
NO. 07-06-0414-CR
NO. 07-06-0415-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

NOVEMBER 16, 2006

______________________________


JOHANSON LEE WATSON, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE


_________________________________

FROM THE 46TH DISTRICT COURT OF WILBARGER COUNTY;

NOS. 9479 & 9480; HONORABLE TOM NEELY, JUDGE (1)

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ABATEMENT AND REMAND
	Proceeding pro se, Appellant Johanson Lee Watson perfected this appeal from the
trial court's orders denying his motion for forensic DNA testing .  Through correspondence
with the Clerk of this Court, Appellant has expressed an intent to pursue this appeal. 
Although he was represented by appointed counsel for purposes of the hearing on his
motion for forensic DNA testing, inquiry by the Clerk of this Court revealed counsel has not
been appointed to prosecute Appellant's appeal.  
	Article 64.01(c) of the Texas Code of Criminal Procedure  provides that a convicted
person is entitled to appointed counsel under certain circumstances during a proceeding
filed pursuant to chapter 64.  Article 64.05 provides that an appeal under chapter 64 is to
a court of appeals except in a capital case where a death sentence is imposed, which is
directly appealed to the Texas Court of Criminal Appeals.  Article  64.01(c), which provides
for appointed counsel, does not differentiate between the trial and appellate stages. 
Consequently, an indigent convicted person is entitled to appointed counsel to prosecute
an appeal under chapter 64.  See Gray v. State, 69 S.W.3d 835, 837 (Tex.App.-Waco
2002, no pet.).  This Court, however, is not authorized to appoint counsel.  See Tex. Code
Crim. Proc. Ann. art. 26.04 (Vernon Supp. 2006).  Therefore, we now abate this appeal
and remand the cause to the trial court for further proceedings.
	Upon remand, the trial court shall utilize whatever means necessary to determine
Appellant's indigence status.  Should the trial court determine that Appellant is indigent,
the trial court shall appoint counsel to represent Appellant in this appeal.  If counsel is
appointed, the name, address, telephone number, and state bar number of said counsel
shall be included in an order appointing counsel.  The order appointing counsel, if any,
must then be included in the clerk's record and filed with the Clerk of this Court on or
before December 15, 2006.
	It is so ordered.
							Per Curiam
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NO. 07-05-0307-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

SEPTEMBER 24, 2007
                                       ______________________________

JONATHAN JOEY MENDOZA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE
_________________________________

FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

NO. 50,762-E; HONORABLE ABE LOPEZ, JUDGE
_______________________________


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. 
MEMORANDUM OPINION
          Jonathan Joey Mendoza appeals his conviction of aggravated assault against his
mother.  The jury assessed punishment at 20 years confinement and a $10,000 fine.  We
affirm.
          Appellant does not contest the evidence he assaulted his mother in January 2005. 
His complaints on appeal challenge the sufficiency of the evidence that he used a deadly
weapon, the aggravating factor in the assault, see Tex. Pen. Code Ann. § 22.02(a)(2)
(Vernon Supp. 2006), and admission of evidence supporting that element.  He also assigns
error to the admission of extraneous offense evidence.  
          The events giving rise to appellant’s prosecution began when appellant and his four-year-old son, Ace, went to the home of appellant’s mother, Yolanda Garcia.  Garcia asked
appellant about a mark on Ace’s face and was told appellant had slapped Ace.  Garcia and
appellant began to argue over his treatment of Ace.  During that argument appellant
grabbed Garcia’s hair and pressed a hard object against her head and told her not to “call
the cops on me.”  Appellant released Garcia and took her mobile phone as she left to pick
up her daughters.  Within minutes Garcia related the events to her sister who called the
police.  When officers arrived some twenty minutes later, Garcia was still upset and told
them appellant had placed a gun to her head.  Garcia provided a written statement alleging
appellant pulled a small gray pistol on her and had threatened to kill her if she reported him
to the police.  At trial Garcia admitted telling police appellant had a gun but said she had
only assumed it was a gun and never saw the object.  The State introduced a pistol police
found on a dresser in appellant’s house located across the street from Garcia’s house.  
          Appellant’s first issue challenges the factual sufficiency of the evidence that he used
or exhibited a deadly weapon.  Appellant’s four remaining issues challenge the admission
of evidence.  
          Appellant’s factual sufficiency challenge is based on the discrepancy between
Garcia’s statement to police that appellant used a firearm and her trial testimony that she
did not see a firearm.  She testified she was “not sure if it was a pistol or not.”
 
          Evidence supporting guilt, though legally sufficient, may be factually insufficient
because it is so weak that the jury’s verdict seems clearly wrong and manifestly unjust, or 
because evidence contrary to the verdict is such that the jury’s verdict is against the great
weight and preponderance of the evidence.  Marshall v. State, 210 S.W.3d 618, 625
(Tex.Crim.App. 2006); Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006);
Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000).  In a factual sufficiency review,
we consider all the evidence, in a neutral light.  Marshall, 210 S.W.3d at 625; Watson, 204
S.W.3d at 414.  Although an appellate court’s authority to review factual sufficiency permits
the court to disagree with the fact finder’s determinations, the appellate court must accord
them due deference, particularly those determinations concerning the weight and credibility
of the evidence.  Johnson, 23 S.W.3d at 9.  When there is a conflict in the evidence, we
may not find the evidence factually insufficient simply because we disagree with the jury’s
resolution of the conflict.  Rather, we must first be able to say, with some objective basis
in the record, that the great weight and preponderance of all the evidence contradicts the
jury’s verdict.  Watson, 204 S.W.3d at 417. 
          Here, the evidence appellant used a deadly weapon included Garcia’s statement
to police shortly after the event and appellant’s threat to kill Garcia while he held the object
to her head, supporting an inference the object was a deadly weapon.  There is no
evidence in the record contrary to the jury finding appellant used a deadly weapon.  Garcia
never testified appellant did not have a firearm, only that she did not see the object.   We
see no basis on which to disturb the jury’s apparent acceptance of the statements Garcia
made at the time of the offense.  The evidence supporting the deadly weapon finding is
factually sufficient.  Appellant’s first issue is overruled.
          Each of appellant’s remaining issues challenge evidentiary rulings.  We review a trial
court's admission or exclusion of evidence for abuse of discretion.  Cunningham v. State,
877 S.W.2d 310, 313 (Tex.Crim.App. 1994).  Under that standard, we uphold a trial court's
ruling if it is correct under any theory of law applicable to the case.  Carrasco v. State,  154
S.W.3d 127, 129 (Tex.Crim.App. 2005);  Jones v. State, 833 S.W.2d 118, 125  n. 15
(Tex.Crim.App. 1992) ("the mere fact that a correct ruling is given for the wrong reason will
not result in a reversal"). 
          In his second issue appellant complains of the admission of five photographs of his
son.  The photographs showed the mark left on the boy’s cheek from the slap by appellant
and an injury to his upper lip.  Each injury was depicted by two photographs from different
angles.  The fifth photograph simply shows Ace standing by a fence.  Appellant initially
objected to the relevance of the photographs.  On overruling of that objection he
challenged admission on the basis the prejudicial effect outweighed the probative value. 
See Tex. R. Evid. 403.  This objection also was overruled.  Appellant now complains the
trial court failed to balance the probative value of the evidence against the risk of unfair
prejudice as required by Rule of Evidence 403.  The State correctly notes that the required
balancing need not be affirmatively shown on the record.  See Parmer v. State, 38 S.W.3d
661, 670 (Tex.App.–Austin 2000, pet. ref’d). See also Wilson v. State, 7 S.W.3d 136, 144
(Tex.Crim.App. 1999).  Appellant did not request the trial court to articulate its balancing
of the relevant factors and nothing indicates the trial court failed to weigh the probative
value against the risk of unfair prejudice.  We overrule appellant’s second issue. 
          Appellant’s third issue assigns error to admission into evidence of Garcia’s written
statement to police.  His argument in support of the issue contends the statement should
not have been admitted as extrinsic evidence of a prior inconsistent statement because
she unequivocally admitted making the statement.  See Tex. R. Evid. 613(a) (establishing
procedure for examining a witness concerning prior inconsistent statements made by the
witness and stating extrinsic evidence of the statement is inadmissible if the witness
unequivocally admits having made such statement); Broden v. State, 923 S.W.2d 183, 188
(Tex.App.– Amarillo 1996, no pet.) (if witness equivocates or qualifies her answer, the
extrinsic evidence is admissible) (applying former rule).  
          During Garcia’s testimony the prosecutor showed her a copy of her written
statement and she admitted she had given the statement to officers.  When asked if there
were differences between the statement and her testimony, Garcia answered “maybe I
rephrased it different or something, but it[‘]s all to the same thing.”  He then questioned her
about specific differences between the written statement and her trial testimony concerning
appellant’s use of a firearm.  Garcia sought to explain the differences by testifying she had
assumed the object appellant used was a pistol but she never saw the object. The
prosecutor also questioned Garcia about other aspects of her written statement including
that appellant had said he would kill Garcia if she called the police on him.  
          When the State offered the written statement into evidence appellant asserted the
following objection:
Judge, I’m going to object to the introduction of State’s Exhibit No. 7. I
understand it was her statement that was given that day.  She has testified
today in regards to the best she recalls and remembers that day.  I mean, if
Mr. Price wants to ask her about specifics about differences between the
statement and what she said today, and give her a chance to explain it, I
don’t have a problem with that.  I don’t think that’s going to be helpful to the
jury as far as State’s Exhibit No. 7.
  
When the trial court judge agreed with the prosecutor that he had “already done that,”
appellant stated, “Well, then I just object to the admission of State’s Exhibit No. 7 then,
because her testimony serves as evidence for this jury.  They don’t need to see it.”  The
State initially argues appellant’s argument on appeal that extrinsic evidence of the
statement was inadmissible because Garcia had unequivocally admitted making the
statement was not preserved for our review, and we must agree.
          Unless the specific ground of objection to the admission of evidence is apparent
from the context, a timely objection stating the specific ground is a prerequisite for a
complaint on appeal to its admission.  Tex. R. App. P. 33.1; Tex. R. Evid. 103(a)(1); Dixon
v. State, 2 S.W.3d 263, 273 (Tex.Crim.App. 1999) (op. on rehearing).  In addition, the
objection at trial must comport with the error complained of on appeal.  Tex. R. App. P.
33.1; Goff v. State, 931 S.W.2d 537, 551 (Tex.Crim.App. 1996).
          Appellant’s objection to the trial court did not make reference to Rule 613(a) or
assert the ground that the exhibit was inadmissible because Garcia admitted she made the
statements contained in it.  Having carefully reviewed the context in which appellant’s
objection was asserted, neither can we say that the ground of objection asserted on appeal
was apparent from the context.
  Accordingly, issue three is overruled.
           By his fourth issue appellant argues the trial court should not have admitted an
audio recording of telephone conversations between Garcia and appellant because the
recording was not properly authenticated.  See Tex. R. Evid. 901.
          Although Garcia acknowledged she had telephone conversations with appellant
while he was in jail, the source of the recordings presented is not clearly shown in the
record.  Nothing indicates the recordings were made by appellant or Garcia.  After the first
of three segments was played for Garcia out of the presence of the jury, she was asked
if it was a telephone conversation she had with appellant while he was in jail.  She
responded: “I’m sure it is, if you’ve got it recorded.”  We are left to infer the recording was
made by jail personnel. Authentication of an audio recording does not require proof of who
made the recording or the details of how it was made.  Angleton v. State, 971 S.W.2d 65,
68 (Tex.Crim.App. 1998) (citing cases applying corresponding federal rule on
authentication). 
          Rule of Evidence 901(a) provides that the requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent claims.  The specific
issue raised by appellant’s trial objection was to the sufficiency of the evidence establishing
that the voices on the recording were those of Garcia and appellant.  We review for abuse
of discretion the trial court’s apparent finding that the voices were theirs.  See Guzman v.
State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997) (recognizing trial court’s broad discretion
in evidentiary rulings).
          As noted, before the trial court ruled on its admissibility, the recording was played
while Garcia testified outside the presence of the jury.  When the prosecutor played the
first segment of the recording, Garcia acknowledged the recording “sounds like my voice”
and the other voice “sounds like [appellant].”  She expressed uncertainty that the voice on
the second segment was hers, but agreed that the voice on the third segment, like the first,
“sounds like my voice.”  She also acknowledged she was “a party to that conversation,”
and responded to one question by indicating that the conversation related at that point to
appellant’s response to a plea negotiation offer made to him.  The trial court heard both
Garcia’s testimony and the recording, and could properly consider similarities or
differences between her voice and those on the segments of the recording in making its
ruling. See Tex. R. Evid. 901(b)(5).  The contents of the recording concerned appellant’s
prosecution and matters to which Garcia testified, serving to further authenticate the
recording.  Angleton, 971 S.W.2d at 68.  There was evidence from which the trial court
reasonably could have concluded the voices on the recording were those of Garcia and
appellant, and Garcia’s uncertainty with respect to one segment does not suggest the trial
court abused its discretion by so deciding.  Moreover, when the recording later was played
for the jury while Garcia remained on the stand, she agreed that while some of the
recorded conversation was in Spanish, the “majority of it is in English between [Garcia] and
[appellant].” We overrule appellant’s fourth issue. 
          Appellant’s fifth issue challenges admission of “testimony of prior assaultive acts”
committed by appellant against Garcia seven to eight years before the charged offense. 
When the issue was raised outside the presence of the jury, the defense argued any prior
acts were not relevant and suggested the prosecutor question Garcia on voir dire to permit
the court to determine relevancy.  The State argued the evidence was relevant to the issue
of appellant’s intent to threaten imminent bodily injury
 and to correct the false impression
left by Garcia’s testimony that the charged assault was unlike any of appellant’s prior
conduct toward her.
  The State further argued it should be permitted to “impeach [Garcia]
on those instances.”  
          During voir dire, Garcia testified she did not recall telling police officers in March
1997 appellant had attempted to hit her and in May 1997 he had struck her.  Nor did she
recall telling a detective after the May incident she did not want to seek prosecution.  When
asked whether she had told police appellant punched her in the face in January 1998, she
emphatically denied that had ever happened.  The State contended it should be allowed
to ask the same questions so Garcia “can deny them and say she doesn’t remember them
in front of the jury.”  Appellant reiterated his objections, asserting the “prejudicial effect of
those questions, Judge, outweighs the probative value,”  the prior acts were not relevant,
and the police reports were hearsay.  The court overruled the objections, citing Garcia’s
prior testimony that appellant had never engaged in any acts of violence toward her. 
Before the jury the State questioned Garcia about the March and May 1997 and January
1998 events.  She admitted calling police and reporting appellant as a runaway in 1997 but
did not recall telling officers on either occasion he had struck her or attempted to strike her. 
She again denied appellant struck her in the face in January 1998.  No extrinsic evidence
of the events was offered. 
          The State now argues no extraneous offense evidence was presented so no error
can be predicated on introduction of such evidence.  It cites Pearce v. State, 513 S.W.2d
539, 543 (Tex.Crim.App. 1974), in which the court stated reversal for “an improper
question” is rare.  We find Armstead v. State, 977 S.W.2d 791 (Tex.App.–Fort Worth 1998,
pet. ref’d), more closely resembles the case at bar.  In Armstead, the court considered a
claim a witness called by the State was improperly impeached with statements the witness
had made during a pretrial interview with prosecutors, but disremembered at trial.  The
statements made to prosecutors were presented in front of the jury only through leading
questions asked by the State on direct examination.
 Id. at 796.  Like the court in
Armstead, we will evaluate appellant’s claim of error under case law addressing the State’s
misuse of its ability, under Rule of Evidence 607, to impeach its own witness. 
          Appellant’s trial objection that the State’s impeachment questioning of Garcia was
more prejudicial than probative provides the proper framework for analysis of any error in
the trial court’s ruling permitting the line of questioning.  In Hughes v. State, 4 S.W.3d 1
(Tex.Crim.App. 1999), the court adopted a Rule 403 analysis for evaluation of a trial court
ruling allowing the State to impeach its witness with prior inconsistent statements. 
Application of that analysis leads to the conclusion the trial court did not abuse its
discretion by permitting the State to question Garcia about her prior statements to police.
           The court in Hughes found that a trial court abuses its discretion under Rule 403
when it permits the State to introduce otherwise inadmissible impeachment evidence for
the primary purpose of placing it before the jury with the hope the jury will misuse it by
considering it for its truth.  Id. at 5.  We find little risk of prejudice to appellant from misuse
by jurors of information learned from the State’s impeachment questioning of Garcia.  The
questioning dealt with her prior statements referring to assaults by appellant.  There was
little dispute at trial that appellant had assaulted his mother in the incident at bar.  The
dispute was over his use of a firearm.  As described during the State’s questioning, none
of the extraneous incidents involved a firearm.  The line of questioning served the State’s
case by providing the jury a reason to discount Garcia’s testimonial effort to mitigate her
son’s offense, not by providing the jury with evidence of guilt the State could not introduce
otherwise.  See, e.g., Hughes, 4 S.W.3d at 3 (impeachment evidence included otherwise
inadmissible testimony of appellant’s confession).  We overrule appellant’s fifth issue.  
          Finding no reversible error in the trial court’s judgment, we affirm that judgment.
 
                                                                James T. Campbell 
                                                                         Justice




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