George A. Zepeda v. The State of Texas--Appeal from County Court at Law No 9 of Bexar County

Nos. 04-99-00397-CR & 04-99-00398-CR

George ZEPEDA,
Appellant
v.
The STATE of Texas,
Appellee
From County Court at Law No. 9, Bexar County, Texas
Trial Court Nos. 703,794 & 703,797
Honorable Wayne Christian, Judge Presiding

Opinion by: Alma L. L pez, Justice

Sitting: Tom Rickhoff, Justice

Alma L. L pez, Justice

Sarah B. Duncan, Justice

Delivered and Filed: January 10, 2001

AFFIRMED

The appellant, George Zepeda, appeals his convictions for misdemeanor assault and criminal mischief. (1) These offenses arose from the same event, and were consolidated for trial. After considering Zepeda's issues in these appeals, we find no error and affirm the judgments of the trial court.

Sufficiency of the Evidence

Zepeda challenges the legal and factual sufficiency of the evidence supporting his conviction for assaulting his wife. Specifically, Zepeda argues that the offense of assault requires the State to prove that he "caused" bodily injury to his wife. While he admits the State produced evidence that showed his wife sustained bodily injury, Zepeda argues that the State did not produce evidence that proved he "caused" his wife's injuries. As a result, Zepeda argues that evidence supporting his conviction for assault is legally and factually insufficient.

To review a challenge about the legal sufficiency of the evidence, the court of appeals reviews the evidence in the light most favorable to the verdict to 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; Mosley v. State, 983 S.W.2d 249, 254-255 (Tex. Crim. App. 1998), cert. denied, 119 S. Ct. 1466 (1999). In conducting this review, the jury serves as the exclusive judge of the credibility of witnesses and of the weight to be given their testimony; and therefore, reconciliation of conflicts in the evidence is within the exclusive province of the jury. Mosley, 983 S.W.2d at 254-255. In a factual sufficiency challenge, the reviewing court reviews all evidence without the prism of "in the light most favorable to the prosecution" and sets aside the verdict only if it is so contrary to the overwhelming weight of evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).

In this case, the jury found that Zepeda caused his wife's injuries despite the absence of direct evidence. The requirement to prove that the defendant caused bodily injury, like other elements of an offense, can be proved by circumstantial evidence. McGarity v. State, 5 S.W.3d 223, 232 (Tex. App.-San Antonio 1999, no pet.) (commenting that jury is entitled to draw reasonable inferences from circumstantial evidence to ultimate facts); Easley v. State, 986 S.W.2d 264, 271 (Tex. App.-San Antonio 1998, no pet.) (stating that State may prove its case by circumstantial evidence so long as it shoulders its burden of proving all of the elements of the charged offense beyond a reasonable doubt). In this case, Zepeda's now ex-wife, Celia Gomez, testified that she awoke to hear her husband ask, "What are you doing?," and that she replied, "I'm asleep." Gomez stated that she then felt a hit. Although Gomez stated that she could not remember details about what occurred, Officer Ingram, who responded to Gomez's 911-call, testified that Gomez told him that her husband entered the bedroom where she and a male friend were sleeping and punched her twice in the face. Ingram stated that he observed injuries to Gomez's face and neck, and that Gomez indicated she was experiencing pain. Ingram also testified that, when he arrived, Gomez's male friend told him that Zepeda burst into the room yelling obscenities and punched Gomez twice in the face. According to Ingram, the friend also stated that Zepeda then turned to him and punched him in the forehead, causing him to run from the room. Gomez's brother testified that he observed both men run out of the room, and that he observed injuries to Gomez's face and neck. While this testimony may not constitute direct evidence that Zepeda "caused" his wife's injury, viewed in the light most favorable to the verdict, it constitutes evidence from which a rational jury could draw a reasonable inference that Zepeda caused Gomez's bodily injury. Because the jury could reasonably conclude that Zepeda caused Gomez's injuries, the evidence is legally sufficient to support the jury's verdict.

The evidence is also factually sufficient to support the jury's verdict. Even without the prism of "in the light most favorable to the verdict," the evidence indicates that Zepeda caused his wife's injuries. Both Gomez and her male friend testified they were asleep when Zepeda burst into the bedroom. Each testified that they were hit, but neither suggested that the other struck the blow. The jury also heard Gomez's 911-call during which she stated her husband was at the house and was trying to beat everyone up. In the absence of another explanation for Gomez's injuries, we cannot say the verdict is so contrary to the overwhelming weight of evidence as to be clearly wrong and unjust. As a result, the evidence is factually sufficient to support the jury's verdict. We overrule Zepeda's issues challenging the sufficiency of the evidence.

Alteration of the Information

The State charged Zepeda with committing the offense of criminal mischief by damaging the "rear tail lights of a 1995 Ford Mustang." During trial, the State realized that the damaged vehicle was actually a 1998 Ford Mustang. The State requested leave to amend the information and the trial judge permitted the State, over Zepeda's objection, to delete the modifier "1995." Later, after the State concluded its case, Zepeda moved for a directed verdict, (2) arguing that the State failed to prove all of its allegations. The trial judge denied the motion. Zepeda complains that these actions constitute reversible error that require an acquittal.

Article 28.10 of the Code of Criminal Procedure provides, in relevant part, that "[a] matter of form or substance in an . . . information may . . . be amended after the day of trial on the merits commences if the defendant does not object." Tex. Code Crim. Proc. art 28.10(b) (Vernon 1989). The Court of Criminal Appeals has interpreted this provision as giving the defendant "an absolute veto power over proposed amendments after trial on the merits has commenced." Hillin v. State, 808 S.W.2d 486, 489 (Tex. Crim. App. 1991). The prohibition, however, does not apply to every alteration to the face of the charging instrument. Eastep v. State, 941 S.W.2d 130, 133 (Tex. Crim. App. 1997), overruled on other grounds, Riney v State, 28 S.W.3d 561 (Tex. Crim. App. 2000). Some alterations are "abandonments" rather than amendments and do not invoke the requirements of article 28.10. Eastep, 941 S.W.2d at 133. The distinction between amendment and abandonment is dispositive of Zepeda's complaints.

"An amendment is an alteration . . . which affects the substance of the charging instrument." Id. at 132. "Conversely, an abandonment, even though accomplished by an actual physical alteration to the face of the charging instrument, does not affect its substance." Id. at 133. The Court of Criminal Appeals has recognized three situations where altering the charging instrument constitutes an abandonment rather than an amendment: "(1) abandonment of one or more of the alternative means in which an offense may be committed; (2) abandonment of an allegation in the charging instrument if the effect of such abandonment is to reduce the prosecution to a lesser included offense; or, (3) abandonment of surplusage. Id. at 135 (citations omitted). Because the first two exceptions are not implicated in the instant case, we will consider whether the third exception applies to deletion of "1995" from the information that charged Zepeda with criminal mischief.

"Surplusage is unnecessary language not legally essential to constitute the offense alleged in the charging instrument." Id. at 134. Surplusage can be disregarded and does not affect the State's burden of proof, unless the unnecessary language describes an essential element of the crime charged. Leal v. State, 975 S.W.2d 636, 639 (Tex. App.-San Antonio 1998, pet. ref'd). In that case, the State must prove the allegation, though needlessly pleaded, even if the allegation would otherwise be surplusage. Leal, 975 S.W.2d at 639-40.

A charging instrument alleging criminal mischief is sufficient if it alleges the elements of criminal mischief-in this case, "intentionally or knowingly damages or destroys the tangible property of the owner"-and alleges that the destruction was done without the effective consent of the owner. Tex. Pen. Code 28.03 (Vernon 1994). The information charging Zepeda with criminal mischief alleged that Zepeda "did and then knowingly damage and destroy tangible property . . . without the effective consent of the owner." As a result, the information was sufficient. The information went further, however, to identify the "tangible property" by describing the damaged property as "rear tail lights of a 1995 Ford Mustang." This description in its totality described an essential element of the offense of criminal mischief; that is, the element, "damages or destroys the tangible property of the owner." The language "1995," however, modified only the words, "Ford Mustang." The language did not describe the element, "damages or destroys the tangible property of the owner." As a result, the language, "1995," constituted surplusage that the State could abandon. The State abandoned this modifier when the trial court permitted it to delete the language "1995" from the description of the tangible property. As an abandonment, the requirements of article 28.10 were not invoked.

Once the modifier was deleted, the State was no longer required to prove that the vehicle that Zepeda damaged was a 1995 Ford Mustang. Thus, when Zepeda moved for a directed verdict, no variance existed between the charging instrument and the evidence. No variance existed because the information charged Zepeda with damaging the rear tail lights of a Ford Mustang, and the evidence indicated that Zepeda damaged the rear tail lights of a Ford Mustang. Thus, the trial judge properly denied Zepeda's motion. (3) We overrule these issues.

Having overruled Zepeda's issues on appeal, we affirm the judgments of the trial court.

Alma L. L pez, Justice

DO NOT PUBLISH

1. Zepeda was charged with assaulting his wife in Cause No. 703794; his conviction in that case is the subject of Appeal No. 04-99-00397-CR. Zepeda was charged with committing criminal mischief in Cause No. 703797; his conviction in that case is the subject of Appeal No. 04-99-00398-CR.

2. The record reflects that Zepeda asked the trial court for an acquittal-in essence, a motion for a directed verdict.

3. A challenge about the trial judge's ruling on a motion for directed verdict is an attack upon the sufficiency of evidence to sustain the conviction, and is reviewed under the standard for such attacks outlined in this opinion. Leal, 975 S.W.2d at 638.