Alfredo Torres v. State

NUMBER 13-10-00375-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ALFREDO TORRES, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 206th District Court
of Hidalgo County, Texas.

MEMORANDUM OPINION
Before Justices Rodriguez, Vela, and Perkes
Memorandum Opinion by Justice Perkes

Appellant, Alfredo Torres, appeals his murder conviction, 1 contending that the

evidence is insufficient to support his conviction. By three other issues, appellant argues

that the trial court erred in admitting: (1) extraneous-offense evidence;2 (2) hearsay

1
See TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011).
2
See TEX. R. EVID. 404(b).
testimony from a non-conspirator; 3 and (3) an uncorroborated statement against

interest.4 We affirm as modified.

I. FACTUAL AND PROCEDURAL BACKGROUND5

Around 9:30 p.m., Mario Diaz was driving home with his wife, Modesta Diaz, and

Modesta’s mother, Elena G. Ayala. Elena sat in the back seat on the passenger side.

As they were driving, a dark, “bluish or green” S.U.V. came up behind them. The

S.U.V. “looked like . . . a Jimmy or like a Jeep . . . .” After trailing them for about two

minutes, the S.U.V. drove up on their left side as if it were going to pass them. But, after

it slowly passed them, the S.U.V. continued to drive on the left side of the road instead of

moving into the right lane. Mario worried that the driver was drunk, so he decelerated to

create distance between the two vehicles. As the two vehicles approached an

intersection, the S.U.V. cut into the right lane and stopped; the S.U.V. “was across

completely in front” and blocking the road. Mario stopped his vehicle and “blew the horn

thinking that they were going to make a turn.” A slender, young man in blue jeans and a

white t-shirt exited the back passenger seat of the S.U.V. with his face covered with

something similar to “a white cloth.” He was holding a small, “metallic” handgun. Mario

told his wife to duck, put the car in reverse, and reversed away from the intersection.

Mario saw the young man raise the gun, hold it sideways, “aim it at us,” and shoot.

3
See TEX. R. EVID. 801(e)(2)(E).
4
See TEX. R. EVID. 803(24).
5
Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.

2
 Modesta heard the gunshot. She looked up and saw that they were driving

backwards. Elena asked her, “[W]hat was that daughter?” Modesta, not wanting Elena

to be scared, told her that she heard a firecracker. Elena responded, “[N]o, daughter, it

was a shot. It hit me.” Modesta turned around saw that Elena was bleeding.

Modesta called 9-1-1. An ambulance met them at a convenience store further

down the road. Elena was placed in an ambulance and taken away. She died before

reaching the hospital. The Hidalgo County’s chief forensic pathologist determined that

Elena died from a gunshot wound. The Hidalgo County Sheriff’s Department began an

investigation and took statements from Mario and Modesta. In their statements, Mario

and Modesta attested that two people were involved: a driver and the young man who

shot Elena.

Upon investigating the crime scene, the sheriff’s department discovered that the

Arguindegui Oil Company, which was located on the street and near the intersection

where the crime occurred, had a surveillance camera pointed at its gate. Based on the

camera’s orientation, it captured part of the road where the crime occurred. The sheriff’s

office obtained a copy of the video footage from the company’s terminal manager that had

been taken around the time of the 9-1-1 dispatch. The footage was grainy because the

low-resolution camera could not capture clear images in the dark, and headlights

“washed out” details. The sheriff’s office sent a copy of the footage to Charles Eugene

Henderson Jr., a DPS Senior Forensic Video Specialist. Henderson attempted to

enhance the video with various software but was only able to determine that a “S.U.V.

type of vehicle, like a—a Jeep” was the first vehicle to approach the intersection. Max

3
Cantu, the lead investigator, testified that the sheriff’s department “learned through the

investigation that we were looking for a . . . late 90’s to 2000 model Jeep Cherokee,

grayish or green in color.”

At the crime scene, investigators found a “.40 . . . Smith & Wesson” cartridge case.

Crime-scene investigator Eduardo Aleman uncovered a bullet lodged in the plastic

molding in the back, passenger door of the Diaz car. He also found a bullet hole in the

back left door, and he concluded that the bullet entered through that door before

traversing the car’s cabin and lodging in the back right door.

An anonymous caller informed the sheriff’s department that a man named Ricardo

Lopez provided the weapon used to commit the homicide. Homicide investigator

Fernando Tanguma went to Lopez’s house. Investigator Tanguma observed that

Lopez’s car was a Chrysler 300, the same model of car driven by Mario and Modesta

Diaz. Lopez consented to a search, and showed Investigator Tanguma where the gun

was located. Investigator Tanguma retrieved a “silver,” .40 caliber Smith & Wesson

semi-automatic handgun from underneath the house, which was wrapped in newspaper.

The gun was slightly rusted. Aleman decided that a fingerprint analysis would produce

no results. He swabbed the gun for DNA, but he did not find any DNA on it. Likewise,

he did not get any prints or DNA from the cartridge case.

Richard Hitchcox, a DPS forensic firearm and tool marks examiner, performed

tests with the gun, and concluded that the gun fired the cartridge case that was recovered

at the crime scene. He was unable to assume the same conclusion for the actual bullet;

he explained that the bullet had “class characteristics” that were consistent with the

4
handgun, but, due to the bullet’s condition,6 he could not conclusively establish sufficient

individual characteristics to “effect an identification.”

Lopez’s build did not match the “thin[,] built individual” described by Mario and

Modesta. Investigator Tanguma asked Lopez to help find suspects, but Lopez told

Investigator Tanguma that “he had nothing to say.” However, Lopez’s wife, Alejandra,

offered to help him find other potential suspects in the case. She directed Investigator

Tanguma to potential suspects’ houses, including the house where Ramirez resided.

Investigators later discovered that Ramirez’s mother owned a light green Jeep Cherokee,

which Ramirez sometimes drove. Alejandra also pointed to the house where appellant

resided.

Investigator Cantu learned that appellant, Ramirez, and Lopez were friends.

When Lopez was subsequently charged in his own criminal trial, Investigator Cantu

obtained information that led him to three informants: Juan Rocha Morales, Jesus

Rocha Morales, and Jesus Wilfredo Rodriguez. Investigator Cantu testified as follows:

[I]t was learned that the motive was for some wheels for a
co-defendant, wheels off of a Chrysler 300 which the co-defendant also, it
was learned that he also owned a Chrysler 300. And . . . through the
investigation and all the witnesses that we spoke with, it was learned that
indeed was what they were trying to get was some wheels for—Ricardo
Garza Lopez.

....

It was learned that the Defendant . . . had gone looking for a gun and
was in possession of a gun, was going to pay for that gun with some wheels
for the Chrysler 300.

6
Hitchcox asserted that the bullet was made of cheaper material, and it therefore exhibited more
“defamation or mutilation,” “gouging,” and “flattening” than other bullets. In addition, it was missing two
jackets (“the copper portion on the outside”).
5
 Investigator Cantu testified that the informants’ statements also implicated

Ramirez in appellant’s attempt to steal “wheels.” Ramirez, however, was deported to

Mexico by the time of appellant’s trial, and Investigator Cantu did not know where to find

him. The sheriff’s department located Ramirez’s mother’s green Jeep Cherokee, which

she claimed to have let a friend borrow. It had been seized by Border Patrol and was

impounded in Brooks County, Texas.

Investigator Cantu obtained affidavits from Juan Rocha Morales, Jesus Rocha

Morales, and Jesus Wilfredo Rodriguez. Juan testified that appellant and Ramirez came

to his house looking for Jesus Rocha Morales, his nephew. Appellant told him, that

appellant “f__ed up. They—they did something stupid . . . like they shoot somebody . . .

.” According to Juan, Ramirez told appellant to “Shut up. Shut up. Let’s go.” Juan

testified that appellant returned three days later, asking “if I want to buy the gun.”

Jesus Rocha Morales testified that appellant told him that he messed up and

accidentally killed an old lady. Jesus Wilfredo Rodriguez testified that he went to

Lopez’s house with appellant and Ramirez. When asked at trial, “And what did Ricardo

Lopez tell Alfredo Torres [appellant] to do?” Rodriguez responded, “That he was going to

take some rims, that he was going to take a gun to get some rims.” Rodriguez testified

that about one week later, appellant showed up at his house in the middle of the night

looking frightened and saying that he “[m]essed up,” “was into problems,” and had “done

something bad . . . .” Rodriguez also testified that “I remember [appellant] told me that he

had hit the door and that he thought that he had hit someone but he didn’t know whom.”

On cross-examination, Rodriguez stated that appellant stated he accidentally shot the

6
gun.

Investigator Cantu concluded that the three affidavits “were corroborating

statements through physical evidence that had already been recovered in . . . the case

against Ricardo—Ricardo Garza Lopez.” He filed the case with the District Attorney’s

Office and obtained an arrest warrant for appellant. Investigator Cantu subsequently

discovered that appellant had been arrested on an unrelated charge.

A grand jury indicted appellant for capital murder. Appellant pleaded not guilty.

In addition to the foregoing testimony, the court admitted testimony from Angelica

Chavarria, which the State submitted under Texas Rule of Evidence 404(b) to establish

appellant’s identity. At the guilt-innocence phase of trial, and outside the presence of the

jury, the trial court heard testimony from Chavarria that the State offered for identification

purposes. She had been a victim of an aggravated robbery during the previous year.

She testified that a green Jeep Cherokee followed her, passed her, and then blocked her

path. She said that a young man got out of the passenger side of the Jeep and

approached her car with a small, “silver” handgun. He ordered her to get out of her 1997

Ford Mustang, which she claimed had little value except for its “rims.”7 Chavarria got out

of her car, told the young man that she would not give him the car, and returned to her car

to get her phone. When she looked up, the young man pulled his t-shirt over half of his

face, and he re-entered the Jeep and left. Chavarria identified appellant as the young

man. In addition to Chavarria’s testimony, it was shown at trial that appellant had been

7
Chavarria testified, “I was told several times that the rims was [sic] worth more than the car.”

7
 8
arrested and placed on deferred adjudication for that offense, and the Jeep’s VIN from

that case was the same VIN as Ramirez’s mother’s Jeep.

The jury convicted appellant of the lesser-included offense of murder, and, on the

jury’s verdict, the trial court sentenced him to life imprisonment. This appeal followed.

II. SUFFICIENCY OF THE EVIDENCE

“The standard for determining whether the evidence is legally sufficient to support

a conviction is ‘whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.’” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.

App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319, (1979)) (emphasis in

original); see Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality

op.). The fact-finder is the exclusive judge of the credibility of witnesses and of the

weight to be given to their testimony. Anderson v. State, 322 S.W.3d 401, 405 (Tex.

App.—Houston [14th Dist.] 2010, pet. ref’d) (citing Lancon v. State, 253 S.W.3d 699, 707

(Tex. Crim. App. 2008)). Reconciliation of conflicts in the evidence is within the

fact-finder’s exclusive province. Id. (citing Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim.

App. 2000)). We must resolve any inconsistencies in the testimony in favor of the

verdict. Id. (citing Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000)).

We measure the sufficiency of the evidence by the elements of the offense as

defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327

(Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997)). Such a charge is one that accurately sets out the law, is authorized by the
8
The jury did not hear about appellant’s arrest and the deferred adjudication for that offense.
8
indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily

restrict the State’s theories of liability, and adequately describes the particular offense for

which the defendant was tried. Id. In this case, appellant was convicted of murder. A

person commits murder if he “intentionally or knowingly causes the death of an

individual.”9 See TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011).

The jury heard testimony that appellant was Ramirez’s neighbor and friend, and

Ramirez’s mother owned the Jeep that was used a year earlier in committing an

aggravated robbery in a manner similar to the manner in which this offense was

committed. Chavarria identified appellant as the man who threatened her, and

Investigator Cantu testified that the police report for that offense named appellant and

Ramirez as the suspects. In both cases, the S.U.V. tailed, passed, and then blocked

another car’s path, and a young man approached the blocked-in car with a “silver”

handgun. Testimony and video evidence indicated that an S.U.V. similar to the green

Jeep that had been used in the aggravated robbery was used in Elena’s murder. In

addition, statements and testimony from Juan Rocha Morales, Jesus Rocha Morales, and

Rodriguez implicated appellant in the present offense. An analysis of the cartridge case

found at the crime scene and the .40 Smith & Wesson handgun recovered from Lopez’s

house led Hitchcox to conclude that the cartridge case was fired from the gun. Witness

testimony connected appellant, not Lopez, to the gun and the crime. In addition, Lopez

did not match the “slender, young” description of the attacker, but appellant did. Based

on this evidence and the jury’s role in weighing the credibility of the evidence, we find that

9
The judgment erroneously cites section 19.02(a)(2) of the Texas Penal Code, but that section
merely defines the phrase “sudden passion.” See TEX. PENAL CODE ANN. § 19.02(a)(2) (West 2011).
Section 19.02(b)(1) identifies the elements of murder. See id. § 19.02(b)(1).
9
the evidence is sufficient to support appellant’s murder conviction. We overrule

appellant’s first issue.

III. ADMISSION OF EXTRANEOUS-OFFENSE EVIDENCE

By his second issue, appellant contends that the trial court erred by admitting

extraneous-offense evidence. More specifically, appellant argues that the extraneous

offense did not prove identity because it was not sufficiently similar to the facts of this

case. Appellant also argues that the probative value of the extraneous offense is

substantially outweighed by the danger of unfair prejudice in violation of Texas Rule of

Evidence 403. We disagree.

Standard of Review

A ruling on whether extraneous-offense evidence is admissible is a question of law

for the trial court. See Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). A

trial court’s ruling on the admissibility of extraneous offenses is reviewed under an abuse

of discretion standard. De La Paz v. State, 279 S.W.3d 336, 343–44 (Tex. Crim. App.

2009). So long as the trial court’s ruling is within the “zone of reasonable disagreement,”

no abuse of discretion exists and the ruling will be upheld. Id.; see Montgomery v. State,

810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (en banc). A trial court’s ruling is usually

within this zone if it shows that the extraneous evidence is relevant to a material,

non-propensity issue. See De La Paz, 279 S.W.3d at 344.

Texas Rule of Evidence 404(b)

To be admissible, evidence must be relevant. T EX. R. EVID. 402; Lopez v. State,

288 S.W.3d 148, 164 (Tex. App.—Corpus Christi 2009, pet. ref’d). Evidence of other

10
crimes, wrongs, or bad acts is not admissible to show character conformity but may be

admissible for other purposes. Lopez, 288 S.W.3d at 164. Texas Rule of Evidence

404(b) contains a non-exhaustive list of material, non-propensity uses of

extraneous-offense evidence: motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident. TEX. R. EVID. 404(b); see Albrecht v. State,

486 S.W.2d 97, 100–01 (Tex. Crim. App. 1972); Lopez, 288 S.W.3d at 164. Here, the

State offered the evidence to prove identity, an explicitly recognized exception to the

general rule precluding extraneous-offense evidence.

When an extraneous offense is offered to prove identity, the common

characteristics or the device used in each offense must be so unusual and distinctive as

to be like a “signature.” Pena v. State, 867 S.W.2d 97, 99 (Tex. App.—Corpus Christi

1993, writ ref’d) (citing Collozo v. State, 623 S.W.2d 647, 648 (Tex. Crim. App. 1981)).

Signature features must consist of more than mere repeated commissions of the same

class of crimes. Id. (citing Owens v. State, 827 S.W.2d 911, 915 (Tex. Crim. App.

1992)). The extraneous offense must be “so nearly identical in method to the charged

offense as to earmark them as the handiwork of the accused.” Lopez, 288 S.W.3d at

166 (citing Owens, 827 S.W.2d at 914). It is a determination that is made on a case by

case basis. Pena, 867 S.W.2d at 99. No rigid rules dictate what constitutes sufficient

similarities; rather, the common characteristics may be proximity in time and place, mode

of commission of the crimes, the person’s dress, or any other elements which mark both

crimes as having been committed by the same person. Segundo v. State, 270 S.W.3d

79, 88 (Tex. Crim. App. 2008).

11
 For an extraneous offense to be admissible to show identity, identity must be

raised as an issue in the case. Price v. State, 351 S.W.3d 148, 151 (Tex. App.—Fort

Worth 2011, pet. ref’d) (citing Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App.

1996)). Appellant’s defense frequently challenged the State’s evidence relating to

identity, and appellant does not suggest that identity was not at issue. Rather, appellant

contends that the extraneous offense was not sufficiently similar to be used as identity

evidence.

We conclude that the trial court did not abuse its discretion in admitting Chavarria’s

testimony as evidence of identity. In both offenses, a green Jeep Cherokee blocked the

roadway and a young man approached the blocked-in vehicle with a “silver” handgun.

Chavarria identified appellant as the “young man” from her aggravated robbery, and he

used Ramirez’s mother’s Jeep to commit that offense. These similarities establish

identity. See Pena, 867 S.W.2d at 99 (“[T]he repeated use of the same vehicle in crimes

so similar is a sufficient ‘signature’ characteristic to justify the admission” of the

extraneous offense to show identity.”).

Texas Rule of Evidence 403

Although relevant evidence may be admissible under Texas Rule of Evidence

404(b), it may nevertheless be inadmissible under rule 403. T EX. R. EVID. 403; see

Lopez, 288 S.W.3d at 164–65. Under rule 403, relevant evidence “may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice . . . .” T EX.

R. EVID. 403. “Probative Value” means “the inherent probative force of an item of

evidence—that is, how strongly it serves to make more or less probable the existence of a

12
fact of consequence to the litigation—coupled with the proponent’s need for that item of

evidence. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). “Unfair

prejudice” means a tendency to suggest a decision on an improper basis, such as hostility

or sympathy. Id. at 879–80.

A rule 403 balancing test includes the following factors:

(1) how compelling the extraneous offense evidence serves to make a fact
of consequence more or less probable—a factor which is related to the
strength of the evidence presented by the proponent to show the
defendant in fact committed the extraneous offense;

(2) the potential the other offense evidence has to impress the jury in some
irrational but nevertheless indelible way;

(3) the time the proponent will need to develop the evidence, during which
the jury will be distracted from consideration of the indicted offense; and

(4) the force of the proponent’s need for this evidence to prove a fact of
consequence, i.e., does the proponent have other probative evidence
available to him to help establish this fact, and is this fact related to an
issue in dispute.

De La Paz, 279 S.W.3d at 349 (citing Wyatt v. State, 23 S.W.3d 18, 26 (Tex. Crim. App.

2000)). We reverse the trial court only upon a clear abuse of discretion. Wyatt, 23

S.W.3d at 26 (citing Ransom v. State, 920 S.W.2d 288, 299 (Tex. Crim. App. 1996)).

Appellant does not dispute that the extraneous offense was probative. Rather, he

asserts that the evidence was more prejudicial than probative. Our review reflects that

the challenged evidence made appellant’s identity more probable, took little time to

develop, and supported the element of identity, which was otherwise premised only on

statements from Juan Rocha Morales, Jesus Rocha Morales, and

Rodriguez—statements that could be self-serving rather than true. The 403 balancing

13
factors weigh more heavily toward admitting the evidence. Accordingly, we hold that the

trial court did not abuse its discretion by admitting the extraneous-offense evidence.

Appellant’s second issue is overruled.

IV. PRESERVATION OF ERROR

By his third issue, appellant contends that the trial court erred by admitting, under

the co-conspirator exception to the hearsay rule, 10 Rodriguez’s testimony that he

overheard Lopez tell appellant to steal some “rims” because Rodriguez was not a

co-conspirator within the meaning of the rule. TEX. R. EVID. 801(e)(2)(E). Appellant

further contends that any statements that he directed to Rodriguez, such as the statement

that appellant messed up or the one that he shot a door, were not in furtherance of a

conspiracy as required by the rule. Id. But, appellant did not make these objections

when the State sought the court’s permission to elicit Rodriguez’s testimony. Rather,

appellant’s counsel merely stated, “I have a right to confront” Rodriguez on

cross-examination. Appellant’s issue on appeal does not comport with his trial objection.

When a defendant claims on appeal that the trial court erred in admitting evidence,

he must have made a proper and specific objection at the time the evidence was offered

to preserve his right of review of that evidentiary claim. TEX. R. APP. P. 33.1(a)(1)(A);

Moff v. State, 131 S.W.3d 485, 489 (Tex. Crim. App. 2004); Lopez, 288 S.W.3d at 160.

The record must show that the trial court either ruled on the objection or refused to rule on

it and the “complaining party objected to the refusal.” T EX. R. APP. P. 33.1(a)(2); Pena v.

State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011). “[I]f an objection made in the trial

10
“A statement is not hearsay if the statement is offered against a party and is a statement by a
co-conspirator of a party during the course and in furtherance of the conspiracy.” T EX. R. EVID.
801(e)(2)(E).
14
court differs from the complaint made on appeal, a defendant has not preserved any error

for review.” Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986); see Guevara

v. State, 97 S.W.3d 579, 583 (Tex. Crim. App. 2003); Moreno Denoso v. State, 156

S.W.3d 166, 174 (Tex. App.—Corpus Christi 2005, pet. ref’d). Thus, because

appellant’s objections in the trial court do not comport with his complaint on appeal, we

must overrule appellant’s third issue. See TEX. R. APP. P. 33.1(a)(1)(A); see also

Guevara, 97 S.W.3d at 583; Moreno Denoso, 156 S.W.3d at 174.

By his fourth issue, appellant argues that the trial court erred by admitting

Rodriguez’s testimony of appellant’s incriminating statements without seeking sufficient

corroborating evidence as required by Texas Rule of Evidence 803(24).11 The record,

however, includes no objection, motion, or request preserving this issue for our review.

See Grant v. State, 345 S.W.3d 509, 512 (Tex. App.—Waco 2011, pet. ref’d) (“As a

prerequisite to presenting a complaint on appeal, a party must have made a timely and

specific request, objection, or motion to the trial court.”). Accordingly, we overrule

appellant’s fourth issue.

V. MODIFICATION OF JUDGMENT

We note that the trial court’s judgment incorrectly lists Texas Penal Code “Section

19.02(a)(2)” as the associated statute for the conviction. This error is typographical

given that section 19.02(a)(2) merely defines the phrase “sudden passion;” it does not

provide the elements of murder. See TEX. PENAL CODE ANN. § 19.02(a)(2) (West 2011).

Section 19.02(b)(1) identifies the elements of murder. See id. § 19.02(b)(1).

11
In relevant part, rule 803(24) states, “In criminal cases, a statement tending to expose the
declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the
trustworthiness of the statement.” TEX. R. EVID. 803(24).
15
 The Texas Rules of Appellate Procedure give this Court authority to modify

judgments sua sponte to correct typographical errors and make the record speak the

truth. See TEX. R. APP. P. 43.2; French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App.

1992); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.);

Gray v. State, 628 S.W.2d 228, 233 (Tex. App.—Corpus Christi 1982, writ ref’d). We

conclude that the reference in the judgment to section 19.02(a)(2) of the Penal Code

should be stricken, and we modify the judgment to reflect the statute underlying the

conviction—section 19.02(b)(1) of the Penal Code. See TEX. PENAL CODE ANN. §

19.02(b)(1) (West 2011).

VI. CONCLUSION

We affirm the trial court’s judgment as modified.

GREGORY T. PERKES
Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the
1st day of November, 2012.

16