l’Fl RNI: Opinion tiled February 28. 2013.
In The
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No. 05-1 1-01541-CR
ABRAHAM PATRICIO LOPEZ, Appellant
V
THE STATE OF TEXAS, Appellee
On Appeal ll’oni the 92nd Judicial District Court
Dallas Cotintv. lexas
Trial Court Cause No. El 0—63645—V
OPINION
Before Justices Lang-Miers. Myers and Lewis
Opinion by Justice Myers
Abraham Patricio Lopez was convicted of burglary of a habitation while committing
aggravated assault and sentenced to twenty years in prison. in two issues, he argues the trial
court erred by sustaining the State’s relevance objection and that the evidence was insufficient to
support the no contest plea. We affirm the trial court’s judgment.
DiscussioN
1?elevt’i,ice objection
In his first issue, appellant contends the trial court erred when it sustained the State’s
objection to relevance as appellant attempted “to impeach the State’s key witness by establishing
the witness had been deported following a drug-trafficking conviction and was currently guilty
of illegal reentry into the United States.”
At trial, during the cross-examination of the complainant, appellant’s trial counsel
established that the complainant was in a federal penitentiary in 2003 and 2005 and was released
in 2007. The complainant testified that when he got out of federal prison, he went to Mexico and
later came to Dallas. The record then reads as follows:
Q. [DEFENSE COUNSEL:] You were deported, were you not, to Mexico after
your sentence?
[PROSECUTOR]: Objection to relevance, Your Honor.
THE COURT: Sustained.
Q. (By [DEFENSE COUNSEL]) At this lime testifying from that—from that
stand, are you an illegal alien?
[PROSECUTOR]: Objection to relevance, Your Honor.
THE COURT: Sustained.
Appellant’s counsel then asked the complainant questions concerning what happened on the
night of the offense.
During appellant’s subsequent testimony, defense counsel asked appellant whether he
knew the complainant had been deported from the United States. Appellant replied, “Yes,” then
added that he knew this because the complainant “showed me. He showed me.” Appellant also
testified that, when he was growing up, he did not see the complainant because he was in prison.
Jesus Lopez, appellant’s bmther who was indicted with appellant for the same offense and tried
alongside him, see Jesus Lopez v State, No. 05-12-00201-CR, 2013 WL 363777 (rex. App.—
Dallas Jan. 31, 2013, no pet h.) (mem. op., not designated for publication), testified that he
knew, and his whole family knew, that the complainant was an “illegal alien” and that he was
taken to Mexico after he was discharged from the federal penitentiary.
2
A ruling admitting or excluding evidence is subject to an abuse of discretion review.
Cameron y. S/nw, 241 SW.3d 15, 19 (Tex. Grim. App. 2007). Under the abuse of discretion
standard, the appellate court must uphold the trial court’s ruling so long as it is within the zone of
reasonable disagreement. Robbins v.5/ate, 88 S.W.3d 256, 260 (Tex. Grim, App. 2002) see
aLco Khoshavnnd v. State. 179 SW 3d 779, 783 (Tex. AppDa1las 2005, no pet.).
Texas Rule of Evidence 401 defines “relevance” as having any tendency to make the
existence of any fact that is of consequence to the determination of the action more or less
probable. lix. R. EvID. 401. Even relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.
TEx. R. Evin. 403.
In the instant case, appellant argues the complainant’s reentry into the United States after
deportation was a felony offense and could be used for impeachment purposes. Appellant points
out that federal law provides that if an alien enters the United States following deportation for
conviction for an aggravated felony, he is subject to being imprisoned for up to 20 years. See 8
U.S.C. § 1326(a), (b)(2). Appellant also points out that, under federal law, the term aggravated
felony is defined to include illicit trafficking in a controlled substance. See id. § 1101 (a)(43).
But appellant’s argument ignores the fact that, at the time defense counsel asked the
deportation and immigration-related questions, the offense for which the complainant had been
convicted was not established. Counsel asked the complainant questions regarding his time in a
federal penitentiary and established that the complainant was detained in September of 1995, was
held in a federal penitentiary in 2003 and 2005, and was released in 2007. The complainant
testified that when he was released from the penitentiary, he went to Mexico and then came to
Dallas.
Counsel for Jesus Lopez later cross-examined the complainant and established that the
complainant was convicted by “federal authorities” and sentenced to 169 months in prison for
conspiracy. The complainant stated that he was in prison for “conspiracy to [sic] marijuana—it
was a marijuana case.” When counsel asked the complainant whether the conviction was for
selling marijuana. the complainant replied. bbNo no. just conspiracy.”
According to the record. therefore, at the time defense counsel asked the complainant if he
had been deponed and was an “illegal alien,” there was no evidence regarding the nature of the
offense for which the complainant had been incarceratet Appellant made no showing that the
complainant’s immigration status was relevant to proving a material issue in the case. See TX!
Transp. Co. v. Hughes, 306 S.W.3d 230, 241 (Tex. 2010) (although statements about
immigration status may have been offered for impeachment as prior inconsistent statements,
immigration status was a collateral matter that was not relevant to proving a material issue in the
case). The immigration-related evidence was likewise inadmissible under rule of evidence
608(b), which prohibits using “specific instances of the conduct of a witness” to attack the
witness’s credibility. See lii. at 242. As a result, we cannot say the trial court abused its
discretion by sustaining the State’s relevance objection. See TEx. R. EyED. 401. In addition,
given the circumstances of this case, the trial court could have concluded that the prejudice from
defense counsel’s deportation and immigration-based questions fir outweighed any probative
value. See TEx. R. EyED. 403. We overrule appellant’s first issue.
4
Sufficiency ofthe Evidence
In a supplemental brief, appellant argues the evidence is insufficient to support his no
contest plea because the evidence does not show “serious bodily injury” occurred and, thus, that
he committed aggravated assault Appellant bases this argument on our ruling in the companion
case involving his brother, see Jesus Lopez v State, 2013 WL 363777, at 2, which appellant
believes controls the outcome of this appeal.
Appellant and his brother, Jesus Lopez, were jointly indicted for burglary of a habitation
while committing aggravated assault Both defendants waived a jury trial and entered “no
contest” pleas to the charge. The two cases were tried together. After hearing the evidence, the
trial court found appellant and Jesus Lopez guilty. In Jesus Lopez v. State, we reversed the trial
court’s judgment and remanded for further proceedings because the evidence did not show Jesus
Lopez caused serious bodily injury to another. See Id. As we explained in that case, to commit
an aggravated assault, which was one of the essential elements of the charged offense, the actor
must either (I) use or exhibit a deadly weapon or (2) cause serious bodily injury to another. See
Id. at l (citing Thx. PENAL CODE ANN. § 22.02(a)). In Jesus Lopez, the trial court refused to
make a deadly weapon finding and the State conceded the evidence had to prove serious bodily
injury. See Id. In appellant’s case, however, the trial court made a deadly weapon finding. As a
result, the only question before us is whether the State met the requirements of article 1.15 to
present evidence embracing each essential element of the charged offense.
When, as in this case, a defendant knowingly, inteffigently, and voluntarily pleads nob
contendere to a felony, the appellate standard of review for sufficiency of the evidence does not
apply. See O’Brien v. State, 154 S.W.3d 908,910 (Ta. App.—Dallas 2005, no pet.). The State
must introduce evidence into the record showing the defendant’s guilt See TEx. CiuM. APP.
5
PROC. ANN. art. 1 15. “[I]n no event shall a person charged be convicted upon his plea without
sufficient evidence to support the same” LI. There is no requirement that the evidence prove
the defendant’s guilt beyond a reasonable doubt See McGill v. State. 200 SW.3d 325, 330 (Tex.
App.—Dallas 2006, no pet.). The evidence must simply embrace each essential element of the
offense charged. Id.
The State has met the requirements of article 1 15. According to the record, Abel Lopez,
the 66-year-old complainant, testified that in December of 2010, he lived at 3455 Palacios
Avenue in Dallas County with his sister, his sister’s granddaughter, and his sister’s friend. The
door that led into the house had a functioning lock, and Abel usually put a chair against the door
to make sure it would stay closed. On December 4, 20 10, Abel went to bed before his sister, and
he could not recall if the door was locked or secured. Abel was awakened by someone beating
him on the head. The lights were not on in the room and Abel did not know at first who was
hitting him, although he knew two men were involved in the beating. From their voices, Abel
could tell that one of the men was appellant, his nephew. Abel did not see Jesus Lopez during
the beating because he was shielding himself with his hands and arms as he was being beaten.
During the beating, appellant pulled out a pistol. Abel testified that he could see the gun
and Abel’s sister also saw appellant pull out a gun. When appellant pulled out the gun, Abel
feared for his safety and worried appellant might kill him. Abel’s sister got between the men and
told appellant and Jesus not to kill Abel. After the complainant’s sister intervened, appellant and
Jesus left the room. When he testified at trial, Abel was asked if a firearm was a deadly weapon
and he replied, “Yes, of course.”
The evidence in this case “embraces” the essential element that appellant committed
aggravated assault. We conclude the evidence is sufficient to meet article 1.15’s requirement
6
that the State introduce evidence showing the guilt of the defendant for burglary of a habitation
while committing aggravated assault, We overrule appellant’s supplemental point of error.
We afhrm the trial court’s judgment.
LANA MYERS
JUSTICE
Do Not Publish
TEx. R. Ape, P. 47
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JUDGMENT
ABRAHAM PATRICIO LOPEZ, Appellant On Appeal &orn the 292nd Judicial District
Court, Dallas County, Texas
No. 05-1 1-01541-CR V. Trial Court Cause No. F10-63645-V.
Opinion delivered by Justice Myers.
THE STATE OF TEXAS, Appellee Justices Lang-Miers and Lewis participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 28th day of February. 2013.
LANA MY RS
JUSTICE