RICARDO PEREZ IBARRA v. THE STATE OF TEXAS--Appeal from 197th District Court of Cameron County

   NUMBER 13-04-00547-CR

   COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

RICARDO PEREZ IBARRA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

   On appeal from the 197th District Court of Cameron County, Texas.

   MEMORANDUM OPINION

   Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Justice Hinojosa

A jury found appellant, Ricardo Perez Ibarra, guilty of the offenses of murder and aggravated assault and assessed his punishment at twenty-five years= imprisonment for the murder and twenty years= imprisonment for the aggravated assault. The trial court has certified that this is not a plea bargain case, and appellant has the right of appeal. See Tex. R. App. P. 25.2(a)(2). In four issues, appellant contends (1) his murder conviction must be overturned because the record does not reflect a murder count, (2) his Sixth Amendment right to confront a witness was violated, (3) the evidence is factually insufficient to support his conviction because a reasonable difference of opinions between experts exists as to the cause of the victim=s death, and (4) his convictions should be reversed because of the jury=s erroneous return of a Anot guilty@ verdict to the lesser included offense of assault. We affirm.

The issues of law presented by this case are well settled and the parties are familiar with the facts. Therefore, we will not recite the law and facts in this opinion 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.

A. Missing Portions of Indictment

In his first issue, appellant contends his murder conviction should be set aside because several pages of the indictment were missing from the record at the beginning of the trial. Specifically, appellant argues that the State failed to comply with the requirements of article 21.25 of the Texas Code of Criminal Procedure,[1] and thus, the trial court had no jurisdiction over the murder charge.

To preserve a complaint for appellate review, the complaining party must not only make a request, objection, or motion to the trial court, the request must be timely. See Tex. R. App. P. 33.1(a)(1); Carrillo v. State, 29 S.W.3d 262, 263 (Tex. App.BHouston [14th Dist.] 2000, pet. ref=d). Fairness requires the complaining party to raise the complaint when it is possible to correct the error. Carrillo, 29 S.W.3d at 263.

The record reflects that after voir dire, but prior to the reading of the indictment, appellant complained that only a portion of the original indictment was in the court=s record. The trial court explained that the clerk=s office had been scanning the files and did not put them back in proper order; however, attached to the partial indictment was the scanned version of the indictment, and the trial court would have the State read from the scanned version. Appellant complained, AI have no way of knowing B what I have there is what is in the file,@ and requested that he be arraigned only on what was in the file. The trial court then explained that the scanned version of the indictment Ais in the court=s file, and that came from the court=s file.@ Appellant then asked that he be arraigned only on whatever counts are left in the indictment. The trial court overruled appellant=s objection, the scanned version of the indictment was read, and appellant was arraigned.

At trial, appellant complained only about the missing pages from the original indictment. Appellant did not object that the State failed to comply with article 21.25. Because appellant failed to timely object on this ground, he failed to preserve this complaint for review. See Tex. R. App. P. 33.1(a)(1).

Furthermore, although a complaint about a trial court=s lack of subject matter jurisdiction can be raised at any time, Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986), the presentment of the indictment vests the trial court with jurisdiction. See Carrillo, 29 S.W.3d at 277-78 (citing Tex. Const. art. V, ' 12). The subsequent loss of the indictment and the State=s failure to comply with article 21.25 does not divest the trial court of its previously vested jurisdiction. See id. Appellant=s first issue is overruled.

B. Right to Confront Witness

In his second issue, appellant contends his Sixth Amendment right to confront a witness was violated when the trial court denied him the opportunity to cross-examine a witness regarding a collateral civil lawsuit. See U.S. Const. amend. VI. However, as a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion. See Tex. R. App. P. 33.1(a)(1)(A). The complaint must have stated the grounds for the ruling that the complaining party sought from the trial court, with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. Id. Because appellant failed to object on the basis that his Sixth Amendment right to confront was violated, we conclude he has waived this argument on appeal. See Wright v. State, 28 S.W.3d 526, 537 (Tex. Crim. App. 2000) (concluding constitutional issues can be waived).

C. Factual Sufficiency

In his third issue, appellant complains the evidence is factually insufficient to support his conviction for murder because there exists a reasonable difference of opinion between the experts as to the cause of the victim=s death. Specifically, he contends that when two theories of a case are equally plausible, the State is required to provide proof that eliminates any reasonable doubt regarding a defendant=s alternate theory.

In reviewing the factual sufficiency of the evidence, we are not bound to view the evidence in the light most favorable to the prosecution, and may consider the testimony of defense witnesses and the existence of alternative hypotheses. See Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). However, the mere existence of a reasonable alternative hypothesis does not render the evidence factually insufficient. Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001). We consider all of the evidence in the record related to the appellant's sufficiency challenge, comparing the weight of the evidence that tends to prove guilt with the evidence that tends to disprove it. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). We are not free to reweigh the evidence and set aside a jury verdict merely because we believe that a different result is more reasonable. See Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997); Clewis, 922 S.W.2d at 135. We set aside the verdict and remand for a new trial only if (1) the evidence is so weak as to be clearly wrong and manifestly unjust or (2) the verdict is against the great weight of the evidence. See Johnson, 23 S.W.3d at 11.

It is undisputed that appellant=s medical expert disagreed with the State=s medical expert as to whether the cause of death could be determined in this case. However, the jury is free to accept one version of the facts, reject another, or reject all or any of a witness=s testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981); Sills v. State, 846 S.W.2d 392, 394 (Tex. App.BHouston [14th Dist.] 1992, pet. ref=d). Simply because the defendant presents a different version of the facts does not render the State=s evidence insufficient. Anderson v. State, 701 S.W.2d 868, 872 (Tex. Crim. App. 1985); Sills, 846 S.W.2d at 394.

After viewing all of the evidence, we cannot say that the evidence is so weak as to be clearly wrong and manifestly unjust or that the verdict is against the great weight of the evidence. We hold the evidence is factually sufficient to support appellant=s conviction for murder. Appellant=s third issue is overruled.

D. Inconsistent Verdict

In his fourth issue, appellant contends that the jury=s return of a Anot guilty@ verdict to the lesser-included charge of assault requires a reversal of his convictions for aggravated assault and murder.

Where a multi count verdict appears inconsistent, the appellate inquiry is limited to a determination of whether the evidence is legally sufficient to support the counts on which a conviction was returned. United States v. Powell, 469 U.S. 57, 64 67 (1984); Sauceda v. State, 739 S.W.2d 375, 376 77 (Tex. App.BCorpus Christi 1987, pet. ref'd) (quoting Ruiz v. State, 641 S.W.2d 364, 366 (Tex. App.BCorpus Christi 1982, no pet.)). Inconsistent verdicts do not require reversal for legal insufficiency. Jackson v. State, 3 S.W.3d 58, 60 (Tex. App.BDallas 1999, no pet.) (citing Dunn v. United States, 284 U.S. 390, 393 94). As long as the evidence is sufficient to support the conviction, what the fact finder did with the remainder of the charge is immaterial. Jackson, 3 S.W.3d at 62 (citing Powell, 469 U.S. at 64 67); Ruiz, 641 S.W.2d at 366. Even where an inconsistent verdict might have been the result of compromise or mistake, the verdict should not be upset by appellate speculation or inquiry into such matters. Powell, 469 U.S. at 64 67; Ruiz, 641 S.W.2d at 366.

In a legal sufficiency review, this Court must examine the evidence presented in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000). Having reviewed the evidence in the light most favorable to the verdict, we conclude that any rational trier of fact could have found beyond a reasonable doubt the essential elements of the offenses of murder and aggravated assault. We hold the evidence is legally sufficient to support both convictions. Therefore, we are not obligated to consider the jury=s response to the lesser-included charge of assault. Appellant=s fourth issue is overruled.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

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

Memorandum Opinion delivered and filed this

the 18th day of August, 2005.

[1] Article 21.25 provides as follows:

When an indictment or information has been lost, mislaid, mutilated or obliterated, the district or county attorney may suggest the fact to the court; and the same shall be entered upon the minutes of the court. In such case, another indictment or information may be substituted, upon the written statement of such attorney that it is substantially the same as that which has been lost, mislaid, mutilated, or obliterated. Or another indictment may be presented, as in the first instance; and in such case, the period for the commencement of the prosecution shall be dated from the time of making such entry.

Tex. Code Crim. Proc. Ann. art. 21.25 (Vernon 1989).