ARISTEO BENITEZ v. THE STATE OF TEXAS--Appeal from 194th District Court of Dallas County

NUMBER 13-00-161-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

____________________________________________________________________

ARISTEO JAIMEZ BENITEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

____________________________________________________________________

On appeal from the 194th District Court of Dallas County, Texas.

____________________________________________________________________

MEMORANDUM OPINION

Before Justices Dorsey, Hinojosa, and Rodriguez

Opinion by Justice Hinojosa

After a bench trial, the trial court found appellant, Aristeo Jaimez Benitez, guilty of possession with intent to deliver heroin in the amount of four or more grams, but less than two hundred grams, (1) and assessed his punishment at imprisonment for twenty-seven years. By two points of error, appellant contends: (1) the evidence is factually insufficient to show that he possessed the heroin, and (2) the trial court lacked jurisdiction to hear this case because the case was not properly transferred. We affirm.

Because this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here. See Tex. R. App. P. 47.1.

A. Jurisdiction of the Trial Court to Hear this Case

By his second point of error, appellant contends the trial court did not have jurisdiction to hear this case because there is no order in the file transferring the case to the 194th District Court.

It is undisputed that appellant did not raise this issue at trial. Because appellant does not claim the trial court was constitutionally or statutorily unqualified or disqualified from hearing this case, but merely that a statutory procedure may not have been followed, we conclude appellant has waived this point by failing to raise the issue in the trial court. See Wilson v. State, 977 S.W.2d 379, 379 (Tex. Crim. App. 1998); see also Tex. R. App. P. 33.1. Appellant's second point of error is overruled.

B. Factual Sufficiency

By his first point of error, appellant contends the evidence is factually insufficient to show that he possessed the heroin in question.

When we review the factual sufficiency of the evidence, we review all of the evidence and set aside the verdict only if it is so against the overwhelming weight of the evidence that it is manifestly unjust and clearly wrong. Clewis v. State, 922 S.W.2d 126,133-34 (Tex. Crim. App. 1996). We are not bound to view the evidence in the light most favorable to the prosecution, and may consider the testimony of all the witnesses. Johnson v. State, 23 S.W.3d 1, 10-12 (Tex. Crim. App. 2000). Disagreeing with the fact finder's determination is appropriate only when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice; otherwise, due deference must be accorded the fact finder's determinations, particularly those concerning the weight and credibility of the evidence. Id.

The State must prove that the defendant exercised care, control and management over the property, and that the defendant knew the property was contraband. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). The evidence, whether direct or circumstantial, must be adequate to illustrate that the defendant's connection with the drug was more than just fortuitous. Id. The determination of possession depends on the facts of each case. Garcia v. State, 871 S.W.2d 769, 770 (Tex. App.-Corpus Christi 1994, no pet.).

After reviewing all of the evidence, we hold that the verdict is not so against the overwhelming weight of the evidence that it is manifestly unjust and clearly wrong. Accordingly, we hold the evidence is factually sufficient to support appellant's conviction. Appellant's first point of error is overruled.

C. State's Cross-point

The State contends that this Court "should correct a clerical error in the judgment."

The record shows the trial court originally assessed appellant's punishment at twenty-seven years imprisonment and a $10,000 fine. Appellant subsequently filed a motion for judgment nunc pro tunc, contending that section 12.42(d) of the penal code did not provide for a fine. See Tex. Pen. Code Ann. 12.42(d) (Vernon Supp. 2001). The State did not respond to appellant's motion, and did not otherwise object. The trial court granted appellant's motion and entered a judgment nunc pro tunc assessing appellant's punishment at twenty-seven years imprisonment and no fine. The State argues that we should add the $10,000 fine to the trial court's judgment.

Because it did not object to the motion for judgment nunc pro tunc, we hold the State failed to preserve this point for appellate review. Tex. R. App. P. 33.1.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

9th day of August, 2001.

1. See Tex. Health & Saf. Code Ann. 481.102(2), 481.112(a), (d)(Vernon Supp. 2001).