Mario Marcos Dominguez v. State of Texas--Appeal from 283rd District Court of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

Mario Marcos Dominguez

Appellant

Vs. Nos. 11-01-00033-CR & 11-01-00034-CR -- Appeals from Dallas County

State of Texas

Appellee

In each cause, the jury convicted Mario Marcos Dominguez of the offense of aggravated assault with a deadly weapon. In Cause No. 11-01-00033-CR, appellant was convicted of assaulting Christy Anna Orona. In Cause No. 11-01-00034-CR, appellant was convicted of assaulting Chris Hilliard. The jury assessed appellant=s punishment in each cause at confinement for 15 years. We affirm.

Appellant presents two points of error on appeal. In the first point, he argues that the trial court erred in admitting into evidence an affidavit supporting a protective order because its probative value was substantially outweighed by its prejudicial effect. TEX.R.EVID. 403. When performing a Rule 403 balancing test, a trial court must determine if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Montgomery v. State, 810 S.W.2d 372, 389 (Tex.Cr.App.1991). In making this determination, the trial court should consider: (1) whether the ultimate issue was seriously contested by the opponent of the evidence; (2) whether the State had other convincing evidence to establish the ultimate issue to which the disputed evidence was relevant; (3) the compelling nature, or lack thereof, of the evidence; and (4) the likelihood that the evidence was of such a nature as to impair the efficacy of a limiting instruction. Taylor v. State, 920 S.W.2d 319, 322 (Tex.Cr.App.), cert. den=d, 519 U.S. 951 (1996); Montgomery v. State, supra at 392 93. We will reverse the trial court=s decision only upon a showing of a clear abuse of discretion. Wyatt v. State, 23 S.W.3d 18, 26 (Tex.Cr.App.2000); Ransom v. State, 920 S.W.2d 288, 299 (Tex.Cr.App.), cert. den=d, 519 U.S. 1030 (1996); Montgomery v. State, supra at 390.

The record shows that the protective order was filed by Orona against appellant less than one week prior to the date this offense occurred. Orona and appellant had had a stormy on-and-off-again relationship as girlfriend and boyfriend. On the date of the offenses, appellant went to Orona=s house and confronted Orona and Hilliard, another on-and-off-again boyfriend of Orona, with a can of mace, an Ax-acto knife,@ and a screwdriver. Appellant sprayed mace in Hilliard=s face and stabbed him in the eye and the chest with the screwdriver. Appellant slit Orona=s throat with the knife; he also cut her hand when she tried to grab the knife. Appellant subsequently received self-inflicted knife wounds, none of which required surgery. Hilliard was hospitalized for one month, and his eye was surgically removed.

Hilliard testified about the assault on him and Orona. Orona=s mother, who was on the phone with Orona at the time of the incident, corroborated Hilliard=s testimony. Orona, however, did not testify for the State but, rather, for the defense. Although she had previously made statements incriminating appellant, she recanted these statements at trial. Both Orona and appellant related the same incredible version of events that occurred on the day of the offense. Orona testified that she had invited appellant to come over, that Hilliard was the aggressor, and that she had slit her own throat with the Ax-acto knife@ that appellant had brought with him. The State offered the affidavit in support of the protective order into evidence during its cross-examination of Orona. Defense counsel objected that the prejudicial value of the order outweighed its probative value. The trial court overruled the objection. The affidavit details prior instances in which appellant had exhibited violent tendencies toward Orona.

After considering the factors set out in Montgomery, we hold that the trial court did not abuse its discretion in overruling appellant=s Rule 403 objection and admitting the evidence. Appellant=s defense, which had already been established during appellant=s direct examination of Orona, included the following: that Hilliard was the aggressor, that Orona slit her own throat, and that Orona never felt like she was in any danger from appellant. The affidavit tended to rebut appellant=s defense and to show Orona=s motive for recanting her prior statements. The affidavit revealed that Orona was Aterrified@ of appellant and in Afear for [her] life.@ Moreover, at the time the affidavit was offered, other evidence showing appellant=s physical abuse of and violent tendencies toward Orona had already been introduced into evidence. Orona=s mother had testified regarding such prior incidents between Orona and appellant. See Medina v. State, 7 S.W.3d 633, 643-44 (Tex.Cr.App.1999), cert. den=d, 529 U.S. 1102 (2000)(finding no abuse of discretion under Rule 403 where facts were established elsewhere in the record). The first point of error is overruled.

In his second point, appellant argues that the State impermissibly raised the issue of parole in its closing argument at the punishment phase of trial. Appellant, however, did not preserve this issue for review. A defendant's failure to object to a jury argument Aforfeits his right to complain about the argument on appeal.@ Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Cr.App.1996), cert. den=d, 520 U.S. 1173 (1997); see Valencia v. State, 946 S.W.2d 81, 82-83 (Tex.Cr.App.1997); Helleson v. State, 5 S.W.3d 393, 398 (Tex.App. - Fort Worth 1999, pet=n ref=d). Appellant forfeited his right to complain on appeal because he did not object at trial. Consequently, the second point of error is overruled.

The judgments of the trial court are affirmed.

PER CURIAM

June 27, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.