                                     NO. 07-09-0076-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL C

                                        JUNE 10, 2010




                              TERRILL E. CRUZ, APPELLANT

                                               v.

                           THE STATE OF TEXAS, APPELLEE



       FROM THE 100TH DISTRICT COURT OF COLLINGSWORTH COUNTY;

                  NO. 2719; HONORABLE STUART MESSER, JUDGE




Before QUINN, C.J., HANCOCK and PIRTLE, JJ.

                                 MEMORANDUM OPINION

      Appellant, Terrill E. Cruz, was convicted by a jury of aggravated assault with a

deadly weapon1 after which he was sentenced to twenty years confinement and fined

ten thousand dollars. Appellant asserts the trial court erred by: (1) denying his motion

for a continuance; (2) overruling his objection to the State's notice of its intent to

introduce evidence of extraneous offenses as punishment evidence ("State's Notice")

1
See Tex. Penal Code Ann. § 22.02(a) (Vernon 2003).
because the trial judge served as prosecuting attorney at the time the alleged offenses

were committed; (3) forcing Appellant to request the jury assess his punishment

because the trial court overruled his objection to the State's Notice; and (4) overruling

his objection to the State's Notice when most of the offenses were arrests only and

prosecution was barred by the applicable statutes of limitation. Appellant also asserts:

(5) because the trial judge did not disqualify himself due to his prior service as a district

attorney, the trial court lacked jurisdiction to hear the matter; (6) the trial court erred in

admitting accomplice testimony when there was insufficient corroboration; (7) the trial

court erred in admitting the written statement of an accomplice in the absence of

sufficient corroboration; (8) the trial court erred in denying Appellant's motion for a

directed verdict; (9) there was no credible evidence Appellant used or exhibited a

deadly weapon; and (10) the evidence was legally and factually insufficient to support

the jury's verdict. We affirm.


                                       Background


       On July 30, 2008, a Collingsworth County Grand Jury presented an indictment

charging that Appellant, on or about July 4, 2008, intentionally or knowingly threatened

Clarence Antonio Owens with imminent bodily injury by shooting at Owens's residence

with a deadly weapon, to-wit: an unknown caliber firearm. At trial, Collingsworth County

Sheriff Joe Stuart testified that, on July 4, 2008, he was dispatched to 705 Dalhart

Street in Dalhart, Texas.     When he arrived, he observed the front storm door was

shattered and there were bullet holes in the front of the residence. In his opinion, the


                                              2
bullet holes resulted from an unidentified firearm, possibly a 9-millimeter, being fired at

the home. According to his testimony, the firearm used was a deadly weapon.2


       Clarence Antonio Owens testified he lived at 705 Dalhart Street. On July 4, he

was watching television when he heard what he thought were firecrackers outside.

When he went to the front door, he saw a green pickup truck. Owens jumped into his

car and followed the pickup. He identified the pickup as belonging to Appellant and

then drove home. After returning home, he observed the same pickup pulling up to his

house a second time and witnessed another shooting. His storm door was shattered

and there were bullet holes in his house. He subsequently gave a statement to the

police indicating he had seen Appellant drive by his house twice and he heard gunshots

both times.


       Lynda Ceballos, Owens's girlfriend, testified she was also at the house on July

4th when she heard what she thought were firecrackers outside the house. When she

went to the front door, she observed smoke and Appellant's green pickup at the stop

sign across from their house. While standing out by the mailbox, Ceballos could see

Owens chasing the pickup and heard more shots. While she and Owens were trying to

decide what action to take, Ceballos heard another shot and ran to the front door. She

observed the same pickup driving by with Appellant hanging outside the passenger-side

window firing at the house over the top of the pickup. She could not see who was

driving the pickup. Shortly thereafter, she called the police.


2
Deputies Bill Selfridge and Billy Gilbert corroborated Sheriff Stuart's testimony.

                                                     3
       Ceballos further testified that after Appellant was freed on bail he came over to

Owens's house. After she told Appellant to leave, he told her he was sorry for shooting

up the house and he admitted he had been drinking that night.


       Rene Granados testified he was Appellant’s friend. In the early morning hours of

July 4, he and Appellant were at his house drinking beer. They left the house to cruise

around and Appellant directed Granados to drive down Dalhart Street. While Appellant

was sitting on the pickup's passenger window, Granados heard something like gunshots

coming from the front of the pickup. Granados testified that he did not know Appellant

was carrying a firearm and that after this event he went home and went to bed.


       Granados also testified Appellant had approached him regarding his testimony

before trial. Appellant told him he really didn't need to be in court and "[i]t would be in

his best interest that if [he] was going to be [in court] today, he would try to eliminate me

from being [in court] today."    Granados testified Appellant told him he was a "key

witness." Granados also testified he gave a written statement to the police wherein he

stated that, as he and Appellant drove by Owens's house, Appellant "started unloading

a pistol at Antonio's house."


       Thereafter, the jury convicted Appellant of aggravated assault with a deadly

weapon and sentenced him to twenty years confinement and assessed a ten thousand

dollar fine. This appeal followed.




                                             4
                                              Discussion


        I.      Motion for Continuance


        Under the Texas Code of Criminal Procedure, criminal actions may be continued

"upon sufficient cause shown; which cause shall be fully set forth in the motion." Tex.

Code Crim. Proc. Ann. art. 29.03 (Vernon 2006). Motions to continue rest within the

trial court's discretion; Gallo v. State, 239 S.W.3d 757, 764 (Tex.Crim.App. 2007), and,

on appeal, a defendant must demonstrate that his defense was "actually prejudiced" by

the court's ruling. Janecka v. State, 937 S.W.2d 456, 468 (Tex.Crim.App. 1996), cert.

denied, 522 U.S. 825, 118 S.Ct. 86, 139 L.Ed.2d 43 (1997) (citing Heiselbetz v. State,

906 S.W.2d 500, 511 (Tex.Crim.App. 1995)).


        Appellant filed a motion to continue a December 29th trial date. In his motion, he

asserted trial of his case during the Christmas-New Year's holiday season would cause

him prejudice because jurors would be "greatly inconvenienced, will not want to serve

during that holiday period, and will be likely to hold Defendant responsible for such

inconvenience." Appellant's claimed error must fail because his motion is premised on

unsubstantiated assumptions and shows no actual prejudice.3 Accordingly, the trial

court did not abuse its discretion by denying Appellant's motion for continuance.

Appellant's first point of error is overruled.




3
 Prior to trial, Appellant did not voir dire prospective jurors on whether they were inconvenienced, wanted
to serve during the holiday season, or would hold Appellant responsible for any inconvenience.

                                                    5
II.    State's Notice of Intent to Introduce Evidence of Extraneous
       Offenses

       A.     Preservation of Error

       In points of error two, three, and four, Appellant asserts the trial court erred by

overruling his objection to the State's Notice of Intent to Introduce Evidence of

Extraneous Offenses, Punishment Evidence and/or Prior Conviction Information filed

December 19, 2008 ("State's Notice"). Appellant contends that during a pretrial hearing

the trial court denied his objection to the State's Notice. A review of the record belies

this contention. What the record does reflect is that the court agreed with Appellant's

objection as to the guilt/innocence phase of the trial and then cautioned the prosecutor

to approach the bench prior to the introduction of any such evidence during the

punishment phase.


       Rule 33.1 of the Texas Rules of Appellate Procedure governs preservation of

error, and states, in relevant part:


       (a) In General. As a prerequisite to presenting a complaint for appellate
       review, the record must show that:

                                         * * *

        (2) the trial court:

              (A) ruled on the request, objection, or motion, either
              expressly or implicitly; or

              (B) refused to rule on the request, objection, or motion, and
              the complaining party objected to the refusal.



                                            6
       Here, the record shows that Appellant never obtained an adverse ruling to his

objection. Whether a particular complaint is preserved for appeal depends on whether

the complaining party clearly conveyed to the trial judge the particular complaint,

including the precise and proper application of the law as well as the underlying

rationale, and obtained a ruling on that complaint. See Pena v. State, 285 S.W.3d 459,

464 (Tex.Crim.App. 2009). Because the trial court never denied Appellant's objection,

points of error two through four present nothing for review and are, therefore, overruled.


       B.     Implied Overruling of Appellant's Objection


       While we do not so find, to the extent that it might be argued that the trial court

implicitly overruled Appellant's objection to the State's Notice during the pretrial hearing

by cautioning the prosecution to approach the bench prior to tendering such evidence,

any such ruling would be nothing more than a preliminary evidentiary ruling that

preserves nothing for appeal. Martinez v. State, 98 S.W.3d 189, 193 (Tex.Crim.App.

2003) (summarize holding); Harnett v. State, 38 S.W.3d 650, 655 (Tex.App.--Austin

2000, pet ref'd).


III.   Jurisdiction - Judicial Disqualification


       By his fifth point of error, Appellant contends that, because the trial judge was

disqualified on constitutional and statutory grounds, the trial court lacked jurisdiction

over Appellant's case. Appellant asserts the trial judge should have been disqualified

because he served as the District Attorney for the 100th District at the time when


                                             7
Appellant's prior arrests, the subject of the State's Notice of Intent to Introduce Evidence

of Extraneous Offenses, occurred.       As a result, he asserts the trial court lacked

jurisdiction to hear his case.


       The applicable statute provides that "[n]o Judge . . . shall sit in any case . . .

where he has been of counsel for the State or the accused." See Tex. Code Crim.

Proc. Ann. art. 30.01 (Vernon 2006).       See also Tex. Const. art. V, § 11.        These

provisions have been interpreted as mandatory, unwaivable, and jurisdictional. Gamez

v. State, 737 S.W.2d 315, 318 (Tex.Crim.App. 1987). However, for over a century the

Court of Criminal Appeals has consistently held that, as applied to former prosecutors, a

judge is disqualified only if the record affirmatively demonstrates that he actively

participated as a prosecutor in the very case he is presiding over as a judge. See, e.g.,

id. at 319; Ex parte Miller, 696 S.W.2d 908, 910 (Tex.Crim.App. 1985); Holifield v. State,

538 S.W.2d 123, 125 (Tex.Crim.App. 1976); Carter v. State, 496 S.W.2d 603, 604

(Tex.Crim.App. 1973); Utzman v. State, 32 Tex. Crim. 426, 24 S.W. 412, 412

(Tex.Crim.App. 1893). Without more, the mere fact that a judge served as a district

attorney while an appellant's case was pending does not disqualify the judge. Gamez,

737 S.W.2d at 319-20; Hathorne v. State, 459 S.W.2d 826, 829 (Tex.Crim.App. 1970),

cert. denied, 402 U.S. 914, 91 S.Ct. 1398, 28 L.Ed.2d 657 (1971).


       There is no evidence Judge Messer participated as counsel in this case.            A

former prosecutor is not disqualified from presiding over a trial when a new offense is

charged; Hathorne, 459 S.W.2d at 829-30, even where he personally prosecuted the

defendant on a prior felony conviction used by the State for enhancement purposes.
                                             8
Nevarez v. State, 832 S.W.2d 82, 88 (Tex.App.--Waco 1992, pet. ref'd); O'Dell v. State,

651 S.W.2d 48, 50 (Tex.App.--Fort Worth 1983, pet. ref'd). The most that can be said

on this record is that Judge Messer was district attorney at the time Appellant was

arrested for various offenses. Accordingly, Appellant's fifth point of error is overruled.


IV.     Accomplice Evidence and Sufficiency of the Evidence


        Appellant's points of error six, seven, eight, nine, and ten essentially challenge

the sufficiency of the evidence in support of Appellant's conviction. Points of error six

and seven challenging the sufficiency of the accomplice witness corroboration assert

the trial court erred in admitting the testimony and written statement of Rene Granados,

an accomplice as a matter of law,4 because there was no credible evidence of

independent corroboration as to whether Appellant used or exhibited a firearm. Point of

error eight contends the trial court erred in denying Appellant's motion for directed

verdict,5 while points of error nine and ten ask whether, in the absence of Granados's

accomplice testimony and written statement, there was legally and factually sufficient

evidence to support the jury's verdict.




4
During trial, the trial judge and the parties agreed Granados was an accomplice as a matter of law.
5
 A complaint regarding a trial court's failure to grant a motion for directed verdict is a challenge to the
legal sufficiency of the State's evidence at trial; Canales v. State, 98 S.W.3d 690, 693 (Tex.Crim.App.
2003); Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App. 1996), not factual sufficiency. See Long v.
State, 137 S.W.3d 726, 736 (Tex.App.--Waco 2004, pet. ref'd); Turner v. State, 101 S.W.3d 750, 761
(Tex.App.--Houston [1st Dist.] 2003, pet. ref'd).

                                                    9
       A. Standard of Review

       In assessing the legal sufficiency of the evidence to support a criminal conviction,

a reviewing court must consider all the evidence in the light most favorable to the verdict

and determine whether, based on that evidence and reasonable inferences to be drawn

therefrom, a rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. 2007). In our analysis, we

must give deference to the responsibility of the jury to fairly resolve conflicts in

testimony, weigh the evidence, and draw reasonable inferences from that evidence. Id.


       B. Aggravated Assault with a Deadly Weapon


       The elements of aggravated assault with a deadly weapon as alleged in the

indictment are that a person: (1) intentionally and knowingly threatens another (2) with

imminent bodily injury and (3) uses a deadly weapon during the commission of the

assault. See Tex. Penal Code Ann. §§ 22.01 and 22.02(a) (Vernon 2003). A firearm is

a deadly weapon per se.       Ex parte Huskins, 176 S.W.3d 818, 820 (Tex.Crim.App.

2005). See Tex. Penal Code Ann. § 1.07(a)(17)(A) (Vernon Supp. 2009).


       C. Accomplice Witness Rule and Legal Sufficiency


       Article 38.14 of the Code of Criminal Procedure provides that a conviction cannot

stand on accomplice testimony unless there is evidence tending to connect the

defendant to the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). This

rule is a statutorily imposed review and is not derived from federal or state constitutional

                                            10
principles that define legal and factual sufficiency standards.   Brown v. State, 270

S.W.3d 564, 568 (Tex.Crim.App. 2008), cert. denied, ___ U.S. ___, 129 S.Ct. 2075, 173

L.Ed.2d 1139 (2009).


      Accordingly, when evaluating the sufficiency of corroboration evidence under the

accomplice-witness rule, we eliminate the accomplice testimony from consideration and

then examine the remaining portions of the record to see if there is any evidence that

tends to connect the accused with the commission of the crime. Castillo v. State, 221

S.W.3d 689, 691 (Tex.Crim.App. 2007) (citing Soloman v. State, 49 S.W.3d 356, 361

(Tex.Crim.App. 2001)).    To meet the requirements of the rule, the corroborating

evidence need not prove the defendant's guilt beyond a reasonable doubt. Brown, 270

S.W.3d at 568; Trevino v. State, 991 S.W.2d 849, 851 (Tex.Crim.App. 1999). Rather,

viewing the evidence in a light most favorable to the verdict; Brown, 270 S.W.3d at 568

(citing Gill v. State, 873 S.W.2d 45, 48 (Tex.Crim.App. 1994)), the non-accomplice

evidence must simply link the accused in some way to the commission of the crime and

show that a rational factfinder could conclude that the non-accomplice evidence "tends

to connnect" appellant to the offense; Simmons v. State, 282 S.W.3d 504, 509

(Tex.Crim.App. 2009); Hernandez v. State, 939 S.W.2d 173, 178-79 (Tex.Crim.App.

1997), but not necessarily to every element of the crime. Vasquez v. State, 56 S.W.3d

46, 48 (Tex.Crim.App. 2001). Moreover, there is no set amount of non-accomplice

corroboration evidence that is required for sufficiency purposes; "[e]ach case must be

judged on its own facts." Gill v. State, 873 S.W.2d 45, 48 (Tex.Crim.App. 1994).




                                          11
       At trial, Sheriff Stuart testified that, when he arrived at Owens's residence, he

observed that the front storm door was shattered and there were bullet holes in the front

door and the house. Owens testified that, after he heard gunfire outside his house, he

observed Appellant's pickup and gave chase. Owens observed Appellant's pickup a

second time at his house, and again heard gunshots.                     Both Stuart and Owens

confirmed that his storm door was shattered and there were bullet holes in his house.


       Ceballos, Owens's girlfriend, also testified that, after she heard gunshots outside

Owens's house the first time, she went to the front door and observed Appellant's

pickup. She testified that, standing by the mailbox, she also observed Owens give

chase and heard more gunshots.              She further testified that, after she heard shots

outside the house a second time, she observed the same truck with Appellant hanging

outside the passenger-side window firing at the house over the top of the truck.

Furthermore, according to her testimony, when Appellant was freed on bail he came to

Owens's house and apologized for shooting up the house that night.6


       The physical evidence of the bullet holes at Owens's house, Sheriff Stuart's

testimony, Owens's testimony, Ceballos's testimony, and Appellant's own incriminating

statement, all corroborate Granados's accomplice testimony that he observed Appellant
6
 An accused's confession alone can be used to supply the necessary corroboration for an accomplice's
testimony. Jackson v. State, 516 S.W.2d 167, 171 (Tex.Crim.App. 1974); Rayburn v. State, 362 S.W.2d
649, 650 (Tex.Crim.App. 1962); Mitchell v. State, 669 S.W.2d 349, 350 (Tex.App.--Houston [14th Dist.]
1984, no pet.). Because the record reflects that Appellant's confession was voluntary; see Zuliani v.
State, 903 S.W.2d 812, 825 (Tex.App.--Austin 1995, pet. ref'd), and proof of the confession does not
depend on accomplice testimony; Thompson v. State, 54 S.W.3d 88, 94 (Tex.App.--Tyler 2000, pet. ref'd)
(citing Farris v. State, 819 S.W.2d 490, 495 (Tex.Crim.App. 1990)), Appellant's incriminating statement
may be used to corroborate Granados's accomplice testimony. See Alonzo v. State, 591 S.W.2d 842,
844 (Tex.Crim.App. 1980).

                                                  12
sitting on the pickup's passenger-side window, as they drove past Owens's house, while

he heard something like gunshots coming from the front of the truck.


         Taking all the evidence together, including Granados's accomplice-witness

testimony, we find legally sufficient evidence from which a jury could reasonably infer

Appellant intentionally or knowingly threatened Owens with imminent bodily injury while

using and exhibiting a deadly weapon during the commission of an assault.


         D. Factual Insufficiency


         When conducting a factual sufficiency review, we examine all the evidence in a

neutral light and determine whether the trier of fact was rationally justified in finding guilt

beyond a reasonable doubt. Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.

2007), cert. denied, 552 U.S. 920, 128 S.Ct. 282, 169 L.Ed.2d 206 (2007); Watson v.

State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006).            We give deference to the fact

finder's determination when supported by the record, and cannot reverse a conviction

unless we find some objective basis in the record demonstrating that the great weight

and preponderance of the evidence contradicts the verdict. Watson, 204 S.W.3d at

417. The criminal verdict will be set aside "only if the evidence is so weak that the

verdict is clearly wrong and manifestly unjust, or the contrary evidence so strong that

the standard of proof beyond a reasonable doubt could not have been met." Garza v.

State, 213 S.W.3d 338, 343 (Tex.Crim.App. 2007). In addition, the fact finder is entitled

to judge the credibility of the witnesses and may choose to believe all, or some, or none

of the testimony presented. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App.

1991).

                                              13
        Appellant contends the State's evidence is factually insufficient because: (1) the

police did not recover any gun, bullets, or shell casings at the crime scene; (2) the

weapon could have been a BB gun, pellet gun, or fireworks; (3) Owens's front door

could have been damaged in other ways; (4) Granados did not see a pistol; (5)

Ceballos's testimony was contradictory and inconsistent; and (6) Granados's testimony

was not believable.


        Regarding Appellant's first four contentions, Sheriff Stuart testified there were

three to four bullet holes in the front of the house that, in his opinion, were made by a

firearm, possibly a 9-millimeter handgun, being fired at the house.7 Deputy Selfridge

also testified to the presence of bullet holes in the house and opined that the bullet hole

in the bottom of the glass storm door was consistent with a gunshot. Deputy Gilbert

corroborated the testimony of Sheriff Stuart and Deputy Selfridge and photographed the

bullet holes. Although Granados did not see Appellant firing a pistol, he did state that

Appellant unloaded a pistol at Owens's residence. Owens himself testified he heard

gunshots during both drive-by shootings and identified Appellant's pickup as the vehicle

from which the shots were fired. Ceballos corroborated Owens account and further

testified the gunshots were coming from Appellant's pickup when Owens gave chase

after the first drive-by shooting and, during the second drive-by shooting, she saw

Appellant sitting atop the passenger-side window firing over the top of the pickup.

Granados testified that, as they drove by Owens's house, Appellant was sitting on the

passenger-side window as he heard something like gunshots coming from the front of

7
 Sheriff Stuart also testified that the bullets were imbedded so deep in the door that, in order to remove
them, the front door would have to be destroyed.

                                                     14
the truck. Finally, after Appellant was released from jail, he came to Owens's house

and apologized for shooting up the house.


       Based upon this evidence, we cannot say that the absence of a gun, bullets, or

shell casings coupled with the possibility that the door could have been damaged in

other ways, makes the State's evidence so weak that the verdict is clearly wrong or

manifestly unjust.     Further, although some of the testimony may have been

contradictory or inconsistent, our evaluation of the evidence "should not substantially

intrude upon the jury's role as the sole judge of the weight and credibility of witness

testimony." Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App. 1996), cert. denied,

522 U.S. 832, 118 S.Ct. 100, 39 L.Ed.2d 54 (1997). See Washington v. State, 127

S.W.3d 197, 204 (Tex.App.--Houston [1st Dist.] 2003, pet. dism'd). Accordingly, we find

that the evidence in support of the jury's verdict was factually sufficient. Appellant's

points of error six through ten are overruled.


                                       Conclusion


       The trial court’s judgment is affirmed.


                                                      Patrick A. Pirtle
                                                          Justice

  Do not publish.




                                             15
