NO. 07-05-0132-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL C MAY 24, 2006

______________________________ JUAN ANTONIO BACA, APPELLANT

V. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 181 ST DISTRICT COURT OF POTTER COUNTY; NO. 48,66 4-B; HONO RABLE J OHN BOAR D, JUDGE

_______________________________ Before QUINN, C.J., and REAVIS and HANCOCK, JJ. OPINION Appella nt, Juan Antonio Baca, appeals from a con viction for the offense of aggravated assault with a deadly weapon and sentence enhanced by a prior conviction of 18 years confinement in the Institutional Div is ion of the Texas Department of Criminal Justice w ith a fin e of $500 0.00. We affirm.2 Factual and Procedural Background On February 18, 2002, appellant was involved in a motor vehicle wreck with Joe Marquez (Marquez) and Celia Ramos (Ramos). Ramos and appellant had a preex isting relationship that had resulted in a chi ld, Z ane, being born. Ramos and appellant ha d ceased living together and their relationship was strained. At the time of the events leading to the filing of crimin al charg es again st appel lant, Marquez a nd Ramoswere li ving tog ether. On the morning in question, Marquez was driving a vehicle that belonged to Ramos and the two weredroppin g Ramos’ s childr en off at school. At the first intersection away from the school, appellant cut in front of Marquez’s vehicle, stopped, and got out of his car

. Appellant

approached the driver’s side of the car and started po unding on th e window. Marquez backed u p and fle d the sce ne. Appellant got in his vehicle, chased Marquez and Ramos, and began running into the rear of the vehicle. The vehicle, driven by Marquez, slid sideways, struck

a third vehicle, and rolled over three times. When Marquez’s vehicle came to a stop , appell ant went to the vehicle, broke the window on thepassenger’s side, pulled Zane from the vehicle, and then fled thescene with his daughter. A witness foll owed appellant

to a residence in Amarillo and called 911 advising w hat he had observed. As a resultof this 911 call, the police went to the residenc e where they found the child and arrested appella nt. Base d upon th e evid ence presented at trial, the jury convicted appellant of aggravated assault with a deadly weapon. Appellant brings five issues on appeal. Appellant first contends that the trial co urt erred in refusing to give a lesser include d charge for the of fense of d eadly co nduct. Second, appellant contends that the trial court erred in admonish ing a witnes s, allegedly1 An offense is a lesser included offense if: (1) it is established by proof of the sam e

or less than all the facts required to establish the commission of the offense charged; (2) itdiffers from the offense charged only in the resp ect that a less serious injury or risk of injury to the same person, property, or publi c interes t suffices to establ ish itscommission; (3) itdiffers f

rom the of

fense cha rged onl y in the respect th at a less cul pable me ntal state suffices to establ ish its commissio n; or (4) i t consists of an attempt to commit the offense charged or an otherwise included offense. T EX . C ODE C RIM . P ROC . A NN . art. 37.09 (Vernon 1981). 3 with the jury present, and thereby tainting the presumption of innocence. Third, appellant contends that the State was guilty of prose cuto rial misconduct i n examin ing a wi tness, Mar y Jesse G utierrez. Fourth, appellant claims that the admonition of the wi tness by the t ria l court consiste d of a commenton the evidence and, therefore, was error. Finally, app ellant argues that the trial court committed reversible error when prior convictions of ap pellant were admi tted for p urposes of impeach ment. Lesser Included Offense To determine whether a les ser inclu ded offense is required to be included in a court’s charge, we begin with the “Roy st er” test. Royster v . State , 622 S.W.2d 442, 446 (Tex.Crim.App. 1981). First, the lesser offense mus t be included within the proof necessar

y t o establ ish the offense ch arged. Campbell v. State , 149 S.W.3d 149, 152 (Tex.Crim.App. 2004) (citing Rousseau v. State , 855 S.W.2d 666, 672-73 (Tex.Crim.App. 1993)). This means that the offense must come within the dictates of article 37.09 of the Texas Code of Criminal Procedure. 1 Campbell , 149 S.W.3d at 152 (citing Moore v. State , 969 S.W.2d 4, 6-7 (Tex.Crim.App. 1998)). Finally under the “Royster” test, some evidence must exist in the record that would permit a jury to rationa lly find that if the appella n t is guilty, he is guilty only of the les ser offens e. Campbell , 149 S.W.3d at 152 (citing4

Rousseau , 855 S.W.2d at 672-73 and Royster , 622 S.W.2d at 446). An error which has been properly

preserve d by obje ction wi ll call for revers al when the error i s not harmless or is calculated to injure the righ ts of the defen dant. See Almanza v. State , 686 S.W.2d 157, 171 (Tex.Cri m.App.198 4). Appellant

claimsthat deadly conduct is, as a matter of law, a lesser included offense of aggravated assault with a de adly wea pon. To this end, appellant cites us to Honeycut t v. State , 82 S.W.3d 545 (Tex.App.– San Antonio 200 2, pet. ref’d). It is true that the San Antonio court fou nd that, u nder the facts of Honeycut t , deadly conduct as charged in that case was a lesser included offense of aggra vated ass ault wit h a dead ly weapo n. However, a cl ose reading of the case reveals that the court arrived at that conclusion on ly after reviewing the offense as charged with the elements of deadly conduct an d the evidence adduced at trial. Honeycut t , 82 S.W.3 d at 548-49. In ot her words , the app ellate court made a case by case review. Id .; See also Campbell , 149 S.W.3d at 152. Therefore, it is notenough that

deadly conduct

can be alesser i ncluded offense of aggrava ted assau lt with a deadly weapon. The app ellate court must e valuatethe enti re record and cons ider both the offense cha rged and the facts proven to determine if an offense is a lesser included. Id

. The State posits that the charge before the court, specifically the manne r and means, would prevent deadly conduct from being a lesser included of aggravated assault with a deadl y weapon . Hayward v. State , 158 S.W.3d 47 6, 478-80 (Tex.Cri m.App. 20 05). In Hayward , the defendant was charged with murder by stabbing the victim. The evidence showed that the victim had been stabbed over 50 times. Defendant requested a l esser5

included offe nse char ge on the offense of assault because she had given a statement wherein defendant alleged she had only hi t the victi m with he r fists. T he Court of Criminal Appeals concluded that the defendant was not entitled to the lesser included because the conductdefendant alleged was not included within the cond uct charg ed in theindictme nt. The indictment in the present case chargin g appell ant with aggravate d assaul t with a deadly weapon a lleges t hat appe llant “i ntention ally or k nowingl y or reck lessly caused bodilyinjury to Celia Ramos by striking her car and did then and there use or exhi bit a deadlyweapon, to-wit: an automobile.” The deadly conduct instruction requested includes, “reck less conduct that places anothe r in immi nent dan ger of serious b odily in jury .” T EX . P EN . C ODE A NN . § 22.05 (a) (Verno n 2003) ( emphasis added). Therefore, a lesser included offense placing another in imminent danger of serious b odily in jury requires different proof than a charged offense of actually causing bodily i njury

. Thus, under the conduct charged in the indictment, the offense of de adly conduct was not a lesser included offense. Campbell , 149 S.W.3d at 152-53. Assuming, arguendo , that deadly conduct is a lesser included offense of aggravated a ssault w ith a deadly weapon, as charged in the indictment, appellant cannot meet the second prong of the “Royster” test. Specifically, the evidence does notsupport that if the appellant

is guil tyhe is only gu ilty of th e lesser include d offenseof deadl y conduc t. Rather , the only rational decis ion that c ould be rendered by a jury, if they believed a ppellant’s testimony, would be that the accident wasdue to Marquez’s reckless driving and decision making and that appellant was not guilty of the lesser included of fense. Suc h evidence does not require the inclusion of a lesser included offense c harge. Campbell , 149 S.W.3d6

at 152 (citing Rousseau , 855 S.W.2d at 672-73 and Royster , 622 S.W.2d 442). Therefore, we will overrule appellant’s first issue. Admonishment of the State’s Witness During the State’s case in chief, the State called Mary Jesse Gutierrez (Gutierrez) to recount what appellant had told her when she spoke to him on the night of the in cident while appell ant was incarcerated at the Potter County jail. Because Gutierrez was living with appellant’s brother, Gutierrez was a reluctant witness. Almost immediately after the State began q uestioni ng Gutier rez, the tr ial cour t excuse d th e jury

and spoke to her. Appellant

complains that the action of the trial court in reprimanding Gutierrez, threatening counsel for the d efense w ith the ju ry presen t, and the n admonishing Gutierrez in the presenceof the jur

y, combin ed to den y appell ant of hi s presump tion of i nnocence . Upon receiving and reviewing the recor d, it bec ame appa rent to th is court t hat there was significant disagreement about whether the record was correct in referenci ng the jur y as present during the incidents co mp lained of by appellant. Accordingly, this case was remanded to the tri al court pursuant to Rule 3 4.6(e)(3) of the T exas Ru les of Ap pellate Procedure, and a hearing was held to determine w he ther the parties could agree to a correction of the reporter’s record. T EX . R. A PP . P. 36.6(e )(3). If the parties could not agree to a correction, the trial court was to order the court reporter to conform the reporter’s record to what occurred during trial an d to certi fy the cor rected record. Id . The trial co urt cond ucted a hearin g pursuan t to our o rder on Ma rch 13, 20 06 and th e correcte d record was certi fied and filed w ith this court on M arch 27, 2 006.7

The corrected record re flects tha t the jury was not p resent wh en the co mments to counsel and the witness were made. The record reflects that the jury had began returning to the jury b ox and were stopp ed by thetrial co urt when it becameapparent tha t trial counsel was going to voice an objection. The jury was returned to the jury room and returned to the courtroom only after the exchange be tween co unsel an d the tria l court. Because appella nts issueis groun ded upon the mi stak en assertion that the jury was present, we conclu de there was no e rror. Even if we as sume that the jury was pres ent, the comments to counsel were not of a type or naturethat wou ld taint the presu mption of innocen ce. Appe llant ci tes this court to Lagrone v. State , 84 Tex. Crim. 609, 209 S.W. 411, 415 (Tex.Crim.App. 1919), for the general proposi tion abo ut the imp art iality o f the trial court and how the trial judge must guard against appearing to favor one sid e or the o ther. Those are in fact proper recitations of the law in gener

al; howe ver, a rev iew of th e more recent cases addre ssing this point clearlydemonstra te that the comments attributed to the trial judge are not of the type and nature to requi re reversa l. Brown v. State , 122 S.W. 3d 794, 7 98 (Tex. Crim.A pp. 2003 ) (The trial court instructed the jury that the intent to kill could be inferred from the acts. This was viewed as a comment of the weight of the ev idence.) ; Blue v. S tate , 41 S.W.3d 129, 131 (Tex.Crim.App. 200 0) (During voir direthe trial judge sta ted to theassemble d jury panel that he preferred that the defendant ple ad guilty. This demonstrated a lack of impartial ity

and therefore t aint ed the de fendant’ s presump tion of i nnocence .); Pullen v. State , 121 Tex . Crim. 619, 51 S.W.2d 592, 593(Tex.Cri m.App. 19 32) (Tria l judge told jury that had reported they were deadlocked that hehad three more days in the week and three8

more weeks in the term for them to deliberate. Held that thisinstruction coerced a verdict from the jury.). Therefore, even ass uming, arguendo , that the comments to counsel were made in the presence o f the jury, such comments were not of the nature to taint the presumption of innocence. Appellant’s second i ssue is overruled.

Prosecutorial Misconduct in the Examination of Gutierrez Appellant

next co ntends th at the pro secuto r commit ted misconduct in the manner in which they examine d Gutierre z. Specifically, appellant contends that the prosecutor’s comment “I had a heck of atime getting you here. ..” was cle arly cal culated to tell th e jury that the witness was being forced to testify. Appellant’s argument fails because appell ant never objected to this comment at trial. T EX . R. A PP . P. 33.1(a)(1)(A). Accordingly, nothing is preserve d for app eal. Id . Additionally, it is noted that appellant did not provi de this court with any author i ty for the proposition put forth in this issue; therefore, the issue wou ld be deemed waived. T EX . R. A PP . P . 3 8.1(h). Finally, appellant claims the statement by the prosecutor

had a pernici ous impa ct when combined with the comments of the tria l court allegedly made in front of the jury which were the subject of the previous issue. As poin ted outabove, th e correcte d record indicated that the trial court’s comments were not made in front of th e jury. Fo r all of t he reason s aforemen tioned, a ppellan t’s issue is overru led.

Trial Court’s Admonishment of Gutierrez9

Appellant

contends

that the admonish ment of Gu tierrez i n front of the jury commented on the weight of the evidence and, therefore, was reversible error. Initially, the corrected record does not bear out the factual basis for appe llant’s contenti on. The record demonstrat es that th e jury was not present and, therefore, the admonition to Gutierrez could no t be a com ment on th e eviden ce. During the trial, after the trial court had initially admonished Gutierrez, trial counsel voiced the following objection: Your Honor, I think– I don’t kn ow what t h is you ng lady will say or not say. B ut I think t hese occ urrences here alo ne, out o f the pres ence of t he jury , having her essentially intimidated by the process, is a violation of my client’s right. I mean, if she doesn’t want to testify, that is her busi ness. If she d oesn’twant to testify, th at is her busines s. But I th ink that it is – we ar e trying to force her into saying something that she doesn’t want to say, and I object. Appellant’s objectio n at trial was not specific nor did it ever dire ct the trial court’s attention that app ellant was claim ing the s tatements to Gutierrez were being construed as a comment o n the wei ght of theevidence; therefo re, the ob jection’ s lack of specificit y is fatal to appell ant’s clai m of error. T EX . R. A PP . P. 33.1(a )(1)(A); Thomas v. State , 723 S.W.2d 696, 700 (Tex.Crim.App. 1986). Additionally, the objection voiced attrial does not appear to compor

t with the claim of error on appeal. This fai lure is a lso fatal to the claimed error. T EX . R. A PP . P. 33.1(a )(1)(A); Wilson v. State , 71 S.W.3d 346, 349 (Tex.Crim.App. 2002). Finally, assuming the jury was present and the error was pres erved, the

comments by the trial court were not of the nature, extentor severity to irreparably bear on the10

presumption of innocence. Jasper v. State , 61 S.W.3d 413, 421 (Te x.Crim.Ap p. 2001). Therefore, appellant’s fourth issue is overruled. Prior Convictions Appellant’s last contention is that the trial court erred in allowi ng prior convicti ons to be placed before the jury during the gui lt/innoc ence pha se of the trial. Th e trial courts admission of evidence is reviewed under an abuse of discreti on standa rd. Weatherred v. State , 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). Theappella te court must uphold the trial court’s ruling if the admissi on of the evidence was within the zone of reasonable disagree ment. Id . (citing Montgomer y v. State , 810 S.W.2d 372, 390 (Tex.Crim.App. 1990, op. on re h’g)). The specificobjection made by trial counsel was to the con victions contained in the “pen packet” because “they are not relevant and are no t impeach able in this case .” Additionally, trial counsel stated, “There is also an issue of the age of the convictions. And the convictions do not have any–make any–are not relevant in this type of case.” Counsel ended up his statement to the trial court stating he had no objection to introduction of the violation of the protective or der. However, to the other offenses, counsel again claimed they were too old, eight years old, and are d ifferent o ffenses fr om the on e on tria l. We interpre t the forgoing to object to the pen packet on the general ba sis of relevancy and remoteness. We will review accordingly.2 Further references to Texas Rules of Evidence w ill be by Rule__. 11 In determinin g the admissibility of prior convictions, we are guided by Rule 609 of the Texas Rules of Evidence 2 and the holding of the Court of Criminal Appeal s in Theus v. State

. Theus v. State , 845 S.W.2d 874, 880 (Tex.Crim.App. 1992). Rule 609(a) requires the trial court to conduct a balancing test weighin g the prob ative value of the prior conviction against

any preju dicial e ffect. Ad ditional ly, Rule 609( b) declares that a prior conviction is not admi ssible i f the conv iction i s more tha n ten yea rs old. When conducting the balancing test required by Rule 609 (a) , the relevant inquiry is (1) the impeachment value of the pr ior crime ; (2) the temporal p roximity of the pa st crime re lative to the charged offense and the witness’ s subseq uent his tory; (3) th e simila rity between the past crime and the offense being prosecuted; (4) the importance of the defendant’s testimony; and (5) the importance of the c redibil ity issue

. Theus , 845 S.W. 2d at 880

. In reviewing the Theus factors, we must first look atthe impeachment value of the prior crime. The impeachment value of crimes of deception is higher than crimes that involve violence, and the latter have a higher potentia l for prej udice. Id . at 881. The “pen packe t” contained judgments of conviction for the offenses of burglary of a building, two burglary of a vehi cle conv ictions, a nd an unau thorized use of a motor vehi cle. Bur glary cases are offenses involving deceptio n. White v. S tate , 21 S.W.3 d 642, 64 7 (Tex.A pp.– Waco 2000, pet. ref’d)

. The unauthorized use of a motor vehicle w ould, in our opinion, likewise be a crime involving deception. Therefore, the fir st of the Th eus factors would favor admission.3 The trial court in fact instructed the jury that they could not find the appe llant gu ilty

if they believed the conduct of Marquez was a co ncurrent cause of the bodil y injuries of Ramos.

4 We note that Cau se No. 34, 184-D, one of the offenses in the “pen packet,” was also used as an enhancement to the original ch arge. During punishment, appellant pled true to that offense. 12 As to the temporal proximity factor, all of the offenses listed in the pe n packet fall within the ten year period proscribed by Rule 609(b) and are, therefore, admissible. None of the “pen packet” offenses are similar to the ch arged off

ense. Therefore, the second and third fac tors favor

admissi on. Theus845 S.W.2d at 881. The fina l two factors are related and will be discussed together. The issue of the importance of the ap pellant’ s testimon y and cre dibilit y are critical by the very nature of the defense which was place d beforethe jury. The appellant’s defensive theory, as shown by the record, was that he was trying to obtain possession of his chi ld and that Marquez was the person who was committing the dangerous acts. But for the actions of Marquez, this entire episode would not have occurred. 3 As stated in Theus , when t he c ase involves testimony of only the appellant and the State’s w itnesses, the importance of appellant’s credibil ity

and the testimony

escalate s. Id . As t he impo rtance of credibility and the testim ony escal ate so do es the ne ed to all ow the State to imp each the appella nt. Id

. Under the

facts of t his casethe fina l two fac tors favor

admissi on of the“pen pac ket.” When all of the Theus factors a re reviewed under the facts of this case the decision to allow admission of the conte sted “pen packet” was not an abuse of discretion. Therefore, appellant’s issue involving admission of the “pen packet” is overruled. 413

Additionally, appellant alleges that on e of the convictions, Cause Number 71,671 i n the County Court at Law No. 2 of Potter County, Texas, was so similar to the current case as to be prejudici al. White , 21 S.W.3 d 642. H owever, a ppellan t’s objec tion at t ri al was only as to the rem oteness of the prio r convict i ons, therefor e, the claimed error on appeal does not comport with the objection at trial. Accordingly, the error, if any, is waived. T EX . R. A PP . P. 33.1(a )(1)(A); Wilson , 71 S.W.3d at 349. Therefore, appellant’s fifth issue is overruled. Conclusion Hav ing overruled all of appellant’s contentions, the judgment of the trial court is affirmed.

Mackey K. Hancock Justice Publish

.