Freddy Dominguez v. State ( 2003 )

NO. 07-02-0264-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
MARCH 4, 2003
______________________________
FREDDY DOMINGUEZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 364 DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2001-437,238; HON. CECIL PURYEAR, PRESIDING
_______________________________
Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
Appellant Freddy Dominguez appeals his conviction for aggravated assault with a
deadly weapon. Through four issues, he claims that 1) the evidence was insufficient “to
support the jury verdict of ‘true’ to the enhancement count when the Indictment alleged the
date of the conviction as April 5th, 1994 when the actual date of revocation was April 4th,
1994," 2) the trial court “abused its discretion when it denied [his] Motion to Testify Free
from Impeachment by a prior conviction,” 3) the trial court erred in determining that evading
arrest was not a crime of moral turpitude, and 4) the evidence was factually insufficient to
support the conviction. We affirm the judgment of the trial court.
Issue One — Variance Between Date of Final Conviction
as Alleged in Indictment and Proved at Trial
The first issue concerns the State’s attempt to enhance appellant’s punishment
through proof of a prior conviction. The State alleged in the indictment that the conviction
became final on April 5, 1994, while the evidence illustrated that it actually became final
a day earlier. And, because of this variance between the allegation and ensuing proof, no
evidence purportedly illustrated that appellant was finally convicted as alleged in the
indictment. We overrule the issue.
Variances such as that in question are not fatal unless it misleads the appellant to
his prejudice. Freda v. State, 704 S.W.2d 41, 42-43 (Tex. Crim. App. 1986); Thompson
v. State, 563 S.W.2d 247, 251 (Tex. Crim. App. 1978). Here, appellant neither contends
nor illustrates that he was misled to his prejudice in any way by the variance. Thus, it was,
and is, not fatal.
Issue Two - Denial of Motion to Testify Free From Impeachment
Via his second issue, appellant complains the trial court erred in rebuffing his
attempt, via pretrial motion, to prevent the State from asking him about a prior felony theft
conviction. Furthermore, his effort was based upon Texas Rule of Evidence 403, i.e. the
probative value of the evidence was substantially outweighed by its prejudicial effect. We
overrule the issue for several reasons.
First, the sum and substance of appellant’s argument consists of no more than
quoting passages from the record and generally mentioning a case that described indicia
which may be considered in assessing issues implicating Rule 403. He provides us with
no explanation as to how those indicia should be applied at bar. Nor does he attempt to
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explain why the court’s decision was error. Instead, he merely “urges this Court to find that
the trial court abused its discretion . . . .” That does not constitute adequate briefing, as
required by Texas Rule of Appellate Procedure 38.1(h). Billy v. State, 77 S.W.3d 427, 429
(Tex. App.—Dallas 2002, pet. ref’d) (holding that the appellant must not only cite to the
record and pertinent legal authority but also include substantive analysis within his
argument).
Second, at the time the motion was argued, appellant informed the court that he
“would stipulate that it would be agreeable to say that he has a prior felony conviction, but
[he] just [does not] see a theft conviction getting in front of the jury, [in] an aggravated
assault with a deadly weapon case . . . .” In other words, he had no problem with the
State simply mentioning that he had been previously convicted of a prior felony. His
concern involved allusion to the particular offense, i.e. theft. Moreover, in questioning
appellant, the State asked whether he was previously convicted of a felony resulting in his
incarceration; it did not mention or ask about the particular offense underlying the felony.
Thus, it did no more than what appellant, at trial, agreed it could do. At the very least, the
objection at trial fails to comport with the complaint now urged on appeal which results in
the waiver of the complaint. Livar v. State, 929 S.W.2d 573, 576 (Tex. App.—Fort Worth
1996, pet. ref’d).
Issue Three - Evading Arrest a Crime of Moral Turpitude
In his third issue, appellant complains of the trial court’s refusal to permit him to
impeach a witness via allusion to the witness’s prior conviction for evading arrest. He
believed himself entitled to so impeach the witness because evading arrest purportedly
constitutes a crime of moral turpitude, and one can impeach a witness, under Texas Rule
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of Evidence 609, by illustrating that he has been convicted of a crime of moral turpitude.
Finding it somewhat ironic that appellant now wants to do that which he previously argued
should not be done (i.e. impeach one through reference to a prior conviction for a particular
crime), we nonetheless overrule the issue.
A crime of moral turpitude is one involving 1) grave infringement of the moral
sentiment of the community, 2) conduct that is base, vile, or depraved, and 3) something
inherently immoral and dishonest. Arnold v. State, 36 S.W.3d 542, 546 (Tex. App.—Tyler
2000, pet. ref’d). Appellant cites no Texas cases, and we have found none, holding that
evading arrest is a crime of moral turpitude.
Furthermore, a person commits the offense of evading arrest if he intentionally flees
from a person he knows is a peace officer attempting to lawfully arrest or detain him. TEX .
PEN . CODE ANN . §38.04(a) (Vernon Supp. 2003). Fleeing a police officer, though improper,
does not necessarily involve moral depravity or dishonesty, as do crimes like theft,
swindling, making a false report, or assault upon a woman by a man (which crimes have
been held as involving moral turpitude). See e.g. Bensaw v. State, 129 Tex. Crim. 474,
88 S.W.2d 495 (1935) (involving theft); Sherman v. State, 124 Tex. Crim. 273, 62 S.W.2d
146, 150 (1933) (involving swindling); Lape v. State, 893 S.W.2d 949, 958 (Tex. Civ.
App.—Houston [14th Dist.] 1994, pet. ref’d) (involving a false report); Hardeman v. State,
868 S.W.2d 404, 407 (Tex. App.—Austin 1993, pet. dism’d) (involving assault by a man
upon a woman). Nor do we view it as striking at the moral sentiment of the community.
It is wrong, but it does not evince a morally bad person having a defective character. Thus,
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the crime is not one of moral turpitude, and the trial court did not abuse its discretion in
refusing to allow appellant to use the conviction to impeach the witness.
Issue Four - Factual Sufficiency of the Evidence
In his final issue, appellant contends the evidence is factually insufficient to support
the verdict. We overrule the issue.
The standard by which we review factual sufficiency challenges is well established
and we need not reiterate it. Instead, we cite the parties to Zuliani v. State, No. 1168-01,
2003 Tex. Crim. App. LEXIS 26 (Tex. Crim. App. February 5, 2003) and King v. State, 29
S.W.3d 556, 562-63 (Tex. Crim. App. 2000) for its explanation.
Next, appellant was found guilty of aggravated assault by intentionally, knowingly,
or recklessly causing bodily injury to Ruben Valdez by striking Valdez with a board that was
a deadly weapon in that the manner of use and intended use was capable of causing death
or serious bodily injury. See TEX . PEN . CODE ANN . §22.02(a) (Vernon 1994).
Next, the record contains the following evidence. Appellant had been hired by
Valdez, who worked for Larry Denson, the owner of a roofing company, to tear off old roof
shingles. While appellant was working, part of the roof caved in because too many
shingles had been piled on top of it. Denson had also received a complaint that the roofers
were drinking on the job. Thus, Valdez was told to fire appellant, which he did. Thereafter,
appellant left a message on Denson’s phone not only identifying himself but also stating
that he was “going to get” Valdez.
Later, a young man came to the door of Valdez’ home and asked if he could get
help with his car, which car contained appellant and another individual. Upon approaching
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the car, Valdez was hit by a board wielded by one of the men. Valdez was then able to get
to his vehicle and retrieve a pry bar from it. One of the men then ran away after dropping
the board. At that point, Valdez retrieved the board and advanced upon the other man.
Appellant then exited the car and stated he was going to kill Valdez. Although Valdez was
able to initially hit appellant with the board, the other man intervened and Valdez himself
was ultimately beaten by the assailants with the board. Valdez received a laceration on
his scalp that required nine staples and sustained multiple broken fingers as well as
bruises. Valdez subsequently identified appellant as one of the assailants, though he
initially referred to appellant as Freddy Martinez (rather than Dominguez). This evidence
permits a rational jury to conclude, beyond reasonable doubt, that appellant was either the
primary assailant or a party to the assault as alleged in the indictment.1
While questions arose as to whether the board admitted as an exhibit at trial was
the one used to strike Valdez, as to Valdez’ mischaracterization of appellant’s last name,
and as to appellant’s claim of self-defense, the evidence was nonetheless sufficient to
warrant conviction.2 It was for the jury to credit those witnesses and that evidence which
it chose to credit. Furthermore, the testimony of Valdez was not inherently unbelievable
or that of appellant indisputable. The jury could have believed either and their respective
versions of what occurred.
In short, the evidence of guilt is not so weak as to render the verdict clearly wrong
or manifestly unjust. Nor is the finding of guilt so contrary to the great weight and
1
At trial, the court included a party ch arge in its instructio ns to th e ju ry.
2
Appellant testified at trial that he went to Valdez’ home alone, knocked on the front door, and was
beaten by Valdez with a board. He asserted that any injuries received by Valdez were the result of the need
to defend him self against Va ldez.
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preponderance of the evidence as to be clearly wrong. So, the evidence is factually
sufficient to support the verdict.
The judgment of the trial court is affirmed.
Brian Quinn
Justice
Do not publish.
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