                                 NO. 07-05-0016-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL B

                                 JANUARY 17, 2006

                        ______________________________

                             PAUL OCHOA, APPELLANT

                                          V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

            FROM THE 286TH DISTRICT COURT OF HOCKLEY COUNTY;

             NO. 03-09-5599; HONORABLE HAROLD PHELAN, JUDGE
                      _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                              MEMORANDUM OPINION


             Appellant, Paul Ochoa, appeals his conviction for murder. We affirm.


                                     Background


      In September 2003, appellant and others were loitering outside a trailer home in

Levelland, Texas when the victim’s brother, Jerry Gonzales, went by in a vehicle. As he

passed, Jerry offended appellant by shouting out the name of a local gang, “Westside.”

Later that evening, Jerry walked up to the group to visit with them and learned that
appellant was upset with his earlier actions. Appellant took Jerry aside, spoke with him,

and then began to assault him. When Jerry’s friend, David Jaramillo, saw Jerry being

assaulted he left to notify the victim, Martin Gonzales, of the assault. By the time Gonzales

arrived at the scene, Jerry had been led to his father’s home by two other friends.

However, Gonzales and an associate still sought to confront Jerry’s assailant and began

calling out to the group in general to fight him. Gonzales’s challenge caused several

members of the group to run toward Gonzales and his associate. While Gonzales’s

associate escaped, Gonzales stayed and fought with Chris Viernes and appellant. In the

end, Gonzales suffered 29 stab wounds and died at the scene. Appellant was charged with

murder.


       During a pretrial hearing, the State requested that a child witness be allowed to

testify via closed circuit television. Appellant objected to the State’s request, stating that

he believed that allowing a witness to testify in a manner other than in-court violated his

constitutional rights to confront and cross-examine the State’s witness. The trial court

granted the State’s motion and ruled that the child witness would be allowed to testify by

closed circuit TV during the trial.


       At trial, eyewitnesses testified that appellant fought with Gonzales and that appellant

had to be forcibly removed from the altercation. Although the testimony agrees that

appellant hit Gonzales with his hands, none of the eyewitnesses, except the child and

Viernes, testified to seeing appellant with a knife or seeing appellant stab Gonzales. The

child testified via closed circuit TV to seeing the assault on Gonzales from the trailer home

and that he saw appellant stab Gonzales. However, upon cross examination, the child

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admitted that he was unsure of the identity of Gonzales’s assailant and that his testimony

was largely based on other eyewitnesses’ versions of the assault. Viernes testified that he

did assault Gonzales and admitted stabbing him, however, he further testified that appellant

also stabbed Gonzales. A pathologist testified that several of the stab wounds were

potentially fatal wounds, and that Gonzales died as a result of bleeding from the wounds.

The jury returned a guilty verdict and sentenced appellant to 40 years incarceration in the

Institutional Division of the Texas Department of Criminal Justice.


       Appellant presents two issues. Appellant contends that the evidence is factually

insufficient to support the conviction. Second, appellant contends the trial court erred in

allowing closed circuit testimony of a witness instead of live, in-court testimony. We affirm.


                              Issue One: Factual Sufficiency


       When an appellant challenges the factual sufficiency of his conviction, the reviewing

court must ultimately determine whether, considering all the evidence in a neutral light, the

jury was rationally justified in finding defendant guilty beyond a reasonable doubt. See

Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). While we review the evidence

in a neutral light, we must give appropriate deference to the jury’s evaluation of the

evidence, resolution of any inconsistencies, and determination of the evidence’s weight and

value. See Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). We are not allowed

to substitute our judgment for that of the jury unless the verdict is clearly wrong and

manifestly unjust. See Zuniga, 144 S.W.3d at 481-82. In a factual sufficiency review, the

court of appeals is required to consider the most important evidence that the appellant


                                              3
claims undermines the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.

2003).


         In the present case, appellant contends that a conspiracy of the witnesses resulted

in the testimony identifying him as Gonzales’s murderer. All of the State’s eyewitnesses

placed appellant at the scene of the crime. Further, substantial testimony revealed that

appellant had severely beaten up Gonzales’s brother, and had fought with Gonzales that

evening. Testimony of Charlie Corpus, Michael Padilla, LaToya Sainz, Viernes, and the

child all place appellant over Gonzales swinging at him. Additionally, Sainz described

appellant’s movements against Gonzales as a “stabbing motion.”              Finally, Viernes

described stabbing Gonzales twice and then handing the knife to appellant who proceeded

to stab Gonzales numerous times. Appellant claims that none of the testimony is credible

because of the witnesses’ past convictions and self-serving nature. However, neither the

child nor Sainz were shown to have been previously convicted, or in jeopardy of being

charged in the present case. Thus, appellant’s challenge to the credibility of witnesses with

prior convictions does not apply to either Sainz or the child. A review of the testimony

reveals that, although the eyewitnesses’ testimony varied about the events surrounding the

murder, the jury had sufficient evidence to reach the conclusion that appellant was guilty

of murder beyond a reasonable doubt. Therefore, we will not second guess the jury’s

evaluation of the evidence. See Johnson, 23 S.W.3d at 8.


         Additionally, appellant contends that Viernes’s testimony is not credible because he

only implicated appellant in order to fulfill the requirements of a plea agreement. However,

a review of the record does not reveal any evidence that Viernes was required to implicate

                                              4
appellant per any plea agreement. Viernes testified that he pled guilty to avoid a trial, to

take responsibility for his actions, and to assist the State because the knives used in the

assault could not be found. Although appellant’s trial counsel tried to get Viernes to admit

during cross examination that the State required him to implicate appellant as part of a plea

agreement, Viernes steadfastly denied such a requirement to the plea agreement.

Appellant has failed to provide any support or citation to the record to support his allegation.

See TEX . R. APP . P. 38.1(h). Therefore, after considering all of the evidence in a neutral

light, including the evidence that appellant believes undermines the jury’s verdict, we

conclude the jury was rationally justified in finding defendant guilty beyond a reasonable

doubt. We overrule appellant’s first issue.


              Issue Two: Testimony of a child who is a victim of an offense


       On appeal, appellant concedes that the court had the authority to allow the child to

testify via closed circuit TV pursuant to Texas Code of Criminal Procedure article 38.071,

but appellant contends the trial court erred by not following the prerequisites of the statute.

See TEX . CODE CRIM . PROC . art. 38.071 (Vernon 2005).1 Specifically, appellant contends

that since identity was contested, once the court determined the testimony admissible, the

child was required to make an in-person identification either at a hearing prior to trial or

during the trial proceedings. Art. 38.071 § 9. The State counters that the child’s testimony

did not raise or contest identity and thus did not trigger the in-person identification

requirement of article 38.071, section 9 of the Texas Code of Criminal Procedure.


       1
         Further reference to the Texas Code of Criminal Procedure will be by reference to
“Art. __” or “art. __.”

                                               5
       At trial, appellant’s objection was that the statutory provision itself was

unconstitutional because it violated appellant’s rights to confrontation and cross-

examination of the State’s witnesses. Yet on appeal, appellant is contesting the trial court’s

application of article 38.071 rather than the constitutionality of the statute. In order to

properly present an issue for appeal, appellant’s objection at trial must comport with the

issue raised on appeal. Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App. 1995).

Assuming without deciding that appellant is correct in his contention that the trial court

erred in the application of the in-person identification requirement of article 38.071,

appellant was required to preserve the issue by objection at trial or else waive the issue.

Id.    Since appellant did not object at trial to the lack of in-person identification in

compliance with article 38.071, appellant presents nothing for our review.


                                         Conclusion


       Finding no reversible error, we affirm.




                                                  Mackey K. Hancock
                                                      Justice


Do not publish.




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