DANIEL ZUNIGA, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion Filed October 12, 2009.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-00544-CR
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DANIEL ZUNIGA, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Criminal Court No. 9
Dallas County, Texas
Trial Court Cause No. MB06-72488-K
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OPINION ON MOTION FOR REHEARING
Before Justices Morris, Richter, and Lang-Miers
Opinion By Justice Lang-Miers
        On the Court's own motion, we withdraw our opinion of June 26, 2009 and vacate our judgment of that date. This is now the opinion of the court.
        A jury convicted Daniel Zuniga of prostitution, and the trial court assessed punishment at ninety days confinement in the county jail, probated for six months, and a $200 fine. Appellant argues that the trial court should have granted his motion for directed verdict or his motion for new trial because the evidence is legally and factually insufficient to show that he understood English sufficiently to offer, solicit, or agree to engage in sexual conduct for a fee. We affirm the trial court's judgment.
        We review a challenge to the denial of a motion for directed verdict as a challenge to the legal sufficiency of the evidence. See Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). We examine the evidence in the light most favorable to the verdict and determine whether a rational jury could have found the essential elements of the offense beyond a reasonable doubt. See Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). In examining the evidence in the light most favorable to the verdict, we assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007).
        In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007). The State was required to prove beyond a reasonable doubt that appellant knowingly offered and agreed to engage in sexual conduct for a fee. See Tex. Penal Code Ann. § 43.02(a) (Vernon 2003).
        The evidence presented included testimony from one witness, Officer Angela Nordyke. Nordyke testified she was conducting an undercover prostitution sting operation near a gas station in the 2500 block of North Fitzhugh on July 25, 2006. As Nordyke was standing in the area at about 9:40 p.m., appellant drove up in an older-model truck and asked her if she was working. Nordyke said “yes” and asked appellant if he was working. Appellant said, “[Y]eah,” and then asked, “[h]ow much?” Nordyke said, “[W]hat do you want, do you want a f---, basically?” Appellant said, “[Y]eah.” Nordkye asked appellant if he had twenty dollars. Appellant indicated he had the money, then asked Nordyke if she had a car. When Nordyke said she had a car, appellant asked her to follow him. Nordyke then signaled to undercover officers, by running her fingers through her hair, that appellant had asked her for sexual intercourse and agreed on a price. The undercover officers radioed patrol officers with a description of appellant, his vehicle, and whether there was a passenger in the car. The patrol officers stopped appellant and arrested him.
        At trial, Nordyke testified that her entire conversation with appellant was conducted in English. She said she spoke both Spanish and English and would understand appellant if he had spoken in Spanish, but he did not. She testified that if an accused spoke to her in Spanish, she always inserted a notation in her arrest report that he spoke to her in Spanish. She said the arrest report in this case did not have a notation inserted because appellant spoke to her in English. Nordyke testified that she remembered appellant because he asked her to follow him in her car, which was unusual, rather than simply telling her to get into his vehicle like most of the other men who propositioned her.
        Appellant did not testify or present any evidence during the trial. On appeal, he contends that the overwhelming evidence shows that he does not speak or understand English, and, consequently, could not have offered or agreed to have sex with Nordyke for a fee.
        The jury resolves any conflicts in the evidence, and the jury was free to accept or reject any or all the evidence presented by either side. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). Viewing the evidence under the proper standards, we conclude that it is legally and factually sufficient to support appellant's conviction. See Roberts, 220 S.W.3d at 524; Vodochodsky, 158 S.W.3d at 509. We further conclude that the trial court did not err in denying appellant's motion for directed verdict.
        In his motion for rehearing, appellant contends that we erred by failing to consider the affidavit of his trial interpreter in our sufficiency review. He argues that because the affidavit was not obtained until after the motion for new trial had been filed, we are required to consider the affidavit. The interpreter stated in the affidavit that she believed appellant could neither speak nor understand English and that, as a result, he did not receive a fair trial. Appellant contends that appellate rule 21.7 requires us to consider the affidavit in our analysis. We disagree.         First, appellate rule 21.7 addresses evidence that a trial court may consider in a hearing on a motion for new trial in a criminal case. See Tex. R. App. P. 21.7. Second, a sufficiency of the evidence review is based on the evidence offered during the trial, not evidence offered later in a hearing on a motion for new trial. See Idowu v. State, 73 S.W.3d 918, 922 n.12 (Tex. Crim. App. 2002). Next, although appellant stated in his appellate brief that he was complaining about the trial court's denial of both his motion for directed verdict and his motion for new trial, he argued only sufficiency of the evidence to support the verdict; he did not provide substantive analysis to support his contention that the trial court abused its discretion by denying his motion for new trial. Because appellant did not provide argument or authorities to support his contention that the trial court erred by denying his motion for new trial, including the court's implied rejection of the interpreter's affidavit, that issue is not properly before us. See Tex. R. App. P. 38.1(h); Roberts v. State, 273 S.W.3d 322, 326 (Tex. Crim. App. 2008) (agreeing with court of appeals that inadequately briefed complaint properly overruled). Finally, even if the issue were properly before us, we conclude that the trial court did not abuse its discretion by denying the motion for new trial because, regardless of when the affidavit was obtained, it did not raise material evidence favorable to appellant that had been discovered since the trial. See Tex. Code Crim. Proc. Ann. art. 40.001 (Vernon 2006). The undercover police officer testified that her conversation with appellant was conducted in English. Defense counsel cross-examined her on that issue and later argued to the jury that he advised appellant not to testify because “if he says one word of English, one word on that stand, everybody's going to say, oh, he really could speak English.” This shows that appellant was aware of the language issue during trial and that it was not material evidence discovered after trial warranting a new trial.         We overrule appellant's motion for rehearing and resolve his sole issue against him.         We affirm the trial court's judgment.
 
 
                                                          
                                                          ELIZABETH LANG-MIERS
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
080544HF.U05