Sendejo, David ( 2015 )

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ORIGINAL
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COURT OF CRIMINAL APPEALS
CAUSE NO.
SEP 16 2015
Trial Court cause no. 1408625
and cause no. 1408626
Abe! Acosta, Clerk
in the 262nd District Court
of Harris County
-FUrEO-
COURT OF CRIMINAL APPEALS
Court of Appeals No. 01-14-00697-CR
and cause no. 01-14-00698-CR SEP 16 2015
in the Court of Appeals for
the First District of Houston Abel Acosta, Clerk
PETITION FOR DISCRETIONARY REVIEW
in the
Court of Criminal Appeals
Austin Texas
Davidl Senxiejo
French M. Robertson
12071 F.M. 3522
Abilene Tx. 79601
TABLE OF CONTENTS
Cover ., .. i
Table of Contents ii
Table of Cases .... .. iii
Waiver of Oral Argument .. iii
Motion to Suspend a Rule.. iv
Motion for Further Extention of Time.. iv
Petition for Discretionary Review.. ... . 1
Jurisdiction.. ... 1
Statement of the Case.. .. .. 1
Statement of Procedural History... 1
Grounds for Review.. ... 2
Reasons for Review. . 2-5
Prayer .. 5
Certificate of Service 5
Verification.. ., 5
Declaration of Inability to Pay 7
Appendix End.
11
TABLE OF CASES
Archie v. State 221 S.W.3d 695, 699 (Tex.Crim.App. 2007) .4
Austin v. State, 222 S.W.3d 801 (Tex.App. Hou. [14th Dist] 2007) 5
Brooks v. State, 322 S.W.3d 893, 912 (Tex.Crim.App. 2010) 3
Hudson v. State, 179 S.W.3d 731, 738 (Tex.App. Hou. [14th Dist.] 2005).. .. 4
Johnson v. State, 176 S.W.3d 74, 78 (Tex.App.-Hou. [l4thDlst.] 2004).. .. 3
Kemp v. State 846 S.W.2d 289, 308 (Tex.Crim.App. 1992) .. ... •• 4
Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999) .. .. 4
Temple v. State, 390 S.W.3d 341 (Tex.Crim.App. 2013) 3
Wead v. State 120 S.W.3d 126, 129 (Tex.Crim,App. 2004). 4
00000 00 0000000000000000000000000 0000 00 000000 0000 000 000 00000 0 00 000000 00 00 000 00 0
NOTE;
The issue of sufficiency is of course inherently a due process claim
involving a fifth and fourteenth amendment issue and is well recognized as
such under Fuller v. State 73 S.W.3d 250, 252 (Tex.Crim.App. 2002).
0000000 00000000000 000000000000 00000000000000 00000000000DOOOO000000 0000000 0000 0
ORAL ARGUMENT
Sendejo being unfamiliar with the law asks that, the court waive oral
argument.
in
MOTION TO SUSPEND A RULE
TO THE HONORABLE JUSTICES OF SAID COURT
Now comes David Sendejo who moves to suspend a rule of the
rules of appellate procedure and any other court rules that
require multiple copies.
I
JURISDICTION
This honorable court has jurisdiction and venue pursuant to
the Texas Rules of Appellate Procedure, Rule 66 et seq.
II
MOTION
The Texas Rules of Appellate Procedure (TRAP) under Rule 2
allows for suspension of a rule for good cause.
Sendejo asks the honorable court to suspend Rule 9.3 Number
of Copies and any other rule that demands multiple copies.
Sendejo is an impoverished inmate living at the French M.
Robertson unit where he has no access to photocopiers, computers
or other means of making multiple copies such as ditto machines.
The «ole manner he can reproduce things is through carbon copies
and even those are limited owing to the fact that he has aclimit
on thennumber of copies a carbon can legiblly make and the TDCJ
limits the number of carbons he can possess.
Moreso in the event that he attempted to reproduce sufficient
copies for the court. The fact is that many would be illegible
and the burden would fall to the clerk to make copies any way,
using up the vital resource of paper.
WHEREFORE PREMISES CONSIDERED Sendejo asks that he be allowed
to simply submit assingle copy of this his petition for discret
ionary review.
IV
MOTION FOR FURTHER EXTENTION OF TIME
TO THE HONORABLE JUSTICES OF SAID COURT
Now comes David Sendejo, Pro se, who moves that the court
GRANT AN ADDITIONAL EXTENTION OF TIME. In support;
Sendejo was advised by his attorney that if he wanted to
file a motion for extention of time to file the PDR he had to
do so no later than 15 days after June 18th 2015. Sendejo
filed a motion to the Court of Criminal Appeals asking for a
full 90 day extention of time. This was because the French
M. Robertson had begun to experience water problems and law
library and other activities had begun to be curtailed.
Additionally, the TD3J Law Library has very limited
resources from which to learn and obtain assistance.
Sendejo has filed two motions for extention of time
during the period described above. To date he has not
recieved a single reply nor a specific date to have the
P.D.R. filed. As such Sendejo has asked for additional
time to file the PDR.
WHEREFORE PREMISES CONSIDERED Sendejo prays that this court
will GRANT AN ADDITIONAL extention of time to file the P.D.R.
£Al •J"c-^ Kas-i'o
iv
Cause No.
David Sendejo In the Court of
Petitioner
v. Criminal Appeals
The State of Texas Austin, Texas
Respondent
PETITION FOR, DISCRETIONARY REVIEW
TO THE HONORABLE JUSTICES OF SAID COURT;
Now comes David Sendejo, TDCJ#01947386-who presents this his petition
for discretionary review.
I
JURISDICTION
Pursuant to the Code of Appellate Procedure this court has jurisdiction
and venue..
II
STATEMENT OF THE CASE
Petitioner Sendejo is appealing his conviction of aggravated assault
with a firearm, wherein he allegedly shot Aaron Franco through a door. Tiie
petition is based upon questions of sufficiency of evidence and denial of
mistrial for violations of limine order.
Ill
STATEMENT cfGF PROCEDURAL HISTORY
Sendejo was charged by indictment with aggravated assault with a .deadly
weapon of Aaron Franco byshooting him with a firearm and causing bodily injury.
This indictment was under cause no. 1408625. A second indict-:.?
ment included an enhancement paragraph under the charge of aggravated assault
of Angel Franco. The first incident was alleged to have occuredconnJuly 30,
2013 the second July 30, 2014.
Sendejo entered a plea of not guilty in both cases and a jury was ernpan-^
elled to try them together and tried together. Sendejo was found guilty
and sentenced to a concurrent term of 65 years. Sendejo gave notice of appeal.
PDR 1
The court certified Sendejo's right to appeal and appeal was taken to the
honorable First District Court of Appeals in Houston. A Memorandum opinion
was issued June 18th, 2015, the decision was unpublished. A motion for
extention of time was filed on July 17th 2015.
IV
GROUNDS FOR REVIEW
Ground One; Sendejo contends that there was insufficient evidence to support
a conviction.
Ground One; Sendejo contends that the trial court erred in denying a mistrial
for the violation of his motion in Limine,
V
REASONS FOR REVIEW
Ground One; The complainants testified that they did not see Sendejo with
a gun.on the night of the shooting. They saw no gun even though he came to
their door repeatedly and his behavior was threatening. No gun was ever found-.
No evidence was admitted that Sendejo had ever been seen with a gun on any
other occasion. The police investigation was conclusory in that they had the
Franco's identify Sendejo from a single photo instead of a photo array. The
police made no effort to exclude any source of the gunshot other than Sendejo.
Without, further proof, a rational jury should not have found Sendejo guilty.
The elements of the offense include under Texas Penal Code §2202(a) a
person commits an assault if the person 1. causes serious bodily injury and 2.
uses or exhibits a deadly weapon during the commission of the assault. Under
§22.01(a) A person commits an offense if the person; 1. intentionally, knowingly
or recklessly causes bodily injury. 2. intentionally or knowingly threatens
another with imminent bodily injury.
The evidence left no doubt that Aaron Franco and Angel Franco suffered
serious bodily injury inflicted by a deadly weapon. Unresolved was the
question of whether or not the shots were fired by Sendejo. Because the
shots were fired through a closed door and no evidence directly linked the
shots to Sendejo.
PDR 2
The standard of review in legal-sufficiency analysis is well understood
to be Brooks v. State 323 S.W.3d 893, 912 (Tex.Crim.App. 2010). As such
the trial court's denial of Sendejo's motion for an instructed verdict should
be reviewed by this court.
The court of Appeals held on page 6 of it's memorandum opinion; SEE EXHIBIT
A, that "Circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor, and circumstantial evidence alone can
be sufficient to establish guilt." qouting Temple v. State 390 S.W.3d 341,
359 (Tex.Crim.App. 2013). In circumstantial evidence cases it is not
necessary that every fact arid circumstance point directly and independently
to the defendant's guilt. Again there was no identification of the shooter
made in court see Reporter's Record RR III 20-24.)
The issue is not about circumstantial evidence, the issue is about the
proper application of the sufficiency standard! Identity simply was never
proven, and such is a fact that as an element of the offense must be proven
beyond a reasonable doubt see Johnson v. State 176 S.W.3d 74, 78 (Tex.App.-
Houston [1st Dist.] 2004, pet. ref'd).
A careful review of the evidence suggests that a reasonable doubt remains
that Sendejo fired the shot. Both Aaron Franco and Angel Franco testified that
they did not see Sendejo with agun on the night of the shooting. (RR III 29, 93)
neither saw a gun even though the Francos had several opportunities to view
Sendejo during his-repeated visits at their door. (RR III 34). They testi-
that Sendejo was "progressively more belligerent." (RR III 20, 22-24).
Their descriptions indicate that Sendejo was more threating, yet he did not
according to the witness testimony see him brandish a weapon or display a
gun. (RR III,22-23, 41-42). The shot was fired through a solid door that
they admit they could not see through to identify the suspect. (RR III 47).
Ground Two; Sendejo argues that the trial court erred in denying a
mistrial for the violation of his motion in Limine.
Prior to trial, the State gave notice to Sendejo of its intent to call
witnesses to testify that they had seen him with a gun prior to the evening
of the alleged assault. (RR III, 5-7) Sendejo made,va motion in limine to
exclude the testimony on the ground that it was more prej'adicial than
probative that he was carrying a gun at the time of the alleged assault.
The court GRANTED the motion in limine. (RR III 5-7)
PDR 3
On direct examination the prosecutor asked Angel Franco "How do you
know the defendant is the one that shot you?" He answered, "Everyone has
always seen him with that gun that he's had." (RR III 43). The court granted
Sendejo's objection and also instructed the jury to disregard Angel Franco's
statement (RR III 43). Sendejo moved for a mistrial which was denied (RR
III 44) hcHowever the court reiterated that the motion in limine had been
granted and instructed the prosecutor not to ask any witness if Sendejo
had been seen with a gun prior to the shooting. (RR III 46, 49)
The trial court's ruling on a motion for mistrial is reviewed on an abuse
discretion standard. Archie v. State 221 S.W.31 695, 699 (Tex.Crim.App. 2007)
see also Hudson v. State 179 S.W.3d 731, 738 (Tex.App.-Houston [:L4th Dist.]
2005, no pet.) To establish an abuse of discretion, the trial court's
ruling must fall outside of the zone of reasonable disagreement. Wead v. State
120 S.W.3d 126, 129 (Tex.Crim.App. 2004). Denial of a mistrial falls outside
the zone of reasonable disagreement when the defendant has suffered prejudice
that cannot be cured by a jury instruction. Ladd v. State'3 S.W.3d 547, 567
(Tex.Crim.App. 1999).
Again Reasonable doubt is the standard of review at the trial court
level and the state is required to demonstrate proof beyond that level.
Aside from that Angel Franco's response to that question there was no direct
evidence whatsoever that Sendejo was in possession of a firearm by which to
commit the offense.
Testimony regarding extraneous conduct-can be rendered harmless by a
jury instruction, unless the substance of the testimony suggests that it made
an impression that the jury would be unable to disregard. Kemp v. State
846 S.W.2d 289, 308 (Tex.Crim.App. 1992). Whether this standard has been met
depends on the particular facts of each case. Ladd ibid .3 S.W.3d at 567.
Angel Franco's statement was particularly harmful to Sendejo. It provided
an otherwise missing link to establish that Sendejo had a history of having
access to a firearm.
In determining whether the trial court abused its discretion, a review
ing court must examine much the same factors that would be considered in a
harm analysis see Archie ibid 221 S.W.3d at 700. These include l) the prejud
icial effect; 2) the curative measures taken by the trial court; and 3) the
PDR 4
liklihood of conviction in the absence of the prejudicial event. See Hawkins
v. State 135 S.W.3d 72, 77 (Tex.Crim.App. 2004) Clearly the first and third
factors tell in favor of a finding of prejudicial harm.
This issue was given detailed analysis in the case of Austin v. State
222 S.W.3d 801 (Tex.App.ecHouston [14th Dist.] 2007 pet. ref'd) where the
idea of "curative measures as a counter for a motion in limine violations"
was discussed at length. In Austin, the defendant was charged with injury
to her own child. The trial court granted a motion in limine barring testimony
that another of her children had died under suspicious circumstances. Id at
813. After a witness violated the motion, the court instructed the jury in
detail that the testimony should "never have been brought out before the jury"
and admonished them in the strongest terms not to consider it. The court
further instructed the jury to do "soul searching" over a recess and polled
them individually to make a record that they all felt able to comply. Id
at 813-815. This court concluded that the limine violation was deeply
prejudicial. However, in view of the court's curative measures, as well
as the strength of other evidence of the defendant's guilt, the trial court's
denial of a mistrial was reasonable, ibid at 816.
Sendejo's case is clearly distinguished from Austin. In Austin, the
limine violation was merely cumulative of other evidence of the defendant's
which:the court of appeals described as "egregious" id at 816. In Sendejo's
case other than the limine violation there was no direct testimony that
Sendejo had ever been seen carrying a gun. Hence the violation went to the
core issue of proving guilt. Moreover, the curative measures taken in: Sendejo's
case were far less agressive than those taken by the trial court in Austin.
Finally the Honorable Court of Criminal Appeals should review this under
discretionary review becasue the violation of such motions in limine -has the
ability to impact large;: numbers of defendants.
PRAYER
Sendejo prays that the court will GRANT this petition for discretionary
review and order a full brief of the applicable questions.
PDR 5
CERTIFICATE OF SERVICE
I!, David Sendejo #01947386 certify and affirm that on the
date below I have sent one original copy of my Petition for
Discretionary Review to the Court of Criminal Appeals at P.O.
BOX 12308 Austin Tx. 78711 with a carbon copy sent to the
Special Prosecution Attorney at P.O. BOX 1M6@5 Austin Tx.
78711 and another carbon copy to the Attorney General's Office
at P.O. Box 12458 Austin Tx. 78711, all of which were sent
by regular mail, first class, postage pre-paid by deposit same
into the prison mail system.
ft-as.i^
VERIFICATION
I, David Sendejo verify that the above is true and correct
pursuant to Tex.Civ.Prac.& Rem. Code §132.001-3.
->o fta*-fo
pdr e
Declaration of Inability to Pay
TO THE HONORABLE JUSTICES OF SAID COURT:
The following declaration is made pursuant to Texas Rules
of Court.
1. I am presently incarcerated in the French M. Robertson unit near
Abilene Tx a unit of the Texas Dept. of Criminal Justice-Correctional
Institutional Division (TDCJ herein) where I am not permitted to earn
nor handle money. See Ali v., Johnson 259 F.3d 317 (5th Cir. 2005)
2. I have no source of income or spousal income.
3. I currently have approximately $$b.jCcredited to me in the inmate trust
fund in TDCJ,
4. During my incarceration in the TDCJ system I have Eecieved about
$^0.4*per month as gifts from relatives and friends.
5;. I neither own nor have interest in any realtyy stocks, or bank accounts
and I recieve no interest or"dividend income from any source.
5. I have / dependents.
7. I have total debts of $ (). OO
8. I owe approximately $ Q, Q0
9. My monthly expense are about $5.00.
I, David Sendejo #01947386 verify and affirm that the above
is true and correct pursuant to Tex.Civ.Prac. & Rem. Code §132v
001-3.
% as \°D
APPENDIX
EXHIBIT ONE
Memorandum opinion of court of appeals
JUDGMENT
Court of Appeals;
$ ir*t Jifetrtct of Cexa*
NO. 01-14-00698-CR
DAVID SENDEJO, Appellant
V.
THE STATE OF TEXAS, Appellee
Appeal from the 262nd District Court of Harris County. (Tr. Ct. No. 1408626).
This case is an appeal from the final judgment signed by the trial court on August
11, 2014. After submitting the case on the appellate record and the arguments properly
raised by the parties, the Court holds that the trial court's judgment contains no reversible
error. Accordingly, the Court affirms the trial court's judgment.
The Court orders that this decision be certified below for observance.
Judgment rendered June 18, 2015.
Panel consists of Justices Keyes, Huddle, and Lloyd. Opinion delivered by Justice
Huddle.
Opinion issued June 18, 2015
In The
Court ot Appeals
For The
Jftr*t ©fetrtct of Cexa*
NO. 01-14-00697-CR
NO. 01-14-00698-CR
DAVID SENDEJO, Appeiiant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Case Nos. 1408625 & 1408626
MEMORANDUM OPINION
Appellant David Sendejo was charged by two indictments with aggravated
assault with a deadly weapon, enhanced by a prior felony conviction ofaggravated
robbery. The cases were tried together and a jury found Sendejo guilty. He
pleaded true to the enhancement allegation, and the trial court assessed punishment
at 65 years' confinement for each conviction and ordered that the sentences run
concurrently. In two issues, Sendejo contends that (1) the evidence is legally
insufficient to support his convictions and (2) the trial court erred in denying his
motion for a mistrial when one of the complainants testified, in violation of the
trial court's order in limine, that Sendejo had been seen with a gun on other
occasions. We affirm.1
Background
Aaron Franco lived in a downstairs unit of a 10-unit apartment complex. On
the night of July 30, 2013, Aaron's son, Marcellino Franco, and 16 year old
-grandson, Angel Franco, were visiting Aaron's apartment. Around midnight, they
were watching television when they heard a knock on the door.
Aaron testified at trial that he answered the door and recognized Sendejo,
who had been a frequent visitor to the apartment complex in recent months, and let
him in. Sendejo asked Aaron where he could find "the black guy that carries the
backpack" who lived in the apartment complex. Sendejo was "very hyper" and
"very agitated," but he left after Aaron told him that the man lived in unit four.
1 Appellate cause number 01-14-00697-CR is the appeal from the conviction for
aggravated assault of Aaron Franco (trial court number 1408625), and appellate
cause number 01-14-00698-CR is the appeal from the conviction for aggravated
assault of Angel Franco (trial court cause number 1408626).
A few minutes later, Sendejo returned and knocked on Aaron's door again.
Sendejo told Aaron that he had looked for the man in the apartment at "the end" of
the complex but no one was home. Sendejo also asked Aaron why he had lied to
him. Aaron told Sendejo that the apartment at the end of the complex was unit
five, and he had directed Sendejo to unit four. Sendejo left again, presumably to
look for the man who lived in unit four.
After Sendejo left, Aaron turned on his porch light. About three or four
seconds later, Aaron heard the light "get slapped." Aaron opened the door, and
Sendejo asked him why he "was trying to get in the middle of [his] s-t." Sendejo
told Aaron that he would "come back and talk to [Aaron]."
- ;•„,_-*-About two minutes after Aaron closed the door, Sendejo knocked on
Aaron's door a third time. Aaron opened the door halfway, and Sendejo asked to
talk. When Aaron told Sendejo to leave and that they could talk later, Sendejo
said, "no, we need to talk now" and attempted to push his way into the apartment.
Aaron pushed Sendejo out of the apartment and closed the door. Aaron testified
that as he shut the door, his grandson Angel stood up and started walking towards
the door to lock it. When Angel was about halfway to the door, a bullet came
through the door.
The bullet went through Angel's finger, through Aaron's left arm, and into
Aaron's stomach. Aaron testified that the shot was fired almost immediately after
he closed the door; the amount of time that elapsed between the time he closed the
door on Sendejo and the time the shot was fired was two seconds, at most. Aaron
was "a hundred percent" sure that Sendejo was the shooter. Although Aaron
testified that he did not see Sendejo carrying a gun, he testified that Sendejo was
alone each of the three times that he came to Aaron's door.
Angel testified at trial and corroborated Aaron's testimony. Angel
recognized Sendejo, whom he had seen regularly at Aaron's apartment complex.
Angel testified that about five minutes passed between each time that Sendejo
knocked on Aaron's door. According to Angel, Sendejo was "fidgety," agitated,
and anxious the first time he knocked on the door and his agitation increased each
time he returned. Angel testified that Sendejo was "a little bit more mad" when he
knocked the third time and tried to "shove" his way into the apartment. Angel
also testified that the shot was fired "like at the same time" that the door closed on
Sendejo.
Although he did not see Sendejo holding a gun, Angel testified that he was
sure that Sendejo was the shooter because "he was the only one by the door and
everyone has always seen him with that gun that he's had." The trial court
sustained Sendejo's objection to this statement and instructed the jury to disregard
it. Sendejo moved for a mistrial, which the trial court denied.
Houston Police Department ("HPD") Officer R. Salas testified that he
observed a bullet hole in the center of the door at waist level and that a nine-
millimeter Luger shell cartridge was recovered outside of Aaron's apartment.
Officer Salas also testified that it takes approximately one second for a person to
load a gun if he is holding the gun in his hand.
HDP Officer J. Johnston investigated the case and testified that Aaron and
Angel each named Sendejo as the shooter and identified Sendejo in a photo array.
The jury rejected Sendejo's defensive theory—that someone who lived in a
nearby blue house could have been the shooter—and found him guilty of both
charges of aggravated assault. Sendejo timely appealed.
Sufficiency of the Evidence
In his first issue, Sendejo contends that the evidence was legally insufficient
to support his convictions because the State failed to prove an essential element of
the offense—identity.
A. Standard of Review
Evidence is insufficient to support a conviction if, considering all record
evidence in the light most favorable to the verdict, a factfinder could not have
rationally found that each essential element of the charged offense was proven
beyond a reasonable doubt. Gonzalez v. State, 337 S.W.3d 473, 478 (Tex. App —
Houston [1st Dist.] 2011, pet. refd) (citing Jackson v. Virginia, 443 U.S. 307, 319,
99 S. Ct. 2781, 2789 (1979)). We determine whether the necessary inferences are
reasonable based upon the combined and cumulative force of all the evidence
viewed in the light most favorable to the verdict. Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007) (quoting Hooper v. State, 214 S.W.3d 9, 16-17
(Tex. Crim. App. 2007)).
We consider direct and circumstantial evidence, and all reasonable
inferences in support ofthe verdict that may be drawn from the evidence in making
our determination. Id. at 778. "Circumstantial evidence is as probative as direct
evidence in establishing the guilt of an actor, and circumstantial evidence alone can
be sufficient to establish guilt." Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim.
App. 2013) (quoting Hooper, 214 S.W.3d at 13). In circumstantial evidence cases,
it is not necessary that every fact and circumstance point directly and
independently to the defendant's guilt; it is enough if the conclusion is warranted
by the combined and cumulative force of all the incriminating circumstances. Id.
at 359-60 (quoting Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App.
1993)).
When the record supports conflicting inferences, we presume that the
factfinder resolved the conflicts in favor of the verdict and defer to that resolution.
Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778. We
likewise defer to the factfinder's evaluation of the credibility of the evidence and
the weight to give the evidence. Gonzalez, 337 S.W.3d at 479 (citing Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)).
B. Applicable Law
A person commits an assault if he "intentionally, knowingly, or recklessly
causes bodily injury" to another person. Tex. Penal Code Ann. §22.01(a)(1)
(West Supp. 2014). A person commits the offense of aggravated assault if he
"commits assault as defined in [section] 22.01 and [he] . . . uses or exhibits a
deadly weapon during the commission of the assault." Id. § 22.02(a)(2) (West
2011). A firearm is, per se, a deadly weapon. See id. § 1.07(a)(17) (West Supp.
2014). '"Bodily injury' means physical pain, illness, or any impairment of
physical condition." Id. § 1.07(a)(8).
C. Analysis
To prove Sendejo guilty of two charges of aggravated assault, the State had
to prove beyond a reasonable doubt that Sendejo intentionally, knowingly, or
recklessly caused bodily injury to Aaron and Angel and that he used or exhibited a
deadly weapon during the commission of the assault. Sendejo contends only that
there is insufficient evidence to prove identity.
The identity of the person committing the offense is an element of the crime
that must be proved. See Greene v. State, 124 S.W.3d 789, 792 (Tex. App.—
Houston [1st Dist.] 2003, pet. refd) (noting defendant's identity can be proved by
direct or circumstantial evidence and that eyewitness identification is not
necessary). We review the totality of the circumstances to determine whether there
is sufficient evidence that a defendant is the individual who committed the offense.
Rohlfing v. State, 612 S.W.2d 598, 601 (Tex. Crim. App. 1981). Identity may be
proven by direct or circumstantial evidence. Gardner v. State, 306 S.W.3d 274,
285 (Tex. Crim. App. 2009); see also Ford v. State, 852 S.W.2d 641, 642 (Tex.
App.—Houston [14th Dist.] 1993, no pet.).
We conclude that sufficient evidence supports the jury's finding beyond a
reasonable doubt that Sendejo was the shooter. First, Aaron and Angel each
testified that the gun shot was fired immediately after Aaron closed the front door
on Sendejo, and they each testified that Sendejo was alone each of the three times
that Sendejo came to Aaron's door.
Second, the evidence showed that Sendejo was agitated and argued with
Aaron moments before the shooting. Aaron and Angel each testified that Sendejo
became increasingly argumentative each time he came to the door and that he
attempted to force his way into Aaron's apartment in the moments before the gun
fired.
Third, Sendejo left the scene after the shooting. Although it is undisputed
that Sendejo was outside ofAaron's apartment immediately before the shooting, he
was not at the scene when the ambulance arrived minutes later. See Brown v.
State, 657 S.W.2d 117, 119 (Tex. Crim. App. 1983) (stating that conduct of
defendant subsequent to alleged commission of crime that indicates consciousness
of guilt is circumstance tending to prove that defendant committed act with which
he is charged); Yost v. State, 222 S.W.3d 865, 875 (Tex. App.—Houston [14th
Dist.] 2007, pet. refd) (holding that evidence that defendant left scene of crime
reflected consciousness of guilt).
Sendejo contends that the evidence was insufficient because neither Aaron
nor Angel saw Sendejo shoot a gun or even carry a gun that night. According to
Sendejo, the State's failure to present an eyewitness identifying Sendejo as the
shooter renders the evidence insufficient. But eyewitness identification is not
required for a conviction. Greene, 124 S.W.3d at 792 (eyewitness identification is
not necessary to identify perpetrator).
Sendejo also points out that the jury could have concluded that he was not
the shooter based on evidence that a person living in a nearby blue house could
have been the shooter. The jury implicitly rejected Sendejo's defensive theory,
and we must defer to the jury's resolution. Merritt v. State, 368 S.W.3d 516, 525-
26 (Tex. Crim. App. 2012) (appellate court presumes jury resolved conflicting
evidence in favor ofverdict and defer to that determination); Henson v. State, 388
S.W.3d 762, 773 (Tex. App.—Houston [1st Dist.] 2012) ("verdict of guilty is an
implicit finding rejecting the defendant's [defensive] theory"), aff'd, 407 S.W.3d
764 (Tex. Crim. App. 2013).
Viewing the evidence in the light most favorable to the verdicts, we
conclude that a rational juror could have found beyond a reasonable doubt that
Sendejo intentionally, knowingly, or recklessly caused bodily injury to Aaron and
Angel while using a deadly weapon. Accordingly, we hold the evidence was
legally sufficient to support the convictions. See Gardner, 306 S.W.3d at 285-86
(circumstantial evidence sufficient to prove appellant was shooter in capital murder
case even though no eyewitness testimony); Smith v. State, 56 S.W.3d 739, 744
(Tex. App.—Houston [14th Dist.] 2011, pet. refd) ("Proof of the accused's
identity through circumstantial evidence is not subject to a more rigorous standard
than is proof by direct evidence, as both are equally probative."); Roberson v.
State, 16 S.W.3d 156, 167 (Tex. App.—Austin 2000, pet. refd) (State may prove
identity with circumstantial evidence).
We overrule Sendejo's first issue.
Motion for Mistrial
In his second issue, Sendejo contends that the trial court abused its discretion
in denying his motion for mistrial. He contends that Angel's statement that
everyone has always seen Sendejo with a gun caused harm that could not have
been cured by instructing thejury to disregard the statement.
10
A. Standard of Review and Applicable Law
A mistrial is the trial court's remedy for improper conduct that is so
prejudicial that expenditure of further time and expense would be wasteful and
futile. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). A mistrial is
required only in extreme circumstances where the prejudice is incurable. Archie v.
State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007).
Generally, an instruction to disregard impermissible testimony cures any
prejudicial effect. See Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000)
(per curiam) ("Ordinarily, a prompt instruction to disregard will cure error
associated with an improper question and answer . . . ."); Delacerda v. State, 425
S.W.3d 367, 388-89 (Tex. App.—Houston [1st Dist] 2011, pet. refd) (same). We
determine whether a trial court abused its discretion by denying a mistrial by
balancing the three Mosley factors: (1) the severity of the misconduct or the
magnitude of the prejudicial effect, (2) the measures adopted to cure the
misconduct, and (3) the certainty of conviction absent the misconduct. Mosley v.
State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998); see Ludwig v. State, 428
S.W.3d 344, 351 (Tex. App.—Amarillo 2014, no pet.) (applying Mosley factors to
determine whether trial court abused its discretion in denying mistrial motion
where witness's testimony was improper); Delacerda, 425 S.W.3d at 388 (same).
We review a trial court's ruling on a motion for mistrial for an abuse of
discretion. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Wead v.
State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). An appellate court must
uphold the trial court's ruling ifit was within the zone ofreasonable disagreement.
Wead, 129S.W.3datl29.
B. Analysis
Applying the Mosley factors to this case, we conclude that the trial court did
not abuse its discretion by denying Sendejo's motion for mistrial. Under the first
Mosley factor, we evaluate the severity ofthe misconduct or the magnitude ofthe
prejudice it likely caused. Ludwig, 428 S.W.3d at 351 ("In analyzing the 'severity'
or 'magnitude' of the prejudice, we look at the context of the statement and
whether [it] was referred to during the balance ofthe trial.").
Here, Angel's statement was not so extreme, manifestly improper, or
prejudicial as to render it incurable by instruction. The complained-of testimony
was brief, constituted only a small part of Angel's testimony, and was neither
repeated in testimony nor referred to during closing argument. We also note that
the prosecutor's question did not call for the complained-of response—in other
words, the record reveals no misconduct bythe State. See Hawkins, 135 S.W.3d at
83 (noting under first Mosley factor that improper statement was isolated incident);
Ludwig, 428 S.W.3d at 350-51 (first Mosley factor weighed against mistrial
12
because State's question did not inherently call for complained-of response and
statement was not repeated or mentioned by State); Delacerda, 425 S.W.3d at 389
(trial court did not abuse its discretion in denying mistrial where police
investigator's statement was brief and State did not emphasize or assert it during
closing argument).
Under the second Mosley factor, we consider the measures adopted to cure
the misconduct. Mosley, 983 S.W.2d at 259. Here, after sustaining Sendejo's
objection, the trial court promptly instructed the jury orally to disregard the
statement. The law generally presumes an instruction to disregard and other
cautionary instructions will be obeyed by the jury. Archie v. State, 340 S.W.3d
734, 741 (Tex. Crim. App. 2011). And the Court of Criminal Appeals has held
that "[o]rdinarily, a prompt instruction to disregard will cure error associated with
an improper question and answer, even one regarding extraneous offenses."
Ovalle, 13 S.W.3d at 783; see Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim.
App. 1992) ("I[t] is well-settled that testimony referring to or implying extraneous
[bad acts] can be [cured] by an instruction to disregard ").
Under the third Mosley factor, we consider the certainty of conviction
without the misconduct. See Mosley, 983 S.W.2d at 259. It is undisputed that
Sendejo was at the scene immediately before the shot was fired. And Aaron and
Angel each testified that Sendejo was angry and had attempted to push his way
13
into Aaron's apartment. They also testified that the shot was fired almost
immediately after Aaron shut the door on Sendejo and that no other person was on
the porch at that time. This is strong evidence of guilt.
Balancing the Mosley factors, we hold that the trial court did not abuse its
discretion by denying Sendejo's motion for mistrial. See Rojas v. State, 986
S.W.2d 241, 250-51 (Tex. Crim. App. 1998) (trial court's instruction to disregard
cured any error by State's witness testifying that appellant exhibited "past anger"
and "past violence"); Alexander v. State, 229 S.W.3d 731, 743-44 (Tex. App.—
San Antonio 2007, pet. refd) (trial court did not abuse its discretion in denying
mistrial in capital murder case where State's witness stated that appellant was
"always talking about how she has access to guns and drugs" because trial court
instructed jury to disregard and statement was isolated reference that was not
repeated during trial); Banks v. State, 955 S.W.2d 116, 119 (Tex. App.—Fort
Worth 1997, no pet.) (per curiam) (trial court's instruction to disregard rendered
error harmless in murder case where prosecutor asked appellant's girlfriend if she
had seen appellant with gun and she answered "Not that weekend [of the
shooting]" because State did not pursue questioning after objection was sustained
and record showed State was not attempting to taint outcome oftrial).
We overrule Sendejo's second issue.
14
Conclusion
We affirm the judgments of the trial court.
Rebeca Huddle
Justice
Panel consists of Justices Keyes, Huddle, and Lloyd.
Do not publish. Tex. R. App. P. 47.2(b).
15
EXHIBIT two
Letter from appellate counsel
OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS
OFFldlAffiL^1r^Fr§§)L STATI0N-AUSTIN-TEXAS U.S.
™™POSTAGE»PITNEY
1 BOWES
STATE OF TEXAS £2
PENALTY FOR it.
PRIVATE USE ZIP 78701
02 m $ 000.27£
7/24/2015
°m?W3*b#9#fcft_ ase
SENDEJO, DAVID / fr. Ct. No. 1408626 PD-0935-15
On this day, this Court has granted the Appellants Pro Se motion for an extension
of time in which to file the'Petition for Discretionary Review. The time to file the
petition has been extended to Friday, September 18 2015 NO FURTHER
EXTENSIONS WILL BE ENTERTAINED. NOTE: Petition For Discretionary
Review must be filed with The Court of Criminal Appeals.
Abel Acosta, Clerk
DAVID SENDEJO
TDC# 1947386
ROBERTSON UNIT
12071 FM3522
ABILENE, TX 79601 !
•43B ,-SSOi
iifMi-i>ii-|t-ifi--l.ilI--tl'|-"li-ff>|"li'l---t-iiiittia|i..i|.-|i.
OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS
OFFldfAL^uWtWS1Tm$IJwSg
STATE OF TEXAS S8 tiffl8B& uspostage»
SPOSTAGE>> PITNEY BOWES
PENALTY FOR xz o
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PRIVATE USE ZIP-78701
02 m $ 000.275
a.0.
7/24/2015
SENDEJO, DAVID Tr. Ct. No. 1408625 PD-0934-15
On this day, this Court has granted the Appellant's Pro Se motion for an extension
of time in which to file the Petition-for Discretionary Review. The time to file the
petit on has been extended to Friday, September 18, 2015. NO FURTHER
EXTENSIONS WILL BE ENTERTAINED. NOTE: Petition For Discretionary
Review must be filed with The Court of Criminal Appeals.
Abel Acosta, Clerk
DAVID SENDEJO
&>
TDC# 1947386
ROBERTSON UNIT
12071 FM3522
ABILENE, TX 79601
W
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illl'll,Il'l"|-|fllll|||||"l|'|l'l"ll,ll"lllll',l*l"|||IM'
THOMAS J. LEWIS
Attorney at Law
1602 Washington Ave.
Houston, Texas 77007
Tel: (713)868-0081
Fax: (713)861-2951
E-Mail: tjlaw2@comcast.net
June 19, 2015
David Sendejo
TDCJ# 01947386
Robertson Unit
12071 FM 3522
Abilene, Texas 79601
RE: David Sendeio v. State of Texas.
No. 01-14-00697, 98-CR.
First Court of Appeals.
VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
Dear Mr. Sendejo:
Enclosed is a copy of the Judgment and Opinion of the Court of Appeals in your case.
Unfortunately, the Courthas affirmed yourconviction.
Rule 48.4 ofthe Texas Rules ofAppellate Procedure requires me to give you the following
notice:
If you wish to appeal the ruling in your case, you may petition the State's
highestcriminal court,the Court of Criminal Appeals. The Court hasdiscretion
to accept or deny your petition. Ifyou want to proceed on your own, you have
theright to file si prosePetition for Discretionary Review ofthe Appeals Court's
decision withthe CourtofCriminal Appeals. You must file yourpetition within
30 days of June 18,2015, the date the Appeals Court handed down its decision.
The petition must be filed with the Clerk of the COURT OF CRIMINAL
APPEALS, P.O. BOX 12308, AUSTIN, TX 78711. Ifyou need more time than
30 days, you may file a request for an extension no later than 15 days afterthe
due date. If you need more details, you should look at Rule 68 of the Texas
Rules of Appellate Procedure.
Ifyou have any further questions, please let me know.
Very truly yours,
Thomas J. Lewis
file