Juan Pablo Cervantes v. State ( 2006 )

Affirmed and Memorandum Opinion filed May 25, 2006

Affirmed and Memorandum Opinion filed May 25, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00203-CR

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JUAN PABLO CERVANTES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 240th District Court

Fort Bend County, Texas

Trial Court Cause No. 39,450

M E M O R A N D U M   O P I N I O N

Juan Pablo Cervantes appeals a conviction for four counts of aggravated assault with a deadly weapon^[1] on the grounds that: (1) the evidence is legally and factually insufficient to support his conviction; (2) he was denied effective assistance of counsel; and (3) the State committed prosecutorial misconduct.  We affirm.

Appellant=s first and second issues contend that the evidence is legally and factually insufficient to support his conviction because there was no evidence that he: (1) hit complainants Daniel Abernathy and Jesus Gonzales with a handgun, as charged in counts I and IV of the indictment; or (2) threatened complainants Vincent Gonzalez and Donald Abernathy by exhibiting a deadly weapon, as charged in counts II and III of the indictment.  Because appellant=s contentions are the same for both his legal and factual sufficiency challenges, we address them together.

In reviewing legal sufficiency, we view the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Prible v. State, 175 S.W.3d 724, 729-30 (Tex. Crim. App. 2005), cert. denied, 126 S. Ct. 481 (2005).   In reviewing factual sufficiency, we view the evidence in a neutral light, both for and against the finding, and set aside the verdict only if proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, while adequate if taken alone, is greatly outweighed by contrary proof.  Id. at 730-31.

            In this case, the jury was authorized to convict appellant of aggravated assault if it found that he used or exhibited a deadly weapon during the commission of an assault, either as a party or principal. See Tex. Penal Code Ann. '' 7.01(a); 7.02(a)(2) (Vernon 2003); 22.01; 22.02(a)(2) (Vernon Supp. 2005). A defendant may be charged as a party to an offense and held criminally responsible for the conduct of another when that individual acts in concert with another person in committing an offense. Id. '' 7.01(a), 7.02(a)(2); Powell v. State, ___ S.W.3d ___, ___, 2006 WL 931606, at *2 (Tex. Crim. App. 2006).  Because appellant=s brief challenges the sufficiency of the evidence to prove only his involvement as the principal actor in the assaults and not that as a party to the offenses, his first two issues provide no basis for reversal and are overruled.

Appellant=s third, fourth, fifth, and sixth issues argue he was denied effective assistance of counsel because his trial counsel failed to: (1) request a limiting instruction in the jury charge; (2) prove his eligibility for community supervision; (3) object to alleged prosecutorial misconduct; and (4) request that an official record be made of the voir dire proceedings.

To prevail on an ineffective assistance claim, an appellant must show that his defense attorney=s performance fell below an objective standard of reasonableness and there is a reasonable probability that, but for the error, the result of the proceeding would have been different.  Yarborough v. Gentry, 540 U.S. 1, 5 (2003); Wiggins v. Smith, 539 U.S. 510, 521, 534 (2003); Ex parte Chandler, 182 S.W.3d 350, 353-54 (Tex. Crim. App. 2005).  In this case, appellant=s brief makes no attempt to show or explain how there is a reasonable probability that, but for counsel=s allegedly deficient actions or omissions, the result of the proceeding would have been different.  Therefore, his third through sixth issues fail to establish that he was denied effective assistance of counsel and are overruled.

Appellant=s seventh issue complains that the State committed prosecutorial misconduct in the following exchange by deliberately cross-examining a defense witness regarding appellant=s prior extraneous offenses without appellant having opened the door to such evidence:

Q:        You know about his background about why he would need money, wouldn=t you?

A:        Yes, sir.

Q:        Tell the jury why he would need money in December.

A:        I guess like normal people, you need money to eat, to live, so B and we were having vehicle problems.

Q:        Did he have any legal fees, fines, so forth, to pay?

A:        He was on probation.  He had a $40 month probation fee.

Q:        He also had a DWI a couple months before that.^[[2]]

Defense:         Objection.  Your Honor.

The Court:      Yes, sir.

Defense:         I object, Your Honor.  This is B he is eliciting evidence about past crimes, criminal charges, that is not B that has not been finalized yet.

The Court:      Approach the bench.  I couldn=t understand the objection.

(Brief discussion held off the record before the bench.)

The Court:      I=ll sustain the objection.

To preserve a complaint on jury argument for appellate review, a defendant must pursue his objection, if sustained, to an adverse ruling, such as on a request for limiting instruction or mistrial.^[3]  Because appellant failed to do so in this case, his seventh issue presents nothing for our review.  Accordingly, it is overruled, and the judgment of the trial court is affirmed.

/s/        Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed May 25, 2006.

Panel consists of Justices Anderson, Edelman, and Frost.

Do not publish C Tex. R. App. P. 47.2(b).

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^[1]           A jury found appellant guilty and assessed punishment at 18 years= confinement for two counts and 10 years= confinement for the other two, all to run concurrently.

^[2]           Although the record reflects this statement as a question by the State, it appears likely to have been a continuation of the previous answer by the witness.

^[3]           See, e.g., Montanez v. State, ___ S.W.3d ___, ___ (Tex. Crim. App. 2006); McFarland v. State, 989 S.W.2d 749, 751 (Tex. Crim. App. 1999).  Although appellant contends that Aobviously harmful@ argument by the prosecution requires reversal, each of the cases he cites in support of this contention involves a complaint that was preserved by an adverse ruling.  See Wilson v. State, 938 S.W.2d 57, 58-59 (Tex. Crim. App. 1996); Carter v. State, 614 S.W.2d 821, 822-23 (Tex. Crim. App. 1981); Cavender v. State, 547 S.W.2d 601, 603 (Tex. Crim. App. 1977).