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Date: 08-04-2016

Case Style: Christy Allane Rodriguez v. The State of Texas

Case Number: 05-15-00687-CR

Judge: Douglas Lang

Court: In The Court of Appeals Fifth District of Texas at Dallas

Plaintiff's Attorney:

Joe Brown

Defendant's Attorney:




Garland Cardwell

Description: Rodriguez was charged by indictment alleging in relevant part that, “with intent to
assault, harass, or alarm,” she caused Denison police officer Holly Jenkins “to contact
[Rodriguez’s] saliva” while Jenkins was effecting Rodriguez’s arrest. See TEX. PENAL CODE
ANN. § 22.11(a)(2) (West Supp. 2015). The charge arose after Rodriguez spit on Jenkins
numerous times while Jenkins was transporting Rodriguez to the city jail following Rodriguez’s
arrest for public intoxication.
Prior to trial, Rodriguez filed a motion to suppress all evidence obtained following the
arrest, arguing her arrest was illegal. See TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West
2005). At the hearing on the motion, Jenkins testified she had gone to Rodriguez’s apartment to
question Rodriguez regarding a theft Rodriguez had reported. Jenkins stayed at the door while
Rodriguez remained inside. According to Jenkins, Rodriguez’s speech was slurred, she swayed
while standing, and she had a “strong odor” of alcohol on her breath. Determining Rodriguez
was “too intoxicated” to answer any questions, Jenkins decided to return another time. As
Jenkins walked to her car, Rodriguez left her apartment and stumbled across a breezeway, almost
falling down a flight of stairs. Jenkins directed Rodriguez to return to the apartment, but
Rodriguez refused. Concerned for Rodriguez’s safety and because Rodriguez was “in a public
place,” Jenkins arrested her. Jenkins testified Rodriguez became “combative” and began
screaming. Once in the patrol car, Rodriguez also repeatedly spit at Jenkins and kicked the
partition in the car.
The events that transpired after Rodriguez was arrested were recorded, and a portion of
the recording played to the trial judge. That portion appeared to include Jenkins explaining to a
second officer, who had come to Rodriguez’s apartment complex to check on Jenkins, why she
had arrested Rodriguez.1
Rodriguez did not call any witnesses, but argued she was “entrapped” by Jenkins
Specifically, she disputed Jenkins’s testimony that she left her apartment voluntarily, contending
the recording reflected Jenkins told the second officer that she asked Rodriguez to step outside
1 The portion of the recording played to the trial judge was not transcribed into the record, and the record does not reflect what portion of the recording was played.

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the apartment so they could talk about the alleged theft. Rodriguez argued that, instead of
arresting her, Jenkins should have “sen[t] her back into her home.” The trial court denied the
motion.
Jenkins testified similarly at trial, and her testimony was corroborated by the officer who
came to the apartment complex to check on her. The recording of the events that transpired after
the arrest was also admitted into evidence and played to the jury. Rodriguez did not testify or
call any witnesses and did not re-urge her suppression motion. However, at the charge
conference, she requested the jury be instructed on entrapment. The trial court denied the
request.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
In her sole issue, Rodriguez reasserts the argument she made at the suppression hearing
where she asserted Jenkins entrapped her and, instead of arresting her, should have taken her
back to her apartment. Rodriguez contends trial counsel should have requested a jury charge
instruction on the legality of her arrest so the jury could consider that, and his failure to do so
constituted ineffective assistance of counsel.
A. Applicable Law – Legality of Arrest Instruction
A defendant is entitled to a jury charge that instructs the jurors on the law applicable to
the case. See TEX. CODE CRIM. PROC. ANN. 36.14 (West 2007); Vasquez v. State, 389 S.W.3d
361, 366 (Tex. Crim. App. 2012). Illegally obtained evidence is inadmissible, and when a
defendant raises a factual dispute as to whether evidence was legally obtained, the jury must be
instructed to disregard that evidence if it believes, or has a reasonable doubt, it was illegally
obtained. See TEX. CODE CRIM. PROC. ANN. 38.23(a); Pickens v. State, 165 S.W.3d 675, 680
(Tex. Crim. App. 2005). For purposes of determining whether a jury instruction is required, a
factual dispute exists if evidence is presented controverting the basis upon which the evidence

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was obtained. See Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012); Rodriguez v.
State, 239 S.W.3d 277, 280 (Tex. App—Amarillo 2007, pet. ref’d).
An arrest, with or without a warrant, is legal if it is predicated upon probable cause. See
State v. Woodard, 341 S.W.3d 404, 411 (Tex. Crim. App. 2011); Jones v. State, 568 S.W.2d 847,
854 (Tex. Crim. App. 1978). Probable cause exists when a police officer has “reasonably
trustworthy information sufficient to warrant a reasonable person to believe a particular person
has committed or is committing an offense.” Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim.
App. 1997). Probable cause also exists when an offense is committed within the presence of an
officer. See TEX. CODE CRIM. PROC. art. 14.01 (West 2015); Woodard, 341 S.W.3d at 412.
B. Applicable Law – Ineffective Assistance
To prevail on an ineffective assistance of counsel claim, a defendant must show by a
preponderance of the evidence both that trial counsel’s performance was deficient and the
deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687
(1984); Thompson v. State, 9 S.W.3d 808, 812, 813 (Tex. Crim. App. 1999). The purpose of this
two-pronged test is to assess whether “counsel’s conduct so undermined the proper functioning
of the adversarial process” that the trial court cannot be said to have produced a reliable result.
Thompson, 9 S.W.3d at 812-13.
To satisfy the first prong, the defendant must show counsel’s performance fell below “the
range of competence demanded of attorneys in criminal cases as reflected by prevailing
professional norms[.]” Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013). Counsel is
not expected to perform a useless or futile act, and a record silent as to why counsel took or
failed to take a complained-of action proves nothing unless the record affirmatively demonstrates
counsel’s performance was “so outrageous that no competent attorney would have engaged in
it.” See Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012) (quoting Goodspeed v.

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State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)); Ex parte Chandler, 182 S.W.3d 350, 356
(Tex. Crim. App. 2005); Thompson, 9 S.W.3d at 814. To satisfy the second prong, the defendant
must identify objective facts in the record showing a reasonable probability that, absent counsel’s
errors, the result of the proceeding would have been different. Strickland, 466 U.S. 687, 694;
Bone v. State, 77 S.W.3d 828, 836-37 & n.29 (Tex. Crim. App. 2002). A defendant’s failure to
satisfy either prong defeats the ineffective assistance claim. Thompson, 9 S.W.3d at 813.
In reviewing counsel’s representation, an appellate court looks at the totality of the
representation. Id. Review is highly deferential and a strong presumption exists that counsel’s
conduct “fell within the wide range of reasonable professional assistance.” Id.
C. Application of Law to Facts
To establish trial counsel was ineffective, Rodriguez must first show she was entitled to
an instruction on the legality of her arrest, as without that showing, she cannot establish either
deficient performance or prejudice. See Thompson, 9 S.W.3d at 812-13; Washington v. State,
417 S.W.3d 713, 726 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). To show she was
entitled to the instruction, she must show a factual dispute arose at trial as to the basis for her
arrest. See Rodriguez, 239 S.W.3d at 280. However, the record does not reflect a factual
dispute.
As stated, Jenkins testified she was concerned for Rodriguez’s safety because Rodriguez
was intoxicated. Rodriguez slurred her speech, swayed while standing, had a “strong odor” of
alcohol, and stumbled across the apartment complex’s breezeway, almost falling down a flight of
stairs. Jenkins’s testimony demonstrated probable cause for Rodriguez’s public intoxication
arrest and was undisputed. See TEX. PENAL CODE ANN. § 49.02(a) (West 2011) (“A person
commits an offense if the person appears in a public place while intoxicated to the degree that
the person may endanger the person or another.”); Grubbs v. State, 440 S.W.3d 130, 138 (Tex.

–6–
App.—Houston [14th Dist.] 2013, pet. ref’d) (undisputed officer testimony that appellant was in
“drunken state” and had “slurred speech, bloodshot eyes, a strong odor of alcohol coming from
his breath, and a staggered stance” demonstrated probable cause to arrest for public intoxication).
What Rodriguez disputes is that she stepped outside her apartment voluntarily, as Jenkins
testified she did. Rodriguez contends the recording of the events that transpired after she was
arrested showed she stepped outside because Jenkins asked her. However, that Jenkins might
have asked Rodriguez to step outside shows only why Rodriguez was in a public place, but it
does not contradict that she was intoxicated and in a public place at the time of her arrest. In
fact, Rodriguez’s contention that Jenkins should have taken her back to the apartment instead of
arresting her is premised on her being intoxicated in a public place.
On the record before us, we conclude that, because Jenkins’s testimony was undisputed,
Rodriguez was not entitled to an instruction on the legality of her arrest, and her ineffective
assistance claim fails. See Grubbs, 440 S.W.3d at 138 (because officer’s testimony that
appellant was drunk in public was undisputed, appellant not entitled to jury instruction on
legality of arrest); Washington, 417 S.W.3d at 726 (“To demonstrate deficient performance
based on the failure to request a jury instruction, an appellant must show that he was entitled to
the instruction.”); see also Chandler, 182 S.W.3d at 356 (counsel not expected to perform futile
act). Accordingly, we decide Rodriguez’s sole issue against her.
III. MODIFICATION OF JUDGMENT
We note the judgment reflects Rodriguez was prosecuted under Texas Penal Code section
“22.11(b)” instead of section 22.11(a)(2). See TEX. PENAL CODE ANN. § 22.11. Because we
have the authority to modify an incorrect judgment to make the record speak the truth, we
modify the judgment to reflect the “statute for offense” as 22.11(a)(2). See TEX. R. APP. P.

–7–
43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813
S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref’d).

Outcome:

As modified, we affirm the trial court’s judgment.

Plaintiff's Experts:

Defendant's Experts:

Comments:

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