COURT OF A PPEAL S EI GHTH D I STRI CT OF TEXAS ELPASO, TEXAS

COSME OCHOA, Appellant, V. THE STATE OF TEXAS, Appellee
. § § § § § § § No. 08-08-00228- CR

Appea l from the 384th District Court of El Paso County , Texas (TC# 20060D04271)

O P I N I O N Cosme Ochoa w as convic ted of a ccide nt involving injury or death relate d to a motor vehicle a ccide nt. A jury

convicted a

nd sentenc ed him to 5 y ear s’ imprisonment. Appellant now raises thre e issues cha lleng ing the trial court’ s suppression ruling , an in-c ourt witness identification, and the sufficie ncy of the e vidence supporting the conviction. In I ssue One, he contends the tria l court er red by deny ing his motion to suppress Mr. Va rg as’s pre trial identification. In I ssue Two, Appe llant asserts the “ in-court identific ation” by Mr. Var g a wa s “tainted a nd unreliable ” due to imper missibl y sug g estive pre trial identification proc edure s. I n I ssue Thre e, Appe llant challeng es the leg al and f actua l sufficienc y

of the e vidence supporting the conviction. On Dec ember

10, 2005, Mr. Osca

r Va rg as, of El Paso wa s in his car wa iting to turn at the intersec tion of King sway

and Westway

Boule vard. A s Mr. Var g as wa ited to turn, a blue F ord Escort seda

n drove a round his car , ran a

red lig ht, and struck a

pedestria n. The Esc ort droveawa

y quickly , and did not return to the sc ene. Mr . Var g as stay ed at the sc ene to he lp the injured pedestria n. L ater , throug h a police photo a rra y , Mr. Var g as identified Appe llant as the man driving the For d Escort. Appellant wa s char g ed with a violation of Te x as Tra nsportation Code Section 550.023, which re quires the ope rator of a vehic le involved in an ac cident re sulting in the injury or death of a per son to stop at the scene , and in addition to providing infor mation, to assist t he injured individual by

transportingthat person, or by callingfor tra

nsportation and medica l attention. See T E X .T R A N S P .C O D E AN N . § 550.023 (Ve rnon 1999). Appe llant was fur ther c harg ed with the use of a de adly

wea pon, “a F ord motor vehicle ,” duringthe commission of the offe nse. He filed a motion to s uppress Mr. V arg as’s identification, which was de nied by the trial cour

t at pretria l. A jury convicted A

ppellant of the of

fense , deter

mined a dea dly

wea pon was used dur ing the commission of the crime, a nd sentenc ed Appe llant to five y ear s’ imprisonment. In I ssues One a

nd Two, Appe llant challeng es the trial c ourt’s denia l of his motion t o suppress, and its re lated ruling , admitting State’s Exhibit 37, the photo arr ay in which Mr. Va

rg as identified him as the drive r. The State re sponds by arguing that Appellant has fa iled to preser ve 1 these issues for

appellate revie w due to def ense c ounsel’s af

firmative state ment during trial that there was, “ no objection” to the a dmission of the same evidenc e which ha d been the subject of the motion to suppress. The re cord suppor

ts the State’s argument. Appellant’s motion to suppress was ta rg eted at the photo arr ay

identification provided by Mr. Osca r Va rg as, and e y ewitness to the collision. The
Duringhis trial testimony , and indepe ndent of Exhibit37, Mr. Var g as identified 1 Appellant as the driver of the For d Escort without objection.

-2-trial court de nied Appellant’ s motion at the end of the suppre ssion hearing . Duringthe guiltinnocenc e phase of trial, the State of fer ed the photo ar

ray identification as Exhibit 37. Def ense counsel re sponded: “What is 37? There ’s no objection, Your Honor.” The c ourt admitted the exhibi t. When a pre trial motion to suppress evidence is overrule d, the def endant is not requir ed to object to the admission of the e vidence at trial to prese rve the suppression issue for a ppeal. Montes v. State , 876 S.W .2d 538, 539 (Tex.App.--El Paso 1994, no pet.) . Howeve r, whe n the defe ndant af

firmatively

asser ts that he has “no obje ction” to the same evidenc e whe n it is subsequently

introduced at trial, he wa ives any err or re lated to the admission of the e vidence
. Benne t v. State , 831 S.W .2d 20, 21 (Tex.App.--El Paso 1992, no pet.) . As a re sult, there is no need to r ecount the suppr ession evidenc e or a rguments in the instant case be cause any alleg ed
err or wa s waived by

defe nse counse l’s statement that there was “ no objection” to the identification. SeeT E X .R.A P P .P. 33.1(a); Montes , 876 S.W .2d at 539. Acc ording ly , I ssues One and Two a

re ove rruled. In I ssue Thre e, Appe llant contends the e vidence is leg ally and fa ctually

insufficient to support his conviction. I n a leg al suffic iency revie w, we must consider all the evidenc e in a lig ht most favora

ble to the ver dict to determine whether a re asonable minded juror could have found the essential e lements of the c harg ed off ense w ere proven be y ond a re asonable doubt. Roberts v. State , 273 S.W .3d 322, 326 (Tex.Crim.App. 2008). In making this determination, we must g ive due def ere nce to “ the re sponsibili ty of the trier

of fa ct to fairly

resolve c onflicts in testimony , to weig h the evidenc e, and to dr aw r easona ble infer ence s from basic f acts to ultimate fac ts.” Hooper v . State , 214 S.W .3d 9, 13 (Tex.Crim.App. 2007).
-3-The purpose of a f actua l sufficienc y

revie w is to answer

a sing le inquiry : Considering a ll the evidenc e in a ne utral lig ht, was a jury rationally

justified in finding guilt bey ond a re asonable doubt? Grotti v. State , 273 S.W .3d 273, 283 (Tex.Crim.App. 2008). The re cord f ails to meet this standard if: (1) the evidenc e supportingthe ver dict is so weak that the ve rdict see ms clear ly wrongand manife stly

unjust; or (2) the evide nce suppor ting the ve rdict is outweig hed by the g reat weight and pre pondera nce of contra ry evidenc e, re ndering

the ver dict clea

rly wrong and manifestly

unjust. Grotti , 273 S.W .3d at 283. A new trial will only

be g rante d when the revie wing court de termines, on an obje ctive basis, that the g reat weight and pre pondera nce of the evidenc e contr adicts the jury ’s ver dict. W atson v. State , 204 S.W .3d 404, 417 (Tex.Crim.App. 2006). As is the ca se under either suf

ficienc y standard, our

revie w should not intrude on the fa ct finder’ s role as the sole judg e of w eig ht and cr edibility attributed to witness testimony
. See Johnson v. State , 23 S.W .3d 1, 7 (Tex.Crim.App. 2000). Appellant pre sents two arguments in support of his conclusion that the evidenc e is insufficient to support the c onviction. First, he a rgues that only

one of the numerous witnesses called by the State was a

witness to the actua l collision. S econd, he contends that Mr. V arg as’s
cre dibilit y , as the sole e y e-w itness, was questionable. I n order to sustain these arguments, we would be for ced to inter fer e with the jury ’s role a s fac t finder, a rbitor of c onflicts in the evidenc e, and judg e of w itness cre dibilit y . We decline to do so. Unde r either a lig ht most favorable to the verdic t, or under a

neutra l light, neither

of these a

rguments provide a ba sis for this Court to deter mine a rational jury

could not have de termined the State c arr ied its burden of pr oof in this
case . Havingdeter

mined the evidenc e is leg ally and fa ctually

sufficie nt to support the conviction, we ove rrule I ssue Thre e. -4-Havingoverr uled all of Appe llant’s issues, the trial cour t’s judgme nt is affirmed.

J uly 21, 2010 DAVI D WEL L I NGTONCHEW, C hief Just ice Be fore Chew, C.J ., McClure, a nd Rivera, JJ
. (Do Not Publish)

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