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                                  MEMORANDUM OPINION


                               Nos. 04-08-00056-CR & 04-08-00062-CR

                                         Yolanda OLIVARRI,
                                              Appellant

                                                    v.

                                         The STATE of Texas,
                                               Appellee

                    From the County Court at Law No. 2, Guadalupe County, Texas
                          Trial Court Nos. CCL-06-02050 & CCL-06-2049
                               Honorable Frank Follis, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: November 26, 2008

AFFIRMED

           Yolanda Olivarri was convicted by a jury of false report to a police officer and perjury. On

appeal, Olivarri challenges the legal and factual sufficiency of the evidence to support her

convictions. Olivarri also asserts that the trial court erred in admitting into evidence her complaint

form. We affirm the trial court’s judgments.
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                                            BACKGROUND

        Officer Moses Morales recorded a car speeding at 48 mph in a 35 mph zone. Before Officer

Morales could initiate a stop, the driver of the car, later identified as Olivarri, stopped at the side of

the road on two separate occasions to look under her car. After activating his lights and pulling in

behind Olivarri’s car, Officer Morales approached Olivarri, who stated that she stopped because she

heard a cat under her car. Officer Morales instructed Olivarri to return to her car and produce her

driver’s license and insurance card. Olivarri angrily denied that she was speeding. Officer Morales

returned to his vehicle to run Olivarri’s license and requested back-up because his recording system

was out of tape and the situation was unusual.

        After Officer Brian Nipper arrived at the scene and activated his recording system, Olivarri

told Officer Nipper about hearing a cat. Olivarri informed the officers that the only animal she had

in her car was her dog; however, the officers did not observe a dog in the car. While searching the

trunk of the car, the officers observed a dead bat in the trunk.

        When Officer Morales explained to Olivarri that she needed to sign the traffic citation,

Olivarri was combative and told him that all Hispanic men had a machismo attitude and that she had

been sexually assaulted by a Hispanic man in the past. In an effort to resolve the situation, Officer

Morales decided to permit Olivarri to see the speed recorded on the radar. Olivarri complained that

she could not see the radar through the window. When she attempted to grab the door handle of

Officer Morales’s vehicle, Officer Morales grabbed Olivarri below her elbow, moved her hand away

from the door handle, and informed her that she was not permitted inside the vehicle. Olivarri

immediately claimed that Officer Morales had assaulted her. After Officer Nipper informed Olivarri

that she would be arrested if she refused to sign the citation, she signed the citation. Olivarri



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requested and received information from Officer Nipper regarding the procedure for filing a

complaint against Officer Morales.

       After leaving the scene, Olivarri called the emergency dispatcher and was informed that she

would have to call the police department during normal business hours in order to file a complaint.

Olivarri also later stopped Officer Nipper while he continued on patrol. Officer Nipper told Olivarri

that he could not further speak with her about the matter and that she should contact the police

department during normal business hours.

       The following day, Olivarri was interviewed at the police department by Sergeant Thomas

Curd regarding her allegation that Officer Morales had used excessive force. Olivarri told Sergeant

Curd that Officer Morales shoved her causing bruises on her upper arm. Sergeant Curd took

photographs of the bruises and gave Olivarri a complaint form to complete and return.

       Three days later, Olivarri returned, and the completed form was notarized by a police clerk.

The police clerk testified that when Olivarri turned in the form, she stated that she would be happy

if she could get three to six thousand dollars for her pain and suffering. In her complaint form,

Olivarri stated that Officer Nipper told her he could “see a bruise starting.” Olivarri claimed that

Officer Morales “push hit” her right arm. Olivarri stated that she began to cry and asked Officer

Morales, “why did you push me why did you hit me.” Olivarri concluded her complaint form by

offering to settle “without any media or lawyers” for “6 to 8 thousand dollars.”

       At trial, Officer Morales testified that he grabbed Olivarri’s hand or wrist to move it away

from his vehicle, and his actions could not have bruised Olivarri’s upper arm. Officer Nipper

testified that he did not see where Officer Morales grabbed Olivarri on her arm; however, Officer

Nipper denied telling Olivarri that he saw a bruise. Officer Nipper testified that Officer Morales did



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not hit or push Olivarri. The entire DVD recording of the traffic stop upon Officer Nipper’s arrival

and a DVD focusing more directly on the manner in which Officer Morales removed Olivarri’s hand

from the door handle of his vehicle were introduced into evidence. A jury found Olivarri guilty of

false report to a police officer and perjury, and Olivarri was placed on community supervision for

twenty-four months.

                                            DISCUSSION

       In her first three issues, Olivarri contends that the evidence is legally and factually

insufficient to support her convictions. In determining the legal sufficiency of the evidence, we

review all the evidence in the light most favorable to the verdict to determine whether any rational

trier of fact could have found the essential elements of the offense beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.

Crim. App. 2005). In conducting a factual sufficiency review, this court views all of the evidence

in a neutral light and sets aside the verdict only if: (1) the evidence is so weak that the verdict is

clearly wrong and manifestly unjust; or (2) the verdict is against the great weight and preponderance

of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). “[D]ue deference must

be accorded the fact finder’s determinations, particularly those determinations concerning the weight

and credibility of the evidence,” and a reviewing court’s disagreement “with the fact finder’s

determination is appropriate only when the record clearly indicates such a step is necessary to arrest

the occurrence of a manifest injustice.” Id. at 9.

       A person commits the offense of perjury if, with intent to deceive and with knowledge of the

statement’s meaning, she makes a false statement under oath. TEX . PEN . CODE ANN . § 37.02(a)(1)

(Vernon 2003); see also Covalt v. State, 877 S.W.2d 445, 447-48 (Tex. App.—Houston [1st Dist.]



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1994, no writ). A person commits the offense of false report to a peace officer if, with intent to

deceive, she knowingly makes a false statement that is material to a criminal investigation and makes

the statement to a peace officer conducting the investigation. TEX . PEN . CODE ANN . § 37.08(a)(1)

(Vernon 2003). When a person is reporting police misconduct, the State must prove that the

person’s representations were in bad faith and for reasons other than to obtain action on a valid

grievance. McGee v. State, 671 S.W.2d 892, 895 (Tex. Crim. App. 1984). “The State must

introduce evidence showing that [the] defendant did actually perceive the facts as they existed in

addition to evidence proving the state of the facts and showing his opportunity to perceive them.”

Id.

       In this case, Olivarri stated in her written, notarized complaint that Officer Morales pushed

and hit her. Olivarri also stated that Officer Nipper told her he saw the bruise starting on her arm.

In her interview with Sergeant Curd, Olivarri stated that Officer Morales shoved her causing the

bruises to her upper arm.

       Sergeant Curd testified that he was investigating both a possible administrative action and

criminal charges. In addition to Officer Morales’s testimony that he grabbed Olivarri’s wrist or

hand, the jury was shown the DVD recordings which enabled the jury to see the manner in which

Officer Morales removed Olivarri’s hand from his vehicle. Furthermore, pictures of the bruises

Olivarri stated Officer Morales caused to her upper arm were introduced into evidence. Officer

Nipper denied telling Olivarri that he saw a bruise on her arm and testified that Officer Morales did

not hit or push Olivarri. Given this evidence, the jury could have found that Olivarri actually

perceived the location where Officer Morales grabbed her and falsely stated that he hit and pushed

her causing bodily injury or bruises to her upper arm as a result. The jury also could have found that



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Olivarri was acting in bad faith and for reasons other than to obtain action on a valid grievance based

on her behavior, the location of the bruises, her verbal statements to the police clerk, and her offer

to settle her complaint for six to eight thousand. Having reviewed all of the evidence presented, we

conclude the evidence is legally and factually sufficient to support the jury’s verdicts.

       The two cases cited in Olivarri’s brief in which the Texas Court of Criminal Appeals found

the evidence insufficient to uphold convictions for false reports of police misconduct are

distinguishable from the instant case. See McGee v. State, 671 S.W.2d 892 (Tex. Crim. App. 1984);

Wood v. State, 577 S.W.2d 477 (Tex. Crim. App. 1978). Unlike the corroborating evidence in

McGee, which supported the defendant’s version of the events, the corroborating evidence in this

case supports the falsity of Olivarri’s claims, and no similar corroborating evidence was introduced

in Wood. See also Frost v. State, 2 S.W.3d 625, 630 (Tex. App.—Houston [14th Dist.] 1999, pet.

ref’d) (questioning continued validity of analysis of circumstantial evidence in Wood).

       The final issue presented by Olivarri is the assertion that the complaint form contained white-

out on the signature line raising questions regarding the notarization process. Because no objection

was made to the introduction of the complaint form at trial, Olivarri’s complaint is waived. TEX . R.

APP . P. 33.1. We do note, however, that the police clerk testified that she watched Olivarri sign the

statement and notarized the document that was handed to her by Olivarri including the attachments

that were not part of the standard form.

                                            CONCLUSION

       The trial court’s judgments are affirmed.

                                                        Rebecca Simmons, Justice



Do Not Publish

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