Opinion filed March 14, 2019




                                       In The

        Eleventh Court of Appeals
                                    __________

                               No. 11-17-00099-CR
                                   __________

                    JOSE MANUEL MORA, Appellant
                                          V.
                     THE STATE OF TEXAS, Appellee


                    On Appeal from the 441st District Court
                           Midland County, Texas
                       Trial Court Cause No. CR47754


                     MEMORANDUM OPINION
      Jose Manuel Mora, Appellant, appeals from his conviction for the third-
degree felony offense of assault family violence. The jury found the habitual-
offender enhancement allegations to be true and assessed Appellant’s punishment at
confinement for fifty-five years. In three issues on appeal, Appellant contends that
(1) the evidence was insufficient to support his conviction, (2) his due process rights
were violated because the prosecution failed to prove Appellant’s guilt beyond a
reasonable doubt, and (3) the State made improper remarks during closing
arguments. We overrule Appellant’s three issues and affirm the judgment of the trial
court.
                                   Background Facts
         The grand jury indicted Appellant on one count of assault family violence
enhanced with a prior family violence conviction. The indictment alleged that
Appellant intentionally and knowingly caused bodily injury to Valerie Rodriguez by
pushing Rodriguez out of a motor vehicle, striking Rodriguez with his hands,
applying pressure to the neck or throat of Rodriguez with his hands, and kicking and
beating Rodriguez. The indictment further alleged that Rodriguez was a member of
Appellant’s family or household or a person with whom Appellant has had a dating
relationship.
         At trial, Eva Luna, a communications manager for Midland County’s 9-1-1
call center, testified that, on the day of the alleged assault, the center received a call
from an individual who identified herself as Valerie Rodriguez. An audio recording
of the call was played for the jury. During the call, Rodriguez stated that she had
gotten into a fight with her boyfriend and that he had broken her windshield, bit her
finger, and hit her. Rodriguez also stated that her boyfriend’s name was Manuel
Mora.
         Raymondo Perez, a Midland police officer, also testified and recounted his
conversation with Rodriguez on the day of the offense. Officer Perez explained that,
on the day of the offense, he was dispatched to a hotel in reference to an assault.
Officer Perez arrived at the hotel roughly five to ten minutes later. Upon arriving,
he found Rodriguez crying uncontrollably.            After Rodriguez calmed down,
Rodriguez explained that she had just been assaulted. Rodriguez told Officer Perez
that Appellant had asked her to come pick him up from a residence because he


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needed to borrow Rodriguez’s car. When Rodriguez picked Appellant up, Appellant
told her that he would drop her off at her house because he was “going to use the
car.” However, Rodriguez disagreed and explained that she needed the car to take
her child to an appointment. Although they began arguing, they both got into the
vehicle and drove off. Shortly after, they pulled into a parking lot where Appellant
began to assault Rodriguez. Rodriguez claimed that Appellant struck her in the face,
had his hands around her neck, choked her, and eventually pushed her out of the
vehicle. After pushing Rodriguez out of the vehicle, Appellant sat in the driver’s
seat. Because Rodriguez did not want to be left behind, she jumped into the back
seat of the vehicle. Appellant began to drive back to the residence that he was picked
up from, but stopped in an alley along the way. Appellant exited the vehicle and
began punching the windshield. After yelling at Rodriguez, Appellant once again
began to assault Rodriguez by grabbing her hair, pulling her to the ground, and
kicking her in the stomach. Rodriguez stated that she scratched Appellant’s face to
get away from him. Rodriguez then got back into the vehicle and drove to the hotel
where she called the police.
      Officer Perez also testified that his interaction with Rodriguez had been audio
and video recorded.     A recording of the interaction was played for the jury.
Likewise, Officer Perez also testified that he had taken pictures of Rodriguez’s
injuries and of the damaged car. The photographs were published to the jury; appear
to show Rodriguez with multiple bruises, scratches, and marks.
      The State also called Valerie Rodriguez to the stand. Rodriguez testified that
she had been in a dating relationship with Appellant for a number of years and that
they had lived together. However, Rodriguez explained that the relationship had
ended because Appellant left her for another woman. Although Rodriguez admitted
to placing the 9-1-1 call, she denied that Appellant had assaulted her. Instead,


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Rodriguez testified that she had gotten into a fight with another woman at a carwash.
Rodriguez claimed that she was driving by the carwash when she saw Appellant and
the other woman. Rodriguez claimed that she confronted Appellant and the other
woman and proceeded to get into a fight with the woman. Rodriguez claimed that
her injuries were sustained in that fight and other previous fights. Rodriguez stated
that she felt that Appellant took the other woman’s side in the alleged fight and
therefore decided to make false allegations against Appellant out of anger.
      Rodriguez also acknowledged that Appellant called her numerous times while
he was in jail awaiting trial. However, Rodriguez denied that Appellant ever
directed, intimidated, or otherwise pressured her into testifying falsely at trial.
Instead, to explain her recantation, Rodriguez claimed that she “felt bad” about
making the false report and had tried multiple times to tell the district attorney’s
office that Appellant had not assaulted her. Rodriguez admitted that she did not
realize that her initial encounter with Officer Perez was recorded.
      During the guilt/innocence phase of trial, Larry Shackelford, a crime scene
investigator with the Midland Police Department, testified that he had taken an inked
impression of Appellant’s fingers.      Shackelford testified that the fingerprints
matched those found on State’s Exhibit No. 2—a 2002 judgment of conviction for
assault family violence. At the punishment phase of trial, Shackelford testified that
Appellant’s fingerprints matched those found on several other exhibits—various
felony and misdemeanor judgments of conviction, including the two felony
convictions used to enhance Appellant’s punishment.
      After hearing the evidence, the jury found Appellant guilty of the offense of
assault family violence enhanced by a prior assault family violence conviction. The
jury assessed Appellant’s punishment at fifty-five years’ confinement, and the trial
court sentenced Appellant accordingly. This appeal followed.


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                                        Analysis
      In three issues on appeal, Appellant contends that (1) the evidence was
insufficient to support his conviction, (2) Appellant’s due process rights were
violated, and (3) the State made improper remarks during closing arguments. We
disagree.
      We address Appellant’s first two issues together. In his first issue, Appellant
claims that the evidence was insufficient to support his conviction. Similarly, in his
second issue, Appellant contends that his due process rights were violated because
the prosecution failed to prove Appellant’s guilt beyond a reasonable doubt.
Appellant argues that, because Rodriguez, the alleged victim, recanted her original
claims and testified at trial that Appellant did not assault her, the State failed to prove
that Appellant was guilty of the offense beyond a reasonable doubt.
      We review a challenge to the sufficiency of the evidence, regardless of
whether it is denominated as a legal or factual sufficiency challenge, under the
standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v.
State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286,
288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we
review all of the evidence in the light most favorable to the verdict and determine
whether any rational trier of fact could have found the elements of the offense
beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d
633, 638 (Tex. Crim. App. 2010). When conducting a sufficiency review, we
consider all the evidence admitted at trial, including pieces of evidence that may
have been improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim.
App. 2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We
defer to the factfinder’s role as the sole judge of the witnesses’ credibility and the
weight their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard


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accounts for the factfinder’s duty to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778. When the record supports
conflicting inferences, we presume that the factfinder resolved the conflicts in favor
of the verdict, and we defer to that determination. Jackson, 443 U.S. at 326; Clayton,
235 S.W.3d at 778.
      A person commits the offense of assault if he “intentionally, knowingly, or
recklessly causes bodily injury to another.” TEX. PENAL CODE ANN. § 22.01(a)(1)
(West Supp. 2018). The offense is elevated to a third-degree felony if it is committed
against a person who was a member of the defendant’s household or family or one
with whom the defendant has had a dating relationship, and the defendant has been
convicted previously of an assault involving family violence. Id. § 22.01(b)(2)(A);
see TEX. FAM. CODE ANN. § 71.0021(b) (West Supp. 2018), § 71.003 (West 2014).
“Bodily injury” is any physical pain, illness, or impairment of the physical condition.
PENAL § 1.07(a)(8). “The existence of a cut, bruise, or scrape on the body is
sufficient evidence of physical pain necessary to establish ‘bodily injury’ within the
meaning of the statute.” Arzaga v. State, 86 S.W.3d 767, 778 (Tex. App.––El Paso
2002, no pet.). Direct evidence of physical pain, however minor, is sufficient to
establish bodily injury. Garcia v. State, 367 S.W.3d 683, 688 (Tex. Crim. App.
2012).
      Here, Rodriguez testified that she had dated Appellant for a number of years.
Likewise, Rodriguez testified that she had suffered injuries in a fight, and
photographs of her multiple injuries were submitted into evidence. The jury also
heard evidence that Appellant had previously been convicted of an assault involving
family violence. Thus, there is no question, and Appellant does not dispute, that
(1) Rodriguez and Appellant had a dating relationship, (2) Rodriguez suffered bodily


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injury, and (3) Appellant had been previously convicted of assault family violence.
Therefore, our analysis turns on whether the evidence was sufficient to show that
Appellant intentionally or knowingly caused bodily injury to Rodriguez.
      Although Rodriguez testified at trial that Appellant did not assault her and that
her injuries were sustained in fights with other persons, the jury was free to
disbelieve Rodriguez’s recantation and instead believe her original statements heard
in the audio and video recordings alleging that Appellant had, in fact, intentionally
caused her injuries. See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App.
1991) (As factfinder, the jury is entitled to judge the credibility of the witnesses, and
it can choose to believe all, some, or none of the testimony presented by the parties.).
Thus, we hold that a rational juror could have found the existence of each of the
elements of the offense beyond a reasonable doubt. We therefore hold that the
evidence was sufficient to find Appellant guilty of the third-degree felony offense
of assault family violence. Appellant’s due process rights were not violated. We
overrule Appellant’s first two issues.
       In his third issue, Appellant contends that the State’s remarks during closing
arguments were improper. Specifically, Appellant points to two comments made by
the prosecutor: (1) “the alleged victim’s ‘story’ was ‘patently unbelievable’” and
(2) “the ‘credible evidence’ says he did it.” However, we begin by noting that these
complaints have not been preserved for appellate review. In order to preserve
closing argument error, the complaining party must make a contemporaneous
objection and receive an adverse ruling. TEX. R. APP. P. 33.1(a); see Cockrell v.
State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). Because Appellant did not object
to either remark at trial, Appellant has not preserved error for our review. See
Cockrell, 933 S.W.2d at 89.




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      Nonetheless, we have reviewed the record, and we find that the prosecutor did
not present improper closing arguments. Proper jury argument generally falls within
four areas: (1) summation of the evidence; (2) reasonable deduction from the
evidence; (3) answer to argument of opposing counsel; or (4) plea for law
enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008);
Esquivel v. State, 180 S.W.3d 689, 692 (Tex. App.—Eastland 2005, no pet.).
Counsel is allowed wide latitude to draw inferences from the record, as long as the
inferences are reasonable, fair, legitimate, and offered in good faith. Shannon v.
State, 942 S.W.2d 591, 597 (Tex. Crim. App. 1996). While a prosecutor generally
cannot vouch for the credibility of its own witnesses by giving unsworn testimony,
a prosecuting attorney may make arguments as to the truthfulness of a witness’s
testimony that are based on the evidence presented and reasonable deductions from
that evidence. Ramos v. State, 419 S.W.2d 359, 368 (Tex. Crim. App. 1967);
Hinojosa v. State, 433 S.W.3d 742, 763 (Tex. App.—San Antonio 2014, pet. ref’d).
Likewise, a “prosecutor can state that he believes a defendant is guilty, if that belief
is tied to the evidence.” Clark v. State, 952 S.W.2d 882, 890 (Tex. App.—Beaumont
1997, no pet.); see Sikes v. State, 500 S.W.2d 650, 652 (Tex. Crim. App. 1973);
Yuhl v. State, 784 S.W.2d 714, 721 (Tex. App.—Houston [14th Dist.] 1990, pet.
ref’d). Moreover, even when an argument exceeds the permissible bounds of these
approved areas, it is not reversible unless the argument is extreme or manifestly
improper, violates a mandatory statute, or injects into the trial new facts harmful to
the accused. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000).
      Here, the prosecutor’s two comments were both directly tied to the evidence.
See Clark, 952 S.W.2d at 890. The prosecutor pointed to the conflicting statements
made by Rodriguez before arguing that the evidence showed her recantation was
“patently unbelievable.” Likewise, the prosecutor summarized the evidence before


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surmising that the evidence suggested that Appellant was guilty of the charged
offense. We hold that these deductions were not unreasonable, unfair, illegitimate,
or offered in bad faith. See Shannon, 942 S.W.2d at 597. Furthermore, even if
somehow improper, neither remark was so inflammatory as to constitute reversible
error. See McKay v. State, 707 S.W.2d 23, 37 (Tex. Crim. App. 1985). We overrule
Appellant’s third issue.
                                               Conclusion
        We affirm the judgment of the trial court.




                                                                   KEITH STRETCHER
                                                                   JUSTICE

March 14, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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