                            NUMBER 13-12-00083-CR
                            NUMBER 13-12-00088-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

BENJAMIN LEAL, III,                                                         Appellant,


                                           v.


THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 103rd District Court
                        of Cameron County, Texas.


                        MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Benavides and Longoria
             Memorandum Opinion by Justice Longoria

      In two issues, appellant, Benjamin Leal III, appeals his convictions on two counts

of felony failure to appear and one count of felony escape. See TEX. PEN. CODE ANN. §§

38.10(a), (f) (West 2011); 38.06(a), (c)(1) (West Supp. 2011). We affirm.
                                              I. BACKGROUND

       Appellant was arrested on August 18, 2010 after assaulting R.R., a woman who

identified him as her husband. Appellant was placed under arrest by Officer Michael

Cuevas, who transported appellant to the San Benito city jail. When Officer Cuevas

removed appellant from the back of his vehicle, appellant managed to slip from the

officer’s grasp and run for one of the jail gates that was not functioning properly that

night. Appellant was arrested two days later on a felony arrest warrant. A jury found

appellant guilty and assessed punishment at fifteen years’ imprisonment for the escape

charge and the same term for each count of failure to appear. The sentences were to

run concurrently with the term of twenty years assessed in a companion case, 13-12-

084-CR.1 This appeal followed.

                                                II. ANALYSIS

       A. Escape

       In his first issue, appellant challenges the sufficiency of the evidence supporting

his conviction for felony escape. See TEX. PENAL CODE ANN. § 38.06(a), (c)(1).

       1. Standard of Review

       In determining the sufficiency of the evidence, we ask “whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt." Johnson

v. State, 364 S.W.3d 292, 293–94 (Tex. Crim. App. 2012) (quoting Jackson v. Virginia,

443 U.S. 307, 319 (1979)). It is the sole province of the jury to evaluate the credibility of

       1
          The sole charge in that case was for continuous violence against the family, a third degree
felony. TEX. PENAL CODE ANN. § 25.11 (West 2011). All charges against appellant were tried to a jury in
one proceeding, but appealed separately to this Court under No. 13-12-84-CR. A fuller explanation of the
facts can be found in the background section of that opinion.


                                                   2
witnesses and the weight, if any, to be given to their testimony. Garcia v. State, 367

S.W.3d 683, 686–87 (Tex. Crim. App. 2010) (citing Jackson, 442 U.S. at 319); Brooks v.

State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010)(plurality op.). Under Texas law, we

measure sufficiency of the evidence “by the elements of the offense as defined by the

hypothetically correct jury charge for the case.” Byrd v. State, 336 S.W.3d 242, 246

(Tex. Crim. App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997)). The hypothetically correct jury charge is one that “accurately sets out the law, is

authorized by the indictment, does not unnecessarily increase the State's burden of

proof or unnecessarily restrict the State's theories of liability, and adequately describes

the particular offense for which the defendant was tried." Id.

       The elements that the State must have proved in this case are that the defendant

(1) escaped (2) from custody (3) after being arrested, charged, or convicted of an

offense. TEX. PENAL CODE ANN. § 38.06(a); see Medford v. State, 13 S.W.3d 769, 772

(Tex. Crim. App. 2000). Escape is enhanced to a third-degree felony if the defendant

was under arrest or charged with a felony at the time of the escape. TEX. PENAL CODE

ANN. § 38.06(c)(1).

       2. Discussion

       In his first issue, appellant argues that the evidence was insufficient for the jury to

find that he was under arrest for a felony at the time he escaped. Appellant does not

contest that the State proved the other elements of the offense. Appellant argues that it

is significant that he was not formally charged with a felony until after his escape and

that Officer Cuevas, who had been dispatched by Officer de Leon to arrest appellant,




                                              3
testified that he was under the impression that appellant was under arrest for simple

assault.

        Although appellant did escape from custody before he was indicted for a felony,

the evidence showed appellant was under arrest for a felony. Officer Juan De Leon, the

lead investigator on the case, testified that he decided to arrest appellant for the crime

of “[a]ssault family violence, third degree.” Assault is enhanced to a third-degree felony

if the victim is a member of the defendant’s family and committed by “impeding the

normal breathing or circulation of the blood of the person by applying pressure to the

person’s throat or neck or by blocking the person’s nose or mouth.” Id. § 22.01(b)(2)(B)

(West 2011).       Officer de Leon testified that he made that decision “based on the

appearance of the victim and information that she provided and the level of injury,”

including that appellant was her husband and had put his hands around her neck during

the assault.2 In sum, the State presented evidence that the lead officer on the case

decided to arrest appellant for a specific offense. After viewing the evidence in the light

most favorable to the prosecution, we conclude that a reasonable fact finder could find

beyond a reasonable doubt that appellant was under arrest for a felony at the time he

escaped from Officer Cuevas’s custody. We accordingly overrule appellant’s first issue.

        B. Failure to Appear

        1. Applicable Law

        Appellant also challenges the sufficiency of the evidence supporting his

convictions on two felony counts of failure to appear. TEX. PENAL CODE ANN. § 38.10(a),


        2
          R.R. subsequently testified at trial that although she and appellant were not formally married,
she considered appellant to be her husband, and they have a child together. The Texas Family Code
defines the term “family” as including the two biological parents of a child, whether or not they are
married. See TEX. FAMILY CODE ANN. § 71.003 (West 2008).

                                                   4
(f). A hypothetically correct jury charge for this offense requires the State to prove that

appellant (1) was released from custody with or without bail; (2) on condition that he

subsequently appear; and (3) intentionally or knowingly; (4) subsequently failed to

appear. Id.; see Walker v. State, 291 S.W.3d 114, 118 (Tex. App.—Texarkana 2009,

no pet.). If the State makes a prima facie showing that defendant was freed from

custody on an instanter bond—as appellant was in this case—it satisfies its burden to

prove the culpable mental state unless there is evidence to the contrary. Solomon v.

State, 999 S.W.2d 35, 37 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (quoting

Euziere v. State, 648 S.W.2d 700, 702 (Tex. Crim. App. 1983)).

        2. Discussion

        Appellant argues that the State presented no evidence because the State

improperly introduced certified copies of the instanter bond and docket sheets without a

sponsoring witness. Appellant further argues that the copy of the bond that the State

introduced through its rebuttal witness, appellant’s bail bondsman, does not constitute

proof since the State had already rested before that time. At trial, appellant objected

that the documents were not introduced through a sponsoring witness. On appeal,

appellant does not explain why it was improper for the trial court judge to admit certified

copies of the bond and docket sheets that were already in the trial court’s file. 3 To the

extent appellant contends that admitting those documents was error, we conclude that

appellant has waived that argument by not raising that contention as an issue in this

appeal.     In any event, when conducting a sufficiency review we consider all the


        3
          Appellant discusses the business record exception to the hearsay rule at great length but does
not explain how that rule is relevant because the bond was already part of the trial court’s file in this case.
See TEX. R. EVID. 803(6).


                                                      5
evidence in the record, whether or not it was properly admitted. Dewberry v. State, 4

S.W.3d 735, 740 (Tex. Crim. App. 1999). Because we found that a copy of the instanter

bond and the docket sheets showing that appellant twice failed to appear in court were

in the record, and appellant does not contest any of the other elements of the offense,

we hold that the State introduced sufficient evidence for a rational jury to be able to find

appellant guilty of the charged offenses beyond a reasonable doubt. 4 See id. We

overrule appellant’s second issue.

                                              III. CONCLUSION

        Having overruled appellant’s two issues, we affirm the judgment of conviction.



                                                        _______________________
                                                        NORA L. LONGORIA
                                                        Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
28th day of March, 2013.




        4
          The rest of appellant’s issue on appeal discusses the inadmissibility of the bail bondsman’s
testimony. Because we held that certified copies of the bond and the docket sheets were properly in the
record, we do not need to reach the issue of the bail bondsman’s testimony. However, we note that it is
evident from the record that the State introduced a copy of the bond through the bondsman in order to
rebut R.R.’s testimony for the defense on the issue of whether she and appellant formed the same
household. The bond listed appellant’s address as Ortega’s apartment, where R.R. was living at the time.

                                                   6
