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NUMBER 13-04-628-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JOSE ADRIAN MONDRAGON GONZALES, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of Goliad County, Texas.
MEMORANDUM OPINION [1]
Before Chief Justice Valdez and Justices Rodriguez and Castillo
Memorandum Opinion by Justice Castillo
A jury convicted appellant, Jose Adrian Mondragon-Gonzales, of aggravated assault of a public servant with a deadly weapon and assessed punishment at sixty years' imprisonment in the Texas Department of Criminal Justice-Institutional Division and a $10,000.00 fine.[2] By four issues, Mondragon complains of the factual sufficiency of the evidence and improper jury argument.[3] We affirm.
I. RELEVANT FACTS
Mondragon was arrested when the vehicle he was driving was stopped by police officers after being identified as the same vehicle that had run through a marked, officer-controlled accident scene earlier that day. The driver of the vehicle had attempted to hit one of the officers who was investigating the accident scene.
At the trial, one of the officers on duty at the time of the arrest testified that there were undocumented immigrants in the same vehicle as Mondragon when he was arrested. In closing arguments, the State indicated that "there was other evidence of which he was aware which was not presented to the jury," and "the true reason that the case was being tried and the true 'serious business in this case is the punishment.'"
II. PRESERVATION OF ERROR
A. The Requirement of a Timely Objection
As a prerequisite to presenting a complaint for appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and(B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and
(2) the trial court:(A) ruled on the request, objection, or motion, either expressly or implicitly; or(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.[4]
Once the trial court has ruled on the objection and the party has preserved error, we review for abuse of discretion, which occurs only when the trial court's decision is so wrong as to lie outside that zone within which reasonable persons might disagree. Montgomery v. State, 810 S.W.2d 372, 379-80 ( Tex. Crim. App. 1990).
B. Prosecutor's Actions Relating to the Arrest
By his first issue, Mondragon complains that the State (1) made improper statements during closing argument, concerning allegations of transportation of undocumented immigrants at the time of his arrest; (2) presented evidence that undocumented immigrants were present in the same vehicle at the time Mondragon was apprehended; and (3) elicited testimony from Captain Schaefer that Mondragon was involved with the trafficking of undocumented aliens.
The complaining party must make a specific objection and obtain a ruling on the objection. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). The record must show that the complaining party gave the trial court an opportunity to rule on the complaint by presenting that complaint to the trial court in a specific and timely objection. Tex. R. App. P. 33.1(a); Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003); Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003). The objection must be made at the earliest possible opportunity. Wilson v. State, 71 S.W.3d at 349; Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991). Further, "the law in Texas requires a party to continue to object each time inadmissible evidence is offered." Martinez, 98 S.W.3d at 193.
Any improper jury argument is waived by a party's failure to object. See Landry v. State, 706 S.W.2d 105, 109 (Tex. Crim. App. 1985). The record reflects that Mondragon failed to raise an improper jury argument objection at trial. Moreover, error is not preserved if the evidence is admitted elsewhere in the trial without objection. Chamberlain v. State, 998 S.W.2d 230, 235 (Tex. Crim. App. 1999); Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim App. 1991). Therefore, even if these statements were admitted over a proper and timely objection, they are harmless if the same evidence is admitted elsewhere without objection and proves the same fact. Hammons v. State, 856 S.W.2d 797, 802 (Tex. App.BFort Worth 1993, pet. ref'd).
Here, the State introduced evidence that (1) undocumented immigrants were in the same vehicle as Mondragon when he was apprehended, and (2) Mondragon was involved with the trafficking of undocumented aliens. Mondragon never objected and in failing to do so failed to preserve error. Id.[5] Because Mondragon failed to timely object to the statements and to other evidence and testimony surrounding his arrest, he did not preserve error. See Martinez, 98 S.W.3d at 193; Landry, 706 S.W.2d at 109.
In his second and third issues, Mondragon contends that error requiring reversal resulted from the prosecutor's improper argument which included the comments (1) "there was other evidence of which he was aware which was not presented to the jury," and (2) "the true reason that the case was being tried and the true serious business in this case is the punishment." The State responds that these statements are not reversible error.
Any analysis of an improper jury argument claim centers on preservation of error. A defendant's "right" to a closing statement free from incurable erroneous jury arguments will be forfeited if there is a failure to insist upon it. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993). Even incurable jury arguments require an objection to preserve the defendant's right to appeal. Cockrell, 933 S.W.2d at 89 (expressly overruling prior caselaw that did not require an objection to what had previously been considered an incurable jury argument). "Before a defendant will be permitted to complain on appeal about an erroneous jury argument, . . . he will have to show he objected and pursued his objection to an adverse ruling." Id. The closing argument of State prosecutor Hyden began as follows:
Prosecutor: Good Afternoon. Ladies and gentlemen, you've now heard the evidence from five of the witnesses we brought before you. We could have brought many more and they could have presented this same scenario to you over and over again.
Counsel for Mondragon: Your Honor, I object to any characterization of what other witnesses would have said.
The Court: Sustained.
After a brief discussion on the record, the court sustained the objection and additionally instructed the jury not to consider what other witnesses not presented to the jury might have said. Mondragon's attorney then requested a mistrial, which was denied. The closing statements of the State continue:
Prosecutor: In any event, ladies and gentlemen, we called five of the many witnesses who were out there. The judge showed you the verdict form, which would be the last page. I submit to you that all of the evidence demonstrates overwhelmingly and certainly beyond a reasonable doubt that the defendant did exactly as we've alleged that he did.
Mondragon made no objection to the new statement that the State "called five of the many witnesses who were out there," essentially reiterating that "there was other evidence of which he was aware which was not presented to the jury." Mondragon failed to preserve error. See Martinez, 98 S.W.3d at 193; Cockrell, 933 S.W.2d at 89.
After the closing arguments of Mondragon's attorney, the prosecutor's rebuttal included the following:
Prosecutor: The serious business in this case is the punishment, is what is going to happen in punishment. You have yet to hear any evidence in that regard and it's not the time to argue . . .
Mondragon's counsel: Your Honor, I have to object, to assume that there will be a guilty verdict in this case.
Prosecutor: Judge, it's a legitimate argument to state that guilt is not a
difficult issue.
Mondragon's counsel: Judge, that invades the province of the jury.
The Court: It's argument and I'll overrule you.
No further objection was made by Mondragon, and he did not request an instruction be given to the jury. He did not preserve error. Because Mondragon failed to preserve error, we overrule Mondragon's first, second, and third issues.
III. FACTUAL SUFFICIENCY
In his fourth issue, Mondragon contends that the facts were insufficient to sustain the conviction. The State responds that there were sufficient facts.
A. Standard and Scope of Review
In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if "proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Vodochodsky v. State, 158 S.W.3d 502, 510 (Tex. Crim. App. 2005) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see Zuliani v. State, 97 S.W.3d 589, 593‑94 (Tex. Crim. App. 2003)). In determining the factual sufficiency of the elements of the offense, we view all the evidence neutrally, not through the prism of "the light most favorable to the prosecution." Johnson, 23 S.W.3d at 6‑7 (citing Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)). In conducting our review, we consider all of the evidence weighed by the jury, comparing the evidence which tends to prove the existence of the elemental fact in dispute to the evidence which tends to disprove it. Id. We are authorized to disagree with the jury's determination even if probative evidence exists which supports the verdict, but we must avoid substituting our judgment for that of the fact‑finder. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).
B. A Hypothetically Correct Jury Charge
This Court measures the factual sufficiency of the evidence against a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.BCorpus Christi 2002, pet. ref'd). We use this analytical tool to determine whether there is a fact issue at all. Clewis, 922 S.W.2d at 133.
1. The Indictment
The indictment stated in pertinent part:
On or about February 17, 2004, Mondragon did intentionally and knowingly and recklessly (1) use a deadly weapon, to-wit: an automobile, that in its manner and its use and intended use, was capable of causing death and serious bodily injury, (2) threaten Casillas with imminent bodily injury by the use of said deadly weapon, (3) knew that Casillas was a public servant, to wit: a peace officer, and (4) that said offense was committed while Casillas was lawfully discharging an official duty, to wit: investigating an automobile accident.
2. The Elements and their Definitions as Limited by the Indictment
In determining whether an accused committed aggravated assault upon a public servant with a deadly weapon, a fact-finder must find that Mondragon (1) intentionally, (2) and knowingly, (3) used a deadly weapon, (4) against Casillas, (5) whom Mondragon knew was a public servant, (6) while Casillas was discharging an official duty. See Tex. Pen. Code Ann. _ 22.02(b)(2)(B) (Vernon Supp. 2005). A person commits aggravated assault by (1) committing assault as defined in section 22.01 of the Texas penal code,[6] and (2) causing serious bodily injury or using or exhibiting a deadly weapon during commission of the assault. Id. ' 22.02(a)(1), (2); Green v. State, 831 S.W.2d 89, 93 (Tex. App.BCorpus Christi 1992, no pet.).
An act is committed intentionally when it is the actor's conscious objective or desire to engage in the conduct. Tex. Pen. Code Ann. ' 6.03(a) (Vernon 2003). Intent may be inferred from acts, words and conduct of accused. Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991) (en banc); Mouton v. State, 923 S.W.2d 219, 223 (Tex. App.BHouston [14th Dist.] 1996, no pet.). A person acts knowingly when he knows that the conduct is reasonably certain to cause the result. Tex. Pen. Code Ann. ' 6.03(b) (Vernon 2003).
The Texas penal code defines deadly weapon as anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury, or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Tex. Pen. Code Ann. _ 1.07(a)(17) (Vernon Supp. 2005).
Section 1.07(41) of the Texas penal code defines a public servant to include a person elected, selected, appointed, employed, or otherwise designated as an officer, employee, or agent of government. Tex. Pen. Code Ann. ' 1.07(41) (Vernon Supp. 2005). Although "official duty" is not defined in the Texas penal code, its ordinary, common and familiar meaning is an (1) obligatory conduct or service, (2) done by an officer in his official capacity under color or virtue of his office. Black's Law Dictionary 978 (7th ed. 1999). Thus, conviction was authorized under the evidence in this case if a rational jury could find that Mondragon intentionally and knowingly drove a vehicle at Casillas, with the knowledge that Casillas was a public servant discharging an official duty at the time. Tex. Pen. Code Ann. _ 22.02(b)(2)(B) (Vernon Supp. 2005)
3. Measuring the Evidence against the Hypothetically Correct Jury Charge
In evaluating Mondragon's argument of insufficiency of the evidence, we "show our work." Tex. R. App. P. 47.1; Sims v. State, 99 S.W.3d 600, 604 (Tex. Crim. App. 2003). The record reflects that Mondragon knew officers were stopping oncoming traffic, and he disregarded their instructions to yield. He first stopped with the other traffic on the road, but then, without permission to proceed, he rapidly moved forward and drove through the officers who were directing traffic. Casillas testified that Mondragon looked directly at him and after seeing him, knowingly and intentionally drove his vehicle straight at Casillas such that Casillas feared for his safety. Casillas testified that if he had not run from the vehicle, he would have been hit. Casillas was in uniform, and there is no dispute that he was an officer on the scene investigating the accident.
An automobile is not a deadly weapon per se. Parrish v. State, 647 S.W.2d 8, 10 (Tex. App.BHouston [14th Dist.] 1982, no pet.). However, pursuant to the penal code, it may become a deadly weapon if "in the manner of its use or intended use [it] is capable of causing death or serious bodily injury." Tex. Pen. Code Ann. _ 1.07(a)(17) (Vernon Supp. 2005); Morgan v. State, 775 S.W.2d 403, 406 (Tex. App.BHouston [14th Dist.] 1989, no pet.) (finding that the car on which a person hung while the driver attempted to throw him off by alternately accelerating to high speeds and then braking became a deadly weapon based on the manner of its use); Roberts v. State, 766 S.W.2d 578, 579 (Tex. App.BAustin 1989, no pet.) (finding that truck recklessly driven into an intersection at 80 to 100 miles per hour, and colliding with a car stopped at a red light, became a deadly weapon based on the manner of its use); Parrish v. State, 647 S.W.2d at 9-10 (finding that the car that pulled into a driveway, crushing the pedestrian's legs between it and another car, became a deadly weapon based on the manner of its use). If an actor uses or intends to use an object in such a way that the object is capable of causing death or serious bodily injury, it is a deadly weapon. Adame v. State, 69 S.W.3d 581, 584 (Tex. Crim. App. 2002) (Meyers, J., concurring).
In the present case, evidence shows that Mondragon accelerated the automobile toward Casillas in a threatening manner, causing Casillas to believe that he had to run to avoid being hit. Although Casillas was not actually hit by the car, wounds need not be inflicted before an automobile is declared to be a deadly weapon. Parrish, 647 S.W.2d at 11. We conclude that evidence showing that an automobile has been used in such a threatening manner is sufficient to show that the automobile was used in a manner capable of causing death or serious bodily injury. Id. Thus, the evidence is sufficient to show that the automobile was a deadly weapon in the manner of its use or intended use. Tex. Pen. Code Ann. _ 1.07(a)(17) (Vernon Supp. 2005).
Viewing all the evidence neutrally, favoring neither the prosecution nor Mondragon, we conclude that proof of Mondragon's guilt of aggravated assault of a public servant with a deadly weapon is not so obviously weak as to undermine confidence in the jury's determination. See Zuliani, 97 S.W.3d at 593-94. We overrule Mondragon's fourth issue.
IV. CONCLUSION
Having overruled all of Mondragon's issues, we affirm the trial court's verdict.
ERRLINDA CASTILLO
Justice
Do not publish
Tex. R. App. P. 47.2(b).
Memorandum Opinion delivered and filed
this the 11th day of May, 2006.
[1] See Tex. R. App. P. 47.1, 47.4.
[2] Tex. Pen. Code Ann. _ 22.02(b)(2)(B) (Vernon Supp. 2005).
[3] In his first issue, Mondragon requests a new punishment hearing because (1) the State improperly argued that Mondragon should be punished for the federal offense of illegal transportation of undocumented immigrants and for being its kingpin, and (2) this extremely prejudiced the jury, resulting in the rejection of Mondragon's probation application and the rendering of a sixty-year term of imprisonment. In his second and third issues, Mondragon complains that the prosecutor improperly argued that (1) "there was other evidence of which he was aware which was not presented to the jury," and (2) "the true reason that the case was being tried and the true 'serious business in this case is the punishment'." In his fourth issue, Mondragon maintains that the evidence was factually insufficient to sustain the conviction.
[4] Tex. R. App. P. 33.1(a).
[5] No rule 404(b) objections were raised. Texas Rules of Evidence 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. Tex. R. Evid. 404(b); see Hernandez v. State, 176 S.W.3d 821, 822 (Tex. Crim. App. 2005). That evidence may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State's case-in-chief such evidence other than that arising in the same transaction. Id.
Rule 403 of the Texas Rules of Evidence also provides that relevant evidence may be excluded if its probative value does not outweigh its prejudicial impact. Tex. R. Evid. 403. Here, Mondragon raised no objections to the direct testimony of Captain Schaefer. In fact, it was Mondragon's own attorney that coined the term "kingpin" when, in his closing argument, he referred to Mondragon and the events surrounding the arrest.
[6] Tex. Pen. Code Ann. _ 22.01 (Vernon Supp. 2005).