                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                          No. 04-18-00176-CR

                                          Steve MENDIOLA,
                                               Appellant

                                                  v.

                                          The STATE of Texas,
                                                Appellee

                     From the 187th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2016CR0624
                              Honorable Steve Hilbig, Judge Presiding

Opinion by:       Beth Watkins, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Irene Rios, Justice
                  Beth Watkins, Justice

Delivered and Filed: March 13, 2019

AFFIRMED AS REFORMED

           A jury convicted Steve Mendiola of the offenses of felon in possession of a firearm and

aggravated assault with a deadly weapon. On appeal, Mendiola contends: (1) the trial court erred

in denying his request to include a lesser included offense in the jury charge; (2) the evidence is

insufficient to prove his prior conviction to establish he was a “felon” in possession of a firearm;

(3) the prosecutor engaged in improper jury argument during the punishment phase of trial; and

(4) the judgments for each offense should be reformed to reflect he pled not true to the

enhancement allegation. We reform the judgments to reflect Mendiola pled not true to the

enhancement allegation and affirm the trial court’s judgments as reformed.
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                                          BACKGROUND

         In a four-count indictment, Mendiola was charged with one count of felon in possession of

a firearm and three counts of aggravated assault with a deadly weapon. Each of the three counts

of aggravated assault involved a different complainant: (1) Sandy Givens, the only complainant

who testified at trial; (2) Jesse Peck, Givens’s boyfriend at the time of the offense; and (3) Rosa

Casas.

         Sandy Givens testified she was at Peck’s house on Potomac Street for a Father’s Day

barbeque when she saw Mendiola in a neighbor’s yard. The neighbor was a pastor who operated

a church out of his home. While the pastor and Mendiola were talking, Peck and his sister

approached, and the four started arguing. Eventually, the pastor calmed everyone down, and

Mendiola left. Approximately twenty minutes later, Mendiola walked by while Peck was talking

to his brother-in-law and another neighbor. Givens heard Peck tell Mendiola “Happy Father’s

Day” which led to another argument. After Mendiola walked away, Givens went inside Peck’s

home. Approximately ten or fifteen minutes later, Givens heard Peck yelling for everyone to get

inside. Givens walked outside on the porch and ushered Peck’s son into the house. While standing

on the porch, Givens saw Mendiola point a long gun at her and Peck. Givens testified Mendiola

kept the gun pointed at them for twenty or thirty seconds. Givens further testified she thought

Mendiola was going to shoot her until another man ran up, grabbed Mendiola, and the two men

left.

         Numerous officers who responded to 911 calls or who were involved in the subsequent

investigation testified. Detective Harry Clark testified he saw Mendiola with the rifle up against

his shoulder looking down its sight at a group of people on St. James Street which is a street

adjacent to Potomac Street where Casas lived. Officer Joseph Sayles and Detective Clark followed

Mendiola and arrested him a short time later. Although Mendiola was not in possession of the


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rifle when he was arrested, another officer located the rifle in a nearby field. Testimony established

the bolt handle on the rifle was broken off; however, a forensic firearms expert testified the rifle

was capable of firing.

       Approximately ten days after his arrest, Mendiola went to the police station to file a

complaint against Officer Sayles regarding his arrest. In the written statement he gave to internal

affairs describing the events preceding his arrest, Mendiola stated he went inside his house and

“got [his] rifle to show to make [the people up the street] leave [him] alone.” Mendiola further

stated he “walked down the street and pointed the rifle at [the people] to show them [he] meant

business.”

       After hearing all of the evidence, which included testimony by a fingerprint examiner

regarding Mendiola’s prior conviction for endangering a child, the jury found Mendiola guilty of

the offenses of felon in possession of a firearm and aggravated assault of Givens. The jury found

Mendiola not guilty of aggravated assault of Casas. The jury could not reach a verdict with regard

to the charge of aggravated assault of Peck; therefore, the trial court declared a mistrial as to that

offense. After the punishment phase of trial, the jury found the enhancement allegation true and

assessed punishment at five years’ imprisonment for the felon in possession of a firearm offense

and twenty years’ imprisonment for the aggravated assault offense. The trial court entered

judgments for each of the two offenses in accordance with the jury’s verdicts. Mendiola appeals.

                                   LESSER INCLUDED OFFENSE

       In his first issue, Mendiola contends the trial court erred in denying his request to include

the lesser included offense of deadly conduct in the jury charge for the aggravated assault offense.

The State asserts Mendiola was not entitled to the lesser charge because no evidence would allow

a rational jury to find Mendiola acted only recklessly.




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        Appellate courts apply a two-prong test to determine whether a defendant was entitled to a

charge on a lesser-included offense. Hall v. State, 225 S.W.3d 524, 535-36 (Tex. Crim. App.

2007); Munoz v. State, 533 S.W.3d 448, 453 (Tex. App.—San Antonio 2017, pet. ref’d). “First,

we compare the elements and the facts of the offense alleged in the indictment with the elements

of the potential lesser-included offense to determine whether the lesser-included offense is

included within the proof necessary to establish the charged offense.” Munoz, 533 S.W.3d at 453

(citing Hall, 225 S.W.3d 531, 535). “This question is a matter of law, and is not dependent on the

evidence to be produced at trial.” Id. (citing Hall, 225 S.W.3d at 535). “The second step of the

analysis requires us to determine whether there is some evidence in the record that would permit

a rational jury to find that, if the defendant is guilty, he is guilty only of the lesser-included

offense.” Id. (citing Hall, 225 S.W.3d at 536). “The evidence must establish the lesser-included

offense as a valid, rational alternative to the charged offense.” Id. (internal quotation omitted).

        The aggravated assault count of the indictment charged Mendiola with intentionally or

knowingly threatening Givens with imminent bodily injury by using or exhibiting a deadly

weapon. TEX. PENAL CODE ANN. § 22.02(a)(2). A person commits the offense of deadly conduct

when he “recklessly engages in conduct that places another in imminent danger of serious bodily

injury.” Id. § 22.05(a). Given the manner in which Mendiola was charged, the first prong of the

Hall test is satisfied because deadly conduct is a lesser included offense of aggravated assault when

the assault is based on the threat of imminent bodily injury. See Bell v. State, 693 S.W.2d 434,

439 (Tex. Crim. App. 1985); Blissit v. State, 185 S.W.3d 51, 53-55 (Tex. App.—San Antonio

2005, pet. ref’d).

        Mendiola’s entitlement to the lesser included offense instruction, therefore, depends on

whether “there is some evidence in the record that would permit a rational jury to find that, if

[Mendiola] is guilty, he is guilty only of the lesser-included offense.” Munoz, 533 S.W.3d at 453.


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Under the facts in this case, the evidence must be such that the jury could find Mendiola acted only

recklessly and not intentionally or knowingly.

       A person acts intentionally when “it is his conscious objective or desire to engage in the

conduct.” TEX. PENAL CODE ANN. § 6.03(a). In this case, the evidence would not permit a rational

jury to find Mendiola acted only recklessly because his written statement to internal affairs

establishes that he intentionally pointed the rifle at the people “to show them [he] meant business.”

In addition, Givens testified Mendiola pointed the rifle at her for twenty to thirty seconds.

Accordingly, the trial court did not err in denying Mendiola’s request to include the lesser included

offense of deadly conduct in the jury charge. Mendiola’s first issue is overruled.

                      SUFFICIENCY OF THE EVIDENCE: PRIOR CONVICTION

       In his second issue, Mendiola challenges the sufficiency of the evidence to prove his prior

conviction of endangering a child which was necessary to prove he was a “felon” in possession of

a firearm.

       To establish a defendant has been convicted of a prior offense, the State must prove beyond

a reasonable doubt that (1) a prior conviction exists, and (2) the defendant is linked to that

conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). Proving these two

elements does not require a specific document or mode of proof. Id. Any type of evidence,

documentary or testimonial, might suffice to prove this connection. Id. at 921-22. As the Texas

Court of Criminal Appeals has explained, the proof that is adduced to establish this connection

resembles a jigsaw puzzle—the trier of fact fits the pieces together, weighs the credibility of each

piece, and determines if the pieces fit together sufficiently to complete the puzzle. Id. at 923 In

other words, “[t]he trier of fact looks at the totality of the evidence admitted to determine 1)

whether there was a previous conviction, and 2) whether the defendant was the person convicted.”




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Id. “If these two elements can be found beyond a reasonable doubt, then the various pieces used

to complete the puzzle are necessarily legally sufficient to prove a prior conviction.” Id.

       In this case, a fingerprint expert testified regarding the drop card relating to the arrest of

“Steve Mendiola” for the offense of endangering a child in 2012 and the drop card relating to

Mendiola’s arrest for felon in possession of a firearm. The expert explained a drop card is a

computerized sheet compiled at the time of a defendant’s arrest which contains the defendant’s

information and fingerprints. The expert testified the 2012 drop card contained the name “Steve

Mendiola” who was charged with endangering a child. The 2012 drop card also contained a SID

number, a date of birth, and a social security number. The expert matched the information on the

drop card to an indictment and a judgment of conviction. The expert further testified the drop card

for Mendiola’s arrest for felon in possession of a firearm contained the same SID number, date of

birth, and social security number as the 2012 drop card. Finally, Mendiola’s mother testified

Mendiola was previously convicted of endangering a child. Based on the testimony of Mendiola’s

mother and the identical personal descriptors shown on the drop cards, we hold the evidence is

legally sufficient to prove: (1) that a prior conviction for endangering a child existed; and (2)

Mendiola was the person convicted. Mendiola’s second issue is overruled.

                                      CLOSING ARGUMENT

       In his third and fourth issues, Mendiola contends the prosecutor engaged in impermissible

jury argument.

       In order to preserve a complaint regarding impermissible jury argument for appellate

review, the appellant must object at trial and pursue his objection to an adverse ruling. Mathis v.

State, 67 S.W.3d 918, 926-27 (Tex. Crim. App. 2002). “A defendant forfeits his right to complain

on appeal about an improper jury argument if he fails to object to the argument or fails to pursue

his objection to an adverse ruling.” Orcasitas v. State, 511 S.W.3d 213, 220 (Tex. App.—San


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Antonio 2015, no pet.). In his fourth issue, Mendiola complains of the following argument by the

prosecutor:

           Choose a punishment for him not being here 1...because a man like him with those
           offenses, with those arrests, he’s somewhere out there running around, and we
           know where he is. He’s a man you guys have said is guilty of pointing a gun in
           someone’s face is out there…[.]

No objection was made to the foregoing argument; therefore, Mendiola failed to preserve his fourth

issue for our review.

           We review a trial court’s ruling on an objection to jury argument under an abuse of

discretion standard. Davis v. State, 329 S.W.3d 798, 825 (Tex. Crim. App. 2010). “Appropriate

jury argument generally falls within only four areas: (1) summation of the evidence; (2) reasonable

deductions from the evidence; (3) answer to argument of opposing counsel; and (4) a plea for law

enforcement.” Ex parte Scott, 541 S.W.3d 104, 119 (Tex. Crim. App. 2017). “Even when an

argument exceeds the permissible bounds of these approved areas, such will not constitute

reversible error unless, in light of the record as a whole, the argument is extreme or manifestly

improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial

proceeding.” Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). “The remarks must

have been a willful and calculated effort on the part of the State to deprive appellant of a fair and

impartial trial.” Id.

           In his third issue, Mendiola contends the prosecutor engaged in impermissible jury

argument by asking the jury to “assess additional punishment for Rosas Casas” which was an

offense for which the jury acquitted him. During the punishment phase of trial, evidence was

introduced regarding Mendiola’s multiple prior arrests and convictions.           In the context of

summarizing those offenses, the prosecutor made the following argument:



1
    We note Mendiola did not return after the first day of trial.

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           [Prosecutor]: The Defense wants you to think that because they were dismissed,
       they didn’t happen. All we’re saying is he was arrested for it. And you guys know
       in this case where there’s smoke, there’s fire.
           His convictions, things that he was found guilty of doing: Robbery, protective
       order violation, unlawful restraint, twice assault, and endangering a child. If you
       go with what’s on there, you’re over 20 years. The people he’s hurt: Jennifer Mata,
       Sherry Castillo, and the three victims in this case: Rosa, Jesse, and Sandy.

           [Defense counsel]: Objection, Your Honor. You can’t ask them to punish him
       for cases he was found not guilty of.

           THE COURT: Overruled.

       Assuming without deciding that the argument was improper, the overruling of the objection

would not have resulted in reversible error because the argument was not extreme or manifestly

improper and did not inject new harmful facts into the trial proceeding. Wesbrook, 29 S.W.3d at

115. Accordingly, Mendiola’s third issue is overruled.

                                 REFORMATION OF JUDGMENTS

       In his final issue, Mendiola asserts the judgments must be reformed to reflect he pled not

true to the enhancement paragraph. The State agrees. The appellate record clearly reflects the trial

court entered a “not true” plea to the enhancement paragraph on Mendiola’s behalf because he was

not present at trial. Accordingly, we reform the judgments to reflect Mendiola pled “not true” to

the enhancement paragraph.

                                          CONCLUSION

       We reform the trial court’s judgments to reflect Mendiola pled “not true” to the

enhancement paragraph, and we affirm the judgments as reformed.

                                                  Beth Watkins, Justice

DO NOT PUBLISH




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