### NUMBER 13 - 11 - 00170 - CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

– EDINBURG

ERNESTO BERLANGA, Appellant,

v. THE STATE OF TEXAS , Appellee.

On appeal from the 107th District Court of Cameron County, Texas

.

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Benavides and Longoria

Memorandum Opinion by Chief Justice Valdez By three issues, appellant, Ernesto Berlanga, appeals his conviction for aggravated assault. See T EX

. P ENAL C ODE A NN . § 22.02(a)(2)(b) (West 2011). Appellant argues that (1) the evidence was insufficient to support the aggravating factors for the offense; (2) the trial court violated his right to a fair trial by not requi ring a2

unanimous verdict; and (3) the trial court violated his confrontation clause rights because two of the State’s witnesses’ previous reports were not available at trial to be used for impeachment. We affirm.
I. B ACKGROUN D Berlanga was charged with aggravated assault for an incident at The Carrizales

Rucker jail , where he was incarcerated for an unrelated offense . The indictment , in relevant part , alleged that Berlanga “on or about the 15 th day of July 2006

. . . . did then and there intentionally, knowingly, or recklessly cause bodily injury to Ruben Villanuev a by stabbing Ruben Villanueva , and the defendant did then and there exhibit a deadly weapon, to

- wit, pen or object unknown to the grand jury, during the commission of said assault.”
At trial , the victim, Ruben Villanueva , testified that four inmates began harassing
him in his cell. He testified that Berlanga began interrogating him about his gang affiliation and then ordered him to remove his jumpsuit so that he could inspect him for gang tattoos. He testified that Berlanga informed him that he was “ capitas ,” or leader ,
o f U nit C1 , home of the Vallucos G ang. He stated that Berlanga began waving a pen at him a nd threatening him. He stated that he could clearly identify Berlanga because he was standing very near him. Villanueva testified that someone to his side struck hi m in the head with a coffee cup. Vil anueva then testified that Berlanga swung at him with a pen twice, and that on the second swing the pen “caught [him] in the eye.” On cross

examination, he clarified that he “got hit in the eye” and that he felt the pe n “go in” after Berlanga swung at him the second time. Villanueva stated that the men then started assaulting him with cups and their hands and feet until he eventually blacked out. He3

stated that , after the attack , he couldn’t see and he was bleeding everywhere. He testified , “I got to my feet, and I grabbed a towel to put over my eye ‘cause I was gushing blood out from everywhere, from the top of my head, my nose, and my eye.” Villanueva testified that he eventua lly required surgery on his eye , t hat he now has

nerve damage , and that he cannot see very well out of his eye. The prosecution also elicit ed the testimony of two jailers who spoke with both Berlanga and Villanueva in the aftermath of the alleged assault, and entered into evidence medical records detailing the injuries sustained by Villanueva and pictures of the injuries. A jury found Berlanga guilty of aggravated assault, and after he ple a d ed true to an enhancement allegation, the trial court sentenced h im to twenty

- five years in prison.

II. L EGAL S UFFICIENCY AND F ATAL V ARIANCE A. Standard of Review “When reviewing a case for legal sufficiency, we view all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Winfrey v. State , 323 S.W.3d 875, 878

– 79 (Tex. Crim. App. 2010) (citing Jackson v. Virginia , 443 U.S. 307, 319 (1979)). Accordingly, “we ‘determine whether the necessar y inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict.’” Id . at 879 (quoting Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (citing Hooper v. State , 214 S.W.3d 9, 16

– 17 (Tex. Crim. App. 2007)). “It has been said quite appropriately, that ‘[t]he appellate scales are supposed to be weighted in favor of upholding a trial court's judgment of conviction, and this weighting includes, for example, the high ly deferential standard of4

review for legal

- sufficiency claims.’” Id . (quoting Haynes v. State , 273 S.W.3d 183, 195 (Tex. Crim. App. 2008) (Keller J., dissenting) (citing Jackson , 443 U.S. at 319)). “We must therefore determine whether the evidence prese nted to the jury, viewed in the light most favorable to the verdict, proves beyond a reasonable doubt that appellant” committed the crime for which the jury found him guilty. Id . “It is the obligation and responsibility of appellate courts ‘to ensure that the evidence presented actually supports a conclusion that the defendant committed the crime that was charged.’” Id . at 882 (quoting Williams v. State , 235 S.W.3d 742, 750 (Te x. Crim. App. 2007)). Additionally, in our analysis of the verdict, we recognize that the jury is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Ozuna v. State , 199 S.W.3d 601, 610 (Tex. App.

— Corpus C hristi 2006, no pet. ). The jury may accept or reject all or part of the evidence. Id . The jury may also draw reasonable inferences and make reasonable deductions from the evidence. Id

. B. Discussion Berlanga first argues that the evidence was insufficie nt to support a jury finding
that he caused serious bodily injury

. The statute defines serious bodily injury as “bodily injury that creates a s ubstantial ri sk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” T EX

. P ENAL C ODE § 1.07)(a)(46) (West 2011). The State elicited testimony from
Villanueva that he sustained puncture wounds, lost proper eye function, was bleeding profusely, and passed out as a result of t he assault. The State also presented medical records s howing that he suffered a fractured orbital bone

. Additionally , the medical records presented by the State indicated that Villanueva’s eye was swollen shut and5

that he was unable to open it. The State also presented pictures of Villanueva’s injuries showing blood and severe swelling around Villanueva’s eye. Viewing the evidence in the light most favorable to the verdict, t his is sufficient evidence to allow the jury to find that Berlanga’s as sault caused serious bodily injury as alleged in the indictment. See
id. Berlanga next argues that the State presented insufficient evidence to support a jury finding that he committed an assault with a deadly weapon. The statute defines a deadly weapon as “anything that in the manner of use or intended use is capable of causing death or serious bodily injury.” T EX

. P ENAL C ODE § 1.07(a)(17)(B). Because the State presented evidence that Berlanga used a pen in a manner that caused Villanueva severe eye i njuries, we conclude that there is legally sufficient evidence to support a jury finding that Berlanga committed an assault with a deadly weapon. See id. Berlanga also argues that there was insufficient evidence that Villanueva was stabbed as alleged in t he indictment and that there was therefore a “fatal variance” between the allegations in the indictment and the evidence presented. H e, however, cites no law indicating what the State must show to prove that a stabbing occurred. The record reveals that t he State presented evidence showing that Berlanga used a pen in a
manner that caused Villanueva to sustain severe eye injuries including puncture wounds and that Vilanueva felt the pen “go in” his eye, indicating that he had been
stabbed

. Furthermore, eve n if the evidence was only sufficient to establish that Berlanga “hit” Villanueva and not that he “stabbed” him, this would not create a “fatal variance.” Under Texas law, “[t] he object of the d octrine of variance is to avoid surprise, and to be material it must prejudice a defendant's rights. Only a material variance is6

fatal. ” Stevens v. State, 891 S.W.2d 649, 650 (Tex. Crim. App. 1995) , cited with approval in Grant v. State, 970 S.W.2d 22, 23 (Tex. Crim. App. 1998)

. Here, even if the S tate presented evidence that Berlanga “ hit ” instead of “ stabbed ” Villanueva, Ber langa would not have suffered surprise or prejudice, and we would therefore find that there was no material variance between the evidence presented and the indictment. See id. We overrule Berlanga’s first issue.
III. U NANIMOUS V ERDICT In his second issue, Berlanga contends that the trial co urt committed error by allowing the jury to find appellant guilty of aggravated assault by alternative means. The jury charge contained two separate instructions concerning aggravated assault. The first instructed the jury that “[a] person commits aggravated assault if the person

comm its an assault, as defined above, and uses or exhibits a deadly weapon during the commission of the assault.” The charge then stated, “[a] person commits aggravated assault if the person commits an assault, as defined above, and causes serious bodily inju ry to another .” Berlanga correctly asserts that this authorized a guilty verdict without requiring the jury to make a unanimous f inding on the aggravating factor

. 1 However, such a findi ng is not require d by Texas l aw. In Landrian v St

ate, the court of criminal appeals resolved the exact issue we confront today. 268 S.W.3d 532, 535

– 42 (Tex. Crim. App. 2008). The court reas oned
that , for the crime of aggravated assault, serious bodily injury and the use of a deadly weapon do not create two distinct c rimes but “are simply the way in which the simple

1 Under Texas Law, to support a guilty verdict, a jury must make a unanimous finding that a defendant committed one specific crime, but not o n the means by which he committed it. Landrian v. State , 268 S.W.3d 532, 535 (Tex. Crim. App. 2008) (citing Stuhler v. State , 218 S.W.3d 706, 716 (Tex. Crim. App. 2007 ) ); Ngo v. State , 175 S.W.3d 738, 745 (Tex. Crim. App. 2005).7

assault becomes a more serious offense.” Id. at 540. The court held that the jury needed to make a unanimous finding only on the gravamen of the offense, causing bodily injury, not on the aggravating f acto r and that therefore the trial court did not err by submit ting the instructions on the aggravating factors in the disjunctive. Id. at 535

– 542. In accordance with the Landrian court, we hold that a unanimous finding on the aggravating factor of the assaul t was not required to support a guilty verdict. See id.
We overrule Berlanga’s second issue.
IV. C ONFRONTATION C LAUSE In his final issue, Berlanga argues that he was “denied his constitutional right to effectively cross

- examine witnesses against him ” because “their previous statements or reports were not made available to defense counsel after they testified.” The trial court
h eld a hearing outside the presen ce of the jury at which defense counsel argued that Berlanga was denied his opportunity to ef fectively cross

- examine witnesses against
him

. 2 Defense counsel asserted that two to three jailers made statements in writing concerning their involvement in the alleged assault in 2006 and that these statements were not made available to the defense. He stated he was uncertain as to whether they were reports or statements because he had not seen them. Over Berlanga’s objection,
the trial court permitted two Cameron County jailers to testify.

2 Notably, defense couns el at trial also objected arguing that a Brady violation had occurred. On appeal, Berlanga does not raise an argument under Brady v. Maryland , 373 U.S. 83 , 87 (1963) ( holding that the prosecution's suppression of evidence favorable to the accused upon request violates the due process clause of the Fourteenth Amendment)

. Furthermore, we construe his trial counsel’s contention that he was denied his opportunity to effectively cross

- examine the jailers as a Confrontation Clause objection sufficient to pre serve error for the issue he has raised on appeal. T EX

. R. A PP

. P. 33. 1 (requiring an objection to state “ the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the co mplaint, unless the specific grounds were apparent from the context ”).8

The Confrontation Clause of the Sixth Amendment of the Unite d States Constitution guarantees the right of an accused “ to be confronted with the witnesses against him.” The primary interest secured by the Confrontation Clause is the right of

cross - examination

. Shelby v. State , 819 S.W.2d 544, 546 (Tex. Crim. App. 1991) (citing Douglas v. Alabama , 380 U.S. 415, 418 (1965) ) . The Sixth Amendment's right of confrontation is a fundamental right and is applicable to the States by virtue of the
Fourteenth Amendment. Id

. (citing Pointer v. Tex

. , 380 U.S. 400, 403 (1965) )

. Berlanga has cited no case law indicating that a defendant’s Confrontation C lause rights are violated when a prior report from a witness is lost and therefore unavailable at trial. To support his argument, Berlanga cites Kentucky v. Stincer in
which th e United State s Supreme Court held that a defendant’s rights were not violated when he was excluded from a competency hearing where witnesses testified against
him , and Shelby v. State in which a defend ant alleged a violation of his Confrontation C lause ri ghts because the trial court explicitly limited the scope of a defendant’s cross

examination. Kentucky v. Stincer , 482 U.S. 730, 747 (1987) ; Shelby , 819 S.W.2d at
546

. Berlanga does n o t explain how these cases apply here, and they are clearly distinguishable from the present case as they involve challenges to trial court decisions
to limit a defendant’s confrontation of witnesses, not the unavailability of information to use for impeachment. On appeal, Berlanga only challenge s th e trial court’s denial of his right to effectively cross

- examine the witness es ; he does not challenge t he admissibility of the witness’s testimony. He also does not allege bad faith on the part of the jailers or the9

S tate in failing to preserve or provide the reports. 3 Berlanga does not suggest, and we do not find, that there was an y action the trial court could have taken to further protect Berlanga’s confrontation clause rights.
Furthermore , assuming a violation did occur, it was no t harmless error

. Confrontation C lause violations are subject to harm analysis. Delaware v. Van Arsdall , 475 U.S. 673, 684 (1986); see also Shelby , 819 S.W.2d at 546. “The correct inquiry is whether, assuming that the damaging potential of the cross

- examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.” Van Arsdall , 475 U.S. at 684

. Whether a violation of a defendant’s Confrontation C lause rights is harmless depends upon a host of factors, “ including (1) the importance of the witness' [s] testimony in the prosecution's case, (2) whether the testimony was cumulative, (3) the p resence or absence of evidence corroborating or contradicting the testimony of the witness on material points, (4) the extent of cross

examination otherwise permitted, and, of course, (5) the overall strength of the prosecution's case. ” Id

. ; see also Shel

by , 819 S.W.2d at 547. Here, the prosecution’s case did not rely solely on the testimony of the jailers ; much of the testimony provided was cumulative because it described the victim’s injuries which were documented in medical records and photographs that were admitted into evidence ; there was no evidence contradicting any of the jailer s ’ testimony; Berlanga had an opportunity , free from restriction by the trial court, to fully cross - examine the jailers ; and the prosecution’s case was otherwise strong as the attorney for the State elicited testimony from the victim who was able to identify Berlanga as his assailant and provided medical

3 As the State notes in its brief, Berlanga does not allege, nor does he identify any evidence suggesting, that the jailers, prosecution, or trial court acted in violation of his due process rights. See Arizona v

. Youngblood

, 488 U.S. 51, 57 (1988).10

documentation and photographs of the victim ’ s injuries

. 4 Given these facts, we
conclude that any error committed by the t rial court re lating to Berlanga’s right to confront the jailers was harmless beyond a reasonable doubt

. Because Berlanga fails to refer to an action taken by the trial court that violated his Confrontation C lause rights and the record indic ates that any error was harmless,

we overrule Berlanga’s third issue.
V. C ONCLUSION We affirm the judgment of the trial court.

________________________ ROGELIO VALDEZ Chief Justice Do not p ublish. T EX

. R. A PP

. P. 47.2(b)

. Delivered and filed the 20th day of June, 2013

.

4 Reg arding harm, Berlanga only argues, in his brief, that “[t]he difficulty of effectively cross

examining witnesses without having their previous statements or reports was clearly shown by the trial counsel.”