No. 4-05-00733-CR
Delivered and Filed: September 13, 2006. DO NOT PUBLISH.
Appeal from the 38th Judicial District Court, Medina County, Texas, Trial Court No. 04-10-9212, Honorable Mickey R. Pennington, Judge Presiding. Affirmed As Modified.
Sitting: Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice, Rebecca SIMMONS, Justice.
Opinion by: REBECCA SIMMONS, Justice.
Manuel Mejia appeals his conviction of aggravated assault with a deadly weapon. The jury sentenced Mejia to ten years confinement in the Institutional Division of the Texas Department of Criminal Justice and imposed a suspended fine in the amount of $5,000.00. On appeal, Mejia asserts that: (1) the State's evidence is both legally and factually insufficient to support the jury's verdict; (2) the prosecutor engaged in improper jury argument; and (3) there is a fatal conflict in the jury's verdict regarding punishment. We affirm the judgment of the trial court.
Factual Background
On July 20, 2004, Serafine Perez Lopez was on his way to the store when he saw two individuals breaking into a Suburban. Allegedly, Appellant Manuel Mejia, one of the intruders, attacked Lopez with an iron rod causing substantial injuries. Both perpetrators fled the scene and Lopez returned home before going to the hospital for treatment for a broken nose and other injuries. Sufficiency of Evidence
In his first point of error, Mejia asserts that the evidence is legally and factually insufficient with regard to the identification of the person who attacked Lopez. A. Standard of Review
When reviewing the legal sufficiency of the evidence, the court examines the evidence in the light most favorable to the prosecution and determines whether any rational trier of fact could have found the appellant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). The standard of review is the same whether the evidence is direct, circumstantial, or both. Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999). In a factual sufficiency review, the court views all of the evidence in a neutral light and determines whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). The court will only set aside the verdict if: (1) the evidence is so weak that the verdict is clearly wrong and unjust; or (2) the contrary evidence is so strong that the beyond a reasonable doubt standard of proof could not have been met. Russeau v. State, 171 S.W.3d 871, 878 (Tex.Crim.App. 2005); Zuniga, 144 S.W.3d at 484. In conducting either review, we are mindful of the jury's role as the sole trier of fact. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). B. Analysis
Mejia asserts that, for three reasons, the evidence is legally and factually insufficient to identify him as the attacker. First, Lopez, the sole eyewitness, was unable to identify Mejia in court. Second, the statement written by Deputy Aguilar contradicts Lopez's testimony. Finally, the State offered no evidence to corroborate the identification of Mejia as the assailant. The State's case rests on the testimony of Lopez and Officer Joseph Zavala. Lopez testified that on or about July 20, 2004, he was on his way to a convenience store when he observed Mejia and an unidentified individual breaking into a Suburban. According to Lopez, Mejia attacked him with an iron rod after the second individual saw him. Lopez further testified that during the attack, Mejia claimed he had to kill Lopez because Lopez had seen him. During the ensuing struggle, Mejia hit Lopez across the forehead with the iron rod before hitting him with his fists, ultimately breaking Lopez's nose. Officer Zavala testified that he was dispatched to the area because of an assault in progress. When Officer Zavala arrived at the scene, Joann Escamilla, reported observing the assault on Lopez, and that when she approached, the attackers ran off. Officer Zavala further testified that he then proceeded to Lopez's house where a bloody, sweaty, and tired looking Lopez relayed the events that had transpired. Upon returning to the scene, Office Zavala found a Suburban with evidence of tampering and what looked like blood on the ground. At trial, there was some confusion during the identification of Mejia as the attacker. Lopez, ultimately, was able to identify Mejia. Lopez's identification is supported by the significant opportunities he had to observe Mejia. The record shows that Lopez observed Mejia breaking into the vehicle, as Mejia approached him, and while they struggled for approximately seven minutes. From this evidence and Lopez's identification of Mejia in court, the jury could reasonably conclude that Mejia attacked Lopez on or about July 20, 2004. See Bowden v. State, 628 S.W.2d 782, 784-85 (Tex.Crim.App. 1982) (upholding a conviction based on only one witness identifying the accused as the perpetrator, although there were inconsistences in the witness's testimony and the description he had previously given to the police). Further, having observed Lopez's courtroom identification of Mejia, the jury was able to appraise the effect of any inconsistencies or deficiencies in Lopez's identification of Mejia. See Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App. 1984) (stating a jury is the exclusive judge of the credibility of witnesses and it was within the province of the jury to determine how much weight should be attached to the witnesses's testimony). In this case, the jury heard and saw how Lopez identified Mejia at trial. It was for the jury to decide whether Lopez's testimony was credible and the weight it would be given. Viewing the evidence in the light most favorable to the verdict, there is legally sufficient evidence to support Mejia's conviction of aggravated assault with a deadly weapon beyond a reasonable doubt. Further, viewing all the evidence in a neutral light and considering the jury's role as the sole trier of fact, the evidence cannot be said to be so weak that the verdict is clearly wrong and unjust or that the contrary evidence is so strong that the beyond a reasonable doubt burden of proof could not have been met. Accordingly, we overrule Mejia's legal and factual sufficiency challenges. Improper Jury Argument
In his second point of error, Mejia contends that the trial court erred in overruling his objections to the prosecutor's comments during closing argument. Specifically, Mejia contends the prosecution improperly commented on his failure to testify and impermissibly shifted the burden of proof. A comment on a defendant's failure to testify violates the defendant's constitutional right against self-incrimination. See U.S. Const. art. V; Tex. Const. art. I, § 10. In determining whether the State made an impermissible comment, we view the statement "from the jury's standpoint[,] and the implication that the comment referred to the defendant's failure to testify must be clear." Bustamante v. State, 48 S.W.3d 761, 765 (Tex.Crim.App. 2001). "The test is whether the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant's failure to testify," taking into account the context in which the comment was made. Id. "It is not sufficient that the language might be construed as an implied or indirect allusion." Id. Before an appellate court can review improper jury argument the error must be properly preserved. To preserve error on appeal for improper jury argument, the defendant must object to the comment and pursue the objection until the trial court rules adversely. Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1993). If the objection to the argument is sustained, the defendant must request an instruction for the jury to disregard and move for a mistrial. See Cook v. State, 858 S.W.2d 467, 473 (Tex.Crim.App. 1993). Mejia first claims that the State's first comments that, "[n]ow this was a little bit unusual as most trials that you have[,] actually have several witnesses on different angles of the case or on different things" and "[y]ou have witnesses coming in from both sides" are comments on the defendant's failure to testify. Mejia objected to the statement properly preserving error. However, when viewed from the perspective of the jury, the statements make no clear reference to defendant's failure to testify nor do the comments allude to defendant's fault in failing to testify. See Bustamante, 48 S.W.3d at 764. The primary thrust of the argument was that normally there are witnesses on both sides, and that the defendant did not call any witnesses. A comment on a defendant's failure to produce any witness or evidence is proper jury argument when it does not fault the defendant for failing to testify. See Jackson v. State, 17 S.W.3d 664, 674 (Tex.Crim.App. 2000) (holding that the prosecutor may comment on the defendant's failure to produce witnesses and evidence as long as the remark does not fault the defendant for exercising his right not to testify). When viewed in context of the entire record, the argument was not manifestly intended or of such a character that the jury would necessarily and naturally take it as a comment on the defendant's failure to testify. See Bustamante, 48 S.W.3d at 765. Mejia next asserts that the State's comments, "[y]ou did not see any witnesses brought by the defense in their case, any corroborating witnesses, family members or friends[,] [t]he individual who would have been at the scene, who was actually sworn in, he did not testify" and "[b]oth sides have an opportunity to call witnesses" were comments on his failure to testify. Unlike the first instance, the trial court sustained Mejia's objection to the second comment, however, Mejia waived error by failing to follow up on his objection with a requested instruction to disregard and move for a mistrial. See Cook, 858 S.W.2d at 473; Cockrell, 933 S.W.2d at 89. Further, at the trial court level Mejia never objected to the comment as an allusion to his failure to testify but rather that the State's comments shifted the burden of proof. Also, in the last comment, Mejia failed to get a formal ruling, request an instruction to disregard, and move for mistrial, thus waving any error. However, even assuming that Mejia's complaints had been properly preserved, the prosecutor's statements were not necessarily a comment on the defendant's failure to testify. The jury could have reasonably interpreted the statements as a comment on the defendant's failure to bring any corroborating witnesses. Jackson, 17 S.W.3d at 674. When viewed in context, the statements appear to refer to the defendant's family, friends, and Deputy Aguilar. Deputy Aguilar, was at Lopez's house following the attack and apparently available to testify. Thus, when viewed from the perspective of the jury, we are unable to conclude that the language was manifestly intended or of such a character that the jury would necessarily and naturally take it as a comment on the defendant's failure to testify. See Bustamante, 48 S.W.3d at 764-65. Similarly, the statements were not comments improperly shifting the burden of proof. The State's jury argument summarized the state of the evidence and was a reasonable deduction drawn from the evidence. Because a prosecutor may comment on the defendant's failure to present any witnesses or evidence on his behalf, we cannot conclude the statements were a comment on the defendant's failure to testify or improperly shifted the burden of proof. As such, Mejia's second point of error is overruled. Jury Verdict
In his third point of error, Mejia avers there is a fundamental and fatal flaw in the jury's verdict regarding punishment. Specifically, Mejia contends, the jury verdict improperly assessed a probated fine and a nonprobated term of confinement. "In a felony case, a probated fine is not authorized by law where the jury has also assessed a non-probated term of confinement." Ex Parte Johnson, 697 S.W.2d 605, 607-08 (Tex.Crim.App. 1985); Russell v. State, 727 S.W.2d 92, 94 (Tex.App.-Dallas 1987, pet. ref'd). When a trial court imposes a condition that is not authorized by law the proper remedy is to reform the verdict and judgment to omit the punishment that is not authorized by law. Tex. Code Crim. Proc. Ann. § 37.10(b) (Vernon 2005); Ex parte Youngblood, 698 S.W.2d 671, 672 (Tex.Crim.App. 1985); Ex Parte Johnson, 697 S.W.2d at 607-08; Russell, 727 S.W.2d at 94. In Russell v. State, the jury assessed a probated fine in addition to a nonprobated term of confinement. Russell, 727 S.W.2d at 94. As a result, the Dallas Court of Appeals reformed the verdict to omit the $5,000.00 probated fine. Id. Similarly, here the jury assessed a $5,000.00 probated fine and a nonprobated term of confinement. Accordingly, because the probated fine was not authorized by law, the verdict must be reformed to delete the $5,000.00 fine. See Tex. Code Crim. Proc. Ann. § 37.10(b) (Vernon 2005); Russell, 727 S.W.2d at 94. We overrule Mejia's third point of error. The judgment in Cause No. 04-10-9212-CR is reformed to delete the $5,000.00 fine. As reformed, the judgment of the trial court is affirmed.