Juan Luna v. State ( 2005 )

                             NUMBER 13-04-00273-CR

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

JUAN LUNA,                                                                                     Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                    Appellee.

    On appeal from the 347th District Court of Nueces County, Texas.

                       MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

                         Memorandum Opinion by Justice Hinojosa

A jury found appellant, Juan Luna, guilty of two counts of aggravated assault^[1] and assessed his punishment at fifteen years= imprisonment for the first count and ten years= imprisonment for the second count.  The trial court ordered both sentences to run concurrently.  The trial court has certified that this is not a plea bargain case, and appellant has the right of appeal.  See Tex. R. App. P. 25.2(a)(2).  In three issues, appellant contends (1) the evidence is factually insufficient to support his convictions, (2) the trial court submitted an improper jury charge, and (3) the trial court erred by admitting prejudicial evidence.  We affirm.

As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it.  See Tex. R. App. P. 47.4.

A. Improper Jury Charge

In his second issue, appellant contends the trial court erred by instructing the jury on the law of parties when the indictment did not allege a conspiracy.  The trial court=s charge authorized the jury to convict appellant under the following three theories of aggravated assault:  (1) as a principal, (2) as a party under section 7.02(a)(2) of the penal code, or (3) as a conspirator under the law of parties pursuant to section 7.02(b) of the penal code.  See Tex. Pen. Code Ann. ' 7.02(a)(2), (b) (Vernon 2003).

The court of criminal appeals has repeatedly rejected similar claims that a charge on the law of parties constitutes an impermissible amendment to an indictment. In Marable v. State, the court reiterated, Ait is well‑settled that the law of parties need not be pled in the indictment.@  Marable v. State, 85 S.W.3d 287, 287 (Tex. Crim. App. 2002).  This rule applies to the law of parties found in both section 7.02(a)(2) and section 7.02(b). Montoya v. State, 810 S.W.2d 160, 165 (Tex. Crim. App. 1989).  Additionally, we find the instruction on the law of parties in the present case to be devoid of irregularities; the instruction includes the exact statutory language provided in the penal code.  See Tex. Pen. Code Ann. ' 7.02(a)(2), (b). Appellant=s second issue is overruled.

B. Factual Sufficiency

In his first issue, appellant complains that the evidence is factually insufficient to support his conviction for two counts of aggravated assault.  Specifically, appellant asserts that the evidence only shows that he was present at the scene of the offense.

When we review the factual sufficiency of the evidence, we review all of the evidence and set aside the verdict only if (1) the evidence is so weak as to be clearly wrong and manifestly unjust or (2) the verdict is against the great weight of the evidence.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).  We are not bound to view the evidence in the light most favorable to the prosecution and may consider the testimony of all the witnesses. Id. at 10‑12. Disagreeing with the fact finder=s determination is appropriate only when the record clearly indicates that such a step is necessary to arrest the occurrence of a manifest injustice; otherwise, due deference must be accorded the fact finder=s determinations, particularly those concerning the weight and credibility of the evidence.  Id.  We measure the factual sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge for the case.  Wheaton v. State, 129 S.W.3d 267, 272 (Tex. App.BCorpus Christi 2004, no pet.); see Adi v. State, 94 S.W.3d 124, 131 (Tex. App.BCorpus Christi 2002, pet. ref=d).

A person commits assault by intentionally, knowingly, or recklessly causing bodily injury to another, including the person's spouse.  Tex. Pen. Code Ann. ' 22.01(a)(1) (Vernon 2003).  A person commits aggravated assault by committing assault and either (1) causing serious bodily injury to another, or (2) using or exhibiting a deadly weapon during the commission of the assault.  Id. at ' 22.02(a).

Appellant was convicted of attacking two individuals.  Whether the victims sustained serious bodily injury is not in question; one of the victims died from the injuries sustained in the attack. The record includes testimony from five witnesses that appellant was an active participant in the attacks.  The attacks were intentionally committed in response to an earlier altercation between appellant and the victims.

Viewed in a neutral light, the proof of guilt in this case is not so obviously weak as to undermine confidence in the fact‑finder=s determination. Furthermore, the proof contrary to the State=s evidence does not greatly outweigh the proof of guilt.  The trier of fact is the sole judge of the witnesses= credibility and the weight to be given their testimony, and is free to accept or reject all or any part of the testimony of any witness.  See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Accordingly, we hold the evidence is factually sufficient to support appellant=s convictions. Appellant=s first issue is overruled.

C. Inadmissible Evidence

In his third issue, appellant complains the trial court erred in admitting highly prejudicial evidence of gang membership over appellant=s objection. To preserve a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint.  Tex. R. App. P. 33.1(a).  The State presented evidence that appellant was a gang member.  Appellant did not specifically object to this evidence. Because appellant failed to specifically object to evidence of his gang membership, we hold he failed to preserve error for our review.  See id.

Appellant later objected on relevancy grounds to testimony addressing the manner in which gang members are placed in jail housing.  On appeal, appellant complains that evidence of gang membership was highly prejudicial.  AAn objection stating one legal basis may not be used to support a different legal theory on appeal.@  Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990).  Because the objection appellant made at trial differs from the complaint he now makes on appeal, we hold appellant failed to preserve error for our review.  See id.  Appellant=s third issue is overruled.

The trial court=s judgment is affirmed.

FEDERICO G. HINOJOSA

Justice

Do not publish.  See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed this

the 4th day of August, 2005.

---

^[1]See Tex. Pen. Code Ann. ' 22.02 (Vernon 2003).