
NO. 07-07-0078-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

APRIL 9, 2007
______________________________

ERASMO GONZALES, 

                                                                                                 Appellant

v.

THE STATE OF TEXAS, 

                                                                                                 Appellee
_________________________________

FROM THE 69TH DISTRICT COURT OF DALLAM COUNTY;

NO.  3320-7; HON. RON ENNS, PRESIDING
_______________________________

Dismissal
_______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
          Erasmo Gonzales (appellant) appeals an order denying his “Motion for Judicial
Notice” signed by the trial court this year.  We dismiss the cause for want of jurisdiction.
          As revealed by the allegations and argument in his pro se appellant’s brief, appellant
has used his purported request for the trial court to take judicial notice as a means of
attacking the validity or legality of his 1996 conviction.  Yet, that conviction became final
both many years ago and many years before appellant filed his 2007 notice of appeal. 
Tex. R. App. P. 26(a) (requiring an appellant to file his notice of appeal within 30 or 90 days
of the date the trial court sentenced him in open court).
          Moreover, even if we were to interpret the motion to take judicial notice as effort to
initiate a habeas proceeding under art. 11.07 of the Texas Code of Criminal Procedure,
that would not change the outcome.  Those proceedings are commenced in the Court of
Criminal Appeals, and intermediate appellate courts, such as ours, have no authority to act
on them.  Parr v. State, 206 S.W.3d 143, 145 (Tex. App.–Waco 2006, no pet.) (holding that
intermediate appellate courts have no jurisdiction over art. 11.07 proceedings).
          In sum, we have no jurisdiction over the substance of appellant’s complaints, and
having no such jurisdiction, we have no choice but to dismiss the appeal.  Olivo v. State,
918 S.W.2d 519, 523 (Tex. Crim. App. 1996) (obligating an intermediate appellate court
to dismiss the appeal if it lacks jurisdiction).  So, it is dismissed.  
 
                                                                           Brian Quinn
                                                                          Chief Justice

Do not publish.

 reasonable suspicion.   See Woods v. State,
956 S.W.2d 33, 38 (Tex.Crim.App. 1997).  The decision to detain someone is made from
a consideration of the totality of the facts.  Garcia v. State, 43 S.W.3d 527, 530
(Tex.Crim.App. 2001).
	Lara's testimony reveals the following facts relied upon in deciding whether or not to
detain the vehicle: 1) the nervous appearance of the driver when he noticed the police car;
2) the passenger ducking down below eye level while making furtive movements; 3)
obtaining the computer readout on the vehicle's registration that showed a female
associated with the vehicle had an outstanding warrant; and 4) ascertaining that a
passenger was, in fact, a female.  This information was sufficient to justify Lara's stop of the
vehicle, as it was more than just a hunch or some unparticularized suspicion of wrongdoing. 
United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct 1581, 104 L.Ed.2d 1 (1989).  The
appellant relies upon words taken from precise questions to attempt to demonstrate that
Lara lacked any reasonable suspicion to detain the vehicle in which appellant was riding. 
However, as pointed out above, it is the totality of the circumstances that must be
considered.  Garcia, 43 S.W.3d at 530.  When the totality of the circumstances are
reviewed, it is clear that the officer articulated very specific facts to support his reasonable
suspicion to stop the vehicle, therefore, the trial court did not err in denying the motion to
suppress.  We overrule appellant's first issue.
Charge Error
	Appellant next contends that the trial court committed reversible error when it refused
to grant a jury instruction, pursuant to article 38.23 of the Texas Code of Criminal
Procedure.  That article provides that no evidence may be admitted into evidence against
an accused if obtained by law enforcement in violation of any provision of the Constitution
and laws of either the United States or the State of Texas.  The statute further provides:
In any case where the legal evidence raises an issue hereunder, the jury
shall be instructed that if it believes, or has a reasonable doubt, that the
evidence was obtained in violation of the provisions of this Article, then and
in such event, the jury shall disregard any such evidence so obtained.

Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon Supp. 2006).
	Appellant contends that the evidence before the jury regarding Lara's reasons for
the initial detention of the vehicle raised the issue and, therefore, the jury should have been
instructed as per the article.  The record reflects Lara was the only witness who testified
in front of the jury regarding the facts of the initial detention.  
	A fact issue about the initial stop may be raised from any source and the evidence
may be weak, strong, contradicted, unimpeached, or unbelievable.  Garza v. State, 126
S.W.3d 79, 85 (Tex.Crim.App. 2004).   However, the jury is required to receive an article
38.23 instruction only when the trial evidence raises a factual issue regarding whether the
evidence was obtained in violation of the Constitution or laws of the United States or the
State of Texas.  See Bell v. State, 938 S.W.2d 35, 48 (Tex.Crim.App. 1996).  
	The evidence before the jury is not disputed.  The only dispute involved the meaning
of the words used by Lara to describe his observations before detaining the vehicle
appellant was a passenger in.  That dispute is a question of law for the trial court in making
a ruling on the reasonableness of the initial detention.  This determination was made by
the trial court at the suppression hearing.  Because the evidence surrounding the initial
stop was not disputed, appellant was not entitled to the instruction under article 38.23.  Id. 
Accordingly, the trial court did not commit reversible error.  Appellant's second issue is
overruled.
Legal and Factual Sufficiency
	Appellant next contends that the evidence was legally and factually insufficient to
prove two particular elements of the offense of murder, as alleged against him. 
Specifically, appellant alleges that the evidence was insufficient to prove that the body
found at the abandoned farmhouse was that of the victim alleged in the indictment, Julio
Arismendez, III.  Further, appellant alleges that the evidence was insufficient to prove that
the murder occurred in Hockley County, Texas, as alleged in the indictment.  
	Addressing the Hockley County challenge, we note the allegation that the murder
occurred in Hockley County is a venue allegation.  During the trial, there was no issue
raised regarding the venue of the offense being proper in Hockley County.  Venue is not
a constituent element of the offense charged.  State v. Blankenship, 170 S.W.3d 676, 681
(Tex.App.-Austin 2005, pet. ref'd).  It is presumed that venue was proved at trial, unless
disputed at trial or the record affirmatively shows the contrary.  Id. (citing Tex. R. App. P.
44.2(c)(1)).  Further, the Texas Code of Criminal Procedure provides, in article 13.07, that:
If a person receives an injury in one county and dies in another by reason of
such injury, the offender may be prosecuted in the county where the injury
was received or where the death occurred, or in the county where the dead
body is found.

Tex. Code  Crim. Proc. Ann. art. 13.07 (Vernon Supp. 2006).  Even had appellant
contested the proof of venue at trial, which he did not, the criminal procedure rules of the
State of Texas allow venue based on proof of where the body of a deceased was found. 
Accordingly, appellant's contention regarding the sufficiency of the evidence relating to the
Hockley County allegation is overruled.
	Next, regarding the legal and factual sufficiency of the evidence regarding the
identity of the victim, when both legal and factual insufficiency are raised, we will first
address the issue of legal sufficiency.  See Clewis v. State, 922 S.W.2d 126, 133
(Tex.Crim.App. 1996).  If the evidence is legally sufficient, we then review the factual
sufficiency challenge.  See id.  
	In assessing 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ross v. State, 133
S.W.3d 618, 620 (Tex.Crim.App. 2004).  In conducting a legal sufficiency review, an
appellate court may not sit as a thirteenth juror, but rather must uphold the jury's verdict
unless it is irrational or unsupported by more than a mere modicum of evidence.  Moreno
v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988)
	The indictment alleges, in relevant part, ". . . intentionally or knowingly cause the
death of an individual, namely, Julio Arismendez III . . . ."  The State provided evidence that
indicated that the body was found by a cousin and a close friend of Julio Arismendez, III. 
Each testified that the body was that of Arismendez and that it was identifiable by a tattoo
and the shirt he was wearing.  At trial, there was no confusion nor doubt in this testimony. 
When this evidence is viewed in the light most favorable to the verdict, we cannot say that
a jury was acting irrationally in finding the appellant guilty as charged, including the alleged
identity of the victim.  
	Having determined that the evidence was legally sufficient, we now turn our
attention to the factual sufficiency of the evidence.  When an appellant challenges the
factual sufficiency of the evidence supporting his conviction, the reviewing court must
determine whether, considering all the evidence in a neutral light, the jury was rationally
justified in finding the appellant guilty beyond a reasonable doubt.  See Watson v. State,
204 S.W.3d 404, 415 (Tex.Crim.App. 2006).  In performing a factual sufficiency review, we
must give deference to the fact finder's determinations if supported by evidence and may
not order a new trial simply because we may disagree with the verdict.  See id. at 417.  As
an appellate court, we are not justified in ordering a new trial unless there is some objective
basis in the record demonstrating that the great weight and preponderance of the evidence
contradicts the jury's verdict.  See id.  Additionally, an appellate opinion addressing factual
sufficiency must include a discussion of the most important evidence that appellant claims
undermines the jury's verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).
	Regarding the issue of the identity of the victim, we have previously reviewed the
evidence relied upon by the State to prove that the victim was Julio Arismendez, III.  Even
when viewed in a neutral light, we cannot say that the jury was not rationally justified in
finding the appellant guilty of murder.  This finding would include a finding that the victim
was Julio Arismendez, III, as alleged in the indictment.  
	As required, we will address the most important evidence that the appellant says
undermines the jury's verdict.  Id.  Appellant contends that witness Garcia was unsure of
his identification of the body.  This is based on cross-examination of the witness where he
testified that he was only in the house for about 10 seconds, turned to leave, then turned
back around to make sure it was Arismendez because he wasn't quite sure.  Witness
Lozano then testified he had to identify Arismendez by a shirt he was wearing.  However,
the jury heard this testimony and resolved the issue in question against appellant.  We are
mindful that we are required to give due deference to the jury's findings when supported
by the evidence.  Watson, 204 S.W.3d at 417.  The balance of appellant's argument is not
a discussion of evidence that counters the State's proof of the identity of the victim, rather
it is a complaint about what the State did not do.  Appellant complains that the State
offered no DNA comparison from a known sample of Arismendez, no fingerprint
comparison from Arismendez, and no comparison of dental records from the known dental
records of Arismendez.  While appellant may be correct that there was much more that
could have been done to prove the victim's identity, that is not the test.  Rather, the
question is, was there evidence before the jury that undermines our confidence in the jury
verdict to the point that we are inclined to say that no rational jury could have found against
the appellant beyond a reasonable doubt on this issue.  Id.  The answer is no, there is no
evidence that would so undermine our confidence in the jury's verdict.  Therefore,
appellant's contention regarding the legal and factual sufficiency of the evidence to prove
the identity of Julio Arismendez, III, as the victim of the murder is overruled.  Finding the
evidence both legally and factually sufficient to support appellant's conviction for murder,
as alleged, we overrule appellant's third issue.
Conclusion
	Having overruled all of appellant's issues, the judgment of the trial court is affirmed.

							Mackey K. Hancock
							         Justice






Publish.  

1. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966).

