
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-07-00205-CR
NO. 03-07-00206-CR


Jose Herrera Lopez, Appellant

v.

The State of Texas, Appellee




FROM THE DISTRICT COURT OF RUNNELS COUNTY, 119TH JUDICIAL DISTRICT
NOS. 5525 & 5657, HONORABLE BEN WOODWARD, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N

 On January 26, 2006, appellant Jose Herrera Lopez pleaded guilty to assaulting his
mother, Hilaria Casares, a third-degree felony, and was sentenced to four years' imprisonment
probated for four years (No. 03-07-00205-CR).  See Tex. Penal Code Ann. § 22.01(b)(2)
(West Supp. 2008).  Shortly thereafter, on May 9, 2006, appellant was arrested again after an
altercation with his mother and his step-father, Antonio Casares.  The indictment alleged that
appellant committed two counts of assault causing bodily injury to a family member.  The indictment
alleged injuries to Mr. Casares's back and Mrs. Casares's face; it did not allege the use of any type
of weapon.  The State moved to revoke appellant's probation, alleging he violated the terms of his
probation by (1) committing family violence against Mrs. Casares and (2) having contact with
Mr. and Mrs. Casares. 
	The jury convicted appellant on both counts in the second cause.  Appellant was
sentenced to sixty years' imprisonment as a habitual felony offender because of at least two prior
felony convictions (No. 03-07-00206-CR).  See id. § 12.42(d) (West Supp. 2008) (enhancement of
punishment upon third felony conviction).  The trial court then granted the State's motion to revoke
appellant's probation.
	Appellant appeals the judgment of conviction in the second cause and the revocation
of his probation in the first cause.  He argues that (1) the evidence was factually insufficient to
support the conviction, (2) the trial court abused its discretion in admitting certain evidence, (3) the
court wrongfully excluded certain evidence during the guilt/innocence phase, and (4) the evidence
was insufficient to support the revocation of his probation.  We affirm.    

Sufficiency of the evidence and revocation of probation
	Appellant argues that the evidence was factually insufficient to support either the
conviction or the revocation of his probation, pointing to discrepancies in Mr. and Mrs. Casares's
testimony and their criminal histories.  
	Mr. Casares testified that on May 9, 2006, appellant called and asked his mother and
stepfather to pick him up and bring him to their house so he could eat and do his laundry. 
Mr. Casares said he picked appellant up and brought him back to the Casareses' home, where he
began to argue with the Casareses.  Mr. Casares testified that his wife was present when the
argument began and that appellant "started pushing, shoving and trying to beat on" Mrs. Casares. 
Mr. Casares testified that when appellant slapped Mrs. Casares on the side of the face, Mr. Casares
intervened and tried to push appellant out of the way.  Appellant knocked Mr. Casares over, then
turned him upside down and shook him, hitting his head on the floor and popping his neck.  When
Mr. Casares tried to crawl away, appellant broke a chair over Mr. Casares's back.  Mr. Casares
testified that appellant also threatened to kill the Casareses and burn their house down.  The State
introduced photographs taken by the police after the assault showing cuts and bruises on
Mr. Casares's back, arm, neck, and face showing the broken chair with which the Casareses testified
appellant struck Mr. Casares. 
	Mrs. Casares thought she had picked up appellant but she was not sure.  She said that
when appellant got to the house with his laundry, he shoved her and said, "Do my laundry.  I was
going to do it but now you're going to do it."  Mrs. Casares said, "Okay," and went into the kitchen
to start the laundry.  While she was in the kitchen, appellant started arguing with Mr. Casares;
Mrs. Casares did not know who started it.  She testified that she came into the living room and tried
to get between them, at which point appellant hit her on the side of her face and twice on her back. 
After appellant hit her, Mr. Casares told appellant to stop, at which time appellant began fighting
with Mr. Casares.  Mrs. Casares testified that during the fight, appellant broke a chair over her
husband's back.  She did not remember appellant making any threats during the altercation.
	Mr. and Mrs. Casares both testified that each had been imprisoned for driving while
intoxicated (DWI) in the past.  However, they also testified that both have been sober for four to
five years and that neither of them had consumed any alcohol on the day of the assault.  
	Appellant argues that the evidence was insufficient because (1) Mr. Casares testified
that he picked up appellant while Mrs. Casares testified that it was she who picked him up, and
(2) Mr. Casares testified that appellant threatened to kill them and burn down their house, but
Mrs. Casares said she did not remember any such threats.  Appellant also argues that the Casareses'
testimony was unreliable because of their DWI histories.  Essentially, he attacks the jury's
determination of the weight and credibility to be given to Mr. and Mrs. Casares' testimony. 
	The court of criminal appeals has stated that

the court of appeals must be cognizant of the fact that a jury has already passed on
the facts and must give due deference to the determinations of the jury.  While the
court of appeals may disagree with the factfinder, it should afford the appropriate
deference in order to avoid substituting its judgment for that of the jury. . . . A verdict
should be set aside only if the evidence supporting the verdict is so weak as to render
the verdict clearly wrong or manifestly unjust.

Lancon v. State, 253 S.W.3d 699, 704-05 (Tex. Crim. App. 2008) (citations omitted).  We give
"almost complete deference" to a jury's decision "regarding what weight to give contradictory
testimonial evidence because the decision is most likely based on an evaluation of credibility and
demeanor, which the jury is in the better position to judge."  Id. at 705-06.  "Because the jury is the
sole judge of a witness's credibility, and the weight to be given the testimony, it may choose to
believe some testimony and disbelieve other testimony," and we will not hold that a jury's decision
is manifestly unjust merely because we might have resolved conflicting evidence in a different way.
Id. at 707.  Therefore, we will not second-guess the jury's determination of the weight or credibility
to be assigned to Mr. and Mrs. Casares' testimony.  Neither the minor discrepancies in the
Casareses' testimony nor their past DWI convictions require a finding that their testimony was
unreliable.  Viewing all the evidence neutrally and giving proper deference to the jury, see id. at 704-05, we conclude that the evidence is factually sufficient to support the verdict.  We overrule
appellant's first point of error related to his conviction.
	In his appeal from the revocation of his probation, appellant contends that the
evidence provided insufficient grounds for the trial court to revoke his probation, basing his
complaint entirely on his factual sufficiency argument addressed above.  However, we  review a trial
court's decision to revoke probation for an abuse of discretion, and the State need only prove its
allegations by a preponderance of the evidence.  Rickels v. State, 202 S.W.3d 759, 763-64
(Tex. Crim. App. 2006).  There was sufficient evidence on which the trial court could decide to
revoke appellant's probation, and the court did not abuse its discretion in doing so.  We overrule
appellant's point of error in his appeal from the revocation of his probation.

Evidentiary complaints
	Appellant next contends that the trial court abused its discretion in overruling
objections to evidence of extraneous offenses and hearsay statements.  We disagree.
	We review a trial court's ruling on the admissibility of evidence for an abuse of
discretion.  McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008) (hearsay evidence);
Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005) (extraneous-offense evidence).  If "the
trial court's ruling was at least within the zone of reasonable disagreement, the appellate court will
not intercede."  Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g).
	The State introduced as exhibits 1 through 7 seven photographs taken by the police. 
Exhibit 1 showed Mr. Casares's injured back; exhibits 2 through 5 showed injuries to Mr. Casares's
upper arm, neck, wrist, and forehead; and exhibits 6 and 7 showed a broken chair.  Appellant
objected to exhibits 2 through 7 on relevance grounds because the indictment only alleged injuries
to Mr. Casares's back and did not allege use of a chair as a weapon.  Appellant also objected to
Mrs. Casares's testimony that appellant hit her on her back because the indictment alleged only that
she suffered injuries to her face.  The trial court gave the jury an instruction that it was not to
consider exhibits 2 through 7 or Mrs. Casares's testimony concerning her back injuries unless it
believed beyond a reasonable doubt that appellant caused the portrayed  injuries.  Appellant contends
on appeal that Mrs. Casares' testimony about her back injuries and exhibits 2 through 7 were
irrelevant extraneous-offense evidence and should have been excluded.
	First, we note that appellant did not object to Mr. Casares's testimony that appellant
injured his neck and arm and broke a chair over his back.  Thus, any complaints related to exhibits
2 through 7 are waived.  See Stoker v. State, 788 S.W.2d 1, 12 (Tex. Crim. App. 1989) ("It is well
established that when a defendant offers the same testimony as that objected to, or the same evidence
is introduced from another source, without objection, the defendant is not in position to complain
on appeal.").  Even if appellant had not waived this complaint, a photograph is generally admissible
"if verbal testimony as to matters depicted in the photographs is also admissible."  Gallo v. State,
239 S.W.3d 757, 762 (Tex. Crim. App. 2007).  
	Further, relevant evidence of extraneous offenses may be admitted if it falls within
an exception to the bar on such evidence.  See Rogers v. State, 853 S.W.2d 29, 32 (Tex. Crim. App.
1993).  Extraneous-offense evidence is not admissible to prove that the defendant acted "in
conformity therewith," but may be admitted for purposes "such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident."  Tex. R. Evid.
404(b).  "Same transaction contextual evidence," in which "several crimes are intermixed, or
blended with one another, or connected so that they form an indivisible criminal transaction," is
admissible if "necessary to the jury's understanding of the instant offense."  Rogers, 853 S.W.2d at
33 (quoting Mayes v. State, 816 S.W.2d 79, 86-87 n.4 (Tex. Crim. App. 1991)). 
	Evidence is relevant if it tends to make the existence of a material fact more or less
probable than it would be without the evidence.  Tex. R. Evid. 401.  The challenged evidence was
relevant because it supported the Casareses' testimony and tended to make it more probable that
appellant committed the assaults as charged in the indictment and alleged by the Casareses.  See id. 
Thus, the only question is whether the evidence was proper under rule 404(b).
	"[T]he 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 v. State, 721 S.W.2d 295, 301
(Tex. Crim. App. 1986).  We cannot say that the trial court abused its discretion by concluding that
the jury needed the challenged evidence to fully understand the context of the altercation.  It was also
within the court's discretion to conclude that Mrs. Casares's back injuries, Mr. Casares's arm, neck,
and head injuries, and the means by which they were inflicted were so connected to the injuries
alleged in the indictment as to form an indivisible criminal transaction.  The trial court did not abuse
its discretion in admitting the evidence.
 Appellant also complains that the court erred in overruling his hearsay objection to
Mrs. Casares's testimony about a statement she made to the police shortly after the assault. 
Mrs. Casares testified that she told the police that appellant hit her with his hand on her face and
head and that her husband told appellant to stop.  Mrs. Casares was then asked whether she told the
police, "And he still hit me and he turned and he hit my husband and knocked him down."  Before
she answered, appellant objected "to hearsay within this statement."  The trial court overruled the
objection, and Mrs. Casares said that she had made that statement.  
	The alleged hearsay of which appellant apparently complains is Mrs. Casares's
testimony that her husband told appellant to stop hitting her.  However, she and Mr. Casares had
already testified to this fact.  Thus, any error related to the admission of that statement was waived. 
See Stoker, 788 S.W.2d at 12.  Further, even if the issue had been preserved, we have a fair assurance
that any error did not influence or had at most a slight effect on the jury.  See Tex. R. App. P. 44.2(b)
(courts must disregard any error that does not affect substantial rights); Bagheri v. State, 119 S.W.3d
755, 763 (Tex. Crim. App. 2003) (review entire record, consider evidence supporting verdict, alleged
error, extent error was emphasized by State, and how erroneous evidence might have been
considered in connection with other evidence); Grant v. State, 247 S.W.3d 360, 369
(Tex. App.--Austin 2008, pet. ref'd).  
	We overrule appellant's second point of error raised in the second cause.

Exclusion of evidence
	In appellant's third point of error related to the judgment of conviction, he contends
that the trial court erroneously excluded testimony by two probation officers.
	During the guilt/innocence phase of trial, appellant sought to introduce testimony by
two probation officers to show that he was in a bad situation with his mother and stepfather and that
he wanted to move to another city.  The court did not allow the testimony during guilt/innocence but
did admit it during the punishment phase as possible mitigation evidence.
	Appellant argues that the trial court should have allowed the testimony during
guilt/innocence because it was relevant to his guilt.  However, neither officer could testify about the
events of May 9, 2006, and, therefore, their testimony was not relevant to appellant's guilt or
innocence of the alleged assaults.  The fact that appellant's relationship with his parents was difficult
or even violent was not relevant to whether he assaulted them.  Appellant also contends that the
excluded testimony should have been admitted because it went to his state of mind.  Again, however,
the probation officers could not testify as to appellant's state of mind on May 9, and, thus, the
evidence was irrelevant to the charged offenses. (1)  We overrule appellant's third point of error.

Conclusion
	We have overruled appellant's three points of error in the second cause, related to his
conviction for two counts of assault on a family member, and his sole point of error in the first cause,
related to the revocation of his probation.  We affirm the judgment of conviction and the revocation
of appellant's probation.

  
					David Puryear, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed:   March 12, 2009
Do Not Publish
1.   Appellant's counsel has provided no explanation of how the proffered evidence was
relevant to whether he committed the assaults or how his "state of mind at the time" of the incident
was relevant during the guilt/innocence phase.  See Tex. R. App. P. 38.1(h) (brief must present "clear
and concise argument for the contentions made").
