                                 NO. 07-11-00121-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL A

                                SEPTEMBER 28, 2011


                    AARON GUADALUPE GONZALEZ, APPELLANT

                                           v.

                          THE STATE OF TEXAS, APPELLEE


               FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;

                 NO. 21,153-B; HONORABLE JOHN B. BOARD, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.

                              MEMORANDUM OPINION


      Appellant, Aaron Guadalupe Gonzalez, appeals his conviction for the offense of

aggravated assault with a deadly weapon, and sentence of 20 years’ incarceration in

the Institutional Division of the Texas Department of Criminal Justice and $10,000 fine.

We affirm.


                                     Background


      On December 5, 2009, appellant and his 25-week pregnant girlfriend, Lorena

Soto, attended a Christmas party hosted by Soto’s employer at Acapulco’s Restaurant

in Amarillo.    During the party, appellant started drinking and became increasingly
aggressive. Appellant told Soto that he wanted to leave the party, but Soto did not want

to leave. Appellant threatened to pull Soto by the hair if they did not leave the party.

Soto convinced appellant to wait until after the gift exchange before they would leave.


      However, after the gift exchange, appellant, Soto, and many of Soto’s co-workers

went to the upstairs area of the restaurant. Once upstairs, appellant again became very

agitated and aggressive. Appellant began accusing Soto of sleeping with one of her co-

workers.   Appellant again indicated that he wanted to leave the party.         Appellant

threatened to “kick [Soto’s] ass” regardless of who was there to witness the threatened

assault. Soto and a couple of her co-workers succeeded in calming appellant down for

a few minutes until a man that Soto did not recognize came upstairs.            Appellant

indicated that he was going to fight this man. Appellant started calling the man names,

but the man ignored appellant and went back downstairs. Soto decided that it would be

best for her and appellant to go home, so they went downstairs to leave the restaurant.

However, on their way out of the restaurant, appellant saw the man that he had

previously threatened. Appellant walked up to the man and struck the man’s nose with

appellant’s head. Soto and appellant immediately left the restaurant and ran to their

vehicle before the man and his companions could confront appellant.


      When Soto and appellant arrived at their apartment, appellant apologized to Soto

for his behavior at the party. However, appellant’s mood abruptly changed, and he

again began accusing Soto of cheating on him. Appellant then dragged Soto to the

bathroom by her hair. Once in the bathroom, appellant threw a photo album and a

drawer at Soto. Appellant removed a photo from the photo album, showed it to Soto,

                                            2
told her to eat the photo, and then attempted to force it into her mouth. In the process

of attempting to force Soto to eat the photograph, appellant busted Soto’s lips and

lacerated her gums with his fingernails.      Appellant then repeatedly slammed Soto’s

head against the bathroom wall while choking her. Appellant also repeatedly lifted Soto

off of the floor by her hair. Eventually, appellant hit Soto with his fist in the side of her

stomach with such force that Soto urinated. During this assault, Soto was afraid that

appellant was going to kill her.


       When appellant left the bathroom to go to the kitchen, Soto attempted to escape

by running to the front door of the apartment. Appellant came out of the kitchen holding

a kitchen knife beside his head. Soto was able to open the door, but appellant kicked

the door closed on Soto’s hand. Soto, fearing that appellant was going to stab her with

the knife, was able to twist appellant’s arm in a way that caused him to drop the knife.

After dropping the knife, appellant ran back to the kitchen and grabbed another knife.

He returned to Soto, but this time he held the knife to his own throat, and threatened to

stab himself. Soto begged appellant not to stab himself. Soto was afraid that appellant

would kill her or himself.


       Eventually, appellant calmed down. Soto went to the kitchen sink and threw up.

She asked appellant to take her to the hospital because she was in pain. After initially

refusing to take Soto to the hospital, appellant eventually relented. At the hospital, Soto

was taken to the labor and delivery area. Soto told a nurse about the assault, and

appellant was ordered off the hospital’s premises. Soto’s recollection of the injuries she




                                             3
sustained as a result of the assault included busted lips, swollen and lacerated gums,

bruising, and bald spots from where appellant had ripped out her hair.


       Officer Caleb Finsterwald of the Amarillo Police Department was dispatched to

the hospital to interview Soto regarding the assault. Finsterwald observed that Soto had

an abrasion on her forehead, bleeding lips, and lacerated gums. He also noted that

Soto had several bruises, and that her left hand was swollen and appeared to have

started to bruise. Finally, he observed that Soto was missing about a quarter-sized

chunk of her hair. Soto gave Finsterwald permission to search her apartment, and

provided him a key to the apartment. When Finsterwald entered Soto’s apartment, he

found appellant asleep on the couch. Appellant was detained for officer safety, and

Finsterwald searched the apartment. Finsterwald found two knives lying on an ironing

board in the living room, a crumpled photo in the bathroom, an indentation in the

sheetrock of the bathroom wall, and blood droplets on the rim and seat of the toilet.

Each of these discoveries was consistent with Soto’s account of the assault. After

Finsterwald completed his search of the apartment, he placed appellant under arrest.


       Appellant was indicted for the offense of aggravated assault. The indictment also

specifically alleged that appellant used or exhibited a deadly weapon, a knife, during the

commission of the offense. Just before trial commenced, the State sought clarification

regarding whether appellant’s head-butt of the man at Acapulco’s Restaurant was

subject to the trial court’s limine ruling about extraneous offense evidence. After a brief

discussion of the matter, during which appellant objected that, “I don’t think the fight at

Acapulco[’s] has anything to do with the assault on Lorena [Soto],” the trial court ruled

                                            4
that evidence of this altercation was not subject to its limine ruling. However, the trial

court did state that, “I’ll note your objection and allow you a running objection to that.”

At the close of trial, the jury found appellant guilty of the offense.      After hearing

punishment evidence, the jury returned a sentence of 20 years incarceration and a

$10,000 fine.


         By two issues, appellant appeals. By his first issue, appellant contends that the

trial court erred in overruling appellant’s motion in limine concerning the extraneous

offense of appellant’s fight with the man at Acapulco’s Restaurant. By his second issue,

appellant contends that the evidence was insufficient to support the affirmative finding

that appellant used or exhibited a deadly weapon in committing the offense.


                               Extraneous Offense Evidence


         By his first issue, appellant contends that the trial court erred in overruling

appellant’s motion in limine regarding evidence of appellant’s fight with the man at

Acapulco’s. The State responds that appellant waived this issue by failing to preserve

any error in the admission of this evidence, and because he is estopped from

complaining of this evidence since he admitted his guilt to the charged offense during

the punishment phase of the trial.


         To preserve an issue for appellate review, the appellant must generally have

asserted an objection at the time that the challenged evidence was offered that was

sufficiently specific to make the trial court aware of the grounds for the complaint. See

TEX. R. APP. P. 33.1(a)(1)(A); Layton v. State, 280 S.W.3d 235, 238-39 (Tex.Crim.App.

2009).      However, there are two exceptions to the contemporaneous objection
                                             5
requirement. The first exception is that a party may obtain a “running objection” to the

evidence. See Ford v. State, 919 S.W.2d 107, 113-14 (Tex.Crim.App. 1996). The

second exception is when the trial court hears the objection outside the presence of the

jury. See TEX. R. EVID. 103(a)(1). However, a trial court’s ruling on a motion in limine

does not preserve the erroneous admission of evidence.1 See Roberts v. State, 220

S.W.3d 521, 533 (Tex.Crim.App. 2007); Martinez v. State, 98 S.W.3d 189, 193

(Tex.Crim.App. 2003).


         In the present case, just prior to the start of trial, the State sought clarification

regarding whether the head-butting evidence was subject to the trial court’s prior motion

in limine ruling. In response to this inquiry, appellant told the trial court that, “I don’t

think the fight at Acapulco[’s] has anything to do with the assault on Lorena [Soto], and I

think that that would be an extraneous offense that should not be admitted.” The trial

court informed the parties that the head-butting incident was not covered by the motion

in limine, but added that, “I’ll note your objection and allow you a running objection to

that.”


         We disagree with the State’s characterization of the trial court’s ruling on the

head-butting evidence as a ruling on a motion in limine. In response to the State’s

inquiry, the trial court clarified that the head-butting evidence fell outside the scope of its

prior limine ruling. Appellant objected to admission of evidence of the head-butting

incident on the basis of relevance. The trial court noted appellant’s relevance objection,

         1
         See Perez v. State, No. 03-08-00773-CR, 2009 Tex.App. LEXIS 6521, at *20-
*21 (Tex.App.—Austin Aug. 21, 2009, no pet.) (mem. op., not designated for
publication) (explaining the legal reasons why a motion in limine does not preserve
error).
                                               6
and granted him a running objection to this evidence.        As such, we conclude that

appellant has preserved his relevance objection for appellate review. See Ford, 919

S.W.2d at 113-14.


       Relevant evidence is “evidence having any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” TEX. R. EVID. 401. Questions of

relevance should generally be left to the discretion of the trial court, relying on its own

observations and experience, and will not be reversed absent an abuse of discretion.

Moreno v. State, 858 S.W.2d 453, 463 (Tex.Crim.App. 1993).              However, even if

evidence was erroneously admitted, such error is not reversible absent proof that the

error affected the defendant’s substantial rights. See TEX. R. APP. P. 44.2(b); King v.

State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). A substantial right is implicated

when the error had a substantial and injurious effect on the jury's verdict. Haley v.

State, 173 S.W.3d 510, 518 (Tex.Crim.App. 2005). In order to ascertain the effect the

error may have had on the jury's verdict, we are directed to consider everything in the

record, including all of the evidence received by the jury, to determine how the alleged

error might be considered in connection with other evidence supporting the verdict. See

id.


       For purposes of this opinion, we will assume, without deciding, that the evidence

of appellant’s head-butting of the man at Acapulco’s was erroneously admitted.2 Even


       2
         We make this assumption of error with full understanding that “it has long been
the rule in this State that the jury is entitled to know all the relevant surrounding facts
and circumstances of the charged offense; an offense is not tried in a vacuum.” Moreno
                                            7
assuming error, the Court is still left with the issue of harm. The record reflects that the

jury heard Soto’s extensive testimony regarding appellant’s assault of her. The jury also

heard the testimony of Finsterwald and the labor and delivery nurse at the hospital

confirming the nature of the injuries suffered by Soto.       Additionally, the jury heard

Finsterwald’s testimony concerning his search of the apartment that corroborated Soto’s

testimony regarding the assault. The State briefly mentioned the head-butting incident

during its opening and closing arguments.         Also, Soto briefly testified about the

altercation with the man at Acapulco’s.       Based upon the totality of the record, we

conclude that the admission of evidence of the head-butting incident had no impact

upon the substantial rights of appellant. See id. Therefore, the error, if there was one,

is harmless.


       We overrule appellant's first issue.


                    Evidentiary Sufficiency of Deadly Weapon Finding


       By his second issue, appellant contends that the evidence was insufficient to

show that appellant’s use or exhibition of the knives threatened Soto with imminent

bodily injury.   The State responds that the evidence would allow a rational jury to

conclude that appellant used or exhibited a deadly weapon during the commission of

the offense of aggravated assault.




v. State, 721 S.W.2d 295, 301 (Tex.Crim.App. 1986). However, such “same transaction
contextual evidence” is admissible “only when it is ‘necessary’ to the jury’s
understanding of the offense on trial.” England v. State, 887 S.W.2d 902, 915
(Tex.Crim.App. 1994).
                                              8
       In assessing the 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). “[O]nly that evidence which is sufficient in

character, weight, and amount to justify a factfinder in concluding that every element of

the offense has been proven beyond a reasonable doubt is adequate to support a

conviction.” Brooks v. State, 323 S.W.3d 893, 917 (Tex.Crim.App. 2010) (Cochran, J.,

concurring). We remain mindful that “[t]here is no higher burden of proof in any trial,

criminal or civil, and there is no higher standard of appellate review than the standard

mandated by Jackson.” Id. When reviewing all of the evidence under the Jackson

standard of review, the ultimate question is whether the jury’s finding was a rational

finding. See id. at 906, 907 n.26 (discussing Judge Cochran’s dissent in Watson v.

State, 204 S.W.3d 404, 448–50 (Tex.Crim.App. 2006), as outlining the proper

application of a single evidentiary standard of review). “[T]he reviewing court is required

to defer to the jury’s credibility and weight determinations because the jury is the sole

judge of the witnesses’ credibility and the weight to be given their testimony.” Id. at 899.


       Appellant admits that the record is “full of ‘assaults’” but contends that the

evidence is insufficient to establish that appellant used the knives in such a manner that

the presence of the knives would place Soto in reasonable apprehension of imminent

bodily injury. It appears that appellant’s argument is that Soto was in fear for her life

before appellant acquired the knives and, therefore, his acquisition of the knives did not

pose “any further threat.”    However, for the State to prove appellant was guilty of
                                             9
aggravated assault with a deadly weapon, it needed only prove that appellant

intentionally or knowingly threatened Soto with imminent bodily injury while using or

exhibiting a deadly weapon. See TEX. PENAL CODE ANN. §§ 22.01(a)(2), 22.02(a)(2)

(West 2011). In other words, appellant’s threat to Soto’s life was sufficient.


         We conclude that appellant’s assault on Soto was sufficient evidence to establish

that appellant intentionally threatened Soto with imminent bodily injury.        When this

threat is then combined with appellant’s display of a knife in a manner in which the

blade was pointing toward Soto, we conclude that the evidence is sufficient to allow for

a rational conclusion that appellant’s use of the knives threatened Soto with deadly

force, even if appellant had no intention of actually using deadly force. See McCain v.

State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000). Further, Soto testified that she felt

that she had to disarm appellant because, “I thought he was going to stab me with the

knife.” Thus, the evidence established that appellant’s actions threatened Soto with

imminent bodily injury, and that Soto perceived this threat both before and after

appellant acquired a knife. See Olivas v. State, 203 S.W.3d 341, 350 (Tex.Crim.App.

2006).


         When we view the evidence in the light most favorable to the jury’s verdict, as we

must when analyzing the sufficiency of the evidence, we are left with the conclusion that

the jury’s verdict was rational. Jackson, 443 U.S. at 319; Ross, 133 S.W.3d at 620. As

such, the evidence was sufficient to support the jury’s verdict beyond a reasonable

doubt. Brooks, 323 S.W.3d at 917. Accordingly, appellant’s second issue is overruled.




                                             10
                                        Conclusion


         Having overruled both of appellant’s issues, we affirm the judgment of the trial

court.



                                                       Mackey K. Hancock
                                                            Justice



Do not publish.




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