Opinion
No. 04-04-00261-CV
Delivered and Filed: May 18, 2005.
Appeal from the 289th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-Juv-00368, Honorable Carmen Kelsey, Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Karen ANGELINI, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
This is an appeal from an order of adjudication following a jury trial finding that the Appellant, R.M., engaged in delinquent conduct by committing the offense of Assault Causing Bodily Injury. R.M. raises two issues for review. We overrule both issues and affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
At approximately 6:20 a.m., on February 4, 2004, San Antonio Police Officer Earl Tovar was dispatched to a residence at 138 Verne Street on a family disturbance call. Arriving at the location, he observed a teenage male frantically signaling him to hurry to the house. As Officer Tovar exited his police car, the teenage male informed Officer Tovar that his father and brother were fighting inside the house. Upon entering the residence, Officer Tovar was led to a hallway where he observed Ricardo Mendiola grappling with his son, R.M. Officer Tovar twice ordered R.M. to release Mr. Mendiola. When R.M. failed to obey his instructions, Officer Tovar had to physically grab R.M. and pull him away from Mr. Mendiola.
After separating the two persons, Officer Tovar placed R.M. on a bed in an adjacent room and interviewed Mr. Mendiola to determine the cause of the incident. According to Officer Tovar, Mr. Mendiola explained that his son had attacked him after he woke him to go to school and confronted him about stealing things from their house. Therefore, after interviewing Mr. Mendiola and observing a physical injury to Mr. Mendiola's wrist which appeared to be a "bite mark, with blood," Officer Tovar placed R.M. under arrest on suspicion of assault. R.M. resisted Officer Tovar's attempts to restrain him, however, and began fighting and pulling away. Consequently, R.M.'s father and brother had to help control R.M. so that he could be handcuffed. Officer Tovar sustained an injury to his right-hand palm and index finger during the struggle.
After placing R.M. in the patrol car, R.M. remained defiant; he banged his head on the car's plexiglass divider, and he cursed and threatened his father. Officer Tovar described R.M.'s demeanor as both combative and argumentative.
As a result of these incidents, the State charged R.M. with two counts of delinquent conduct: one for assault causing bodily injury and another for resisting arrest. On March 5, 2004, a jury found that R.M. did engage in delinquent conduct by committing the offense of assault causing bodily injury, but found that R.M. did not engage in delinquent conduct regarding the charge of resisting arrest. The trial court entered an order of adjudication of delinquent conduct and a disposition order committing R.M. to the Texas Youth Commission. R.M. appeals the judgment of the trial court.
EXTRANEOUS OFFENSE EVIDENCE
In his first issue, R.M. contends that the trial court erred in admitting irrelevant extraneous offense evidence. Specifically, R.M. contends that it was harmful error for the trial court to allow Officer Tovar to testify concerning statements Mr. Mendiola made to him at the time of R.M.'s arrest, as well as observations regarding R.M.'s actions during his arrest. We disagree.
We review a trial court's decision to admit or to exclude evidence for an abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). An abuse of discretion occurs where a trial court's decision lies outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990). In determining whether a trial court has abused its discretion, we consider whether the court acted arbitrarily or unreasonably and without reference to guiding rules or principles. Id. at 380.
It is well-established that an accused is entitled to be tried on the accusations made in the State's pleading and not for some collateral crime or for being a criminal generally. See TEX. R. EVID. 404(b); Nobles v. State, 843 S.W.2d 503, 514 (Tex.Crim.App. 1992). However, Mr. Mendiola's statements to Officer Tovar that R.M. attacked him because he had confronted him about stolen items were not inadmissible extraneous offense evidence. The testimony was relevant to a material issue at trial, i.e., whether R.M. assaulted Mr. Mendiola. Likewise, evidence of R.M.'s behavior and threats made toward Mr. Mendiola at the time of arrest was admissible to show the accused's consciousness of guilt. See Greene v. State, 928 S.W.2d 119, 123 (Tex.App.-San Antonio 1996, no pet.). In fact, assuming the testimony relates to extraneous bad acts by R.M. at all, the statements were merely examples of admissible same transaction contextual evidence, as such evidence was necessary to the jury's understanding of the instant offense and did not introduce an impermissible character element. See Rogers v. State, 853 S.W.2d 29, 33 (Tex.Crim.App. 1993) (holding that "acts, words and conduct" made at the time of arrest are admissible as an exception under Rule 404(b) where such evidence is necessary to the jury's understanding of the instant offense); Blakeney v. State, 911 S.W.2d 508, 515 (Tex.App.-Austin 1995, no pet.). We admit such evidence under the reasoning that events do not occur in a vacuum, and the jury has a right to hear what events immediately surrounded the criminal act charged so that they may realistically evaluate the evidence. Hoffert v. State, 623 S.W.2d 141, 144 (Tex.Crim.App. 1981); Albrecht v. State, 486 S.W.2d 97, 100 (Tex.Crim.App. 1972).
Moreover, Mr. Mendiola's statements did not constitute impermissible hearsay, as they were not offered to prove the truth of the matter asserted. See TEX. R. EVID. 801(d); see also McCraw v. Maris, 828 S.W.2d 756, 757 (Tex. 1992) ("Out-of-court statements are not hearsay if offered for a purpose other than to prove the truth of the matter asserted"). Instead, they were offered to show what precipitated R.M.'s assault.
Nevertheless, even had the trial court erred in admitting Officer Tovar's testimony, we conclude that any error was harmless. Error in the admission of evidence constitutes non-constitutional error. See Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). We disregard non-constitutional error that does not affect the substantial rights of the defendant. TEX. R. APP. P. 44.2(b). A substantial right is affected only when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997).
Here, there was only one statement before the jury concerning R.M. stealing items from the house. During direct examination, Officer Tovar testified: "I was asking [Mr. Mendiola] what had happened and that's when he went into detail about how he confronted [R.M.] about stolen items in the house." Following a hearing conducted outside of the jury's presence on the admissibility of Mr. Mendiola's statements to Officer Tovar, no mention was made again concerning the alleged theft. Moreover, evidence of threats R.M. made to both Mr. Mendiola and Officer Tovar at the time of his arrest was only briefly mentioned at trial and was not emphasized in the State's arguments or at closing. Consequently, a review of the entire record indicates that even if the evidence had been erroneously admitted, R.M.'s substantial rights were not affected. Therefore, we conclude that the trial court did not abuse its discretion in admitting this evidence, and we overrule R.M.'s first issue on appeal.
Further, the admission of the disputed evidence did not violate Rule 403. Under Texas Rule of Evidence 403, even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, considerations of undue delay, or needless presentation of cumulative evidence. See TEX. R. EVID. 403; see also Reese v. State, 33 S.W.3d 238, 240-41 (Tex.Crim.App. 2000) (holding that relevant 403 criteria includes: (1) the probative value of the evidence; (2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent's need for the evidence). Here, we have already concluded that Officer Tovar's testimony was only minimally developed at trial and was both relevant and probative in determining whether R.M. assaulted Mr. Mendiola. Furthermore, Officer Tovar's testimony was necessary in order to controvert Mr. Mendiola's conflicting in-court version of the events. Therefore, in our review, we cannot say the trial court's decision to admit the evidence was unduly prejudicial or lay outside the "zone of reasonable disagreement." See Robbins v. State, 88 S.W.3d 256, 260 (Tex.Crim.App. 2002).
LEGAL AND FACTUAL SUFFICIENCY
In his second issue on appeal, R.M. contends that the evidence is both legally and factually insufficient to support the jury's finding that he engaged in delinquent conduct by committing assault causing bodily injury upon Mr. Mendiola. Again, we disagree.
A. Standard of Review
When reviewing the legal sufficiency of the evidence, we do not weigh the evidence tending to establish innocence, nor do we assess the credibility of witnesses. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex.Crim.App. 1996). We view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998). If we determine that the evidence is legally insufficient, we must render a judgment of acquittal. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996).
In reviewing the factual sufficiency of the evidence, rather than viewing the evidence in the light most favorable to the prosecution, our review is a neutral one of the evidence. Zuniga v. State, 144 S.W.3d 477, 481-82 (Tex.Crim.App. 2004). We determine if a finding is so against the great weight and preponderance of the evidence that it is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Id. at 484. There is only one question to be answered in a factual sufficiency review: considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? If, after a neutral review of all the evidence, we determine that proof of guilt is so obviously weak as to undermine the confidence in the jury's verdict, we must vacate the conviction and remand the cause for a new trial. Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App. 2000).
Further, we determine sufficiency of the evidence by the elements of the crime as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). The correct charge "would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. B. Analysis
The penal code provides that a person commits the offense of assault if the person intentionally, knowingly, or recklessly causes bodily injury to another. See TEX. PEN. CODE ANN. § 22.01(a)(1) (Vernon 2003). Here, after examining the evidence in the light most favorable to the verdict, we find that a rational trier of fact could have found the essential elements of the offense of assault causing bodily injury beyond a reasonable doubt. At trial, Officer Tovar testified that he witnessed Mr. Mendiola and R.M. fighting. He further testified that Mr. Mendiola told him that R.M. had attacked him when Mr. Mendiola accused him of stealing items from their house. Officer Tovar stated that Mr. Mendiola showed him an injury to his left wrist and exclaimed, "He bit me." Officer Tovar also observed what appeared to be a bite mark on Mr. Mendiola's arm, with the skin broken and visible blood. Therefore, under a legal sufficiency standard, a reasonable fact-finder could find, based upon Officer Tovar's testimony, that R.M. assaulted Mr. Mendiola as charged in the petition.
Additionally, we do not find the verdict to be so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. At trial, the jury heard conflicting accounts of the events surrounding the arrest and alleged assault. Mr. Mendiola testified that there was no assault and denied telling Officer Tovar that R.M. had attacked or bitten him. Instead, Mr. Mendiola claimed that he had called the police because R.M. refused to go to school. However, the mere fact that an appellant presents a different version of the events does not render the evidence factually insufficient. See Anderson v. State, 701 S.W.2d 868, 872 (Tex.Crim.App. 1985). Under both legal and factual sufficiency of the evidence challenges, the jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to the witnesses' testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986); Jaggers v. State, 125 S.W.3d 661, 672 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). Therefore, here, the jury's decision to believe Officer Tovar's version of the events and reject Mr. Mendiola's in-court version does not render the evidence factually insufficient to support the verdict. See Bustamante v. State, 106 S.W.3d 738, 741 (Tex.Crim.App. 2003) (holding that jury was well within its discretion to believe appellant's prior statements and to disbelieve the self-serving statements made on the witness stand); Goodman v. State, 66 S.W.3d 283, 284-287 (Tex.Crim.App. 2001).
Having reviewed all of the evidence under the appropriate standards of review, we conclude that appellant has not demonstrated that the evidence is either legally or factually insufficient to support the jury's finding that he engaged in delinquent conduct by committing assault causing bodily injury upon Mr. Mendiola. Accordingly, we overrule R.M.'s second issue on appeal.
CONCLUSION
We affirm the judgment of the trial court.