COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
ANGEL CASTAÑEDA, )
) No. 08-02-00391-CR
Appellant, )
) Appeal from the
v. )
) 120th District Court
THE STATE OF TEXAS, )
) of El Paso County, Texas
Appellee. )
) (TC# 20010D06388)
)
O P I N I O N
Angel Castañeda appeals from his conviction of violation of a protection order, enhanced. Upon the jury finding of guilt, the jury assessed punishment of 12 years= confinement in the Texas Department of Criminal Justice, Institutional Division. Appellant raises eleven issues on appeal. We affirm.
Maria Castañeda, Appellant=s wife, obtained a protective order against her husband on October 26, 2001, which was effective until December 26, 2001. The protective order prohibited the Appellant from going within 200 yards of Mrs. Castañeda=s residence and from their three children=s respective schools and day care facilities. The order also generally prohibited the Appellant from committing acts of family violence, threatening, or harassing his wife and family.
On November 20, 2001, Appellant came up on his wife as she was placing their youngest son into her car. An argument began and then Appellant forced his way into the car, taking over the driver=s seat and pushing his wife over to the passenger seat. Appellant then sped off. Mrs. Castañeda testified she did not want to be with Appellant; that she had asked her husband to stop the car; and that he struck her as he drove the car. She tried to jump out of the car but Appellant was able to close the door. Finally, Appellant hit a gas meter which apparently caused a flat tire and after the car stopped, Appellant left the scene.
Police Officer Obptande was a patrol officer dispatched to the location where Appellant stopped and left the car. An ambulance had already arrived and EMS workers were tending to Mrs. Castañeda. The officer testified that Mrs. Castañeda was emotionally distraught, A[y]ou could tell she had been crying. Her face was red. She couldn=t stand still. She was obviously distraught.@
In Issue One, Appellant challenges his conviction on the basis that the indictment failed to allege all of the necessary elements to prove a violation of a protective order. The State counters that any error was not preserved for appellate review by a timely objection. Moreover, the State asserts that the indictment is not defective because it alleges all of the elements of the offense of violation of a protective order or magistrate=s order as set out by the Tex.Pen.Code Ann. ' 25.07 (Vernon Supp. 2004).
Appellant did not raise this objection regarding the indictment prior to the trial. Failure to allege an element of the offense in an indictment or information is a defect of substance, which can be waived under Tex.Code Crim.Proc.Ann. art. 1.14(b)(Vernon Supp. 2004). As long as the charging instrument charges Athe commission of an offense@ it is not fundamentally defective even if it fails to allege an element of the offense. Rodriguez v. State, 90 S.W.3d 340, 359 (Tex.App.--El Paso 2001, pet. ref=d); Duron v. State, 956 S.W.2d 547, 550-51 (Tex.Crim.App. 1997). An indictment will suffice if it charges a crime with enough clarity and specificity to identify the penal statute which the State intends to utilize, even if the instrument is otherwise defective. Rodriguez, 90 S.W.3d at 359.
The indictment in this case does not allege that Appellant committed family violence by means of either of the two variations listed for committing family violence under the definition in Tex.Pen.Code Ann. ' 25.07. However, looking at the entirety of the indictment, all of the elements of the offense of a violation of a protective order or magistrate=s order are alleged. The indictment contains wording such that Appellant was able to identify the specific penal statute involved. Since Appellant was required to object to the indictment prior to the day of trial, he has waived his complaint on appeal. Tex.Code Crim.Proc.Ann. art. 1.14(b); Rodriguez, 90 S.W.3d at 359. We overrule Issue One.
In Issue Two, Appellant asserts that he was egregiously harmed by the failure to charge the jury on all the elements of a violation of a protective order or magistrate=s order. Specifically, Appellant contends that the application paragraph submitted to the jury only required the jury to determine if the Appellant had committed the offense of assault, not family violence as expressed in Section 25.07(a) of the Texas Penal Code. See Tex.Pen.Code Ann. ' 25.07(a). The State argues that all of the elements of the offense were included in the application paragraph of the jury charge, thereby making Appellant=s claim meritless.
We examine jury charge error under the standards set forth in Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1984). When reviewing a jury charge error claim, we must first determine whether error actually exists in the charge. See Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App. 1986).
To determine if error occurred in this case, we must examine the charge as a whole, considering the workable relationship between the abstract parts of the charge and those parts that apply the abstract law to the facts of the case. See Plata v. State, 926 S.W.2d 300, 302 (Tex.Crim.App. 1996), overruled in part on other grounds by Malik v. State, 953 S.W.2d 234 (Tex.Crim.App. 1997); Caldwell v. State, 971 S.W.2d 663, 666 (Tex.App.--Dallas 1998, pet. ref=d). The abstract or definitional paragraphs serve as a glossary to help the jury understand the meaning of concepts and terms used in the application paragraphs of the charge. Id. A charge is adequate if it contains an application paragraph that authorizes a conviction under conditions specified by other paragraphs of the jury charge to which the application paragraph necessarily and unambiguously refers, or contains some logically consistent combination of such paragraphs. Plata, 926 S.W.2d at 304; Caldwell, 971 S.W.2d at 666.
If error exists, we must then assess whether any resulting harm requires reversal. Almanza, 686 S.W.2d at 171. Appellant did not object to the claimed charge error at trial. When error has not been properly preserved, we will reverse only if the error is so egregious and created such harm that the appellant was denied a fair and impartial trial. Arline, 721 S.W.2d at 352; Almanza, 686 S.W.2d at 171. A determination of egregious harm requires that we examine the charge as a whole, the state of the evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171; see Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App. 1996).
In this case, the abstract portion of the charge properly set forth the elements of a violation of a protective order or magistrate=s order, including the family violence element. The application paragraph stated that in order to be found guilty of the charge in the indictment, the jury must find that Appellant intentionally or knowingly committed Aan act of family violence against [Mrs. Castañeda] to-wit assault by (1) intentionally, knowingly, or reckless causing bodily injury to [Mrs. Castañeda], (2) intentionally or knowingly threatening [Mrs. Castañeda] with imminent bodily injury, or (3) intentionally or knowingly causing physical contact with [Mrs. Castañeda] when the Defendant knew or should reasonably have believed that [Mrs. Castañeda] would regard the contact as offensive or provocative . . . .@ Therefore, when viewed in its entirety, the charge informed the jury of the family violence element required for the commission of a violation of a protective order or magistrate=s order. Since the abstract portion of the charge contained the definition of family violence and the application paragraph included the element of family violence, we conclude that there was no error in the charge. See Plata, 926 S.W.2d at 304; Caldwell, 971 S.W.2d at 666. We overrule Issue Two.
In Issue Three, Appellant challenges the factual sufficiency of the evidence in support of his conviction of committing family violence or an assault against his wife. In reviewing factual sufficiency challenge, we begin with the assumption that the evidence is legally sufficient. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). This Court considers all of the evidence, both admissible and inadmissible, but does not view it in the light most favorable to the verdict. Clewis v. State, 992 S.W.2d 126, 129 (Tex.Crim.App. 1996); Chesnut v.State, 959 S.W.2d 308, 309 (Tex.App.--El Paso 1997, no pet.). We review the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove that fact. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). A defendant may allege that the evidence is so weak as to be clearly wrong and manifestly unjust, or in the case where the defendant has offered contrary evidence, a defendant may argue that the finding of guilt is against the great weight and preponderance of the evidence. Johnson, 23 S.W.3d at 11. Although the Court is authorized to set aside the fact finder=s determination under either of these two circumstances, our review must employ appropriate deference and should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any evidence presented at the trial. Johnson, 23 S.W.3d at 7. We are not free to reweigh the evidence and set aside a verdict merely because we feel that a different result is more reasonable. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997); Clewis, 922 S.W.2d at 135.
Mrs. Castañeda testified that while she and her husband were in the car, he struck her. There was ample testimony from two witnesses, Jesus Guzman and Anna Jarvis, that supported Mrs. Castañeda=s testimony. Specifically, Mr. Guzman testified that he was following Appellant and Mrs. Castañeda, and he saw Appellant pull Mrs. Castañeda toward him and Appellant=s hand was going up and down like he was hitting her. Mr. Guzman saw bruises on Mrs. Castañeda=s leg and redness on her face. Ms. Jarvis, who was riding with Mr. Guzman, testified similarly that it appeared to her that Mrs. Castañeda was being beaten while in the car. Officer Obptande also testified that Mrs. Castañeda stated that Appellant had punched her repeatedly on her head and face.
Appellant claims that the only testimony that refers to Mrs. Castañeda being hit by Appellant is that of Officer Obptande=s and since the officer does not speak Spanish and his wife does not speak English, the officer=s testimony is not credible. Appellant contends that if Officer Obptande=s testimony is removed from the record, the evidence left is not sufficient for a jury to find beyond a reasonable doubt that Appellant committed the essential elements of assault, as alleged in the indictment. That argument is specious because even if Officer Obptande=s testimony is removed from the record, there is sufficient testimony from the victim and two other witnesses to allow a jury to find beyond a reasonable doubt that Appellant committed family violence against Mrs. Castañeda by assaulting her. Appellant has failed to show that the evidence presented by the State was so weak that the jury=s guilt-finding was clearly wrong and manifestly unjust. See Johnson, 23 S.W.3d at 11. We therefore overrule Issue Three.
In Issues Four, Six, Seven, Eight, and Ten, Appellant challenges the ineffective assistance of his counsel. Claims of ineffective assistance of counsel are reviewed under the two-prong test set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984) and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986). First, in order to prevail, the defendant must show that the trial counsel=s performance was deficient, which requires a showing that counsel=s representation fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999); Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Second, the defendant must show that counsel=s deficient performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. This requires the defendant to show there is a reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Thompson, 9 S.W.3d at 812.
In reviewing a claim of ineffective assistance of counsel, we must indulge a strong presumption that counsel=s conduct falls within the wide range of reasonable professional assistance and the appellant must overcome the presumption that the challenged conduct might be considered sound trial strategy. Thompson, 9 S.W.3d at 813; Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Any allegation of ineffectiveness must be firmly founded in the record, and the records must demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. In the majority of instances, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel. Thompson, 9 S.W.3d at 813-14. When faced with a silent record as to counsel=s strategy, this Court will not speculate as to the reasons for counsel=s actions. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). It is the defendant=s burden to prove by a preponderance of the evidence that counsel was ineffective. Thompson, 9 S.W.3d at 813.
Appellant claims that his trial attorney was ineffective in: (1) failing to object to testimony introduced by the State through Officer Obtande as an excited utterance; (2) failing to object to the lack of advance notice of the State=s intent to introduce several extraneous offenses allegedly committed by Appellant; (3) failing to object to the introduction of an extraneous burglary of habitation offense during the punishment phase of the trial; (4) failing to (a) object to the State=s admission into evidence during the punishment phase of the trial of a portion of the State=s Exhibit containing a motion to revoke probation and a judgment revoking probation in cause no. 64258-34, and (b) failing to request that the court conduct a hearing on the admissibility of the extraneous offenses listed in the motion to revoke and judgment of revocation prior to receiving these documents into evidence; and (5) failing to object to the prosecutor=s request that the jury ignore the translation provided by the official court translator and determine for itself what the complaining witness testified to while on the witness stand. We will address each of these objections in turn.
With respect to the first claim, Appellant asserts that while his trial attorney objected to the initial question made to Officer Obptande about what Mrs. Castañeda had allegedly told him, he erred in failing to object to any of the follow-up questions. The record shows that the trial court overruled his initial hearsay objection on the basis of the hearsay exception for excited utterance and the subsequent questions were likewise admissible. Issue Four is overruled.
In Issue Six, Appellant argues that his trial attorney was ineffective by failing to object to the State=s failure to provide advance notice of its intent to prove extraneous offenses during the punishment phase as required by the Tex.Code Crim.Proc.Ann. art. 37.07, ' 3(g)(Vernon Supp. 2004). Similarly, in Issue Seven, Appellant argues that his trial attorney was ineffective because he failed to object to an extraneous burglary of habitation offense during the punishment phase of the trial, to which the State had failed to provide Appellant with notice of its intention of doing so. Issue Eight reiterates the argument raised in Issue Six.
It is uncontested that Appellant=s trial attorney submitted a timely request for notice pursuant to Article 37.07, sec. 3(g), and that the State failed to provide notice of its intent to prove extraneous offenses at the punishment phase of the trial. The State argues that although it failed to provide notice, the enhancement paragraph of the indictment itself provided Appellant with notice of the State=s intention to introduce such evidence at punishment.
An enhancement paragraph provides the defendant with written notice of the prior conviction on which the State will rely to enhance his punishment. Johnson v. State, 84 S.W.3d 726, 728 (Tex.App.--Houston [1st Dist.] 2002, pet. ref=d), citing Coleman v. State, 577 S.W.2d 486, 488 (Tex.Crim.App. 1979). In this case, the enhancement paragraph of the indictment stated:
And the Grand Jurors further present in and to said Court that prior to the commission of the primary offense by the said Defendant, on the 25th day of October, 1996 in the 34th District Court of El Paso, Texas, in Cause Number 64258-34, the said Defendant, was convicted of a felony, to wit: Burglary Paragraph AA@ only, and said conviction became final prior to the commission of the primary offense.
We therefore find that the indictment provided Appellant with sufficient written notice that the State would present the prior burglary conviction to enhance his punishment at the punishment trial. See Johnson, 84 S.W.3d at 728. Appellant=s attorney was therefore not ineffective for objecting to the lack of notice. See Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064-65.
Appellant also contends that his trial attorney provided ineffective assistance by failing to object to the motion to revoke probation filed in Cause 64258-34 that listed several extraneous offenses incorporated into the penitentiary packet. The State alleges that the penitentiary packet included the pleadings necessary to prove that the Appellant was previously and finally convicted of burglary in cause number 64258-34. The State contends that it provided the motion to revoke probation and the judgment revoking probation to prove that Appellant=s conviction was final.
We agree with the State=s contention that because the motion to revoke probation containing the prior violations was used as part of proof of Appellant=s prior conviction alleged for enhancement of his punishment, it could be considered by the jury. See Murray v. State, 840 S.W.2d 675, 679-80 (Tex.App.--Tyler 1992, no pet.). In this case, the record does not contain a motion for new trial. We find that Appellant=s trial attorney was not ineffective in failing to object to this extraneous evidence. Appellant has failed to show that his trial attorney=s performance was deficient and that such performance deprived him of a fair trial. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Issues Six, Seven, and Eight are overruled.
In Issue Ten, Appellant contends that his trial attorney rendered ineffective assistance by failing to object to the prosecutor=s request that the jury ignore the translation provided by the official court translator and determine for itself what the complaining witness testified to while on the stand. During the closing argument, the State=s attorney stated the following with regards to Mrs. Castañeda=s testimony:
She has to have all her testimony through a translator because she felt more comfortable doing it in Spanish. Everything we get from her in the translation is lost. For those who speak Spanish, you know how true that is. You might say something in Spanish and it might come out entirely different of it--the meaning--than the translation in Spanish. You are not getting it from [Mrs. Castañeda]; you are getting the translation from the translation [sic]. Keep that in consideration when you evaluate her testimony.
We find that this statement does not direct the jury to ignore Mrs. Castañeda=s testimony, but rather the statement merely suggests that the meaning of words are sometimes lost in translation. As we read the statement, the State=s attorney was asking the jury to keep this in mind. The State was not asking the jury to ignore Mrs. Castañeda=s testimony.[1] Additionally, the accuracy of a sworn interpreter=s interpretation is a question of fact to be decided by the jury. See Garcia v. State, 887 S.W.2d 862, 875 (Tex.Crim.App. 1994), cert. denied, 514 U.S. 1021, 115 S.Ct. 1368, 131 L. Ed. 2d 223 (1995). Ergo, we find no error or deficient representation committed by Appellant=s failure to object to these statements. See Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064-65. We overrule Issue Ten.
In Issue Five, Appellant asserts that his conviction must be set aside because the prosecution relied on testimony it knew to be false, or should have known was false. Specifically, Appellant contends that the testimony provided by Officer Obptande stating that he questioned Mrs. Castañeda in English was false. The State contends that Appellant did not preserve this issue for review. In addition, the State argues that Appellant did not meet his burden of showing that his conviction was in fact obtained through the use of perjured testimony, nor that this testimony was material in the case.
Appellant failed to preserve this issue for review. At trial, Appellant made no objection that Officer Obptande=s testimony was false. The issue is raised for the first time on appeal. Failure to object to false testimony of witnesses at the trial court fails to preserve the issue for appellate review. See Haliburton v. State, 80 S.W.3d 309, 315 (Tex.App.--Fort Worth 2002, no pet.); Tex.R.App.P. 33.1. Appellant=s Issue Five is therefore overruled.
In Issue Nine, Appellant argues that the failure of his trial attorney to file a timely election requesting that the jury assess punishment resulted in a judgment and a sentence which was not authorized by law. The State alleges that Appellant=s claim is not supported by the record. We agree.
Article 37.07, sec. 2(b) requires the trial judge to assess punishment unless the defendant elects in writing before the commencement of the voir dire examination of the jury panel for the same jury to assess punishment. Tex.Code Crim.Proc.Ann. art. 37.07, ' 2(b)(Vernon Supp. 2004). The record contains a request for jury punishment signed by the Appellant on August 26, 2002. This request was filed on August 28, 2002, after the jury had assessed punishment. However the trial court judge made the following instructions to the prospective jurors prior to voir dire:
We are here to select a jury in this matter. This is a violation of a protective order, a criminal matter. A jury will be empaneled to decide the guilt or innocence of the defendant. And if he should be convicted, it is in the second phase of the trial, for the same jury, to determine the punishment.
Appellant=s punishment was assessed by the jury. From these facts, we find no indication that Appellant=s trial attorney did not request a jury to assess punishment in writing before the commencement of voir dire. As we understand Appellant=s argument, his trial attorney provided ineffective assistance by failing to timely file a motion requesting the jury to assess punishment. However, we find that Appellant=s trial attorney was not deficient and his performance had no effect on the outcome of the trial. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2054. Issue Nine is overruled.
Finally, in Issue Eleven, Appellant contends that the cumulative error attributable to his trial counsel=s ineffective assistance, warrants a new trial, or at least a new punishment hearing. Since we have found no error on the record before the Court, Issue Eleven is overruled.
Accordingly, we affirm the trial court=s judgment.
March 11, 2004
DAVID WELLINGTON CHEW, Justice
Before Panel No. 3
Barajas, C.J., Larsen, and Chew, JJ.
(Do Not Publish)
[1] In looking at the entire record and in the context of this case, the statement made by the State=s attorney while troublesome was permissible. However, under a different set of facts and circumstances, this statement could easily have been found to have fallen outside the scope of the four permissible areas of jury argument. See Borjan v. State, 787 S.W.2d 53, 56 (Tex.Crim.App. 1990); Ulloa v. State, 901 S.W.2d 507, 514-15 (Tex.App.--El Paso 1995, pet ref=d). And if so, it could be viewed as manifestly improper and harmful and grounds for reversal. As such, we strongly discourage such invitations.