 626 (quoting Missouri v.
Seibert, 542 U.S. 600, 622, 124 S. Ct. 2601, 2616 (2004) (Kennedy, J.,
concurring)).
We review a trial court’s ruling on a motion to suppress under a bifurcated
standard of review. Ervin, 333 S.W.3d at 202. We review the trial court’s factual
findings for clear error, affording almost total deference to the trial court’s rulings
on questions of historical fact and mixed questions of law and fact that turn on an
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evaluation of credibility and demeanor. Carter, 309 S.W.3d at 39–40; Warren v.
State, 377 S.W.3d 9, 15 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). We
review de novo the trial court’s rulings on questions of law and mixed questions of
law and fact that do not turn on evaluation of credibility and demeanor. Ervin, 333
S.W.3d at 202.
B. The videotape of Howard’s post-warning statement was admissible
At the hearing on Howard’s motion to suppress, the trial court heard Officer
Klementich’s testimony and watched a videotape of his interview of Howard.
Unlike the videotape presented to the jury, the videotape presented at the
suppression hearing included Officer Klementich’s pre-warning questioning and
Howard’s pre-warning statements.
Klementich testified that he had been assigned to investigate fatality crashes
and intoxicated driving offenses for the Houston Police Department’s Vehicular
Crime Division. On the day of the accident, he was called to the scene and
photographed the crash. His supervisor then asked him to go to the hospital and
interview the three occupants of the vehicle that had caused the accident.
Klementich arrived at the hospital, identified Franklin, Howard, and
Gonzalez as the three occupants of the vehicle, and proceeded to interview them
one at a time to gain an “understanding of what had occurred.” As his job focused
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on fatality crashes and intoxicated driving offenses, his “primary” concern was to
determine whether Franklin had been driving while intoxicated.
After he obtained Franklin’s consent to draw a blood sample, Klementich
interviewed Howard. Although Howard was in the custody of the Humble Police
Department, Klementich did not begin the interview by reading her the Miranda
warnings. Instead, he began with a little over four-and-a-half minutes of general,
open-ended questioning about the theft, during which time Howard made several
inculpatory statements. Specifically, Howard told Klementich that she and
Gonzalez had taken the shirts from the department store and that Franklin had
driven the getaway car.
Klementich then paused for a moment, stopped the questioning, and told
Howard that he had “kind of messed up.” He told Howard that she had certain
rights and that he had to read them to her. Klementich then proceeded to read
Howard her Miranda warnings. After receiving her warnings, Howard waived her
rights and continued to provide her videotaped statement.
When asked why he waited over four minutes to read Howard her Miranda
warnings, Klementich provided the following response:
Well, to be quite frank with you, I had a mental lapse. I realized that even though I was not asking Ms. Howard questions regarding the fatality crash, she still was in custody. She was not free to leave. So, I believed that it was prudent to Mirandize her since she was in custody.

Outcome: