JAIME FRANCISCO SALDIVAR v. THE STATE OF TEXAS--Appeal from 404th District Court of Cameron County

NUMBER 13-03-490-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

 JAIME FRANCISCO SALDIVAR, Appellant,

v.

 THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the 404th District Court

of Cameron County, Texas.

___________________________________________________ _______________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Justice Rodriguez

Appellant, Jaime Francisco Saldivar, appeals his conviction of injury to a child. See Tex. Pen. Code Ann. '22.04(a)(1)(Vernon Supp. 2004-05). Following a jury trial, appellant was found guilty and sentenced to twenty years in the Institutional Division of the Texas Department of Criminal Justice. The trial court has certified that this case Ais not a plea bargain case, and the defendant has the right of appeal.@ See Tex. R. App. P. 25.2(a)(2). By three issues, appellant argues that (1) the evidence was factually insufficient to support the verdict, (2) there was egregious error in the jury charge, and (3) the pathologist>s statement that the victim=s death was caused by a Ahomicidal massive blow@ was a comment on the ultimate issue and, therefore, harmful error. We affirm.

I. BACKGROUND

As this is a memorandum opinion and because all issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and the facts except as necessary to advise the parties of the Court=s decision and the basic reasons for it. See Tex. R. App. P. 47.4.

II. ANALYSIS

A. Factual Sufficiency

By his first issue, appellant contends that the evidence is factually insufficient to support his conviction. Appellant specifically alleges that the testimony offered rendered the verdict so against the weight of the evidence as to be manifestly unjust and wrong.

In a factual sufficiency review, the sole question to be answered is whether, considering all of the evidence in a neutral light, a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004) (Vernon 1981); see Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997). In this neutral light, the Court determines whether "the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003) (en banc) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (en banc)). We are not bound to view the evidence in the light most favorable to the verdict, and may consider the testimony of all the witnesses. Johnson, 23 S.W.3d at 10-12. Circumstantial evidence may be sufficient to show appellant committed the offense. See Meyers v. State, 737 S.W.2d 6, 8 (Tex. App.BCorpus Christi 1987, no pet.). The jury is the sole judge of the credibility of the witnesses and the weight to be given to the evidence. Cain, 958 S.W.2d at 407. Additionally, we measure the factual sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge for the case. See Adi v. State, 94 S.W.3d 124, 131 (Tex. App.BCorpus Christi 2002, pet. ref=d).

In the present case, the pathologist and the attending physician testified that the victim=s death resulted from trauma to the head and/or from violent shaking. Testimony revealed that the victim showed no signs of injury before being placed in appellant's care. Appellant testified that he shook the victim "front and back" after the victim scratched him on the face and that he placed the victim on the mattress floor and then heard victim "coughing and having a hard time breathing." Appellant also testified that he was alone with the victim during this time.

Appellant urges, however, that the attending physician's testimony did not exclude other possible causes of the victim=s injuries such as a fall which was alleged by appellant and appellant=s mother. Furthermore, he asserts that the pathologist=s pretrial report, unlike his testimony, did not include that the victim=s death resulted from shaken baby syndrome. Lastly, appellant urges that the defense expert witness testified that the victim=s injuries could have resulted from a fall which also goes toward his contention that the evidence is factually insufficient to support the verdict. In view of the evidence produced at trial, we conclude that proof of guilt is not so obviously weak as to undermine confidence in the jury=s determination. See Swearingen, 101 S.W.3d at 97. Neither is the proof of guilt outweighed by contrary evidence. See id. Any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson, 23 S.W.3d at 7. When there is evidence that establishes guilt beyond a reasonable doubt, and the fact finder believes that evidence, this Court may not reverse the judgment on sufficiency of the evidence grounds. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1998) (en banc). We, therefore, overrule appellant=s first issue.

B. Charge Error

By his second issue, appellant argues that there was fundamental error in the jury charge which caused egregious harm. When an appellant fails to object to a particular jury charge error and raises it for the first time on appeal, as in this case, he must establish that egregious harm arose from the alleged error which then denied him a fair trial. Medina v. State, 7 S.W.3d 633, 639 (Tex. Crim. App. 1999); see Tex. Code Crim. Proc. Ann. art. ' 36.19 (Vernon 1981); Almanza v. State, 686 S.W.2d 157,171 (Tex. Crim. App. 1984) (en banc).

Appellant was charged with injury to a child. Section 22.04(a) provides, in relevant part, as follows:

A person commits an offense if he intentionally, knowingly . . . by act or . . . by omission, causes to a child . . . serious bodily injury . . . .

Tex. Pen. Code Ann. ' 22.04(a) (Vernon Supp. 2004-05). This language was set out in the abstract portion of the charge. However, the instruction also included the following language regarding endangerment of a child:

A person commits an offense if he intentionally or knowingly, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment.

See id. ' 22.041(c) (Vernon 2003). Appellant contends that because the charge included this element of endangering a child, it allowed the jury to convict him of a crime not pleaded in the indictment.

Conceding error, the State contends that because the application paragraph correctly instructed the jury, any error in the abstract instruction was not egregious. See Medina, 7 S.W.3d at 640 (holding that error in an abstract definition is not egregious harm when the application paragraph correctly instructs a jury and restricts the jury to the allegations in the indictment); Grady v. State, 614 S.W.2d 830, 831 (Tex. Crim. App. 1981) (holding that abstract statements of the law that go beyond the allegations in the indictment will not present reversible error when application of the law to the facts effectively restricts the jury's deliberation to the allegations in the indictment). We agree.

The application portion of the jury charge read, in relevant part, as follows:

Now, if you find from the evidence beyond a reasonable dobut that on or about October 24, 2002, . . . the defendant . . . did then and there intentionally or knowingly cause serious bodily injury to [B.M.L.], a child younger than 15 years of age, by striking the head of [the child] with an object unknown to the Grand Jury or by causing the head of [the child] to strike an object unknown to the Grand Jury or by shaking [the child] in a manner and means unknown to the Grand Jury, then you will find the defendant guilty.

Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will find the defendant not guilty.

The application paragraph correctly instructed the jury regarding injury to a child only and charged the jury with finding that appellant, "intentionally and knowingly caused serious bodily injury" to the victim by "striking the head . . . with an object . . . or by causing the head . . . to strike an object." This section emphasized to the jury that a finding must be made beyond a reasonable doubt.

Furthermore, the evidence and testimony put on by both parties concentrated on the child=s injuries and cause of death. During opening and closing arguments, neither party referenced the elements of child endangerment. In its closing argument, the State reviewed the definition of injury to a child and emphasized testimony that supported the allegation of "serious bodily injury." The defense counsel's closing argument began with a review of the elements for injury to a child. Counsel later added, "this is what the indictment is about. This is what they have to prove beyond a reasonable doubt. This is the very heart of the case."

Accordingly, we find that error in the abstract portion of the jury charge did not constitute egregious harm. Appellant=s second issue is overruled.

C. Expert Comment

By his third issue, appellant argues that a statement made by the pathologist that the cause of death was "homicidal massive blow or blows to the head" was an opinion on the ultimate issue and that such error was not harmless beyond a reasonable doubt. However, appellant failed to timely object and, therefore, did not preserve error. Tex. R. App. P. 33.1(providing that in order to preserve a complaint for appellate review, there must have been a timely objection to the trial court, specifically stating the grounds for the objection, and a ruling obtained).

The record reveals that the testimony about which appellant objects was offered on numerous occasions before appellant raised his objection. It is well settled that a party must object every time allegedly impermissible evidence is offered. Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004). Even if evidence is erroneously admitted, any error in its admission is cured when the same evidence comes in elsewhere without objection. Id. This issue has not been preserved for review. We overrule appellant=s third issue.

III. CONCLUSION

Accordingly, we affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P.47.2(b).

Memorandum Opinion delivered and

filed this 18th day of August, 2005.