JOSE TORRES, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as modified; Opinion issued May 25, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-00241-CR
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JOSE TORRES, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F07-59654-V
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OPINION
Before Justices Morris, FitzGerald, and Francis
Opinion By Justice Morris
        A jury convicted Jose Torres of aggravated robbery and sentenced him to twenty years in prison. On appeal, he complains the evidence against him is legally and factually insufficient, the trial court erred in admitting certain evidence at punishment, and the judgment should be modified. We modify and affirm the trial court's judgment.
        Appellant and another boy from his high school attacked the complainant as she was biking on the Katy Trail in Dallas. He knocked her bike to the ground as she tried to pass the boys, breaking two bones in her pelvis, her sacrum, and her collar bone. As she fell, the complainant felt her pelvis snap and began to feel excruciating pain. Then appellant repeatedly kicked her body and face until she surrendered her mobile phone and iPod. He sold the two stolen items for drug money. The complainant was hospitalized for several days, receiving extensive therapy for her injuries. Afterward, she was homebound, immobile, and unable to care for herself for approximately three months.
        In his first two issues on appeal, appellant complains the evidence against him is legally and factually insufficient to prove his acts caused the complainant's serious bodily injury. In a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). In a factual sufficiency review, we view 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).         Here, testimony at trial established that the complainant had been diagnosed with and treated for osteoporosis more than ten years before the injuries caused by appellant in this case.   See Footnote 1  Appellant admits that he intended to cause the complainant bodily injury, but he avers that his actions would never had caused the complainant serious bodily injury had she not previously suffered from osteoporosis. Appellant acknowledges that this Court has held that, under section 6.04(a) of the Texas Penal Code, to excuse appellant from responsibility for the serious bodily injury, the complainant's previous osteoporosis would have had to be sufficient to cause the serious bodily injury on its own. See Adams v. State, 969 S.W.2d 106, 111-12 (Tex. App.-Dallas 1998, no pet.). Of course, the complainant's previous osteoporosis was not the sole cause of the serious bodily injuries. Nevertheless, appellant asks the Court to “reconsider” its analysis.
        Section 6.04(a) of the penal code specifically provides that a person is criminally responsible for a result “if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.” In appellant's case, the serious bodily injury suffered by the complainant would never have occurred absent appellant's violent acts against her. Accordingly, the evidence is legally and factually sufficient on this matter. See Thompson v. State, 93 S.W.3d 16, 20-21 (Tex. Crim. App. 2001). We resolve appellant's first and second issues against him.
        Appellant next complains the trial court erred during the punishment phase of trial by permitting the State to admit evidence that appellant had been in truancy court three times. He contends the evidence was inadmissible because the State failed to give him notice of this fact before trial pursuant to Texas Code of Criminal Procedure article 37.07. The statute provides, in relevant part, “On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner as required by Rule 404(b), Texas Rules of Evidence.” Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g) (Vernon Supp. 2009). At trial, the prosecutor explained that she had not learned of the truancy court situation until that day.
        The State did not question appellant on this matter during its case in chief on punishment, but rather during its cross-examination of appellant. Accordingly, the notice requirements of article 37.07, section 3(g) did not apply to the evidence of appellant's trips to truancy court. See Jaubert v. State, 74 S.W.3d 1, 4 (Tex. Crim. App. 2002). Appellant, however, “urges this Court to extend the notice requirement to the cross-examination in this case.” We are bound by the holding in Jaubert to conclude the trial court did not err in permitting the State to elicit this evidence. We therefore resolve appellant's third issue against him.
        In his final issue, appellant asks that this Court modify the judgment to reflect the correct names of the attorneys at trial. The State joins appellant's request. We therefore resolve appellant's fourth issue in his favor. The trial court's judgment is modified to reflect that Jenni Morse and Kendall Castello were the attorneys for the State and that both Susan Anderson and Brad Lollar represented appellant at trial.
        We affirm the trial court's judgment as modified.
 
 
                                                          
                                                          JOSEPH B. MORRIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
090241F.U05
 
Footnote 1 The complainant testified that, based on her current bone density, she is no longer considered to have osteoporosis and in fact has normal bone density for a woman her age.