                                       NUMBER 13-08-00530-CV

                                       COURT OF APPEALS

                          THIRTEENTH DISTRICT OF TEXAS

                             CORPUS CHRISTI - EDINBURG


                              IN THE MATTER OF E.S., III, A CHILD


                      On appeal from the County Court at Law No. 2
                                 of Victoria County, Texas.


                                   MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Yañez and Benavides
             Memorandum Opinion by Chief Justice Valdez

        After a bench trial, the trial court found that appellant, E.S.,III ( “E.S.”)1 committed

two counts of deadly conduct. See TEX . PENAL CODE ANN . § 22.05(b) (Vernon 2003). E.S.

was ordered committed to the Texas Youth Commission (TYC) for a determinate sentence

of ten years. In two issues, E.S. contends that: (1) the evidence is insufficient to support

the trial court’s judgment; and (2) the trial court erred by considering a hearsay statement.

We affirm.



        1
             W e will refer to the juvenile subject to this appeal and his father by aliases only. See T EX . R. A PP .
P. 9.8(c).
                                      I. BACKGROUND

       A little after 8:00 p.m., on the evening of July 9, 2008, Ramona Nunez sat on a chair

in her front yard visiting with two grandchildren under the age of ten, her sixteen-year-old

grandchild, J.A., and his teenage friend, J.G. Although the sun had set, it was not yet dark,

and she noticed a blue station wagon driving down the street in front of her home. She

informed J.A., who was seated at a nearby picnic table, that the station wagon was

“coming real slow.” The car stopped, with its passenger side immediately in front of the

house. The driver, identified as E.S., reached across the passenger and began firing a

gun. After firing two to four shots, E.S. drove away.

       Nunez phoned 911, and officers were dispatched to her residence. Scared that the

blue station wagon might return, J.A. and J.G. departed from Nunez’s home before the

police arrived. Officer John Turner was the first to arrive.

       Officer Turner testified that upon his arrival, Nunez informed him that a blue station

wagon had driven in front of her house and that E.S. had fired shots from the vehicle.

Officer Turner searched the front yard and found a “crack” or “chip” in the windshield of a

truck parked in Nunez’s front yard. Officer Turner testified that the damage to the

windshield indicated that a “projectile” such as a “bullet, BB, rock or something of that

nature” had hit and “bounced off” the windshield. No bullets, fragments, or casings were

found at the scene.

       Officer Zachary De La Rosa testified that on the way to Nunez’s residence, he

received a radio alert that E.S. had been involved in the shooting. After using his computer

to locate E.S.’s address, Officer De La Rosa proceeded to E.S.’s residence. Later

testimony revealed that although E.S.’s residence was a “number of blocks away” from

Nunez’s residence, it was “not very far.” While en route, Officer De La Rosa spotted a blue

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station wagon parked in a field across from E.S.’s home. Officer De La Rosa saw no one

around the vehicle and was unable to tell whether anyone was inside. Before Officer De

La Rosa could reach the station wagon, a train crossed the tracks in front of him, blocking

his route. Officer De La Rosa turned and proceeded further down the road, parallel to the

tracks until he was able to find a place to cross. He drove back towards E.S.’s residence.

Upon his arrival, Officer De La Rosa observed that the station wagon was no longer parked

in the field across from E.S.’s residence, but rather, was parked either in the driveway of,

or on the street near, E.S.’s residence. As he approached the station wagon, he saw three

males at a distance of forty to fifty yards away from the vehicle, running away from it.

Officer De La Rosa exited his vehicle and ran to apprehend the suspects. Officer De La

Rosa eventually apprehended A.R., a friend of E.S., and the two other suspects, D.W. and

T.T., were apprehended by other officers.

       Officer Mark Pullin, while en route to Nunez’s residence, heard over his radio that

suspects believed to have been involved in the shooting had fled from a blue station

wagon.    Officer Pullin proceeded to assist other officers in apprehending the three

suspects seen fleeing the station wagon. After the suspects were apprehended, Officer

Pullin secured the station wagon. Officer Pullin found the vehicle parked near E.S.’s

residence; the driver’s side door was “slightly ajar,” and the vehicle was making a “dinging

sound” because the keys had been left in the ignition. While conducting a search of the

vehicle, Officer Pullin found a spent .22 casing on the floorboard of the back seat, directly

behind the driver’s seat. A gun was never found, and neither the car nor the casing were

dusted for fingerprints.

       After securing the vehicle, Officer Pullin located E.S. at his residence. Upon

questioning by Officer Pullin, E.S. denied owning a gun or having any firearms in his home;

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upon Officer Pullin’s request to search his home, E.S. refused. E.S. told Officer Pullin that

he had been at his house all day playing video games with “a white boy,” but was unable

to describe the “white boy” or give his name. Fearing lack of probable cause, Officer Pullin

did not arrest E.S.

       After presenting the testimony of A.R., the first suspect apprehended, Nunez, J.A.,

J.G., and the foregoing officers, the State rested its case. E.S.’s father, Eddie, then

testified for the defense. Eddie stated that on July 9, 2008, he was at home “all day and

all night.” Eddie stated that at the time of the alleged shooting, E.S. was asleep on the

couch in the living room, and that E.S. was home the entire night. Eddie testifed that he

did not speak to police when they came to the home and spoke with E.S. that night,

because he had not seen them. Additionally, Eddie testified that if the police had come to

his residence that night, it was for “[n]othing serious,” because, had it been a serious

matter, “they would have called [him] outside.” He also stated that J.G. had made threats

to him in the past, and that after the alleged shooting, J.A. and J.G. exhibited a gun in his

presence.

       After considering the foregoing testimony, the trial court found that E.S. committed

the offense of deadly conduct as to Nunez and J.A.2 The court then ordered E.S.

committed to TYC for a determinate sentence of ten years. This appeal ensued.

                                             II. SUFFICIENCY

       In his first issue, E.S. contends that the evidence is insufficient to support the trial

court’s judgment that he engaged in deadly conduct. Although E.S. sets forth the legal

sufficiency standard of review, his sub-issues present factual sufficiency arguments.

Therefore, out of an abundance of caution, we construe E.S.’s arguments as a challenge

       2
           Nunez and J.A. were the only alleged victim s for whom a determ inate sentence was sought.

                                                     4
to legal and factual sufficiency.

A.     Standards of Review and Applicable Law

       In conducting a legal sufficiency review, we must ask whether “‘any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt’—not

whether ‘it believes that the evidence at the trial established guilt beyond a reasonable

doubt.’” Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009) (quoting Jackson

v. Virginia, 443 U.S. 307, 318-19 (1979) (emphasis in original)). We do not reevaluate the

weight and credibility of the evidence, and we do not substitute our own judgment for the

trier of fact. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (en banc); Beckham

v. State, 29 S.W.3d 148, 151 (Tex. App.–Houston [14th Dist.] 2000, pet. ref’d). Instead,

we consider whether the jury reached a rational decision. Beckham, 29 S.W.3d at 151.

We must resolve any inconsistencies in the evidence in favor of the judgment. Curry v.

State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

       In conducting a factual sufficiency review, we review the evidence in a neutral light

to determine whether the evidence is so weak that the jury’s verdict seems clearly wrong

and manifestly unjust or the jury’s verdict is against the great weight and preponderance

of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). We

will not reverse the jury’s verdict unless we can say with some objective basis in the record

that the great weight and preponderance of the evidence contradicts the verdict. Id. at

417.

       We measure the sufficiency of the evidence by the elements of the offense as

defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240

(Tex. Crim. App. 1997); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.–Corpus Christi 2002,

pet. ref’d). The hypothetically correct jury charge for deadly conduct requires proof that a

                                             5
person knowingly discharges a firearm at or in the direction of: (1) one or more individuals,

or (2) a habitation, building, or vehicle and is reckless as to whether the habitation,

building, or vehicle is occupied. TEX . PENAL CODE ANN . §22.05(b).          A person acts

knowingly, or with knowledge, “when he is aware of the nature of his conduct or that the

circumstances exist” or “he is aware that his conduct is reasonably certain to cause the

result.” Id. § 6.03(b) (Vernon 2003). A person acts recklessly, or is reckless, when “he is

aware of but consciously disregards a substantial and unjustifiable risk that the

circumstances exist or the result will occur.” Id. § 6.03(c).

B.     Analysis

       E.S. argues that the evidence is insufficient because: (1) “there was no tangible

evidence to support the allegation”; (2) “the State’s eyewitnesses were not credible”; and

(3) E.S. “had an alibi for the time of the shooting.” We disagree.

       Nunez, J.A., and J.G. each testified that on the evening of July 9, 2008, a blue

station wagon, driven by E.S., stopped in front of Nunez’s home, and E.S. pointed a gun

out of the passenger side window and fired two to four shots. Nunez testified that at the

time of the shooting, she was able to identify E.S. because he “used to go to [her] house”

and she knew his grandparents. J.A. testified that, despite the bottom of E.S.’s face being

covered by a bandana, he was able to identify E.S. as the gunman because he and E.S.

had been friends “a year or two” prior to the shooting. J.G. testified that he recognized E.S.

because he and E.S. had been friends a few years before the shooting. Additionally,

officers testified that after the alleged shooting, they found a cracked windshield on a truck

parked at Nunez’s home. The officers also testified that shortly after the shooting, they

located a blue station wagon, which matched the description of the one allegedly driven

by E.S. during the shooting. The blue station wagon was found near the driveway of E.S.’s

                                              6
residence, and a spent .22 caliber casing was found behind the driver’s seat.

       Viewed in the light most favorable to the verdict, from the testimony and facts

surrounding the shooting, a rational trier of fact could have found that E.S. knowingly

discharged a firearm in the direction of Nunez and J.A. Accordingly, we conclude that the

evidence was legally sufficiency to support E.S.’s conviction. See Laster, 275 S.W.3d at

517-18.

       E.S.’s father, Eddie, testified that E.S. was at home on the night of July 9, 2008.

E.S. argues that the only evidence linking him to the shooting was the testimony of Nunez,

J.A., and J.G., and that these alleged eyewitnesses are not credible. E.S. specifically

argues that Nunez’s testimony of the events on July 9, 2008 is contradictory to the events

she described to officers when they arrived on the scene. Officer Turner testified that

when he spoke to Nunez upon responding to her 911 call, Nunez did not tell him that J.G.

had been at her home at the time of the shooting. However, at trial, Nunez insisted that

J.G. was at her home at the time of the shooting, and that she had told police about him.

Additionally, Nunez told officers at the scene that E.S. was seated in the passenger seat

of the blue station wagon and that there were only three individuals in the car at the time

of the shooting (two in the front seat and one in the backseat). At trial, Nunez testified that

E.S. was the driver of the blue station wagon and that there were four individuals in the

vehicle (two in the front seat and two in the back seat).

       Reconciliation of conflicts in the evidence is within the exclusive province of the fact

finder. See Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). Viewing the

evidence in a neutral light, we conclude that the evidence is not so weak that the conviction

seems clearly wrong and manifestly unjust, and the trial court’s determination is not against

the great weight and preponderance of the evidence. See Watson, 204 S.W.3d at 414-15.

                                              7
We conclude that the evidence is factually sufficient to support E.S.’s conviction. Having

determined that the evidence is legally and factually sufficient to support E.S.’s conviction,

we overrule his first issue.

                    III. IMPEACHMENT BY PRIOR INCONSISTENT STATEMENT

       In his second issue, E.S. contends that the trial court erred by considering Officer

De La Rosa’s testimony concerning statements made to him by A.R.

A.     Standard of Review and Applicable Law

       We review a court’s evidentiary rulings under an abuse of discretion standard. See

Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex. 2002); In re Estate of Robinson,

140 S.W.3d 782, 790 (Tex. App.–Corpus Christi 2004, pet. denied). The impeachment of

a witness with a prior inconsistent statement is governed by rule 613(a), which provides:

       In examining a witness concerning a prior inconsistent statement made by
       the witness, whether oral or written, and before further cross-examination
       concerning, or extrinsic evidence of, such statement may be allowed, the
       witness must be told the contents of such statement and the time and place
       and the person to whom it was made, and must be afforded an opportunity
       to explain or deny such statement. . . . If the witness unequivocally admits
       having made such statement, extrinsic evidence of same shall not be
       admitted.

TEX . R. EVID . 613(a).

       To lay the foundation required by rule 613(a), the party seeking to impeach must

establish: (1) an “identification of the statement (by time, place, and person)”; (2) “a

summary of the contents”; and (3) “a denial by the witness as to what the statement

contains.” See Ferguson v. State, 97 S.W.3d 293, 296 (Tex. App.–Houston [14th Dist.]

2003, pet. ref’d); Downen v. Texas Gulf Shrimp Co., 846 S.W.2d 506, 512 (Tex.

App.–Corpus Christi 1993, writ denied).

       A violation of the evidentiary rules resulting in the erroneous admission of evidence


                                              8
is non-constitutional error. See Potier v. State, 68 S.W.3d 657, 663 (Tex. Crim. App. 2002)

(en banc) (noting that “[e]rroneous evidentiary rulings rarely rise to the level of

denying . . . fundamental constitutional rights”); see Johnson v. State, 967 S.W.2d 410,

417 (Tex. Crim. App. 1998) (applying rule 44.2(b) to determine whether the admission of

inadmissible hearsay affected the appellant’s substantial rights). We disregard errors,

defects, irregularities, or variances that do not affect the substantial rights of the accused.

TEX . R. APP. P. 44.2(b); Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001).

A substantial right is affected when, after reviewing the record as a whole, a court

concludes that the error has a substantial and injurious effect or influence on the outcome

of the proceeding. See Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002); King

v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).

B.     Analysis

       During its case in chief, the State called E.S.’s friend, A.R., to testify regarding the

July 9, 2008 incident. After identifying the time and place, and identifying “the officer” as

Officer De La Rosa, the State questioned A.R. as follows:

       [State]:      And do you remember telling the officer that you were
                     picked up by [E.S.] in a vehicle?

       [A.R.]:       I don’t recall that.

                      ....

       [State]:      Okay. Do you recall telling the officer that [E.S.] was driving
                     a vehicle and that he gave you and your homeboy a ride,
                     your homeboy [T.T.]? Do you remember telling the officer
                     that?

       [A.R.]:       No.

       [State]:      Do you remember telling the officer that [D.W., another
                     occupant of the vehicle] kept yelling “we got them niggas”?


                                              9
       [A.R.]:      No.

       [State]:     Do you remember telling the officer that when you asked
                    him who they got they replied Chucky?

       [A.R.]:      No.

       [State]:     You don’t remember telling them that either?

       [A.R.]:      No.

       [State]:     Do you remember telling the officer that you told [E.S.] that
                    you didn’t want to be involved in anything like that because
                    you had already been shot twice?

       [A.R.]:      No. No.

       [State]:     You don’t remember telling them that either?

       [A.R.]:      Well, whoever told you that that’s [sic] a lie because I never
                    been shot twice.

       [State]:     Did you remember telling the officer that or not?

       [A.R.]:      No.

The State then called Officer De La Rosa who testified, over a hearsay objection, as

follows:

       [State]:                   What did [A.R.] tell you?

       ....

       [Officer De La Rosa]:      . . . . And [A.R.] advised that he and his cousin
                                  who he called [T.T.] . . . were walking on 800
                                  East Forrest when the—when the blue station
                                  wagon that was located there had pulled up
                                  around the street really fast. He then advised
                                  me that the car was occupied by [E.S.] and
                                  [D.W.] and that [E.S.] was driving. [E.S.] asked
                                  [A.R.] and [T.T.] if they wanted to ride with him.
                                  [A.R.] advised that they accepted the ride and
                                  they got into the car. [A.R.] advised that [E.S.]
                                  and [D.W.] kept yelling, and I quote[,] “We got
                                  them niggas. We got them [n]iggas.” [A.R.] had
                                  asked who they got and they replied “Chucky.”

                                           10
                                    [A.R.] advised that he told them that he did not
                                    want to be involved in anything like that because
                                    he had already been shot twice and didn’t want
                                    anyone to think that he had something to do with
                                    it. [A.R.] advised that he was then—that
                                    someone noticed the police car, which I guess
                                    and I assume would be my car, and he told them
                                    he had warrants and he had to get out of there
                                    and then they ran.

       In his first sub-issue, E.S. argues that Officer De La Rosa’s testimony regarding

A.R.’s prior statements to him constitutes inadmissible hearsay. Hearsay is a statement,

other than one made by the declarant while testifying at the trial, which is offered to prove

the truth of the matter asserted. TEX . R. EVID . 801(d). A prior statement that is offered to

impeach the witness’s credibility is not hearsay. Flores v. State, 48 S.W.3d 397, 404 (Tex.

App.–Waco 2001, pet. ref’d). Upon E.S.’s hearsay objection to Officer De La Rosa’s

testimony, the State argued that the testimony did not constitute hearsay because it was

a “prior inconsistent statement.” A witness may be impeached by a prior inconsistent

statement if the predicate provided by rule 613(a) is met. See TEX . R. EVID . 613(a). E.S.

does not challenge that the rule 613(a) predicate was met; instead, he fails to recognize

rule 613(a) as a grounds through which a hearsay statement may be properly admitted.

Accordingly, Officer De La Rosa’s testimony does not constitute inadmissible hearsay if it

is considered solely for impeachment. See Flores, 48 S.W.3d at 404.

       In his second sub-issue, E.S. argues that the trial court considered Officer De La

Rosa’s testimony for the truth of the matter asserted, and that such consideration

constitutes harmful error. Assuming, without deciding, that the trial court considered the

complained-of testimony for the truth of the matter asserted, we would nonetheless

conclude that any error was harmless given the overwhelming evidence of E.S.’s guilt that

was properly introduced. See TEX . R. APP. P. 44.2(b); Solomon, 49 S.W.3d at 365;

                                             11
Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000) (noting that “the presence

of overwhelming evidence supporting the finding in question can be a factor in the

evaluation of harmless error”). As previously discussed, three eyewitnesses identified E.S.

as the gunman at the time of the shooting, and a vehicle matching the description of the

vehicle driven by the gunman was found in close proximity of E.S.’s residence. Thus, in

light of this properly admitted evidence and viewing the record as a whole, we have a fair

assurance that any purported error in relation to the admission of Officer De La Rosa’s

statement neither influenced the fact finder nor had more than a slight effect. See Garcia

v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004). E.S.’s second issue is overruled.

                                     IV. CONCLUSION

       Having overruled E.S.’s issues, the trial court’s judgment is affirmed.




                                                 ROGELIO VALDEZ,
                                                 Chief Justice

Memorandum Opinion delivered and
filed this 26th day of August, 2009.




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