Estanislado Morin v. The State of Texas--Appeal from 275th District Court of Hidalgo County

  NUMBER 13-01-00001-CR

  COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  BEDINBURG

ESTANISLADO MORIN, Appellant,

v.

THE STATE OF  TEXAS, Appellee.

  On appeal from the 275th  District Court of Hidalgo County,  Texas.

  MEMORANDUM OPINION

  Before Chief Justice Valdez and Justices Hinojosa and Castillo

Opinion by Justice Hinojosa

A jury found appellant, Estanislado Morin, guilty of two counts of indecency with a child and assessed his punishment at five years imprisonment and a $5,000 fine for each count, but recommended that the sentences and fines in both counts be suspended and that appellant be placed on community supervision. The trial court followed the jury=s recommendations, suspended the sentences and fines in both counts, and placed appellant on community supervision for a term of five years for each count.

In six points of error, appellant contends: (1) the trial court erred by making impermissible comments on the weight of the evidence; (2) the trial court erred by allowing extensive hearsay evidence to be presented to the jury; (3) the trial court erred by allowing into evidence a medical report containing hearsay; (4) the trial court erred in overruling appellant=s motion for directed verdict; and (5) appellant was denied effective assistance of counsel. We affirm.

As 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.

In his first point of error, appellant contends the trial court improperly commented on the weight of the evidence. Although appellant did not object to the comments at trial, Ait is the province of this Court to >take notice of fundamental errors affecting substantial rights although they were not presented to the court.=@ Jasper v. State, 61 S.W.3d 413, 420 (Tex. Crim. App. 2001); see also Tex. R. Evid. 103. The trial court may not comment on the weight of the evidence or convey an opinion of the case in the jury=s presence at any stage of the trial. Tex. Code Crim. Proc. Ann. art. 38.05 (Vernon1979); Blue v. State, 41 S.W.3d 129, 134 (Tex. Crim. App. 2000) (plurality opinion).

After reviewing the record, we conclude that the interchanges of which appellant complains do not rise to such a level as to bear on the presumption of innocence or vitiate the impartiality of the jury. It is not improper for a trial judge to interject in order to correct a misstatement or misrepresentation of previously admitted testimony. Jasper, 61 S.W.3d at 421. Further, a trial judge=s irritation at the defense attorney does not translate to an indication as to the judge=s views about the defendant=s guilt or innocence. Id. A trial judge has broad discretion in maintaining control and expediting the trial. Id. The record reflects that the comments complained of were aimed at clearing up a point of confusion and expediting the trial. Appellant=s first point of error is overruled.

In his second point of error, appellant contends the trial court erred in allowing as substantive evidence the written statements of the victim after she had testified. It is a well-settled principle that to preserve error for review on appeal, a defendant must object timely, specifically, and receive an adverse ruling at trial. Tex. R. App. P. 33.1 (a); Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991). The objecting party must continue to object each time the objectionable evidence is offered. Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App. 1999). Although counsel initially objected to the victim=s statements, he withdrew his objection because the affidavits were Asubmitted for the purpose of allowing the jury to decide for themselves whether or not there is discrepancies between [the] two statements.@ In the absence of any objection and a ruling on the objection, error has not been preserved. See Tex. R. App. P. 33.1(a). Appellant=s second point of error is overruled.

In his third point of error, appellant contends the trial court erred in allowing the testimony of the outcry witness, the victim=s mother, because it was hearsay. After reviewing the record, we conclude that the hearsay statement of the victim=s mother was admissible because it was made in accordance with Texas Code of Criminal Procedure article 38.072. See Tex. Code Crim. Proc. Ann. art. 38.072 (VernonSupp. 2002). Appellant=s third point of error is overruled.

In his fourth point of error, appellant contends the trial court erred by admitting into evidence the victim=s medical report. Appellant asserts that the report only served Ato bolster the testimony of both the [victim=s mother] and the [victim].@ It is a well-settled principle that to preserve error for review on appeal, a defendant must object timely and specifically and receive an adverse ruling at trial. Tex. R. App. P. 33.1(a); Turner, 805 S.W.2d at 431. The record reflects that counsel initially objected to the medical report as hearsay. However, after he took the doctor on voir dire, counsel announced that he had Ano objection@ to the report. In the absence of any objection and a ruling on the objection, error has not been preserved. See Tex. R. App. P. 33.1(a). Appellant=s fourth point of error is overruled.

In his fifth point of error, appellant complains that the trial court erred in overruling his motion for directed verdict. Appellant contends the State failed to prove when the alleged offenses occurred. A challenge to the denial of a motion for directed verdict is actually a challenge to the legal sufficiency of the evidence. See Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990); Nam Hoai Le v. State, 963 S.W.2d 838, 841 (Tex. App.BCorpus Christi 1998, pet. ref=d). In reviewing the legal sufficiency of the evidence to support a conviction, we view 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 (1979); Rosillo v. State, 953 S.W.2d 808, 811 (Tex. App.BCorpus Christi 1997, pet. ref=d). Contradictions or conflicts between the witnesses= testimony do not destroy the sufficiency of the evidence; rather, they relate to the weight of the evidence, and the credibility the trier of fact assigns to the witnesses. See Weisinger v. State, 775 S.W.2d 424, 429 (Tex. App.BHouston [14th Dist.] 1989, pet. ref=d).

Under rule 38.1(h) of the Texas Rules of Appellate Procedure, every appellant=s brief must contain a clear, concise argument in support of his contention, including appropriate citations to authorities and to the record. See Tex. R. App. P. 38.1(h). By raising an issue and failing to present any argument or authority on that issue, the party waives that issue. Bridgewater v. State, 905 S.W.2d 349, 354 n.5 (Tex. App.BFort Worth 1995, no pet.). Because appellant=s brief is devoid of any argument or supporting authority addressing his allegations that the trial court erred in denying his motion for directed verdict, he has waived his complaint.

Assuming, arguendo, that appellant had not waived this issue, after reviewing the record, we conclude that the evidence was legally sufficient and the trial court did not err in denying appellant=s motion for directed verdict. Appellant=s fifth point of error is overruled.

In his sixth point of error, appellant contends he was denied effective assistance of counsel during trial. Claims of ineffective assistance are analyzed under the rule set forth in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by the court of criminal appeals in Hernandez v. State, 726 S.W.2d 53, 56 (Tex. Crim. App. 1986). The Strickland standard applies to ineffective assistance of counsel at both the guilt-innocence and punishment phases of the proceedings. Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999). Our review of counsel's performance must be highly deferential. Strickland, 466 U.S. at 689; Garcia v. State, 887 S.W.2d 862, 880 (Tex. Crim. App. 1994). The burden of proving ineffective assistance of counsel is on the appellant and is one which requires proof by a preponderance of the evidence. Stafford v. State, 813 S.W.2d 503, 506 n.1 (Tex. Crim. App. 1991); Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985). An allegation of ineffective assistance of counsel will be sustained only if it is firmly founded in the record and if the record affirmatively demonstrates counsel's alleged ineffectiveness. Ex parte McWilliams, 634 S.W.2d 815, 819 (Tex. Crim. App. 1980). In determining whether trial counsel rendered deficient performance, we employ a strong presumption that counsel's conduct constitutes sound trial strategy. Strickland, 466 U.S. at 689.

After reviewing the entire record, we find no evidence establishing that appellant received ineffective assistance of counsel during trial. The record reflects that appellant=s counsel made a bona fide attempt to defend appellant during trial. Accordingly, we overrule appellant=s sixth point of error.

The two judgments of the trial court are affirmed.

FEDERICO G. HINOJOSA

Justice

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

Opinion delivered and filed this the

23rd day of May, 2002.