                                                                   ACCEPTED
                                                               04-14-00592-cr
                                                   FOURTH COURT OF APPEALS
                                                        SAN ANTONIO, TEXAS
                                                         1/30/2015 4:29:21 PM
                                                                KEITH HOTTLE
                                                                       CLERK




  IN THE FOURTH COURT OF APPEALS
         SAN ANTONIO, TEXAS                   FILED IN
                                       4th COURT OF APPEALS
                                        SAN ANTONIO, TEXAS
                                       1/30/2015 4:29:21 PM
 COURT OF APPEALS NO. :   04-14-00592-CRKEITH E. HOTTLE
                                               Clerk

TRIAL COURT CASE NO. : 2013CRB000377 L2



      JOAQUIN ALBERTO DAVILA,
                         APPELLANT

                  V.

         THE STATE OF TEXAS



            STATE’S BRIEF


               ISIDRO R. ALANIZ
               DISTRICT ATTORNEY
               49TH JUDICIAL DISTRICT

               By: David L. Reuthinger, Jr.
               Assistant District Attorney
               Webb County, Texas
               1110 Victoria St., Ste. 401
               Laredo, Texas 78040
               (956) 523-4900
               (956) 523-5070 (Fax)
               Bar No. 24053936
               ATTORNEY FOR THE STATE
IDENTITY OF PARTIES AND COUNSEL

APPELLANT:

JOAQUIN ALBERTO DAVILA

Represented by:
OMAR SALINAS
Assistant Public Defender
1110 Washington
Laredo, Texas 78040
Tel: (956) 523-4119
Fax: (956) 523-5009


STATE:

THE STATE OF TEXAS

Represented by:
ISIDRO R. ALANIZ
District Attorney, 49th Judicial District
By: David L. Reuthinger, Jr., Assistant District Attorney
Webb County Justice Center, 4th Floor
1110 Victoria St., Suite 401
Laredo, Texas 78040
(956) 523-4951
(956) 523-5070 (Fax)
dreuthinger@webbcountytx.gov




                                                            -2-
                                   TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................................... 2

TABLE OF AUTHORITIES ........................................................................ 4

STATEMENT REGARDING ORAL ARGUMENT .................................. 6

STATEMENT OF FACTS ........................................................................... 7
   A. The Eviction ...................................................................................... 7
   B. The Assault........................................................................................ 9
   C. The Cover-Up.................................................................................. 10
   D. The Circus ....................................................................................... 13

ISSUES PRESENTED ............................................................................... 17
  POINT OF ERROR NO. 1/ ISSUE NO. 1 (Facebook Messages): ......... 17
   SUMMARY OF ARGUMENT ........................................................... 17
   ARGUMENT AND AUTHORITY..................................................... 18
   A. Appellant’s Issue Deconstructed – What Error Was Preserved? ... 18
   B. The Applicable Law ........................................................................ 19
   C. Application, Part 1: The Facebook Messenger Conversation Was
    Relevant to Establish Appellant’s Consciousness of Guilt ................ 24
   D. Application, Part 2: The Rebuttal Evidence Was Not Admissible
    Because It Was Offered Only to Attack the Victim’s Character ....... 25

 POINT OF ERROR NUMBER 2 / ISSUE NO. 2 (Sufficiency): ........... 28
   SUMMARY OF ARGUMENT ........................................................... 28
   ARGUMENT AND AUTHORITY ..................................................... 28
   A. Standard of Review ......................................................................... 28
   B. Application ...................................................................................... 29
PRAYER ..................................................................................................... 32
CERTIFICATE OF COMPLIANCE .......................................................... 33
CERTIFICATE OF SERVICE ................................................................... 33




                                                                                                        -3-
                                  TABLE OF AUTHORITIES
Cases
Adams v. State, No. 05-13-00922, 2014 WL 2807978, *2 (Tex. App.—
  Dallas Jun. 18, 2014) (not designated for publication) ........................... 20
Agbogwe v. State, 414 S.W.3d 820, 835 (Tex. App.—Houston [1st Dist.]
  2013) ........................................................................................................ 24
Brasse v. State, 392 S.W.3d 239, 241 (Tex. App.—San Antonio 2012) ... 29
Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (pl. op.) ... 31
Brown v. State, 657 S.W.2d 117, 119 (Tex. Crim. App. 1983) .................. 25
Chambers v. State, 866 S.W.2d 9, 26–27 (Tex. Crim. App. 1993) ............ 22
Cueva v. State, 339 S.W.3d 839, 882 (Tex. App.—Corpus Christi 2011,
  pet. ref'd) .................................................................................................. 24
Davis v. State, 104 S.W.3d 177, 181 (Tex. App.—Waco 2003) ................ 23
Goodman v. State, 66 S.W.3d 283 (Tex. Crim. App. 2001)....................... 30
Greene v. State, 928 S.W.2d 119, 123 (Tex. App.—San Antonio 1996)... 25
Hinojosa v. State, 433 S.W.3d 742, 751 (Tex. App.—San Antonio 2014)
   ........................................................................................................... 29, 31
Holt v. State, 912 S.W.2d 294, 301 (Tex. App.—San Antonio 1995) . 22, 23
Jackson v. Virginia, 443 U.S. 307, 319 (1979) .......................................... 29
Johnson v. State, 425 S.W.3d 344, 346 (Tex. App.—Houston [1st Dist.]
  2011) ........................................................................................................ 24
Kirk v. State, 199 S.W.3d 467, 478-79 (Tex. App.—Fort Worth 2006) .... 20
Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990) ........ 22
Prible v. State, 175 S.W.3d 724, 733 (Tex. Crim. App. 2005) .................. 21
Ramirez v. State, 902 S.W.2d 674, 675 (Tex. Crim. App. 1990) ............... 26
Ross v. State, 678 S.W.2d 491, 493 (Tex. Crim. App. 1984) ..................... 18
Ruiz v. State, 891 S.W.2d 302, 304 (Tex. App.—San Antonio 1994, pet.
  ref'd)......................................................................................................... 30
Tate v. State, 981 S.W.2d 189, 192 (Tex. Crim. App. 1998) ..................... 23
Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012) ......................... 20
Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002) .................... 19
Torres v. State, 794 S.W.2d 596, 598 (Tex. App.—Austin 1990, no pet.) 24
West v. State, 121 S.W.3d 95, 101-02 (Tex. App.—Fort Worth 2003) ..... 26
Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999) ..................... 24




                                                                                                              -4-
Statutes
TEX. PENAL CODE § 22.01(a)(1) ................................................................. 29
TEX. PENAL CODE § 22.01(b)(2) ................................................................. 29
Rules
TEX. R. APP. P. 33.1(a) ................................................................................ 18
TEX. R. APP. P. 38.1 .............................................................................. 18, 19
TEX. R. EVID. 401 ........................................................................................ 21
TEX. R. EVID. 403........................................................................................ 21
TEX. R. EVID. 404(a)(2) ............................................................................... 23
TEX. R. EVID. 405 ........................................................................................ 27
TEX. R. EVID. 405(a) ............................................................................. 23, 27
TEX. R. EVID. 405(b) ............................................................................. 24, 27
TEX. R. EVID. 608(b) ............................................................................. 14, 23
TEX. R. EVID. 801(d) ................................................................................... 20
TEX. R. EVID. 801(e)(2) ............................................................................... 20
Other Authorities
Appellant's Brief ....................................................................... 18, 19, 30, 31




                                                                                                       -5-
   STATEMENT REGARDING ORAL ARGUMENT

The State waives oral argument.




                                       -6-
TO THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF
TEXAS:

       This brief is filed on behalf of Appellee, The State of Texas, by

David L. Reuthinger, Jr., Assistant District Attorney.


                           STATEMENT OF FACTS


                                 A. The Eviction

       On September 27, 2012, Micaela Michelle1 Lara ran out of her

common-law-husband-slash-boyfriend’s house, tears streaming down the

fresh red bruise on her face. (3 RR 76, 77). Strewn in the yard was all of

her clothing and possessions. (3 RR 22). She was holding her little

daughter, Alexandria, who was then one year old. (3 RR 23). But her other

daughter, Katelyn, was still inside that house. And between mother and

daughter was the Appellant, Joaquin Alberto “Albert”2 Davila. The

Appellant had thrown Micaela, and all that she had, out of the house—but

he was keeping Katelyn. (3 RR 22-23).

       “You’re not gonna take her, you’re a bad mother[,]” said the

Appellant to the devastated Micaela. “[If] you’re not taking good care of


1
  The anglicized version of her first name is also her middle name. She also uses it as
her Facebook name, as will be seen on State’s Exhibits 3 through 5. The court reporter
occasionally spells her middle name as “Mitchell.”
2
  The Appellant also uses the anglicized version of his first name as his Facebook
name.

                                                                                  -7-
Alexandria[,] why should I let you take my daughter[,] if you’re not going

to take care of her[?]” (3 RR 23). The Appellant, self-proclaimed guardian

of the family, stood there and cussed out the injured Micaela while a home-

health aide helped Micaela gather her strewn possessions into the aide’s

car so that she could drive to her mother’s house. (3 RR 23).

      Despite being bruised and choked up with tears, and “sad and

scared” over what the Appellant had done, Micaela made it to her mother’s

house thanks to the “palomita” or home-health aide who was driving. (3

RR 24, 22).    Her mother, Maria Victoria Barragan, recalled from the

witness stand the sight of her daughter, strewn with tears, visibly bruised;

it was clear that she had been hit by someone. (3 RR 74-76). Micaela told

her mother why her face was bruised: Appellant “Joaquin had hit me.” (3

RR 26). Her mother told Micaela to call the police; she did, and Maria

remembered that the police cruiser arrived at her house around 11 AM to

take her daughter’s statement. (3 RR 77).

      Officer Andres Maldonado recalled what Micaela looked like when

he stepped into the house:

      [When] “I met her she was dressed in [a] T-shirt, shorts. What I
      noticed the most was the bruise under her left eye. … It was swollen
      and it was red. It looked puffy like, it was fresh like it just happened.
      [Micaela] was pretty strange, she was calm, [but also] nervous. She
      seemed embarrassed about the situation. …. And she told me that
      she had been assaulted by her common-law husband.” (3 RR 82-83).

                                                                          -8-
Micaela then explained to the officer, as she did to the jury, what happened

to her:


                              B. The Assault

      The Appellant’s rage was ignited when Baby Alexandria fell off the

bed that morning. (3 RR 19). The Appellant heard the commotion from

across the house. Since the children’s other grandmother, the Appellant’s

stepmother, and two home-health personnel were in the home, the

Appellant closed the door before he approached Micaela. (3 RR 13, 19).

Once he had ensured that no other witnesses were present with Micaela

and her daughter, he began screaming at Micaela; he called her a “b[*]tch”

and “kept saying [she] was a bad mother. [Then, he] got near [her] and

punched [her] on the face.” (3 RR 20).

      Micaela was in shock, unable to speak. (Id.) Finally, she whimpered

that it was an accident, that she had not meant to drop Alexandria. The

Appellant responded by slapping Micaela on the face. (Id.) She blacked out

and fell to the floor. (Id.) The Appellant then began disposing of all of her

property. (3 RR 22). As Micaela regained consciousness, she was able to

retrieve Alexandria and a bag for her belongings and leave the house. (Id.)




                                                                        -9-
      Armed with Micaela’s report of the above, the Laredo Police

Department apprehended the ogre otherwise known as Appellant Joaquin

Alberto Davila.     He was there at the police station when Officer

Maldonado returned. (3 RR 84). The officer recalled that the Appellant had

not a single scratch, bruise, or any other kind of wound. (3 RR 98).


                            C. The Cover-Up
      In the spring of 2013, Appellant contacted Micaela—not to

apologize, but to try to cut a deal. (3 RR 26). She explained that the

Appellant offered to let her see her daughter Katelyn, but that “he wasn’t

going to let me see her until I remove[d] the charges.” (3 RR 26). The State

introduced screen-shots of a Facebook Messenger conversation between

Micaela and the Appellant to corroborate her testimony about the

Appellant’s attempt to manipulate her into submission:




                                                                       - 10 -
State’s Exhibits 4-5




                       - 11 -
      The conversation shows that Micaela wanted to see Katelyn for her

second birthday and to tell her how much she loved her—that she was her

world—and how sorry Micaela was that she could not see her (thanks to

the Appellant). (State’s Ex. 4-5). The court reporter translated the

exchange as follows:

      February 10

      Micaela: “Are you already here?” (3 RR 32)

      February 15

      Micaela: “Are you here so I can go?” (3 RR 33)

      February 17

      Appellant: “What happened, Micaela?” (3 RR 33)
      Appellant: “Yes, I’m in Laredo, but with all respect, I’m not going
      to let you see the child.” (3 RR 33)

      February 18

      Micaela: “Now why Joaquin?” (3 RR 34)

      April 11

      Appellant: “I complied with mine and you can comply with yours.
      You do not want to talk about the case in respect to our child, and
      thank you, let’s go to the court.” (3 RR 33, 38).

Micaela testified that she understood these messages to mean: “if I wasn’t

going to remove the charges[,] he wasn’t going to let me see my daughter.”

(3 RR 39). Micaela also testified that the Appellant had indeed told her this


                                                                       - 12 -
demand personally, before the Facebook messaging occurred. (3 RR 38).

During Micaela’s cross-examination, the defense attempted to admit

photographs depicting the victim partying two or three years before the

instant offense. (3 RR 61-63).3 The State objected to this attempt to put the

victim’s character on trial, but the defense insisted that their purpose was

to disprove that their client “was using their daughter as a tool against her

to get these charges dismissed, which he wasn’t. [Appellant] was

concerned about what the child would be exposed to given her lifestyle.”

(3 RR 63). The trial court sustained the State’s relevancy objection and

excluded the Appellant’s photos.


                                  D. The Circus
       After presenting the above evidence, the State rested. The defense

then proceeded to put the victim on trial. The Appellant began by sending

in the clowns: he called a former roommate of the victim to testify that

Micaela was a former stripper who had “four or five boyfriends at the

same time.” (3 RR 108-09). The State objected and asked the trial court to

shut down this circus because it “[had] nothing to do with the case at

hand.” (3 RR 111-12). The defense insisted that their intention was to

“develop[     ]   [this    witness’s    opinion     of    Micaela’s]      character.”
3
 The defense also claimed they had more recent photos, but they did not attempt to
admit these. (3 RR 63-64).

                                                                                - 13 -
Notwithstanding Rule 608(b),4 the trial court allowed the circus to go on

into a side-show about Micaela’s boyfriends being connected to the Zetas.

(3 RR 112, 114). The former roommate was then allowed to breathe fire on

the stand about Micaela “partying all the time” and allegedly stealing from

her. (3 RR 115).

       The next defense witness was a bit more serious: a CPS investigator.

But the defense simply threw the investigator into the circus; Appellant

attempted to get the investigator to discuss confidential CPS records to

show that the victim was allegedly responsible for making false child-

custody complaints about Appellant. But the Appellant had bent the bad-

acts rules as far as they could go; the line of inquiry was shut down by both

the CPS investigator and the trial court due to confidentiality and total

irrelevance to the issues before the jury. (3 RR 125-127).

       The defense then called the “palomita,” Nohemi Torres Gomez, who

was the home-health aide present after the altercation. Here, the defense

finally attempted to attack the merits of the case—for a moment. Nohemi

testified that, on the morning of September 27, 2012, she heard a loud

sound and Alexandria crying; she went to investigate it and saw that


4
  TEX. R. EVID. 608(b) (stating that attacks on a witness’s character must be limited to
opinion or reputation testimony only, not a cavalcade of alleged specific bad acts, like
this three-ring circus).

                                                                                 - 14 -
Micaela was there with the baby. (3 RR 131). The defense tried to

emphasize that Nohemi had not seen the bruise on Micaela’s face, nor had

she heard Micaela mention that the Appellant had hit her. (3 RR 131-32).

But then the defense changed the channel back to the circus, inviting

Nohemi to speculate that Micaela might get in trouble with somebody if

she took Alexandria to the doctor about the fall. (3 RR 135). The State

ensured through cross-examination that the jury was aware that Ms.

Gomez worked for the Appellant and therefore took her orders from said

ringmaster. (3 RR 136-37).

      And in the center ring, the final act—the biggest, most spectacular

distraction from the merits of the case of them all—the defense’s closing

argument:

      “Now, what the evidence has shown today is that this is a case about
      a negligent mother who liked to party. And because of that lost
      custody of her child. And in doing that, she lost her paycheck in the
      form of child support. And she would do whatever it takes to get that
      paycheck back.”

(3 RR 155). The defense argued that this victim-sliming side show was

relevant to the case because of the roommate’s testimony that the victim

supposedly punched herself in 2013 (a year after the charged offense) in

order to frame one of her other boyfriends. (3 RR 115; see 3 RR 112-13).

But all of this contortion of the rules of evidence could not save the


                                                                     - 15 -
Appellant. The jury found him guilty of assault with an affirmative family-

violence finding. (3 RR 161-62).

      Nevertheless, the Appellant insists that the circus must go on—on to

San Antonio, down Dolorosa Avenue, and then on remand back to

Laredo—because he says the trial court should have suppressed his attempt

to buy off the victim via Facebook while giving him even more latitude to

slime the victim with specific bad acts. The State responds as follows.




                                                                          - 16 -
                          ISSUES PRESENTED


POINT OF ERROR NO. 1/ ISSUE NO. 1 (Facebook Messages):

        Whether trial court abused its discretion by admitting the

Facebook messages as relevant evidence of Appellant’s guilt, and by

excluding Appellant’s proposed evidence of the victim’s character?


                     SUMMARY OF ARGUMENT

        The Facebook messages were admissible as corroboration of

Micaela’s testimony that the Appellant was using Katelyn as bait to coerce

her into dropping the charge that is now before this Court. The messages,

and that testimony, were relevant evidence of Appellant’s attempt to

tamper with a witness (Micaela), and thus, of his consciousness of guilt.

        The   proposed   rebuttal   evidence,   consisting   of   demeaning

photographs of the victim, was not admissible because it was not relevant

as rebuttal evidence; the photographs were taken two or three years before

the offense was committed, and before Katelyn was even born. (3 RR 61-

62). The photographs were offered simply to show that Micaela was a bad

person, and the character of the victim was not relevant to any issue in the

case.


                                                                       - 17 -
                       ARGUMENT AND AUTHORITY


    A. Appellant’s Issue Deconstructed – What Error Was Preserved?

      1. Appellant Has Preserved Error Only As To The Relevancy and
                   Prejudicial Potential Of the Messages

       The Appellant challenged the admissibility of the Facebook

messages at a pretrial hearing and during the trial. (2 RR 14-17, 3 RR 7-8,

28-30). In each case, the only trial-court objections that Appellant made to

the Facebook messages were that they were irrelevant to the issues before

the jury, were hearsay, and were “extremely prejudicial.” Thus, error was

not preserved as to the various other objections in the Appellant’s brief.5

TEX. R. APP. P. 33.1(a); Ross v. State, 678 S.W.2d 491, 493 (Tex. Crim.

App. 1984) (“When no pretrial hearing is held, the defendant must object

when the evidence is offered at trial to preserve error on appeal.”).

5
  Hence, Appellant’s parade of horribles about the Facebook messages—they denied
him due process, a fair trial, an impartial jury, and so forth—is not properly before the
Court. (Ant. Brief at p. 10). These issues were not raised below, nor are they adequately
briefed because Appellant has made no serious attempt to cite the law and apply it to
the facts. TEX. R. APP. P. 33.1(a), 38.1; Swearingen v. State, 101 S.W.3d 89, 100 (Tex.
Crim. App. 2003) (holding that a brief was inadequate because it failed to apply the law
to the facts). Nor is the issue about the translation of the messages referenced in
Appellant’s summary of the argument properly raised. (Ant. Brief at p. 3). That issue is
not briefed at all; moreover, the record reflects that while counsel for Appellant
objected to the translation of one of the messages, counsel did not pursue the objection
after the trial court said that it was going to accept the translation as it stood. (3 RR 37-
38). In fact, the record appears to show that defense attorney Rebecca Davalos gave the
Court the final, accepted translation. (3 RR 38).

                                                                                      - 18 -
    2. Appellant Has Not Preserved Error As To The Rebuttal Images

      The Appellant asserts in one sentence in his first issue that “the

defense attempted to counter the claims of the prosecution by introducing

pictures of Lara surround by bad moral elements and in provocative poses

to show why the Appellant did not want Lara around the child but during

the trial the court, again, abused its power of discretion and did take these

pictures into consideration.” (Ant. Brief at pp. 7-8, PDF pp. 12-13). The

State submits that this one-sentence argument was not adequate to raise the

issue about the rebuttal photographs, which should have been listed as a

separate issue and briefed accordingly. TEX. R. APP. P. 38.1; Swearingen v.

State, 101 S.W.3d at 100. Nevertheless, the State will address the

multifarious Issue No. 1 as it was given.


                         B. The Applicable Law

                      1. The Trial Court’s Discretion
      “A trial court's decision to admit or exclude evidence is reviewed

under an abuse of discretion standard.” Torres v. State, 71 S.W.3d 758,

760 (Tex. Crim. App. 2002). Generally, a court of appeals should not


                                                                       - 19 -
reverse a trial court's ruling “unless that ruling falls outside the zone of

reasonable disagreement.” Id.




                                     2. Hearsay
       The Appellant next argues that the Facebook Messenger

conversation is hearsay.6 The Appellant’s words are non-hearsay

admissions of a party opponent. TEX. R. EVID. 801(e)(2). They were also

made in response to questions asked by Micaela. Because those questions

are questions, not statements, Micaela’s words did not assert anything and,

consequently, were not offered for the truth of the matter asserted and were

not within the scope of the hearsay ban. TEX. R. EVID. 801(d); see Kirk v.

State, 199 S.W.3d 467, 478-79 (Tex. App.—Fort Worth 2006).




6
   In support of this argument, the Appellant’s Brief segues from hearsay to
authentication, a different objection. He incorrectly claims that the Facebook evidence
was taken from the Appellant’s private timeline (also called a wall or profile), and
argues that it was not properly authenticated because the “state did not ask the
Appellant if the account was his” and did not get Facebook Inc. to authenticate them.
(Ant. Brief at p. 13) (citing Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012))
(the citation for Tienda is incorrectly given as 358 S.W.3d 648 in the Appellant’s
Brief). Tienda states that one way to authenticate an electronic message is “by direct
testimony from a witness with personal knowledge” of the contents of the messages.
Tienda, 358 S.W.3d at 638. Here, the victim authenticated the messages through her
testimony that the Facebook messages were in fact messages, not private timeline posts,
and that they were sent by the Appellant to her. Adams v. State, No. 05-13-00922, 2014
WL 2807978, *2 (Tex. App.—Dallas Jun. 18, 2014) (not designated for publication)
(citing Tienda and holding that participant in email conversation could testify to
authenticate the emails).

                                                                                - 20 -
                                 3. Rule 403

      The Appellant also claims that the Facebook Messenger

conversation is unfairly prejudicial, presumably intending to invoke the

Rule 403 balancing test. TEX. R. EVID. 403. The trial judge has broad

discretion to exclude—or not to exclude—relevant evidence if its probative

value is substantially outweighed by the danger of prejudicing the jury by

confusing the issues. Id.; Prible v. State, 175 S.W.3d 724, 733 (Tex. Crim.

App. 2005). A court employs a balancing test to answer this question,

considering various factors, which may include: (1) the probative value of

the evidence; (2) the potential to impress the jury in some irrational, yet

indelible, way; (3) the time needed to develop the evidence; and (4) the

proponent's need for the evidence. Prible, 175 S.W.3d at 733. Answering

this balancing test requires a look at why the evidence is probative, or

relevant, to the issues in the case, which is the next item to be explained.




                                4. Relevancy
      Relevant evidence is any evidence which has “any tendency to make

the existence of any fact that is of consequence to the determination of the

action more or less probable than it would be without the evidence.” TEX.

R. EVID. 401. Evidence which provides a “small nudge toward proving or


                                                                         - 21 -
disproving some fact of consequence” is relevant, regardless whether the

evidence actually proves or disproves a particular fact. Montgomery v.

State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990). In deciding whether

evidence is relevant, a court should inquire whether a reasonable person

would believe that the evidence is “helpful in determining the truth or

falsity of any fact that is of consequence to the lawsuit.” Id. at 376.


      The Appellant also claims (in an inadequately briefed argument) that

he should have been allowed to bring in some photographs as rebuttal of

the Facebook messages. Appellant does not identify the precise manner in

which he would have done the rebuttal—whether he would use the photos

to impeach, to show bias, to discredit testimony, and so on. Generally,

great latitude should be given to the defendant in showing any fact which

would tend to establish ill feelings, bias, motive, and animus upon the part

of any witness testifying against him. Holt v. State, 912 S.W.2d 294, 301

(Tex. App.—San Antonio 1995). But that latitude presupposes that the

Appellant has shown that the fact at issue is actually relevant to the

impeachment of the witness in question in the first place, for “the burden

of showing the relevance of particular evidence to the issue of bias rests on

its proponent.” Id. (quoting Chambers v. State, 866 S.W.2d 9, 26–27 (Tex.

Crim. App. 1993)). Hence, the trial judge has the discretion and duty to


                                                                          - 22 -
balance the probative value of the Appellant’s proposed impeachment

evidence against the risks of undue prejudice, and the trial judge's

determination should not be reversed absent a clear abuse of discretion.

Holt, 912 S.W.2d at 301.




                   5. Limitations on Character Evidence
      Whether the evidence is relevant is not the only question, as there

are limits on the extent to which evidence of a witness’s character may be

admitted. Specific instances of the conduct of a witness, for the purpose of

attacking or supporting the witness’s credibility, may not be inquired into

on cross-examination, excepting certain convictions of crime. TEX. R.

EVID. 608(b). And while Rule 404(a)(2) permits a party in a criminal case

to offer “evidence of a pertinent character trait of the victim[,]” TEX. R.

EVID. 404(a)(2), Rule 405 limits the reach of Rule 404(a) to opinion or

reputation testimony, excluding the use of specific acts—such as the

alleged photos from Micaela’s Facebook account. See TEX. R. EVID.

405(a); Tate v. State, 981 S.W.2d 189, 192 (Tex. Crim. App. 1998); Davis

v. State, 104 S.W.3d 177, 181 (Tex. App.—Waco 2003). Rule 405(b)

permits evidence of specific acts as character evidence only when the

                                                                      - 23 -
“person's character or character trait is an essential element of a charge,

claim or defense.” TEX. R. EVID. 405(b).




 C. Application, Part 1: The Facebook Messenger Conversation Was
      Relevant to Establish Appellant’s Consciousness of Guilt
      The victim’s testimony unambiguously indicates that the defendant

attempted to get the victim to drop the charge at bar in return for being able

to see her daughter, Katelyn. Any conduct on the part of a person accused

of a crime, subsequent to its commission, which indicates a consciousness

of guilt may be received as a circumstance tending to prove that he

committed the act with which he is charged. Cueva v. State, 339 S.W.3d

839, 882 (Tex. App.—Corpus Christi 2011, pet. ref'd) (citing Torres v.

State, 794 S.W.2d 596, 598 (Tex. App.—Austin 1990, no pet.)). The fact

that a defendant has offered something in return for dropping charges is

relevant to his guilt because that fact indicates that the defendant has

“attempt[ed] to tamper with a witness[, and that] is evidence of

‘consciousness of guilt.’” Johnson v. State, 425 S.W.3d 344, 346 (Tex.

App.—Houston [1st Dist.] 2011) (citing Wilson v. State, 7 S.W.3d 136, 141

(Tex. Crim. App. 1999)); see also Agbogwe v. State, 414 S.W.3d 820, 835

(Tex. App.—Houston [1st Dist.] 2013). The use of evidence of threats or


                                                                        - 24 -
coercion to show consciousness of guilt is one of the permitted grounds for

the use of character evidence allowed for by Rule 404(b). Greene v. State,

928 S.W.2d 119, 123 (Tex. App.—San Antonio 1996) (citing Brown v.

State, 657 S.W.2d 117, 119 (Tex. Crim. App. 1983)). As such, Appellant’s

attempt to coerce Micaela into dropping charges by using Katelyn as bait

was highly relevant evidence of his guilt. Thus, the trial court was well

within its discretion in deciding to admit it over Appellant’s relevancy and

Rule 403 objections.


 D. Application, Part 2: The Rebuttal Evidence Was Not Admissible
   Because It Was Offered Only to Attack the Victim’s Character
      The Applicant claims that the Facebook photos of Micaela allegedly

being a stripper who liked to party were relevant evidence; he asserts that

the photographs could have impeached Micaela’s testimony, corroborated

by the Facebook Messenger conversation, that Appellant wanted to get the

charges dropped in return for permitting Micaela to see Katelyn.

Appellant’s theory was that the photographs showed the real reason for

Appellant not wanting Micaela to see Katelyn was that Micaela was

allegedly a bad person. However, the photographs were taken years before

the instant offense, and before Katelyn was born. (3 RR 61-63). As such,

the photographs were not relevant to the issues in the case, and could not



                                                                      - 25 -
be used to show an alternative reason for the Facebook messages. See West

v. State, 121 S.W.3d 95, 101-02 (Tex. App.—Fort Worth 2003).


      Moreover, this use of the photographs would have been prohibited

by the rule that a witness may not be impeached by bringing up a collateral

matter. Ramirez v. State, 902 S.W.2d 674, 675 (Tex. Crim. App. 1990)

(holding State could not bring up a mother’s heroin use to impeach her).

There is an exception to this rule that applies when a witness has left a

false impression regarding his or her credibility. Id. at 676. But whether or

not Micaela was a bad mother in years past was not relevant to her

credibility. See id. (holding evidence that witness was a bad mother

because she used heroin was not sufficiently related to the issue of whether

she had been in trouble with the police to be relevant to rebut other

testimony that she had not been in trouble).

      Therefore, the real reason the Appellant was using specific acts of

the victim (to wit, questionable Facebook posts) was to allege that the

victim had bad character; he wanted to corroborate his statement to the

victim, “you’re a bad mother[,]” without having to take the stand. (3 RR

23). Although the conclusion he wanted to draw from the “you’re a bad

mother” allegation was that the Appellant sent the messages to Micaela

because she was a “bad mother[,]” and not to get her to drop the case, the


                                                                       - 26 -
fact remains that he wanted to use the character evidence to establish that

Micaela was in fact “a bad mother” in order to draw that conclusion.

Therefore, to make that point, he needed an exception to Rule 404(a) and

Rule 405 which would have allowed him to bring up specific acts of

Micaela. The alleged character traits of the victim, that the Appellant was

trying to show through the posts, were not relevant to an essential element

of the charge against Appellant or to any defense that he was raising. TEX.

R. EVID. 405(b). Therefore, the Appellant could not use specific-acts

evidence such as the Facebook photos to make his point. Id. The Appellant

has not cited any exception to the general ban on the use of specific acts to

show a witness’s character. TEX. R. EVID. 405. Therefore, even if the

victim’s character as a “bad mother” was relevant, the Appellant was

limited to proving this up through opinion or reputation testimony only—

not through specific acts such as the photographs. TEX. R. EVID. 405(a).

      As such, the State respectfully requests that Appellant’s first point of

error, concerning the admission of the Facebook messages, be overruled.




                                                                        - 27 -
POINT OF ERROR NUMBER 2 / ISSUE NO. 2 (Sufficiency):

      Whether the evidence at trial was legally insufficient to show

that Appellant committed the charged offense of assault?




                     SUMMARY OF ARGUMENT

      The victim testified that Appellant struck her, causing her to black

out and also causing a facial contusion. This alone is legally sufficient

proof of both the assault itself and the Appellant’s culpability in it. The

victim’s testimony was corroborated by photographs of the bruise and by

the Facebook messages, among other things.




                   ARGUMENT AND AUTHORITY


                         A. Standard of Review

      In evaluating legal sufficiency, the Court should view 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. Hinojosa v. State, 433 S.W.3d 742, 751 (Tex. App.—



                                                                      - 28 -
San Antonio 2014); Jackson v. Virginia, 443 U.S. 307, 319 (1979).

Evidence may be insufficient under the Jackson standard when “(1) the

record contains no evidence, or merely a ‘modicum’ of evidence, probative

of an element of the offense, [or] (2) the evidence conclusively establishes

a reasonable doubt[.]” Brasse v. State, 392 S.W.3d 239, 241 (Tex. App.—

San Antonio 2012) (quotation omitted).

      Appellant was charged with the offense of assault by causing bodily

injury to a family member. TEX. PENAL CODE § 22.01(b)(2). The essential

elements required of this offense are that: (1) the defendant, (2)

intentionally, knowingly or recklessly, (3) causes bodily harm to a family

member, including the defendant's spouse. TEX. PENAL CODE §

22.01(a)(1).


                              B. Application
      The information charged the offense as follows:

      “on or about the 27th day of September, 2012 A.D. and before the
      making and filing of this complain[t], in the County of Webb, and
      State of Texas, Joaquin Alberto Davila … did then and there
      intentionally, knowingly, or recklessly cause bodily injury to
      Micaela M. Lara, a ‘member of the defendant’s family’ or ‘member
      of the defendant’s household,’ or ‘person with whom the defendant
      had or had had a dating relationship,’ as described by Section
      ’71.003’ or ’71.005’ or ’71.0021(b),’ Family Code, by striking
      Micaela M. Lara’s face with his hand. Against the peace and
      dignity of the State.’



                                                                      - 29 -
      (3 RR 9-10) (emphasis added). The Appellant says that the “record

is absent of any evidence showing that Appellant struck Micaela Lara

(Lara) in the face with his hand.” (Ant. Brief at p. 20, PDF p. 15).

      However, the Appellant then points out that “Lara claimed that

Appellant punched her with a closed fist to the face then slapped her so

hard that she fell to the ground and passed out for a couple of seconds.”

(Id.) (citing 3 RR 18-19). “Direct evidence of ‘X’ … is … sufficient

[proof] to support … [the jury’s finding of] ‘X’ fact.” Goodman v. State,

66 S.W.3d 283 (Tex. Crim. App. 2001) (an analogous case about

evidentiary sufficiency in a family-violence case). Micaela Lara’s

testimony is direct evidence that Appellant did commit the offense in the

manner stated in the information—by striking her in the face with his hand.

And a defendant may be convicted on the testimony of one witness. Ruiz v.

State, 891 S.W.2d 302, 304 (Tex. App.—San Antonio 1994, pet. ref'd)

(“[t]he testimony of a victim standing alone, even when the victim is a

child, is sufficient to support a conviction for sexual assault.”) Thus, based

on Micaela’s testimony alone, the evidence is legally sufficient. See id. Her

testimony regarding her injury was corroborated by the investigating

officer as well. (3 RR 82-83).




                                                                        - 30 -
      Nevertheless, the Appellant says that no rational juror could have

believed Lara’s testimony beyond a reasonable doubt because Nohemi

Torres said that she did not see an injury on Micaela’s face, and that she

heard only one person fall to the ground, when the evidence showed that

both baby Alexandria and the victim fell. (Ant. Brief at pp. 15-16).

Conflicting evidence does not render a conviction legally insufficient.

Hinojosa, 433 S.W.3d at 751-52. The weighing of credibility or competing

inferences is no part of a legal sufficiency review. Brooks v. State, 323

S.W.3d 893, 899 (Tex. Crim. App. 2010) (pl. op.). The resolution of these

conflicts in the evidence was for the jury. Id.

      As such, the State respectfully requests that Appellant’s second

point of error, concerning evidentiary sufficiency, be overruled.




                                                                    - 31 -
                              PRAYER

     For the reasons stated above, the State prays that the conviction be

AFFIRMED and for general relief.


                                    Respectfully submitted,

                                    ISIDRO R. ALANIZ
                                    DISTRICT ATTORNEY
                                    49TH JUDICIAL DISTRICT

                                    By:___/s/__________________
                                    David L. Reuthinger, Jr.
                                    Assistant District Attorney for
                                    THE STATE OF TEXAS
                                    Webb County, 49th Judicial District
                                    1110 Victoria St., Suite 401
                                    Laredo, Texas 78040
                                    (956) 523-4900
                                    (956) 523-5070 (Fax)
                                    Bar No. 24053936
                                    ATTORNEY FOR APPELLEE




                                                                   - 32 -
                  CERTIFICATE OF COMPLIANCE

       I hereby certify that the foregoing brief complies with Rule 9.4,
Texas Rules of Appellate Procedure, as amended, and that the word count,
less exempt sections, is 5,069.

Date: January 30, 2015

                                      ___/s/__________________
                                      David L. Reuthinger, Jr.
                                      Attorney for Appellee




                     CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the above and
foregoing Appellee’s Brief has been delivered to Omar Salinas, attorney
for the Appellant, via e-Service or fax to (956) 523-5009.

Date: January 30, 2015

                                      ___/s/__________________
                                      David L. Reuthinger, Jr.
                                      Attorney for Appellee




                                                                  - 33 -
