Brandon R. Mondine v. The State of Texas--Appeal from 137th District Court of Lubbock County

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State: Texas

Court: Texas Northern District Court

Docket No: 07-04-00316-CR

Case Date: 10/29/2004

Plaintiff: Jose Manuel Mora

Defendant: State of Texas--Appeal from 238th District Court of Midland County

Preview:Opinion filed August 31, 2011

In The

Eleventh Court of Appeals
__________

No. 11-10-00076-CR __________ JOSE MANUEL MORA, Appellant V. STATE OF TEXAS, Appellee
On Appeal from the 238th District Court Midland County, Texas Trial Court Cause No. CR36309

MEMORANDUM OPINION Jose Manuel Mora appeals his conviction by a jury of the offense of assault-family violence. The trial court, finding an enhancement paragraph to be true, assessed Mora's

punishment at six years in the Texas Department of Criminal Justice, Institutional Division. Mora contends in six points of error that (1) the evidence is legally and factually insufficient to support his conviction, (2) the jury's province was invaded and the trial judge improperly commented during his ruling, (3) the State improperly engaged in bolstering, (4) State's counsel improperly struck at him over the shoulders of his attorney, (5) his due process rights were violated, and (6) the State's closing remarks were improper. We affirm.

Mora contends in Point One that the evidence is legally and factually insufficient to support his conviction. We note at the outset of our analysis that the Texas Court of Criminal Appeals has now held in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010), that there is no meaningful distinction between the Jackson v. Virginia1 legal-sufficiency standard and the Clewis2 factual-sufficiency standard; that the Jackson v. Virginia standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt; and that [a]ll other cases to the contrary, including Clewis, are overruled. Brooks, 323 S.W.3d at 895, 902, 912 (footnotes added). Accordingly, a challenge to the factual sufficiency of the evidence is no longer viable. We also note that Mora did not have the benefit of the opinion in Brooks when this case was briefed. We will review Mora's factual sufficiency challenge under the legal sufficiency standard set forth in Jackson v. Virginia. Under this standard, we must review all of 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. Jackson v. Virginia, 443 U.S. 307; Brooks, 323 S.W.3d at 899. The complaining witness, Maria Christina Lozoya Galindo, or Christina Lozoya for short, testified that, in July 2009, she and Mora were drinking at a bar in Midland when she went outside to her vehicle to get some money. She related that Mora hit her with the back of his hand. She acknowledged that Mora told her that she hit him, but she said she did not remember doing so. She indicated that, after he hit her, she was on the ground with her shoulder hurting. She related that Mora put her in a vehicle but that they drove around for 30 to 40 minutes before going to the hospital emergency room, even though she kept telling him to take her. She said that Mora stayed at the hospital only ten or fifteen minutes, leaving because he did not want her to call the cops. She indicated that she requested that a hospital staff person call the police for her. She noted that she broke her clavicle or collarbone. When asked who started the fight, she replied, Well, he just didn't want me to get some more money from the car. She insisted that everything she testified to was the truth. During cross-examination, Lozoya acknowledged signing an affidavit of non-prosecution in which she stated, I did not let the officer know the whole truth, we were both under the
1

Jackson v. Virginia, 443 U.S. 307 (1979). Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996).

2

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influence of alcohol and I hit him first. I really need his financial support right now, he is a very hard worker and was paying all of my bills and car payment. She said she did not know why she did not tell the officers at the hospital the whole truth. At one point in cross-examination, Lozoya acknowledged that they were arguing over money, that she hit him, that he acted or reacted, and that she was so drunk she fell. On redirect examination, she stated that Mora told her to sign the affidavit and that he told her that she hit him. She repeated her assertion that she did not remember hitting him. With respect to the affidavit of non-prosecution, she said she was just writing down what she was told to write down. She said that, when Mora hit her, it busted her lip and caused her to fall down. She insisted that she loved Mora, that they were back together, and that she was not making up things about him. We hold that the evidence is sufficient to support the conviction. Mora refers to various conflicts in Lozoya's testimony, as well as other conflicts in the evidence, but these conflicts were matters for the jury to resolve as the trier of fact. We overrule Point One. Mora urges in Point Two that the jury's province was invaded and that the trial judge improperly commented during his ruling. During the testimony of the complaining witness, Lozoya, the following occurred: [PROSECUTOR]: Now, do you love the Defendant? ANSWER: Yes. [PROSECUTOR]: Are you guys actually back together? ANSWER: Yes. [PROSECUTOR]: So you're not up here making up things about him are you? ANSWER: No. [DEFENSE COUNSEL]: Your Honor, objection. This is bootstrapping and adding to the credibility of the witness. These things have been asked and answered. And trying to elicit from the witness, well, you're telling the truth aren't you, really, really, really, that's far afield of acceptable direct examination. THE COURT: Response?

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[PROSECUTOR]: Your Honor, if he's going to make it seem like she's making up stories, then I think it's fair for the jury to know if they're back together or not. [DEFENSE COUNSEL]: Well, that part is, your honor, but asking her, well, you know, are you telling the truth today and insinuating

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