      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                     NO. 03-03-00257-CR



                                 Albert M. Jaimes, Appellant

                                                v.

                                 The State of Texas, Appellee




              FROM THE COUNTY COURT AT LAW OF COMAL COUNTY
        NO. 2001-CR-2021, HONORABLE BRENDA CHAPMAN, JUDGE PRESIDING



                           MEMORANDUM OPINION


               A jury convicted Albert M. Jaimes of criminal mischief for running his pickup truck

into his ex-wife’s car and causing between $500 and $1500 in damage. See Tex. Pen. Code Ann.

§ 28.03 (West Supp. 2004). The court assessed sentence at 250 days in jail and a $1500 fine, but

probated the jail sentence for 18 months. Appellant complains that the State asked an improper

commitment question at voir dire and that factually insufficient evidence supports the conviction.

We will affirm the judgment.


                                       BACKGROUND

               Because appellant challenges the factual sufficiency of the evidence to support the

judgment, we will review the testimony and evidence presented to the jury.
               Appellant’s ex-wife, Maricela Jaimes, testified that appellant damaged her car on

August 26, 2001 because she would not tell him whom she was dating. They were divorced in May

2001. Ms. Jaimes testified that, at about 1:30 a.m. on August 25, 2001, she and appellant had a

conversation that turned into an argument. After Ms. Jaimes ended the conversation and went inside

her house, her car was damaged by a forty-pound rock being dropped onto the windshield. Although

she believed appellant damaged the car, further testimony indicated that appellant was acquitted in

a separate trial regarding that incident. Around 6 a.m. the next day, as she was driving to work in

her rented Saturn passenger car, she noticed that appellant was driving in front of her. She

recognized both him and his aqua Ford F-150 pickup; she testified that he was in his Army uniform.

(He had duty in San Antonio that weekend.) She said that, after they were on the road to Seguin, he

blocked her progress and demanded to know who she was dating. When she refused to tell him, he

drove away, in the process hitting her car with the front of his pickup, damaging her mirror and

denting the car; she believed the damage was intentional. She believed he struck her car only with

the bumper, but was not certain. Her insurance company paid $1538 to repair the rental car.

               Ms. Jaimes reported the incident to the New Braunfels police department and to

appellant’s commanding officer. She denied trying to ruin appellant’s Army career, saying that she

hoped the commanding officer could intercede and stop the confrontations, which she feared were

escalating. She also testified that she still liked appellant, that she knew he had worked hard for

twenty-two years to build his career, and also that she had a financial interest in his continued

success because his income paid for child support. Ms. Jaimes testified that appellant’s workplace




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in San Antonio was 30-40 minutes’ drive from her house in New Braunfels, and that San Marcos

was about 20 minutes from her house.

               Ms. Jaimes also testified that appellant called his children only once and, on that

occasion, talked so rudely that he made their daughter cry. Ms. Jaimes testified that she had a

protective order against appellant, but that he and their daughters were free to contact each other

when she was not around. The protective order was issued September 27, 2001.

               During cross-examination, the court admitted photographs of appellant’s pickup,

bearing the date-stamp of August 26, 2001. The photographs, apparently taken by appellant, show

no major damage to the pickup. The only damage evident is a small piece missing from the rubber

on top of the left rear bumper. None of the photographs shows the left corner of the front bumper.

               New Braunfels police officer James Rackley testified that he wrote Ms. Jaimes’s

report of the incident. He said she told him that she and appellant had been talking with their

vehicles side by side, that the conversation turned confrontational, and that appellant sped off and

sideswiped her car. Rackley noted damage on the driver’s side of her car to the mirror, the left rear

quarter panel, and the left rear tail-light assembly. Rackley testified that this damage was consistent

with being hit by a pickup bumper.

               Ernest Rubio testified that he was in an Army Reserves unit with appellant. In

response to Ms. Jaimes’s report of the incident, Rubio inspected appellant’s pickup on August 26,

2001. He testified that the pickup had minor dings on the driver’s door and a smudge of rubber and

chip missing from the rear driver’s side bumper; he opined that all this damage was consistent with

the type of minor damage caused in parking lots.



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               Roland Constantino testified about his September 10, 2001 examination of appellant’s

pickup. Constantino, a service writer at a car repair shop, had been estimating the cost to repair

damaged vehicles for about 12 years. He found door dings and minor scratches to the left fender.

He opined that, if the pickup had caused over $500 damage to another vehicle, he would have found

more damage to the pickup. He did not check to see whether the pickup had been repaired recently.

He agreed on cross-examination that a bumper could be quickly replaced, but did not believe that

the bumper on the pickup was new. He also testified that finding an intact used bumper that was not

smashed would be a challenge, but not impossible.

               Appellant denied Ms. Jaimes’s version of events. He denied being around Ms. Jaimes

on the morning of the incident. He testified that he left his then-girlfriend Mary Perez’s house in San

Marcos a little after 5 a.m., arrived at work in San Antonio at about 6:30, opened up the office, and

called Perez. He testified that Perez’s house was about 30 minutes from New Braunfels, where Ms.

Jaimes’s house was, and that his work was about 50 miles from Ms. Jaimes’s home; he estimated

the trip from Perez’s house to his work would take about an hour and a half. He said he was shocked

when his commanding officer later that day told him of Ms. Jaimes’s accusation. Appellant denied

the accusation and told him where he had spent the night; the officer called Perez, who confirmed

his alibi. He and his commanding officer then walked down and inspected his pickup. Appellant

brought his other vehicle, a van, up for a similar inspection. He said he later took the pickup to

Constantino two weeks later only in response to a claim made against his insurance. He explained

that the nick on the rear left bumper occurred when he backed into a loading dock. Appellant denied

replacing the bumper or repainting the pickup in any way.



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               He admitted that he had not contacted their daughters, but blamed the tension with

his ex-wife and his concern that any attempt to contact them would make things worse in this case

and in his career; he testified that their daughters called him at work. He denied that he made their

daughter cry over the phone. He said that Ms. Jaimes would not have called his commanding officer

if she did not want to hurt his career. He testified that a domestic violence conviction would end his

military career.

               Perez testified that appellant spent the night at her house, left her house shortly after

5 a.m. on August 26, 2001, and called her when he arrived at work at around 6:30 a.m. She

confirmed that he was wearing his uniform. She testified that she no longer dated appellant,

although he still came by her house.


                                           DISCUSSION

               Appellant raises two complaints against the judgment. He contends that the State

asked an improper question during jury voir dire, trying to induce a commitment from jurors. He

also complains that the evidence is factually insufficient to support the judgment against him.

               Appellant complains that the court erred by allowing the State to ask jury panelists

to commit to resolving or refraining from resolving an issue based on one or more facts contained

in the question. See Standefer v. State, 59 S.W.3d 177, 189 (Tex. Crim. App. 2003). The Standefer

court distinguishes between a permissible question—e.g., whether the juror could be fair if the victim

was a nun—and an improper commitment question—e.g., whether the juror could consider probation

if the victim was a nun. See id. Appellant complains of the following question:




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       If a person had a little more rougher impact with the decision you made—let’s say
       you found somebody guilty of DWI and the person is a truck driver and you know it’s
       going to affect his commercial license and you know that’s going to affect him more
       than, say a college student, it’s going to affect his livelihood. How so you feel—let’s
       say in your mind you’re convinced of the DWI. Would that impact your decision, the
       fact that it’s going to affect him a little bit more, as far as guilt/innocence?

       Appellant argues that this question is improper because it tests the predispositions of
       the juror only in the context of a conviction.


               Appellant’s point of error fails. He did not object to this question in the trial court,

and thereby failed to preserve it for appellate review. See Tex. R. App. P. 33.1(a)(1); see also Cade

v. State, 795 S.W.2d 43, 45 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d). We do not find the

existence of this question in the record to be fundamental error, reviewable without need for

objection. See Cade, 795 S.W.2d at 45. We overrule point of error two.

               By point of error one, appellant contends that the evidence is factually insufficient

to support the verdict. When reviewing the factual sufficiency of the evidence, we do not view the

evidence in the light most favorable to the verdict. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.

Crim. App. 1996). The jury is the sole judge of the weight and credibility of the testimony, and we

must guard against substituting our own judgment in these matters. See Santellan v. State, 939

S.W.2d 155, 164 (Tex. Crim. App. 1997). We may, however, consider matters bearing on credibility

that can be fully determined from a cold appellate record—i.e., those that do not concern the

witnesses’ physical appearance, demeanor, and cadence of speech. See Johnson v. State, 23 S.W.3d

1, 8 (Tex. Crim. App. 2000). “A decision is not manifestly unjust merely because the jury resolved

conflicting views of evidence in favor of the State.” Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim.

App. 1997). We can set aside the verdict or judgment only when the factual finding is against the

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great weight and preponderance of the evidence so as to be clearly wrong and unjust. Clewis, 922

S.W.2d at 129. We are not free to set aside a jury verdict merely because we feel that a different

result is more reasonable. See id. at 135.

               Appellant concedes that the testimony of the ex-spouses amounts to a swearing

match, but argues that the evidence of lack of damage to his pickup is uncontroverted and

overwhelms Ms. Jaimes’s testimony. Both his army colleague and the service repair writer testified

that his pickup had no damage consistent with $1500 of damage to another car. The photographs

of his pickup, apparently taken on the day of the alleged incident, do not illustrate any large-scale

damage to the pickup.

               Although the case is a close one, we do not find that the verdict is so against the great

weight and preponderance of the evidence as to be clearly wrong or unjust. The photographs of the

pickup are not conclusive evidence. While they do not show obvious damage, they also do not show

the left corner of the pickup’s front bumper—a part of the pickup likely involved in the accident as

described by Ms. Jaimes. Further, there is little evidence regarding what sort of damage should be

apparent on a pickup that inflicted between $500 and $1500 in damage to a Saturn passenger car by

damaging a rearview mirror, the left-rear quarter panel, and the left taillight assembly. Although

appellant’s army colleague and the service repair writer testified that they did not see the type of

damage they would expect to see, neither did they explain what damage should be apparent on the

pickup. Even accepting appellant’s version of his departure and arrival times does not eliminate the

possibility that he stopped in New Braunfels and engaged in the conduct described. Ultimately, in

the absence of more definitive objective evidence, the decision turns on the credibility of the



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witnesses. In addition to seeing the pictures, the jury heard Ms. Jaimes, and heard appellant, his

army colleague, the service repair writer, and his ex-girlfriend. They chose to credit Ms. Jaimes.

The record does not permit us to reject their choice. We overrule point of error one.


                                        CONCLUSION

               Having overruled both points of error, we affirm the judgment.




                                             W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices B. A. Smith and Patterson

Affirmed

Filed: January 29, 2004

Do Not Publish




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