l’Fl RNI: Opinion tiled February 28. 2013.




                                               In The
                                    Q!nurt if Apprah
                          !Fiftli thitrirt nf   xw at a11a5
                                        No. 05-1 1-01541-CR

                       ABRAHAM PATRICIO LOPEZ, Appellant
                                                  V
                            THE STATE OF TEXAS, Appellee

                         On Appeal ll’oni the 92nd Judicial District Court
                                       Dallas Cotintv. lexas
                              Trial Court Cause No. El 0—63645—V

                                              OPINION
                           Before Justices Lang-Miers. Myers and Lewis
                                     Opinion by Justice Myers
       Abraham Patricio Lopez was convicted of burglary of a habitation while committing

aggravated assault and sentenced to twenty years in prison.       in two issues, he argues the trial

court erred by sustaining the State’s relevance objection and that the evidence was insufficient to

support the no contest plea. We affirm the trial court’s judgment.

                                              DiscussioN

                                        1?elevt’i,ice objection


       In his first issue, appellant contends the trial court erred when it sustained the State’s

objection to relevance as appellant attempted “to impeach the State’s key witness by establishing

the witness had been deported following a drug-trafficking conviction and was currently guilty

of illegal reentry into the United States.”
      At trial, during the cross-examination of the complainant, appellant’s trial counsel

established that the complainant was in a federal penitentiary in 2003 and 2005 and was released

in 2007. The complainant testified that when he got out of federal prison, he went to Mexico and

later came to Dallas. The record then reads as follows:

       Q. [DEFENSE COUNSEL:] You were deported, were you not, to Mexico after
       your sentence?

       [PROSECUTOR]: Objection to relevance, Your Honor.

       THE COURT: Sustained.

       Q. (By [DEFENSE COUNSEL]) At this lime testifying from that—from that
       stand, are you an illegal alien?

       [PROSECUTOR]: Objection to relevance, Your Honor.

       THE COURT: Sustained.

Appellant’s counsel then asked the complainant questions concerning what happened on the

night of the offense.

      During appellant’s subsequent testimony, defense counsel asked appellant whether he

knew the complainant had been deported from the United States. Appellant replied, “Yes,” then

added that he knew this because the complainant “showed me. He showed me.” Appellant also

testified that, when he was growing up, he did not see the complainant because he was in prison.

Jesus Lopez, appellant’s bmther who was indicted with appellant for the same offense and tried

alongside him, see Jesus Lopez v State, No. 05-12-00201-CR, 2013 WL 363777 (rex. App.—

Dallas Jan. 31, 2013, no pet h.) (mem. op., not designated for publication), testified that he

knew, and his whole family knew, that the complainant was an “illegal alien” and that he was

taken to Mexico after he was discharged from the federal penitentiary.




                                                2
         A ruling admitting or excluding evidence is subject to an abuse of discretion review.

Cameron     y.   S/nw, 241 SW.3d 15, 19 (Tex. Grim. App. 2007). Under the abuse of discretion

standard, the appellate court must uphold the trial court’s ruling so long as it is within the zone of

reasonable disagreement. Robbins v.5/ate, 88 S.W.3d 256, 260 (Tex. Grim, App. 2002) see

aLco Khoshavnnd v. State. 179 SW 3d 779, 783 (Tex. AppDa1las 2005, no pet.).

         Texas Rule of Evidence 401 defines “relevance” as having any tendency to make the

existence of any fact that is of consequence to the determination of the action more or less

probable. lix. R. EvID. 401. Even relevant evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

TEx. R. Evin. 403.

         In the instant case, appellant argues the complainant’s reentry into the United States after

deportation was a felony offense and could be used for impeachment purposes. Appellant points

out that federal law provides that if an alien enters the United States following deportation for

conviction for an aggravated felony, he is subject to being imprisoned for up to 20 years. See 8

U.S.C.   § 1326(a), (b)(2). Appellant also points out that, under federal law, the term aggravated
felony is defined to include illicit trafficking in a controlled substance. See id.   § 1101 (a)(43).
         But appellant’s argument ignores the fact that, at the time defense counsel asked the

deportation and immigration-related questions, the offense for which the complainant had been

convicted was not established. Counsel asked the complainant questions regarding his time in a

federal penitentiary and established that the complainant was detained in September of 1995, was

held in a federal penitentiary in 2003 and 2005, and was released in 2007. The complainant
testified that when he was released from the penitentiary, he went to Mexico and then came to

Dallas.

         Counsel for Jesus Lopez later cross-examined the complainant and established that the

complainant was convicted by “federal authorities” and sentenced to 169 months in prison for

conspiracy. The complainant stated that he was in prison for “conspiracy to [sic] marijuana—it

was a marijuana case.” When counsel asked the complainant whether the conviction was for

selling marijuana. the complainant replied. bbNo no. just conspiracy.”

         According to the record. therefore, at the time defense counsel asked the complainant if he

had been deponed and was an “illegal alien,” there was no evidence regarding the nature of the

offense for which the complainant had been incarceratet Appellant made no showing that the

complainant’s immigration status was relevant to proving a material issue in the case. See TX!

Transp. Co. v. Hughes, 306 S.W.3d 230, 241 (Tex. 2010) (although statements about

immigration status may have been offered for impeachment as prior inconsistent statements,

immigration status was a collateral matter that was not relevant to proving a material issue in the

case).    The immigration-related evidence was likewise inadmissible under rule of evidence

608(b), which prohibits using “specific instances of the conduct of a witness” to attack the

witness’s credibility. See lii. at 242. As a result, we cannot say the trial court abused its

discretion by sustaining the State’s relevance objection. See TEx. R. EyED. 401. In addition,

given the circumstances of this case, the trial court could have concluded that the prejudice from

defense counsel’s deportation and immigration-based questions fir outweighed any probative

value. See TEx. R. EyED. 403. We overrule appellant’s first issue.




                                                  4
                                   Sufficiency ofthe Evidence

      In a supplemental brief, appellant argues the evidence is insufficient to support his no

contest plea because the evidence does not show “serious bodily injury” occurred and, thus, that

he committed aggravated assault Appellant bases this argument on our ruling in the companion

case involving his brother, see Jesus Lopez v State, 2013 WL 363777, at 2, which appellant

believes controls the outcome of this appeal.

      Appellant and his brother, Jesus Lopez, were jointly indicted for burglary of a habitation

while committing aggravated assault Both defendants waived a jury trial and entered “no

contest” pleas to the charge. The two cases were tried together. After hearing the evidence, the

trial court found appellant and Jesus Lopez guilty. In Jesus Lopez v. State, we reversed the trial

court’s judgment and remanded for further proceedings because the evidence did not show Jesus

Lopez caused serious bodily injury to another. See Id. As we explained in that case, to commit

an aggravated assault, which was one of the essential elements of the charged offense, the actor

must either (I) use or exhibit a deadly weapon or (2) cause serious bodily injury to another. See

Id. at l (citing Thx. PENAL CODE ANN.     §     22.02(a)). In Jesus Lopez, the trial court refused to

make a deadly weapon finding and the State conceded the evidence had to prove serious bodily

injury. See Id. In appellant’s case, however, the trial court made a deadly weapon finding. As a

result, the only question before us is whether the State met the requirements of article 1.15 to

present evidence embracing each essential element of the charged offense.

      When, as in this case, a defendant knowingly, inteffigently, and voluntarily pleads nob

contendere to a felony, the appellate standard of review for sufficiency of the evidence does not

apply. See O’Brien v. State, 154 S.W.3d 908,910 (Ta. App.—Dallas 2005, no pet.). The State

must introduce evidence into the record showing the defendant’s guilt See TEx. CiuM. APP.




                                                   5
PROC. ANN. art. 1 15. “[I]n no event shall a person charged be convicted upon his plea without

sufficient evidence to support the same” LI. There is no requirement that the evidence prove

the defendant’s guilt beyond a reasonable doubt See McGill v. State. 200 SW.3d 325, 330 (Tex.

App.—Dallas 2006, no pet.). The evidence must simply embrace each essential element of the

offense charged. Id.

      The State has met the requirements of article 1 15. According to the record, Abel Lopez,

the 66-year-old complainant, testified that in December of 2010, he lived at 3455 Palacios

Avenue in Dallas County with his sister, his sister’s granddaughter, and his sister’s friend. The

door that led into the house had a functioning lock, and Abel usually put a chair against the door

to make sure it would stay closed. On December 4, 20 10, Abel went to bed before his sister, and

he could not recall if the door was locked or secured. Abel was awakened by someone beating

him on the head. The lights were not on in the room and Abel did not know at first who was

hitting him, although he knew two men were involved in the beating. From their voices, Abel

could tell that one of the men was appellant, his nephew. Abel did not see Jesus Lopez during

the beating because he was shielding himself with his hands and arms as he was being beaten.

      During the beating, appellant pulled out a pistol. Abel testified that he could see the gun

and Abel’s sister also saw appellant pull out a gun. When appellant pulled out the gun, Abel

feared for his safety and worried appellant might kill him. Abel’s sister got between the men and

told appellant and Jesus not to kill Abel. After the complainant’s sister intervened, appellant and

Jesus left the room. When he testified at trial, Abel was asked if a firearm was a deadly weapon

and he replied, “Yes, of course.”

      The evidence in this case “embraces” the essential element that appellant committed

aggravated assault. We conclude the evidence is sufficient to meet article 1.15’s requirement




                                                6
that the State introduce evidence showing the guilt of the defendant for burglary of a habitation

while committing aggravated assault, We overrule appellant’s supplemental point of error.

      We afhrm the trial court’s judgment.




                                                    LANA MYERS
                                                    JUSTICE


Do Not Publish
TEx. R. Ape, P. 47
11 l54lF.U05
                                 (ftiairl ti ;4’pL’1[
                        Fiit1i tlittiEL tii (LiXL at 11t1Lt’
                                       JUDGMENT


ABRAHAM PATRICIO LOPEZ, Appellant                   On Appeal &orn the 292nd Judicial District
                                                    Court, Dallas County, Texas
No. 05-1 1-01541-CR       V.                        Trial Court Cause No. F10-63645-V.
                                                    Opinion delivered by Justice Myers.
THE STATE OF TEXAS, Appellee                        Justices Lang-Miers and Lewis participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 28th day of February. 2013.




                                                    LANA MY RS
                                                    JUSTICE
