JOSEPH ARTURO YBARRA v. THE STATE OF TEXAS--Appeal from 138th District Court of Cameron County

NUMBER 13-06-512-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

JOSEPH ARTURO YBARRA, Appellant,

 
v.

THE STATE OF TEXAS, Appellee.

On appeal from the 138th District Court

of Cameron County, Texas

MEMORANDUM OPINION

 
Before Justices Ya ez, Benavides and Vela
Memorandum Opinion by Justice Vela

The trial court found appellant, Joseph Arturo Ybarra, guilty of two counts of aggravated assault and sentenced him to seven years in prison. Appellant's counsel has filed an Anders brief, in which he stated that after reviewing the record, he perceived four issues which commonly offer relief. The brief notes the legal and factual sufficiency of the evidence, and of ineffective assistance of counsel. We concur with these findings. However, on the issue of judgment not conforming with the evidence, we modify. We modify and affirm.

I.
Facts

On November 11, 2005, appellant and his wife, Maria Sosa, left their San Benito home for Santa Maria, where appellant and a fellow musician, Fructoso Villarreal, were scheduled to play at a musical event. On the way, they stopped at Villarreal's house, where appellant began drinking beer. After the musical event, they returned to Villarreal's, where appellant resumed drinking beer. Afterwards, they went to the home of Ruben Vela where appellant continued drinking. After leaving Vela's, they went to a ballroom where appellant drank yet another beer.

Sosa testified that appellant was "drunk" and fell asleep on the way home. Unable to wake him, she left him in the car and went in the house. At some point, he came in the house and went in the bathroom. He came out, gave her a "real glazed stare," and blamed her for his ex-wife not coming to San Benito. When Sosa asked why he blamed her, he slapped her face, grabbed her by the hair, and threw her to the couch. He said he was going to give her "something to think about" and left the house.

The day before, they had a cookout and a kitchen knife had been left outside on a picnic table. Sosa began putting on a T-shirt, and while it was over her face, she was stabbed with the kitchen knife. When she uncovered her face, she saw appellant walking away with his mouth open. She believed appellant had stabbed her and said they were the only people in the house. She had surgery to repair the knife wound. On cross-examination, Sosa admitted she did not see appellant approach or stab her, and she did not see the knife in his hand.

Deputy Martinez testified that upon entering the Ybarra home, he saw a knife protruding from Sosa's left stomach area. He testified she told him "[H]er husband had stabbed her because he was upset over, I think, an ex-girlfriend that was not coming down from, I believe, from Arkansas." According to Martinez, appellant said he did not know what had happened.

Appellant presented witnesses who testified that during the evening of the stabbing, appellant and Sosa were not arguing or fighting with each other. Appellant's ex-wife, Anita Cantu, spoke to Sosa after the stabbing. She testified Sosa told her, "I think he [appellant] stabbed me." Cantu believed Sosa stabbed herself.

Appellant's testimony showed that after he and Sosa returned home, he prepared a plate of brisket. He said that the "knife was embedded inside the brisket. She walked into it. I know she did."

He said that his ex-wife did call him to say she was not coming to San Benito. This made him upset. He said that the knife, which Sosa identified as the one used to stab her, was not on the picnic table. He denied slapping her, grabbing her hair, or throwing her to the sofa. He also denied stabbing her. When the State's attorney asked him how the knife got into Sosa's stomach, he replied, "She walked into it, or the knife flew into it. One of the two. Take your pick."

II.
Sufficiency of the Evidence

By issues one and two, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. When reviewing the factual sufficiency of the evidence, we view all the evidence in a neutral light, favoring neither party. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We will set the verdict aside only if: (1) the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the fact-finder's determination is clearly wrong and manifestly unjust; or (2) the verdict is against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414-15, 417; Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We cannot conclude a conviction is "clearly wrong" or "manifestly unjust" simply because we would have voted to acquit. Watson, 204 S.W.3d at 417. In other words, we may not simply substitute our judgment for the fact-finder's judgment. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). To reverse for factual sufficiency, we must determine, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the verdict. Watson, 204 S.W.3d at 417. In examining a factual sufficiency challenge, we defer to the fact-finder's determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003).

In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hampton v. State, 165 S.W.3d 691, 693 (Tex. Crim. App. 2005). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319. The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact-finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We must resolve any inconsistencies in the evidence in favor of the judgment. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). A person commits aggravated assault if the person commits assault as defined in section 22.01 of the Texas Penal Code, and the person uses or exhibits a deadly weapon during the commission of the assault. Tex. Pen. Code Ann. 22.02(a)(2) (Vernon Supp. 2006). Intent can be inferred from the acts, words, and conduct of the defendant. Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995); Lee v. State, 964 S.W.2d 3, 8 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd).

A knife is not per se a deadly weapon. Moreno v. State, 755 S.W.2d 866, 868-69 (Tex. Crim. App. 1988). However, a deadly weapon is "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Pen. Code Ann. 1.07(a)(17)(B) (Vernon Supp. 2006). The provision's plain language does not require that the actor actually intend death or serious bodily injury; an object is a deadly weapon if the actor intends a use of the object in which it would be capable of causing death or serious bodily injury. Bailey v. State, 38 S.W.3d 157, 159 (Tex. Crim. App. 2001). The words spoken by the accused, along with the presence and severity of wounds on the injured party, are factors to be considered in determining whether an object was used as a deadly weapon. Bethel v. State, 842 S.W.2d 804, 807 (Tex. App.-Houston [1st Dist.] 1992, no pet.); Mixon v. State, 781 S.W.2d 345, 347 (Tex. App.-Houston [14th Dist.] 1989), aff'd, 804 S.W.2d 107, 108 (Tex. Crim. App. 1991) (per curiam).

In this case, Sosa did not see appellant stab her. Nevertheless, circumstantial evidence, by itself, may be enough to support a conviction. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999); see Smith v. State, 965 S.W.2d 509, 515 (Tex. Crim. App. 1998). It is not necessary that every fact point directly and independently to the defendant's guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994); Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1994). In this case, a rational jury could have determined the following from the evidence: (1) appellant was upset because his ex-wife was not coming to San Benito; (2) he blamed Sosa for his ex-wife's decision not to come to San Benito; (3) after assaulting Sosa, appellant said he was going to give her "something to think about" and left the house; (4) a knife was on a picnic table outside the house; (5) Sosa was stabbed with a knife; (6) although Sosa did not see appellant stab her, immediately after she was stabbed, she saw him walking away; (7) she and appellant were the only people in the house at the time of the stabbing; (8) the knife entered her stomach area with enough force to become embedded in her body; and (9) she required surgery to repair the stab wound.

Appellant provided controverting evidence showing that: (1) on the evening of the stabbing, he and Sosa were not fighting or arguing with each other; (2) prior to the stabbing, he had prepared a plate of brisket with a knife embedded in the meat; (3) Sosa stabbed herself by walking into the knife; (4) Sosa did not see who had stabbed her; (5) Sosa did not see the knife in appellant's hand; (6) Sosa told appellant's ex-wife she thought appellant stabbed her; and (7) appellant's ex-wife, after speaking with Sosa, believed Sosa had stabbed herself.

Based on a neutral review of all the evidence, we conclude that the evidence is not so obviously weak or so greatly outweighed by contrary proof that it would not support the finding of guilty beyond a reasonable doubt. See Watson, 204 S.W.3d at 414-17. Viewing the evidence in the light most favorable to the verdict, we also conclude that a rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. Issues one and two are overruled.

III.
Ineffective Assistance of Counsel

By issue three, appellant's counsel raises ineffective assistance of trial counsel. To show his trial counsel was ineffective, appellant must show by a preponderance of the evidence that counsel's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). Review of counsel's representation is highly deferential, and the reviewing court indulges a strong presumption that counsel's conduct fell within a wide range of reasonable representation. Salinas, 163 S.W.3d at 740. A reviewing court will rarely be in a position on direct appeal to fairly evaluate the merits of an ineffective assistance claim. Id. "'In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motive behind trial counsel's actions.'" Id. (quoting Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001)). To overcome the presumption of reasonable professional assistance, "'any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.'" Salinas, 163 S.W.3d at 740 (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)).

Appellate counsel states there is no evidence that trial counsel was ineffective. A review of the record shows that the trial court held a hearing at which it found appellant voluntarily waived his right to a jury trial. The record further shows trial counsel filed pre-trial motions, conducted extensive cross-examination of the State's witnesses, called several defense witnesses, lodged numerous trial objections, and was prepared to try the case. We hold that there is no record demonstrating that counsel's representation fell below the standard of prevailing professional norms. Issue three is overruled.

IV.
Other Grounds for Reversal

The fourth issue is whether the judgment and sentence should be reversed and remanded for entry of an acquittal or new trial for any other reason reflected in the record. Upon receipt of an Anders brief, we must conduct a full examination of all the proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988).

After reviewing all of the proceedings, we note the judgment showed that appellant was convicted of "Aggravated Assault Two Counts." However, the evidence showed that appellant only stabbed the victim one time on one occasion. Therefore, we modify (1) the judgment to reflect that appellant was convicted of only one count of aggravated assault. Issue four is sustained.

V.

Counsel certified that he has served appellant with a copy of his brief, which requests this Court to allow appellant reasonable time to file a pro se brief. More than thirty days have passed, and appellant has not filed a pro se brief. We conclude counsel's brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). In compliance with Anders, counsel presented a professional evaluation of the record and referred this Court to what, in his opinion, are all issues which might arguably support an appeal. See Anders, 386 U.S. at 744; Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974); see also High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978).

An appellate court may grant counsel's motion to withdraw filed in connection with an Anders brief. Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (en banc) (noting that Anders brief should be filed with respect for withdrawal from case.) We grant counsel's motion to withdraw. We order counsel to advise appellant promptly of the disposition of the case and the availability of discretionary review. See Ex parte Wilson, 956, S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).

We modify the judgment and, as modified, we affirm.

ROSE VELA

Justice

 

Do not publish.

Tex. R. App. P. 47.2(b).

 

Memorandum Opinion delivered and

filed this 17th day of May, 2007.

1. The rules of appellate procedure provide that an appellate court may modify the trial court's judgment and affirm it as modified. Tex. R. App. P. 43.2(b). When an appellate court has the necessary data and evidence before it for modification, the judgment and sentence may be modified on appeal. Banks v. State, 708 S.W.2d 460, 462 (Tex. Crim. App. 1986); see Barecky v. State, 639 S.W.2d 943, 945 (Tex. Crim. App. 1982) (holding that when appellate court has the same information for modifying the judgment as the trial court would have were the judgment reversed or the appeal dismissed, the judgment will be modified on appeal); Jordan v. State, 552 S.W.2d 478, 479 (Tex. Crim. App. 1977) (same).