                                                   FILED                        ACCEPTED
                                         IN THE 13TH COURT OF APPEALS      13-13-00657-CR
                                                            THIRTEENTH COURT OF APPEALS
                                                 CORPUS CHRISTI
                                                                   CORPUS CHRISTI, TEXAS
                                                                      1/15/2015 1:36:37 PM
                                                  01/15/2015             DORIAN RAMIREZ
                                        DORIAN E. RAMIREZ, CLERK                    CLERK

          CAUSE NO. 13-13-00657-CRBY smata

                                   RECEIVED IN
                             13th COURT OF APPEALS
      IN THE COURT OF APPEALS
                          CORPUS CHRISTI/EDINBURG, TEXAS
                              1/15/2015 1:36:37 PM
THIRTEENTH JUDICIAL DISTRICT OFDORIAN
                                  TEXAS E. RAMIREZ
                                      Clerk

   CORPUS CHRISTI - EDINBURG, TEXAS


          MARIO ALBERTO ALANIZ,
                 Appellant

                        v.

               STATE OF TEXAS,
                   Appellee.


 On appeal from the 138th Judicial District Court
           of Cameron County, Texas
 Trial Court Cause Number 2013-DCR-01319-B


         STATE’S APPELLATE BRIEF


                             Luis V. Saenz
                             Cameron County District Attorney

                             René B. González
                             Assistant District Attorney
                             964 East Harrison Street, 4thFloor
                             Brownsville, Texas 78520
                             Phone: (956) 544-0849
                             Fax: (956) 544-0869

                             Attorneys for the State of Texas
                                           TABLE OF CONTENTS

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Salutation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Argument and Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

         State’s Response to Appellant’s First Issue. . . . . . . . . . . . . . . . . . . . . . . . . . 2

         State’s Response to Appellant’s Second Issue. . . . . . . . . . . . . . . . . . . . . . . . 5

         State’s Response to Appellant’s Third Issue. . . . . . . . . . . . . . . . . . . . . . . . . 7

         State’s Response to Appellant’s Fourth Issue. . . . . . . . . . . . . . . . . . . . . . . . 9

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13




                                                              -i-
                                     INDEX OF AUTHORITIES
Case law                                                                                                      Page

Camacho v. State,
864 S.W.2d 524 (Tex. Crim. App. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Castrejon v. State,
428 S.W.3d 179 (Tex. App.--Houston [1st Dist.] 2014, no pet.). . . . . . . . . . . 10, 11

Cordova v. State,
698 S.W.2d 107 (Tex. Crim. App. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Cunningham v. State,
982 S.W.2d 513 (Tex. App.--San Antonio 1998, pet. ref’d). . . . . . . . . . . . . . . . . . 8

Ethington v. State,
819 S.W.2d 854 (Tex. Crim. App. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Flores v. State,
125 S.W.3d 744 (Tex. App.--Houston [1st Dist.] 2003, no pet.). . . . . . . . . . . . . . . 6

Garza v. State,
2 S.W.3d 331 (Tex. App.--San Antonio 1999, pet. ref’d). . . . . . . . . . . . . . . . . . . . 9

Goff v. State,
931 S.W.2d 537 (Tex. Crim. App. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Gross v. State,
380 S.W.3d 181 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Heidelberg v. State,
144 S.W.3d 535 (Tex. Crim. App. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Jackson v. Virginia,
443 U.S. 307 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3




                                                         -ii-
Johnson v. State,
 84 S.W.3d 726 (Tex. App.--Houston [1st Dist.] 2002, pet. ref’d).. . . . . . . . . . . . . 6

Laster v. State,
275 S.W.3d 512 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Leal v. State,
782 S.W.2d 844 (Tex. Crim. App. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Lockhart v. State,
847 S.W.2d 568 (Tex. Crim. App. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Mayes v. State,
816 S.W.2d 79 (Tex. Crim. App. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Peralta v. State,
338 S.W.3d 598 (Tex. App.--El Paso 2010, no pet.). . . . . . . . . . . . . . . . . . . . . . . 10

Ransom v. State,
920 S.W.2d 288 (Tex. Crim. App. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Sparks v. State,
935 S.W.2d 462 (Tex. App.--Tyler 1996, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . 7

Valle v. State,
109 S.W.3d 500 (Tex. Crim. App. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Wilkerson v. State,
874 S.W.2d 127 (Tex. App.--Houston [14th Dist.] 1994, pet. ref’d). . . . . . . . . . . . 8

Wilson v. State,
71 S.W.3d 346 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

Wygal v. State,
555 S.W.2d 465 (Tex. Crim. App. 1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4




                                                  -iii-
Statutes

Tex. Code Crim. Proc. art. 38.30.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Tex. Penal Code § 7.01. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Tex. Penal Code § 7.02. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Rules

Rule 1009(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Rule 1009(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

Tex. R. App. P. 33.1(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Tex. R. App. P. 38.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1




                                                          -iv-
                         CAUSE NO. 13-13-00657-CR
                   ____________________________________

                         IN THE COURT OF APPEALS

                THIRTEENTH JUDICIAL DISTRICT OF TEXAS

                   CORPUS CHRISTI - EDINBURG, TEXAS
                   ____________________________________

                   MARION ALBERTO ALANIZ, Appellant

                                          v.

                        STATE OF TEXAS, Appellee
                   ____________________________________

                       STATE’S APPELLATE BRIEF
                   ____________________________________

TO THE HONORABLE COURT OF APPEALS:

       COMES NOW, Appellee, the STATE OF TEXAS, by and through the

Cameron County District Attorney, the Honorable Luis V. Saenz, and, pursuant to

Rule 38.2 of the Texas Rules of Appellate Procedure, files this, its Appellate Brief in

the above-styled and -numbered cause of action, and in support thereof, would show

this Honorable Court as follows:

                          SUMMARY OF ARGUMENT

       Appellant raises four issues on appeal. (1) In his first issue on appeal,

Appellant complains that the evidence is insufficient to prove beyond a reasonable

State’s Brief                                                                    Page 1
doubt that Appellant was a party to the offense of robbery. In response, the State

asserts that there is ample evidence in the record to support Appellant’s conviction

for the offense of robbery. (2) In his second issue, Appellant argues that the trial

court committed reversible error by allowing the State to introduce an extraneous

forgery offense into evidence. The State responds by asserting that Appellant did not

preserve this issue for appellate review. (3) In his third issue, Appellant argues that

the trial court committed error in refusing to give the jury a limiting instruction

regarding an extraneous offense. The State responds by asserting that the evidence

complained of was not “extraneous offense” evidence; but rather, it was “same

transaction contextual evidence.” (4) In his fourth issue, Appellant complains that

the trial court erred in allowing into evidence the video statement of Appellant

because it was not properly translated into English. The State responds by asserting

that the audio statement of Appellant was properly admitted into evidence because

a certified Spanish language interpreter was present in the courtroom to interpret the

Spanish portion of the statement.



                        ARGUMENT & AUTHORITIES

State’s Response to Appellant’s First Issue

       In his first issue on appeal, Appellant complains that the evidence is

State’s Brief                                                                    Page 2
insufficient to prove beyond a reasonable doubt that Appellant was a party to the

offense of robbery. In response, the State asserts that there is ample evidence in the

record to support Appellant’s conviction for the offense of robbery.

       The United States Constitution requires that a criminal conviction be supported

by evidence “necessary to convince a trier of fact beyond a reasonable doubt of the

existence of every element of the offense.” Jackson v. Virginia, 443 U.S. 307, 316

(1979). A reviewing court must view the evidence in the light most favorable to the

verdict and determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Id. at 319; Laster v. State, 275

S.W.3d 512, 517-18 (Tex. Crim. App. 2009). Proper deference must be given to the

jury’s determination of the credibility of the evidence. Id.

       A person is a criminally responsible party to an offense “if the offense is

committed by his own conduct, by the conduct of another for which he is criminally

responsible, or by both.” Tex. Penal Code § 7.01. A person is criminally responsible

for the conduct of another if, acting “with intent to promote or assist the commission

of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person

to commit the offense.” Tex. Penal Code § 7.02.

       To determine whether an individual is a party to an offense, the reviewing court

may look to “events before, during, and after the commission of the offense.” Gross

State’s Brief                                                                       Page 3
v. State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012) (quoting Wygal v. State, 555

S.W.2d 465, 468-69 (Tex. Crim. App. 1977). Evidence is sufficient to support a

conviction under the law of parties where the actor is physically present and

encourages the commission of the offense either by words or other agreement.

Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985). Mere presence alone

will not make one a party to an offense; nevertheless, it is a circumstance tending to

prove that a person is a party to the offense and when taken with other facts may be

sufficient to show that he was a participant. Wygal, 555 S.W.2d at 469. A court may

also rely on circumstantial evidence to prove party status. Ransom v. State, 920

S.W.2d 288, 302 (Tex. Crim. App. 1996).

       In the present case, the record reflects that Appellant was present at the scene

of the robbery, and was in the vehicle used to arrive at, and to flee from, the scene.

(SX5). The record also reflects that immediately after fleeing the scene of the

robbery, Appellant knew that one of the other individuals in the vehicle was going

through the victim’s purse, throwing some things out the window. (SX5; R.R. Vol.

3, p. 106). Appellant and the other two individuals then proceeded without delay to

the H.E.B. located on Southmost Road in Brownsville, where they attempted to pass

one of the checks taken from the victim’s purse. (SX 5; R.R. Vol. 3, p. 155). The

record demonstrates that Appellant went and asked the clerk for a pen so that the

State’s Brief                                                                    Page 4
check could be filled in. (SX5; R.R. Vol. 3, pp. 153-154). Because these events

occurred immediately after the robbery, and because these circumstances dictate that

Appellant and the others must have somehow discussed their roles and reached an

agreement in connection with this criminal transaction (i.e., “you go get the pen so

I can fill out this check we just took,” or something similar), there was sufficient

evidence for the jury to find Appellant guilty as a party to the offense of robbery.

       Accordingly, this Court should find the evidence sufficient to support

Appellant’s conviction as a party to the offense of robbery, and this Court should

overrule Appellant’s first issue.



State’s Response to Appellant’s Second Issue

       In his second issue, Appellant argues that the trial court committed reversible

error by allowing the State to introduce an extraneous forgery offense into evidence.

The State responds by asserting that Appellant did not preserve this issue for

appellate review.

       To preserve a complaint for appellate review, a defendant must make a timely,

specific objection to the trial court. Tex. R. App. P. 33.1(a); see Wilson v. State, 71

S.W.3d 346, 349 (Tex. Crim. App. 2002). Moreover, an objection stating one legal

basis may not be used to support a different legal theory on appeal. See Heidelberg

State’s Brief                                                                    Page 5
v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004). Courts have routinely held

that where a complaint on appeal does not comport with an objection made at trial,

the error is not preserved on the complaint. Wilson, 71 S.W.3d at 349; Goff v. State,

931 S.W.2d 537, 551 (Tex. Crim. App. 1996); Flores v. State, 125 S.W.3d 744, 747

(Tex. App.--Houston [1st Dist.] 2003, no pet.). Further, the law in Texas requires a

party to continue to object each time inadmissible evidence is offered. Ethington v.

State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991); Johnson v. State, 84 S.W.3d 726,

729 (Tex. App.--Houston [1st Dist.] 2002, pet. ref’d). “Any error in the admission

of evidence is cured when the same evidence comes in elsewhere without objection.”

Johnson, 84 S.W.3d at 730.

       In the present case, Appellant objected to Detective Reyes’ testimony

concerning the passing of a check at the H.E.B.; however, the basis of the objection

and the ruling thereon are not contained in the record, as there was a bench

conference which was not recorded. (R.R. Vol. 3, p. 44). Appellant was required to

object to the court reporter’s failure to record the bench conference. Valle v. State,

109 S.W.3d 500, 509 (Tex. Crim. App. 2003). Because he failed to do so, nothing

is presented for review.

        Likewise, when the surveillance video from H.E.B. (which depicted Appellant

and another attempting to pass one of the checks from the robbery) was offered into

State’s Brief                                                                   Page 6
evidence, a bench conference was held to discuss the admission of the exhibit;

however, this bench conference was not reported either, and no objection was made

to failure to record the bench conference. (R.R. Vol. 3, p. 46).

       The record does not reflect that Appellant objected to the admission of the

evidence related to the passing of the victim’s, every time the evidence was offered.

Further, the record does not reflect whether any of Appellant’s objections made at the

unrecorded bench conferences comport with the issue raised on appeal. For these

reasons, this Court should find that Appellant has not preserved this issue for review,

and Appellant’s second issue should be overruled.



State’s Response to Appellant’s Third Issue

       In his third issue, Appellant argues that the trial court committed error in

refusing to give the jury a limiting instruction regarding an extraneous offense. The

State responds by asserting that the evidence of complained of was not “extraneous

offense” evidence; but rather, it was “same transaction contextual evidence.”

       “Same transaction contextual evidence” refers to other offenses connected with

the primary offense and is admissible when the evidence is necessary for the state to

logically present evidence of the charged offense. Lockhart v. State, 847 S.W.2d 568,

570 (Tex. Crim. App. 1992); Sparks v. State, 935 S.W.2d 462, 466 (Tex. App.--Tyler

State’s Brief                                                                    Page 7
1996, no pet.). The reason for admitting such evidence is “simply because in

narrating the one it is impracticable to avoid describing the other, and not because the

other has any evidential purpose.” Mayes v. State, 816 S.W.2d 79, 86–87 n. 4 (Tex.

Crim. App. 1991). Crimes do not occur in a vacuum, and the state is entitled to prove

the circumstances surrounding the crime even though they may seem like irrelevant

details. Cunningham v. State, 982 S.W.2d 513, 521 (Tex. App.--San Antonio 1998,

pet. ref’d); Wilkerson v. State, 874 S.W.2d 127, 131 (Tex. App.--Houston [14th Dist.]

1994, pet. ref’d).

       In the present case, the conduct related to the passing of the stolen check is

intermixed or blended with the primary offense of robbery such that it is admissible

as same transaction contextual evidence. This especially so, because the evidence of

the passing of the stolen check serves to demonstrate the agreement and cooperation

between the parties and thus proves the criminal responsibility of the parties.

       The Court of Criminal Appeals has held that a limiting instruction is not

required when evidence is admitted as same transaction contextual evidence.

Camacho v. State, 864 S.W.2d 524, 535 (Tex. Crim. App. 1993).               Where the

evidence is presented as same transaction contextual evidence, the State is not

offering the evidence to prove the defendant’s character but simply to explain the

surrounding circumstances. Although the jury may use the evidence to assess the

State’s Brief                                                                     Page 8
defendant’s character, by holding that a limiting instruction is not required, the Court

of Criminal Appeals has already decided that this Court should not concern itself with

that possibility. Therefore, since same transaction contextual evidence is not offered

as evidence against a defendant, but simply to explain the circumstances of the

offense, a reasonable doubt instruction is not required. Id.; see also Garza v. State,

2 S.W.3d 331, 335 (Tex. App.--San Antonio 1999, pet. ref’d).

       Accordingly, this Court should find that a limiting instruction was not

necessary as the evidence offered was merely same transaction contextual evidence;

and therefore, this Court should overrule Appellant’s third issue.



State’s Response to Appellant’s Fourth Issue

       In his fourth issue, Appellant complains that the trial court erred in allowing

into evidence the video statement of Appellant because it was not properly translated

into English. The State responds by asserting that the audio statement of Appellant

was properly admitted into evidence because a certified Spanish language interpreter

was present in the courtroom to interpret the Spanish portion of the statement.

       Appellant argues first that the recording was inadmissible because the State did

not comply with Rule 1009 of the Texas Rules of Evidence. See Tex. R. Evid. 1009.

Specifically, at trial, Appellant complained that said Rule was not complied with, and

State’s Brief                                                                     Page 9
he was not given forty-five days’ notice of the State’s intent to introduce the

recording, as required by subsection 1009(a). (R.R. Vol. 3, pp. 72-73). After hearing

Appellant’s objections, the trial court questioned Alejandro Solis, a certified

interpreter, and the trial court was satisfied that Mr. Solis was qualified to interpret

from the Spanish language into English. (R.R. Vol. 3, pp. 77-79). The trial court

then placed Mr. Solis under oath and had him interpret those portions of Appellant’s

audio statement which are in Spanish. (R.R. Vol. 3, pp. 86-88).

       In response to Appellant’s argument, the State would note that Rule 1009(a)’s

forty-five day notice requirement does not apply to the admission of the underlying

video or audio recording of Appellant’s interview with police officers.            The

requirement applies only to the admission of the translation of the recording, and it

applies to admission of the translation only if that translation was not admissible

under another subsection of Rule 1009. Here, Appellant’s audio statement is

admissible under Rule 1009(e). See Tex. R. Evid. 1009(e). Rule 1009(e) does not

require the contemporaneous admission of a written transcript of the exhibit being

translated through live testimony; and it does not require forty-five days’ notice.

Castrejon v. State, 428 S.W.3d 179, 184-85 (Tex. App.--Houston [1st Dist.] 2014, no

pet.) (citing Peralta v. State, 338 S.W.3d 598, 606 (Tex. App.--El Paso 2010, no

pet.)). Said Rule requires only that the translation be offered by live testimony or by

State’s Brief                                                                   Page 10
the deposition of a certified expert translator. Tex. R. Evid. 1009(e). Thus, the fact

that the State did not submit a written translation and affidavit of a qualified translator

to appellant forty-five days before trial does not preclude admission of the recording.

See Castrejon, 428 S.W.3d at 185.

       Further, the State relies on Leal v. State, 782 S.W.2d 844 (Tex. Crim. App.

1989). In Leal, the Court of Criminal Appeals held that the admission of a recorded

conversation in a foreign language is analogous to testimony by a non-English

speaker, and that the safeguards of article 38.30 apply. Leal, 782 S.W.2d at 849; Tex.

Code Crim. Proc. art. 38.30. The court held that on a proper motion or objection, an

interpreter must be sworn to translate the recorded conversation, which is what

happened in the present case. Leal, 782 S.W.2d at 849.

       Accordingly, it was not error for the trial court to allow the Appellant’s audio

statement into evidence, as a qualified interpreter was present in the courtroom to

interpret any Spanish portions of the statement. Therefore, Appellant’s fourth issue

should be overruled.




State’s Brief                                                                      Page 11
                                     PRAYER

       WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that

this Court will overrule Appellant’s issues on appeal, and affirm both the judgment

of conviction and the sentence herein.

                                         Respectfully Submitted,

                                         LUIS V. SAENZ
                                         Cameron County District Attorney
                                         964 East Harrison Street, 4th Floor
                                         Brownsville, Texas 78520
                                         Phone: (956) 544-0849
                                         Fax: (956) 544-0869



                               By:       /s/ René B. González
                                         René B. González
                                         Assistant District Attorney
                                         State Bar No. 08131380
                                         rgonzalez1@co.cameron.tx.us
                                         Attorneys for the State of Texas




State’s Brief                                                                  Page 12
                       CERTIFICATE OF COMPLIANCE

       I certify that this document contains 2,594 words (excluding the cover, table

of contents and table of authorities). The body text is in 14 point font, and the

footnote text is in 12 point font.



                                       /s/ René B. González
                                       René B. González




                          CERTIFICATE OF SERVICE

       I certify that a copy of the foregoing State’s appellate Brief was served by

electronic mail upon Mr. Edmund K. Cyganiewicz, Attorney at Law, 1000 East

Madison Street, Brownsville, Texas 78520, edcyganiewicz@rgv.twcbc.com on the

15th day of January, 2015.


                                       /s/ René B. González
                                       René B. González




State’s Brief                                                                Page 13
