NO. 07-06-0406-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

OCTOBER 10, 2007

______________________________

DAVID RUBEN SALAZAR, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 47 DISTRICT COURT OF POTTER COUNTY; TH

NO. 51,769-A; HONORABLE HAL MINER, JUDGE

_______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

Appellant David Ruben Salazar appeals his conviction for the offense of aggravated

sexual assault of a child and the jury-assessed punishment of ten years confinement in the

Institutional Division of the Texas Department of Criminal Justice. Agreeing with appointed

counsel’s conclusion the record fails to show any meritorious issue which would support

the appeal, we affirm the trial court’s judgment. 

The complainant was appellant’s stepdaughter A.M. In May 2005, when A.M. was

fourteen years old, A.M. told her aunt that appellant had sexually touched her and had
See Tex. Pen. Code Ann. § 22.021 (Vernon 2007). 

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Allen v. United States, 164 U.S. 492 (1896). 2

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sexual intercourse with her from the time she was eight or nine years old until she was

eleven or twelve. After a report to police, A.M. was examined by a sexual assault nurse.

By a November 2005 indictment, appellant was charged with aggravated sexual

assault of a child under the age of fourteen years. At the close of pretrial motions, 1

appellant pled not guilty and the matter proceeded to trial in September 2006. 

At trial, the jury heard testimony from four State witnesses, including the victim, A.M.

The defense presented three witnesses. During jury deliberations, the jury reported it was

unable to reach a verdict. Following an “Allen charge” from the court, the jury returned a 2

unanimous verdict of guilty.

Appellant's appointed counsel has filed a motion to withdraw and a brief in support

pursuant to Anders v. California, 386 U.S. 738, 744-745, 87 S.Ct. 1396, 18 L.Ed.2d 493

(1967), in which he certifies that he has carefully reviewed the record and, in his

professional opinion, under the controlling authorities and facts of this case, there is no

reversible error or legitimate grounds upon which a non-frivolous appeal can arguably be

predicated. The brief discusses the procedural history of the case and sets forth a detailed

recitation of the evidence produced at trial. Counsel has certified that a copy of the motion

to withdraw has been served on appellant and he has informed appellant of his right to file

a petition for discretionary review as required by Ex Parte Owens, 206 S.W.3d 670

(Tex.Crim.App. 2006). Tex. R. App. P. 48.4. Appellant has acknowledged notice by
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counsel of his right to review the record and file a pro se response. Johnson v. State, 885

S.W.2d 641, 645 (Tex.App.--Waco 1994, pet. ref'd). By letter, this Court also notified

appellant of his opportunity to submit a response to the Anders brief and motion to

withdraw filed by his counsel. The State has not filed a brief. Appellant has filed a pro se

response raising three issues.

In conformity with the standards set out by the United States Supreme Court, we will

not rule on the motion to withdraw until we have independently examined the record.

Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.--San Antonio 1997, no pet.). If this Court

determines the appeal has merit, we will remand it to the trial court for appointment of new

counsel. Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App.1991).

Appellant’s response first challenges the legal and factual sufficiency of the

evidence to support his conviction. The indictment charged that appellant, on or about

June 1, 2003, intentionally and knowingly caused his sexual organ to penetrate the female

sexual organ of [A.M.], a child who was then and there younger than 14 years of age. 

A legal sufficiency review determines whether, after review of the evidence in the

light most favorable to the State, any trier of fact could have found the essential elements

of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979);

Fowler v. State, 65 S.W.3d 116, 118 (Tex.App.–Amarillo 2001, no pet.). All the evidence

is reviewed, but evidence that does not support the verdict is disregarded. See, e.g.,

Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). The jury’s verdict is

upheld unless it is irrational or unsupported by more than a mere modicum of evidence.
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Fowler, 65 S.W.3d at 118 (citing Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App.

1988)).

Evidence supporting guilt, though legally sufficient, may be factually insufficient

because it is so weak that the jury’s verdict seems clearly wrong and manifestly unjust, or

because evidence contrary to the verdict is such that the jury’s verdict is against the great

weight and preponderance of the evidence. Marshall v. State, 210 S.W.3d 618, 625

(Tex.Crim.App. 2006); Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006);

Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). When there is a conflict in the

evidence, to find the evidence factually insufficient, an appellate court must first be able

to say, with some objective basis in the record, that the great weight and preponderance

of all the evidence contradicts the jury’s verdict. Watson, 204 S.W.3d at 417. 

The State’s four witnesses were the Amarillo police officer who took A.M.’s initial

complaint, A.M., A.M.’s aunt and the sexual assault nurse examiner. A.M. was sixteen at

the time of trial. Her testimony about appellant’s sexual contact with her was not especially

detailed, but did include direct statements that on various occasions, appellant put his

penis in her vagina. 

The nurse examiner testified regarding her examination of A.M. and the report she

created regarding A.M. The report, which was admitted without objection, also recited

A.M.’s statement that appellant “raped” her when she was younger, providing additional

details. The nurse testified that all of her findings were consistent with A.M.’s history,

consistent with what A.M. told her, and consistent with multiple penetrations of A.M. 
 Tex. Pen. Code Ann. § 12.32 (Vernon 1994). 3

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Appellant’s trial counsel offered the testimony of A.M.’s stepmother, A.M.’s mother

and A.M.’s grandmother. Each of these witnesses expressed disbelief of A.M.’s

allegations. While some asserted that appellant lacked the opportunity to commit the

offenses A.M. alleged, none presented direct evidence contrary to the verdict. 

 The jury is the exclusive judge of the credibility of witnesses and of the weight to

be given their testimony. Wyatt v. State, S.W.3d 18, 30 (Tex.Crim.App. 2000) (citing

Barnes v. State, 876 S.W.2d 316, 321 (Tex.Crim.App. 1994)). Likewise, “reconciliation of

conflicts in the evidence is within the exclusive province of the jury.” Id. (citing Losada v.

State, 721 S.W.2d 305, 309 (Tex.Crim.App. 1986)). The jury may choose to believe some

testimony and disbelieve other testimony. Id. The jury’s apparent belief of the testimony

of the State’s witnesses does not raise an arguably meritorious issue concerning the legal

and factual sufficiency of the evidence supporting the jury’s verdict. 

Neither does the record raise an arguably meritorious issue with regard to the jury’s

assessment of punishment. Pursuant to the Penal Code, an individual adjudged guilty of 3

a first degree felony, as here, is to be punished by imprisonment for life or for any term of

not more than 99 years or less than five years. Further, a fine may be imposed in an

amount not greater than $10,000. The jury assessed punishment against appellant at ten

years, well within the statutory range. 

In appellant’s second point, he alleges prosecutorial misconduct during the State’s

voir dire of the jury and the State’s closing argument. The record reflects, however, that
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appellant did not object at trial to the prosecutor's voir dire statements or those made

during closing argument. Because a complaint to the trial court was a prerequisite to such

a complaint on appeal, appellant’s second point cannot present an arguable ground for

appeal. See Jenkins v. State, 870 S.W.2d 626, 629 (Tex.App.–Houston [1 Dist.] 1994, st

pet. ref’d) (having failed to object to the prosecutor's statement during voir dire, appellant

has preserved nothing for review); Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App.

1996); Tex. R. App. P. 33.1.

Lastly, appellant argues that the Allen charge given the jury coerced them into

reaching a guilty verdict. For two reasons, the complaint is not arguably meritorious. First,

in both civil and criminal cases, courts have found similar charges not to be coercive.

Stevens v. Travelers Ins. Co., 563 S.W.2d 223, 225 (Tex. 1978); Freeman v. State, 115

S.W.3d 183, 186 (Tex.App.–Texarkana 2003, pet. ref’d); Golden v. First Nat’l Bank, 751

S.W.2d 639, 641 (Tex.App.–Dallas 1988, no writ). Second, because no objection was

made to the trial court’s Allen charge, appellant would be required to show that it caused

him actual “egregious harm,” effectively denying him a fair trial. Patrick v. State, 906

S.W.2d 481 (Tex.Crim.App. 1995); Almanza v. State, 686 S.W.2d 157, 171

(Tex.Crim.App. 1985, op. on reh’g). See also Brown v. State, 1990 WL 51036, *3

(Tex.App.–Houston [1 Dist.] 1990, no writ) (not designated for publication) (stating that st

because appellant failed to object to the Allen charge, he cannot prevail unless the charge

was erroneous and caused egregious harm). From our review of the record, such a

contention would not be meritorious. 
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Both the United States Supreme Court and the Texas Court of Criminal Appeals

have accepted the use of a supplemental Allen charge. Allen v. United States, 164 U.S.

492 (1986); Howard v. State, 941 S.W.2d 102, 123 (Tex.Crim.App. 1996). Here, the trial

court gave a version of the Allen charge to the jury, addressing the jury as a whole and

encouraging them to reach a verdict if they can do so without violating their conscience.

Stanton v. State, 535 S.W.2d 182, 183 (Tex.Crim.App. 1976) (an instruction that a mistrial

would have to be declared is not, of itself, coercive). See Jones v. State, 986 S.W.2d 358,

362 (Tex.App.–Beaumont 1999, pet. ref’d) (trial court may properly encourage jurors to

reach an acceptable verdict).

Our review convinces us that appellate counsel conducted a complete analysis of

the record. We have also made an independent examination of the record to determine

whether there are any non-frivolous grounds on which an appeal could arguably be

founded. Penson v. Ohio, 488 U.S. 75 (1988); Stafford, 813 S.W.2d at 511. We agree it

presents no meritorious issue which would support an appeal. Accordingly, we grant

counsel's motion to withdraw and we affirm the judgment of the trial court. 

James T. Campbell

 Justice

Do not publish.