Opinion issued June 7, 2018




                                    In The

                              Court of Appeals
                                   For The

                        First District of Texas
                          ————————————
                              NO. 01-15-00814-CR
                         ———————————
                   WILBERTO ARRELLANO, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 339th District Court
                          Harris County, Texas
                      Trial Court Case No. 1353257


                                 OPINION

     A jury convicted Appellant Wilberto Arrellano of murder, and it assessed

punishment at life in prison. See TEX. PENAL CODE § 19.02. Arrellano filed a

motion for new trial which was overruled by operation of law. He brings four

issues on appeal. He argues that the evidence was insufficient to support his
conviction. He also contends that the trial court erred by denying his request for a

jury instruction on eyewitness testimony, incorrectly instructing the jury on

reasonable doubt, and failing to hold a hearing on his motion for new trial.

      We affirm. The evidence allowed a rational trier of fact to find Arrellano

guilty beyond a reasonable doubt, and no reversible error by the trial court has

been shown.

                                   Background

      Complainant Eduviel Zarco-Ramirez went out with friends, including his

roommate Rafael Pineda, his brother-in-law Juan Estrada Gonzalez, and Juan’s

brother Apolonio. Arriving at a seafood restaurant at approximately 1:00 A.M.,

they ordered food and beer. Another group of men and women was seated at a

nearby table. Zarco-Ramirez sang karaoke as his friends sang along from their

table. As he stepped off of the karaoke stage, a man approached Zarco-Ramirez

from behind and shot him in the head, killing him.

      Approximately four months later, after viewing several photo arrays,

Apolonio identified the appellant, Wilberto Arrellano, as the person who shot

Zarco-Ramirez. Arrellano was arrested and charged with murder. Juan and Rafael

also subsequently identified Arrellano from photo arrays as the shooter.




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      The case was tried to a jury, before a visiting judge. The State called several

witnesses, including four police officers involved in the investigation, an assistant

medical examiner, and Zarco-Ramirez’s companions the night of the murder.

      Apolonio testified that he was preparing to eat an oyster when he heard a

gunshot. He looked up and saw Zarco-Ramirez falling to the ground and a person

holding a gun. He stated that he was about 13 feet from the person holding the gun,

and that he could see him clearly. He described the person as wearing a short-

sleeved green shirt with stripes. In court, he identified Arrellano as the person he

saw holding the gun. Apolonio further testified that, after the shooting, Arrellano

pointed the gun at the rest of Zarco-Ramirez’s group, and he then left the restaurant

with his own group. Apolonio stated that there was no interaction between

Arrellano’s group and Zarco-Ramirez’s group prior to the shooting, and he had not

seen anyone else at the restaurant with a weapon. Approximately four months after

the shooting, Apolonio picked Arrellano from a photo array and identified him as

the shooter. At trial, he testified that when the officer who showed him the photo

array asked how confident he was in the identification of Arrellano, he “was like

50/50.”

      Juan testified that on the night of the shooting, Arrellano was sitting at a

nearby table with a group of men, women, and children. He saw Arrellano twice

before the shooting. He did not recall any interaction between the people at his


                                         3
table and Arrellano’s group while at the restaurant. According to Juan, Arrellano

left the restaurant at some point, and later he suddenly “burst in” to shoot Zarco-

Ramirez in the head from behind. Juan testified that he was about ten feet away

from the shooter and could see him clearly. He identified Arrellano in court as the

man who shot Zarco-Ramirez.

      Rafael testified that his group was at the restaurant for “about 15 minutes”

before Zarco-Ramirez was shot. He stated that the shooter was wearing blue pants,

and a shirt that was “somewhat blue, with some white lines.” In court, he identified

Arrellano as the shooter, and stated that he had a weapon that looked like a “nine

gun.” He also recalled that Arrellano was at a nearby table with men, women, and

a child. Rafael remembered that his friend asked one of the women at Arrellano’s

table if she wanted to dance. One of Arrellano’s friends responded by telling

Apolonio that he would “come and kill him in front of [his] friends” for

disrespecting him. Rafael testified that Zarco-Ramirez had been singing karaoke,

and when he left the stage, Arrellano “came from behind and shot him in the

head.” When asked about his earlier photo array, he stated that the officer had told

him the shooter would be in the photo array, and that he was “100%” confident in

his identification of Arrellano.




                                         4
      The assistant medical examiner testified that she performed an autopsy on

Zarco-Ramirez’s body. Based on her examination, she determined that Zarco-

Ramirez was killed by a single close-range gunshot wound to the head.

      The State rested its case, and the defense called three witnesses, including

two police officers and a waitress who was working at the restaurant when Zarco-

Ramirez was killed.

      The waitress testified that she waited on the table next to Zarco-Ramirez’s

group. She recalled that there was a baby at the table, but she could not remember

who else was at the table, “just the ones that were ordering beverages.” She did not

remember seeing Arrellano there.

      Detective J. Sosa was called as a witness by both the State and by Arrellano.

Sosa and his partner were assigned to the murder investigation. He testified that in

a recorded statement given the night of the shooting, Rafael mentioned hearing a

threat the night of the shooting. However, in a statement taken by Sosa

approximately one week after the shooting, Rafael stated that he did not remember

anyone making any threats. Sosa also testified that the witnesses were “pretty

much” consistent in their accounts of “what they saw and how many people were

involved, who possibly had a gun, the vehicles that were there.”




                                         5
      At the close of evidence, Arrellano submitted a proposed jury-charge

instruction on eyewitness identification. The court refused to include the proposed

instruction.

      The jury found Arrellano guilty of murder and sentenced him to life in

prison. Arrellano filed a motion for a new trial based upon claims of newly

discovered evidence and insufficiency of the trial evidence to support his

conviction. The motion requested a hearing. Arrellano later filed a separate request

for a hearing on the motion for new trial. He then sent a certified letter to the

presiding judge of the 339th District Court (not the visiting judge who presided

over the trial), enclosing the motion and the separate request for a hearing. A

hearing on the motion was never set and the motion was overruled by operation of

law. See TEX. R. APP. P. 21.8(a), (c).

      Arrellano appealed.

                                         Analysis

I.    Sufficiency of the evidence

      Arrellano challenges the sufficiency of the evidence to support his murder

conviction. He contends that numerous inconsistencies among the accounts and

testimony of the complainant’s companions, Apolonio, Juan, and Rafael, create

reasonable doubt as to his guilt.




                                            6
      Every criminal conviction must be supported by legally sufficient evidence

as to each element of the offense that the State is required to prove beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 2787

(1979); Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011). In a legal

sufficiency review we consider all of the evidence in the light most favorable to the

verdict, and we decide whether a rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at

319; Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010). The evidence

may be circumstantial or direct, and juries may draw multiple reasonable

inferences from the evidence presented at trial. Hooper v. State, 214 S.W.3d 9, 14

(Tex. Crim. App. 2007). The jury is the sole judge of witness credibility and of the

weight given to any evidence presented. Merritt v. State, 368 S.W.3d 516, 525–26

(Tex. Crim. App. 2012). A jury may believe or disbelieve some or all of a

witness’s testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App.

1981). The testimony of a single eyewitness can be sufficient to support a

conviction. Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971); Davis v.

State, 177 S.W.3d 355, 359 (Tex. App.—Houston [1st Dist.] 2005, no pet.). We

presume that the jury resolved any conflicting inferences in favor of the verdict,

and we defer to that determination. Merritt, 368 S.W.3d at 525–26.




                                         7
      Arrellano argues that the evidence was insufficient to support his conviction

due to inconsistencies in witness testimony as well as inconsistencies between

previous accounts given by eyewitnesses compared to their trial testimony. He

contends that Apolonio’s failure to see the actual shooting and the amount of time

he saw the shooter established reasonable doubt as to the reliability of his

identification.

      Although Arrellano’s brief identifies several inconsistencies in the accounts

of Apolonio, Juan, and Rafael, including whether there was any interaction

between the two groups prior to the shooting, how the shooter was dressed, and the

number of individuals who had a weapon the morning of the shooting, this

circumstance does not render the evidence legally insufficient. See Davis, 177

S.W.3d at 359. We presume that the jury weighed the evidence and resolved any

inconsistencies in favor of the verdict. Merritt, 368 S.W.3d at 525–26.

      Arrellano also contends that the lack of DNA, fingerprint, or video evidence

further establishes the insufficiency of the evidence to support his conviction.

However, the State was not required to present such evidence to meet its burden of

proof. See Harmon v. State, 167 S.W.3d 610, 614 (Tex. App.—Houston [14th

Dist.] 2005, pet. ref’d).

      A person commits the offense of murder if he intentionally or knowingly

causes the death of an individual, or if he intends to cause serious bodily injury and


                                          8
commits an act clearly dangerous to human life that causes the death of an

individual. TEX. PENAL CODE § 19.02(b)(1), (2). The assistant medical examiner

testified that Zarco-Ramirez was killed by a gunshot wound to the head. Three

eyewitnesses identified Arrellano in a photo array, and in court, as the person who

shot Zarco-Ramirez. Apolonio stated that he saw Arrellano with the gun

immediately after he heard a gunshot, and both Juan and Rafael testified that they

saw Arrellano shoot Zarco-Ramirez in the head.

      Viewing the evidence in the light most favorable to the verdict, we conclude

that a rational factfinder could have found, beyond a reasonable doubt, that

Arrellano shot and killed Zarco-Ramirez. We overrule Arrellano’s challenge to the

sufficiency of the evidence.

II.   Voir dire comment about reasonable doubt

      Arrellano argues that the trial court made an improper comment on the

meaning of “reasonable doubt” during voir dire. He complains of the following

comment the trial judge made to the jury panel during voir dire:

      You’re not going to be given a legal definition of beyond a reasonable
      doubt. Beyond and reasonable and doubt are words that have a
      commonly understood meaning in the English language and, so,
      therefore, you’re not given a legal definition. Now, you don’t get to
      just make up your definition. You don’t get to just say, well, this is
      what I think reasonable means. It has to be what is the definition of
      reasonable. It’s beyond a reasonable doubt. That is the standard of
      proof.



                                         9
Arrellano concedes that he did not object to the trial judge’s comment. In light of

the recent opinion in Proenza v. State, 541 S.W.3d 786 (Tex. Crim. App. 2017),

this court requested supplemental briefing on the error-preservation rules

applicable to this issue.

      “As a prerequisite to presenting a complaint for appellate review, the record

must show” that “the complaint was made to the trial court by a timely request,

objection, or motion that stated the grounds for the ruling that the complaining

party sought from the trial court with sufficient specificity to make the trial court

aware of the complaint, unless the specific grounds were apparent from the

context.” TEX. R. APP. P. 33.1(a)(1)(A).

      In Proenza, the appellant asserted that certain remarks of the trial judge

while examining a witness constituted an improper comment on the weight of the

evidence in violation of article 38.05 of the Code of Criminal Procedure. 541

S.W.3d at 790. The appellant did not object to the trial court’s remarks, but he

argued that his complaint nevertheless could be entertained for the first time on

appeal. The Court of Criminal Appeals held that, in determining the preservation

requirements for a particular issue, we consider the nature of the right allegedly

infringed upon, rather than the particular circumstances of the case at hand. Id. at

796 (citing Grado v. State, 445 S.W.3d 736, 739 (Tex. Crim. App. 2014), and Ex

parte Heilman, 456 S.W.3d 159, 165–66 (Tex. Crim. App. 2015)). The Court


                                           10
reiterated the three categories of rights previously set out in Marin v. State, 851

S.W.2d 275 (Tex. Crim. App. 1993), each of which require the application of

different error-preservation rules: (1) absolute requirements and prohibitions,

implementation of which is not optional and cannot be waived or forfeited by

either party (e.g., jurisdictional rules); (2) rights of litigants which must be

implemented by the system unless expressly waived, described as rights which are

“so fundamental to the proper functioning of our adjudicatory process as to enjoy

special protection,” and thus must be expressly waived by the defendant (e.g., right

to assistance of counsel, right to a jury trial); and (3) rights of litigants which are to

be implemented upon request, or are otherwise forfeited. Proenza, 541 S.W.3d at

792; Marin, 851 S.W.2d at 278–79. Procedural default—meaning forfeiture absent

a timely objection—applies only to category-three rights. Proenza, 541 S.W.3d at

792.

       The Court held that the issue of where an article 38.05 error fits within the

Marin framework “turns upon whether the trial judge has an independent duty to

ensure compliance with Article 38.05.” Id. at 797. Pointing to the language of the

statute, which the Court noted is both “couched in mandatory terms” and directed

specifically to the trial judge, it concluded that responsibility of compliance with

the law is placed “squarely upon the judge.” Id. at 798. The Court also noted that,

although it is incumbent upon litigants to urge their rights at trial “because they can


                                           11
trust the trial judge to fairly consider the claims and reach a ruling that is based in

law,” claims of improper judicial comment under article 38.05 may bring into

question the impartiality of the trial judge. Id. at 799. Thus, it held that “claims of

improper judicial comments raised under Article 38.05” do not fall within Marin’s

category-three forfeitable rights, rather “the right to be tried in a proceeding devoid

of improper judicial commentary is at least a category-two, waiver-only right.” Id.

at 801. The Court thus held the appellant was entitled to appellate review of his

claim. Id.

      Arrellano argues that the issue in this case “is not materially different from

the Proenza case because it did undermine the burden of proof for the defense.”

However, the Court in Proenza analyzed a complaint about a judge’s improper

comment on evidence, as prohibited by article 38.05. In contrast, Arrellano’s

complaint is not based on an assertion that the trial judge’s comment was improper

under article 38.05. Instead, he argues that the trial court’s comment incorrectly

instructed the jury panel on the definition of reasonable doubt. His complaint thus

concerns a statement of law, rather than a comment on the weight of evidence.

      In contrast to the Court’s reasoning in Proenza, Arrellano does not assert

that the judge’s comment challenged in this case raises an issue concerning judicial

impartiality, nor does he rely upon any statutory basis to argue that the trial judge




                                          12
had an independent duty to take, or to refrain from, some particular action. See

Proenza, 541 S.W.3d at 797.

        Other than asserting unconvincing similarities to Proenza, Arrellano fails to

put forth an argument that some particular systemic requirement or waivable-only

right was at stake and a trial objection therefore was not required. Because the

error-preservation issue is inadequately briefed, despite our invitation for a

supplemental brief, this issue has been waived. TEX. R. APP. P. 33.1(a)(1)(A),

38.1(i); see also Proenza, 541 S.W.3d at 797 (“A court of appeals should not find

error in a trial judge’s inaction when contemporaneous action is neither requested

nor independently required of her.”); Gallo v. State, 239 S.W.3d 757, 768 (Tex.

Crim. App. 2007) (appellant waived issue for review by failing to adequately brief

why his unpreserved complaint should be heard for the first time on appeal). We

overrule Arrellano’s appellate challenge to the trial judge’s comments during voir

dire.

III.    Proposed jury instruction on eyewitness testimony

        Arrellano contends that the trial court erred by denying his proposed jury

instruction on eyewitness testimony. The proposed instruction would have advised

the jury that, in addition to other instructions in the charge related to the credibility

of witnesses, it was also permitted to consider eight factors in evaluating

eyewitness testimony:


                                           13
         1. The capacity and opportunity of the eyewitness to observe the
            offender based upon the length of time for observation and the
            conditions at the time of observation, including lighting and
            distance

         2. Whether the identification was the product of the eyewitness’s
            own recollection or was the result of influence or
            suggestiveness

         3. The circumstances under which the defendant was presented to
            the eyewitness for identification

         4. Any inconsistent identifications made by the eyewitness

         5. Any instance in which the eyewitness did not make an
            identification when given the opportunity to do so

         6. The witness’s familiarity with the subject identified

         7. Lapses of time between the event and the identification[s]

         ....

         9. The totality of circumstances surrounding the eyewitness’s
            identification.

Arrellano argued that the charge should have included his proposed instruction

because “it merely emphasizes the weight of the credibility given,” and “instructs

the jury areas that they may or may not consider.”

      The jury has the responsibility to judge the credibility of witnesses and the

weight to be given to any other evidence. Merritt, 368 S.W.3d at 525. A jury

charge should not express any opinion concerning the weight of evidence, TEX.

CODE. CRIM. PROC. art. 36.14, nor should it single out a specific type of evidence




                                        14
and invite the jury to pay particular attention to it. See Brown v. State, 122 S.W.3d

794, 800-01 (Tex. Crim. App. 2003).

      The jury charge in this case included the following instruction: “You are the

exclusive judges of the facts proved, of the credibility of the witnesses and the

weight to be given their testimony, but the law you shall receive in these written

instructions, and you must be governed thereby.” Arrellano’s proposed instruction

focused on eyewitness identification and listed eight factors which the jury could

consider, in addition to the instruction already provided by the court, in evaluating

eyewitness identification testimony.

      Arrellano concedes that his proposed instruction would be an impermissible

comment on the weight of evidence under existing case law. See, e.g., Moore v.

State, 700 S.W.2d 193, 206 (Tex. Crim. App. 1985). He nevertheless argues that

his proposed instruction is necessary. He quotes several sources not included in the

appellate record to suggest the unreliability of eyewitness testimony, including a

quote attributed to astrophysicist Neil Degrasse Tyson: “Eyewitness testimony is

the highest form of evidence in the law, which is sad, because it is the lowest form

of evidence in science.” Arrellano relies upon decisions from foreign jurisdictions




                                         15
for the proposition that other states have concluded instructions on the reliability of

witness identification “are necessary.”

      Notwithstanding Arrellano’s assertion that he was harmed by the trial

court’s refusal to include his proposed instruction suggesting the unreliability of

eyewitness testimony, controlling Texas case law deems the instruction

impermissible. See Moore, 700 S.W.2d at 206. In a recent unpublished opinion, the

Court of Criminal Appeals again applied its precedents to hold that it is

impermissible for a charge to instruct jurors to consider particular factors in its

evaluation of eyewitness testimony is impermissible. Suniga v. State, No. AP-

77,041, 2017 WL 431904, at *38–40 (Tex. Crim. App. Feb. 1, 2017) (not

designated for publication).


      Arrellano relies on the following opinions from foreign jurisdictions: Brooks
      v. Alabama, 380 So. 2d 1012, 1014 (Ala. Crim. App. 1980); California v.
      Wright, 45 Cal. 3d 1126, 1149 (1988); State v. Cabagbag, 277 P.3d 1027,
      1038–39 (Hawai’i 2012); Kansas v. Warren, 635 P.2d 1236, 1244 (Kan.
      1981); Massachusetts v. Rodriguez, 391 N.E.2d 889, 892–93 (Mass. 1979);
      Minnesota v. Ferguson, 804 N.W.2d 586, 609–10 (Minn. 2011); New Jersey
      v. Henderson, 27 A.3d 872, 923–24 (N.J. 2011); People v. Radcliffe, 196
      Misc. 2d 381, 387–89 (N.Y. Sup. Ct. 2003); State v. Long, 721 P.2d 483,
      487 (Utah 1986)). Among this litany of decisions from other states,
      Arrellano also relies on Perry v. New Hampshire, 565 U.S. 228, 232–33, 132
      S. Ct. 716, 720–21 (2010), as purported authority that “[j]ury instructions on
      infallibility of eyewitness testimony are crucial to protect defendants.” The
      referenced part of Justice Ginsburg’s opinion is concerned with allegations
      of improper police influence on witness identifications arising from
      improperly suggestive circumstances arranged by law enforcement
      officers—a circumstance not argued in this appeal. 565 U.S. at 232–33, 132
      S. Ct. at 720–21. Perry also confirms that “admission of evidence in state
      trials is ordinarily governed by state law.” Id. at 231, 132 S. Ct. at 720.
                                           16
      Because Arrellano’s proposed instruction impermissibly singled out a

particular type of evidence and commented on how the evidence should be

weighed, the trial court correctly refused to submit it. We overrule Arrellano’s

objection to the trial court’s refusal to give the requested jury instruction.

IV.   Motion for new trial

      Arrellano claims that the trial court erred by failing to conduct a hearing on

his motion for new trial because the motion and affidavit included evidence from a

new witness who could have been “instrumental” in the trial. The State argues that

Arrellano failed to timely present the motion to the trial court, and therefore he was

not entitled to a hearing on the motion.

      A defendant has a right to a hearing on a motion for new trial when the

motion raises matters not determinable from the record, upon which he could be

entitled to relief. Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005).

However, that right is not absolute. Id.; Bearnth v. State, 361 S.W.3d 135, 145

(Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). In addition to timely filing the

motion for new trial, the defendant also must present the motion to the trial court

within ten days of filing. Bearnth, 361 S.W.3d at 145; TEX. R. APP. P. 21.6. The

trial court is not required to hold a hearing on the motion if it has not been timely

presented. Bearnth, 361 S.W.3d at 145. A failure to present the motion for new




                                           17
trial to the trial court constitutes a failure to preserve for appellate review any error

in the trial court’s failure to hold a hearing. Rozell, 176 S.W.3d at 230–31.

      Presentment requires the defendant to go beyond simply filing the motion

for new trial with the trial court clerk. Bearnth, 361 S.W.3d at 145. The

presentment must result in actual notice to the trial court of defendant’s desire for a

ruling or a hearing on the motion. Id. Proof of presentment must be apparent from

the record. See id. at 146. Presentment may be evidenced by the judge’s signature

or notation on the proposed order, an entry on the docket sheet indicating

presentment or setting a hearing date, or other proof that the trial court was actually

aware of defendant’s request for a ruling or hearing on the motion. Id.; Carranza v.

State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998).

      Arrellano timely filed his motion for new trial. The motion included a

request for a hearing on the motion. Eight days after filing the motion, Arrellano

also filed a separate request for a hearing on the motion for new trial. These filings

were recorded by docket-sheet entries stating “MOTION FILED: DEF NEW TR”

and “MOTION FILED: DEF REQ HRG NEW TRL,” respectively. Arrellano sent

a certified letter enclosing the motion and the separate request for a hearing to the

court clerk and to the presiding judge of 339th District Court. The docket sheet

does not indicate that a hearing date was ever set or that there was any ruling on

the motion. Arrellano’s proposed order on the motion for new trial did not set a


                                           18
date for hearing, and it does not bear any judge’s signature or any other written

notation from either the presiding judge of 339th District Court or the visiting

judge who presided over the trial.

      This record does not demonstrate that the trial court had actual notice of

Arrellano’s desire for a hearing on the motion. See Burrus v. State, 266 S.W.3d

107, 115 (Tex. App.—Fort Worth 2008, no pet.) (holding that statement in motion

for new trial titled “Certificate of Presentment” and docket entry noting the date

the motion was filed were insufficient to establish presentment); see also Longoria

v. State, 154 S.W.3d 747, 762 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d)

(holding that document in record titled “Notice of Presentment of Motion for New

Trial” was insufficient to show presentment). Accordingly, the record does not

demonstrate that Arrellano’s motion for new trial was timely presented, and any

error in the trial court’s failure to hold a hearing on the motion has not been

preserved for appeal.

                                     Conclusion

      We affirm the judgment of the trial court.



                                              Michael Massengale
                                              Justice

Panel consists of Chief Justice Radack and Justices Massengale and Brown.

Publish. TEX. R. APP. P. 47.2(b).

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