NUMBERS 13-12-00310-CR 13-12-00311-CR 13-12-00312-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ERIC JAMES ALVARADO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 156th District Court of Bee County, Texas.
MEMORANDUM OPINION Before Justices Garza, Benavides and Perkes Memorandum Opinion by Justice Garza
These three appellate cause numbers are related in that appellant Eric Alvarado’s
community supervision was revoked in appellate cause numbers 13-12-311-CR and 13-
12-312-CR based, in part, on allegations related to appellate cause number 13-12-310- CR. We therefore issue a single opinion disposing of all three matters in the interest of
judicial economy.
I. CAUSE NUMBER 13-12-310-CR
In appellate cause number 13-12-310-CR, following a bench trial, the trial court
found appellant guilty of injury to a child, a third-degree felony, see TEX. PENAL CODE
ANN. § 22.04(a)(3), (f) (West Supp. 2011), and sentenced him to two years’
imprisonment. By a single issue, appellant contends that the evidence is insufficient to
establish that he “intentionally or knowingly” committed the offense. We affirm.
A. Background
At trial, the State presented the testimony of four witnesses: Kristopher and
Jennifer Gomez (the parents of B.G., the child victim), and police officers Matthew Miller
and Ryan Trevino of the City of Beeville Police Department.
Kristopher Gomez testified that in the early morning hours of New Year’s Day
2011, he and his wife, Jennifer, and their two-year-old daughter, B.G., were attending a
party at a friend’s home. Appellant and his common-law wife, Zenaida Cortez, were
present. Appellant was very intoxicated and attempted to walk away from the party.
Cortez tried to stop appellant from leaving. Cortez’s brother, Pablo Salinas, attempted
to help her. Appellant and Salinas argued, and Salinas knocked appellant to the
ground. Cortez, Jennifer, and Salinas’s wife helped appellant get up and helped him
into the Gomezes’ vehicle. Although Kristopher did not want appellant in the car
because he was drunk, he did not protest because he did not want anything else to
happen to appellant. Kristopher put B.G. in the car seat, which was directly behind the
driver’s seat. Appellant was seated in the middle of the back seat; Cortez sat next to
him, behind the front passenger seat. Kristopher drove; Jennifer rode in the front 2 passenger seat.
As they drove, appellant was “rambling” in the back seat. At one point, appellant
leaned forward to speak to Kristopher, but Jennifer put her arm across the seat to keep
him in the back. Suddenly, B.G. was screaming; Jennifer screamed that appellant had
hit B.G. Cortez said, “Oh, my God, you F[’]ed up, you hit her.” Kristopher pulled over
and called the police. According to Kristopher, appellant was alert the entire time and
was never asleep in the car.
Jennifer Gomez gave similar testimony regarding the events. Jennifer said that
when appellant got in their car, he was walking by himself. During the drive, appellant
did not fall asleep at any time; he was talking the entire time. Jennifer was looking
toward the back seat when she saw appellant punch B.G. Appellant swung at B.G.
twice, but struck her once.
Officer Matthew Miller testified that he responded to Kristopher’s call. When he
arrived, he found appellant, intoxicated, a short distance from the vehicle. Officer Miller
arrested appellant.
Officer Ryan Trevino also responded to the call. Officer Trevino made contact
with Kristopher and Jennifer. Officer Trevino observed that B.G.’s cheeks were red and
one cheek was more swollen than the other.
Cortez testified for the defense. Cortez stated that after appellant was knocked
unconscious, she and Salinas’s wife dragged him to the Gomez’s car and put him
inside. Cortez said appellant was “completely passed out.” According to Cortez,
appellant did not say anything; he was “knocked out.” As Kristopher was driving them
home, appellant suddenly woke up and started swinging. Cortez did not see appellant
hit B.G., but when B.G. started crying, she assumed appellant hit her. Kristopher pulled 3 the car over. Appellant got out and began walking away. The police arrived and
arrested appellant. According to Cortez, appellant did not intend to hurt B.G.
The trial court found appellant guilty and assessed punishment at two years’
imprisonment, to be served consecutively with the sentences imposed in appellate
cause numbers 13-12-311-CR and 13-12-312-CR.
A. Standard of Review and Applicable Law
Appellant contends the evidence is insufficient to establish that he “intentionally
or knowingly” injured B.G.
The Jackson standard “is the only standard that a reviewing court should apply in
determining whether the evidence is sufficient to support each element of a criminal
offense that the State is required to prove beyond a reasonable doubt.” Brooks v. State,
323 S.W.3d 893, 902–03, 912 (Tex. 2010) (plurality op.) (citing Jackson v. Virginia, 443
U.S. 307, 319 (1979)). Under the Jackson standard, “the relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson, 443 U.S. at 319; see Brooks, 323 S.W.3d at 898–99 (characterizing
the Jackson standard as: “Considering all of the evidence in the light most favorable to
the verdict, was a jury rationally justified in finding guilt beyond a reasonable doubt”).
The fact-finder is the exclusive judge of the credibility of witnesses and of the weight to
be given to their testimony. Anderson v. State, 322 S.W.3d 401, 405 (Tex. App.—
Houston [14th Dist.] 2010, pet. ref’d) (citing Lancon v. State, 253 S.W.3d 699, 707 (Tex.
Crim. App. 2008)). Reconciliation of conflicts in the evidence is within the fact-finder's
exclusive province. Id. (citing Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000)).
4 We must resolve any inconsistencies in the testimony in favor of the verdict. Id. (citing
Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000)).
We measure the legal sufficiency of the evidence by the elements of the offense
as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,
314 (Tex. App.—Corpus Christi 2004, pet. ref’d) (citing Malik v. State, 953 S.W.2d 234,
240 (Tex. Crim. App. 1997)). “Such a charge [is] one that accurately sets out the law, is
authorized by the indictment, does not unnecessarily increase the State’s burden of
proof or unnecessarily restrict the State's theories of liability, and adequately describes
the particular offense for which the defendant was tried.” Villarreal v. State, 286 S.W.3d
321, 327 (Tex. Crim. App.
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NUMBERS 13-12-00310-CR 13-12-00311-CR 13-12-00312-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ERIC JAMES ALVARADO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 156th District Court of Bee County, Texas.
MEMORANDUM OPINION Before Justices Garza, Benavides and Perkes Memorandum Opinion by Justice Garza
These three appellate cause numbers are related in that appellant Eric Alvarado’s
community supervision was revoked in appellate cause numbers 13-12-311-CR and 13-
12-312-CR based, in part, on allegations related to appellate cause number 13-12-310- CR. We therefore issue a single opinion disposing of all three matters in the interest of
judicial economy.
I. CAUSE NUMBER 13-12-310-CR
In appellate cause number 13-12-310-CR, following a bench trial, the trial court
found appellant guilty of injury to a child, a third-degree felony, see TEX. PENAL CODE
ANN. § 22.04(a)(3), (f) (West Supp. 2011), and sentenced him to two years’
imprisonment. By a single issue, appellant contends that the evidence is insufficient to
establish that he “intentionally or knowingly” committed the offense. We affirm.
A. Background
At trial, the State presented the testimony of four witnesses: Kristopher and
Jennifer Gomez (the parents of B.G., the child victim), and police officers Matthew Miller
and Ryan Trevino of the City of Beeville Police Department.
Kristopher Gomez testified that in the early morning hours of New Year’s Day
2011, he and his wife, Jennifer, and their two-year-old daughter, B.G., were attending a
party at a friend’s home. Appellant and his common-law wife, Zenaida Cortez, were
present. Appellant was very intoxicated and attempted to walk away from the party.
Cortez tried to stop appellant from leaving. Cortez’s brother, Pablo Salinas, attempted
to help her. Appellant and Salinas argued, and Salinas knocked appellant to the
ground. Cortez, Jennifer, and Salinas’s wife helped appellant get up and helped him
into the Gomezes’ vehicle. Although Kristopher did not want appellant in the car
because he was drunk, he did not protest because he did not want anything else to
happen to appellant. Kristopher put B.G. in the car seat, which was directly behind the
driver’s seat. Appellant was seated in the middle of the back seat; Cortez sat next to
him, behind the front passenger seat. Kristopher drove; Jennifer rode in the front 2 passenger seat.
As they drove, appellant was “rambling” in the back seat. At one point, appellant
leaned forward to speak to Kristopher, but Jennifer put her arm across the seat to keep
him in the back. Suddenly, B.G. was screaming; Jennifer screamed that appellant had
hit B.G. Cortez said, “Oh, my God, you F[’]ed up, you hit her.” Kristopher pulled over
and called the police. According to Kristopher, appellant was alert the entire time and
was never asleep in the car.
Jennifer Gomez gave similar testimony regarding the events. Jennifer said that
when appellant got in their car, he was walking by himself. During the drive, appellant
did not fall asleep at any time; he was talking the entire time. Jennifer was looking
toward the back seat when she saw appellant punch B.G. Appellant swung at B.G.
twice, but struck her once.
Officer Matthew Miller testified that he responded to Kristopher’s call. When he
arrived, he found appellant, intoxicated, a short distance from the vehicle. Officer Miller
arrested appellant.
Officer Ryan Trevino also responded to the call. Officer Trevino made contact
with Kristopher and Jennifer. Officer Trevino observed that B.G.’s cheeks were red and
one cheek was more swollen than the other.
Cortez testified for the defense. Cortez stated that after appellant was knocked
unconscious, she and Salinas’s wife dragged him to the Gomez’s car and put him
inside. Cortez said appellant was “completely passed out.” According to Cortez,
appellant did not say anything; he was “knocked out.” As Kristopher was driving them
home, appellant suddenly woke up and started swinging. Cortez did not see appellant
hit B.G., but when B.G. started crying, she assumed appellant hit her. Kristopher pulled 3 the car over. Appellant got out and began walking away. The police arrived and
arrested appellant. According to Cortez, appellant did not intend to hurt B.G.
The trial court found appellant guilty and assessed punishment at two years’
imprisonment, to be served consecutively with the sentences imposed in appellate
cause numbers 13-12-311-CR and 13-12-312-CR.
A. Standard of Review and Applicable Law
Appellant contends the evidence is insufficient to establish that he “intentionally
or knowingly” injured B.G.
The Jackson standard “is the only standard that a reviewing court should apply in
determining whether the evidence is sufficient to support each element of a criminal
offense that the State is required to prove beyond a reasonable doubt.” Brooks v. State,
323 S.W.3d 893, 902–03, 912 (Tex. 2010) (plurality op.) (citing Jackson v. Virginia, 443
U.S. 307, 319 (1979)). Under the Jackson standard, “the relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson, 443 U.S. at 319; see Brooks, 323 S.W.3d at 898–99 (characterizing
the Jackson standard as: “Considering all of the evidence in the light most favorable to
the verdict, was a jury rationally justified in finding guilt beyond a reasonable doubt”).
The fact-finder is the exclusive judge of the credibility of witnesses and of the weight to
be given to their testimony. Anderson v. State, 322 S.W.3d 401, 405 (Tex. App.—
Houston [14th Dist.] 2010, pet. ref’d) (citing Lancon v. State, 253 S.W.3d 699, 707 (Tex.
Crim. App. 2008)). Reconciliation of conflicts in the evidence is within the fact-finder's
exclusive province. Id. (citing Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000)).
4 We must resolve any inconsistencies in the testimony in favor of the verdict. Id. (citing
Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000)).
We measure the legal sufficiency of the evidence by the elements of the offense
as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,
314 (Tex. App.—Corpus Christi 2004, pet. ref’d) (citing Malik v. State, 953 S.W.2d 234,
240 (Tex. Crim. App. 1997)). “Such a charge [is] one that accurately sets out the law, is
authorized by the indictment, does not unnecessarily increase the State’s burden of
proof or unnecessarily restrict the State's theories of liability, and adequately describes
the particular offense for which the defendant was tried.” Villarreal v. State, 286 S.W.3d
321, 327 (Tex. Crim. App. 2009) (quoting Malik, 953 S.W.2d at 240).
A person “acts intentionally, or with intent, with respect to the nature of his
conduct or to a result of his conduct when it is his conscious objective or desire to
engage in the conduct or cause the result.” TEX. PENAL CODE ANN. § 6.03(a) (West
2011).
Injury to a child is a result-oriented offense requiring a mental state that relates
not to the charged conduct but to the result of the conduct. Baldwin v. State, 264
S.W.3d 237, 242 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d). It is not enough for
the State to prove that the defendant engaged in the alleged conduct with the requisite
criminal intent; the State must also prove that the defendant caused the result with the
requisite criminal intent. Id. The fact finder may infer intent from the accused’s acts and
words as well as the surrounding circumstances. Id. The fact finder may also infer the
defendant’s intent to cause the requisite harm from the victim’s injuries, the method
used to produce the injuries, and the relative size and strength of the parties. Patrick v.
State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995). 5 B. Discussion
Here, the trial court was presented with conflicting testimony: Kristopher and
Jennifer Gomez testified that appellant was conscious and talking in the car immediately
before he struck B.G. Cortez testified that he was unconscious until he awoke and
began flailing around. The trial court was the exclusive judge of the facts, the credibility
of the witnesses, and of the weight to be given testimony. See Brooks, 323 S.W.3d at
899. The court was entitled to accept Jennifer’s testimony that she saw appellant swing
at B.G. twice, and that he struck her once in the face. The court was also entitled to
infer appellant’s intent to cause harm from Officer Trevino’s testimony that B.G.’s cheek
was red and swollen, Jennifer’s testimony that appellant struck B.G. in the face, and
appellant’s superior size and strength compared to B.G.’s vulnerability as a two-year-
old. See Patrick, 906 S.W.2d at 487. We conclude that the evidence was sufficient to
establish that appellant intentionally or knowingly injured B.G. We overrule appellant’s
sole issue.
C. Conclusion
We affirm appellant’s conviction in appellate cause number 13-12-310-CR.
II. CAUSE NUMBERS 13-12-311-CR & 13-12-312-CR
In appellate cause number 13-12-311-CR, pursuant to a plea agreement in July
2010, appellant pleaded guilty to two counts of theft of firearms, a state jail felony. See
TEX. PENAL CODE ANN. § 31.03(a), (b), (e)(4)(C) (West Supp. 2011). The trial court
sentenced him to two years’ imprisonment, suspended the sentence, and placed him on
community supervision for three years.
In May 2011, the State filed a motion to revoke appellant’s community
supervision, alleging numerous violations of the conditions of his community 6 supervision, including failure to report to his supervision officer and his alcohol
consumption and public intoxication on January 1, 2011. On January 24, 2011,
appellant signed a “Stipulation of Evidence,” in which he admitted as “true” all of the
alleged violations except the alleged injury to B.G.1 Following a hearing on January 24,
2011, the trial court found the State’s alleged violations “true,” revoked appellant’s
community supervision, and sentenced him to two years’ confinement.
In appellate cause number 13-12-312-CR, pursuant to a plea agreement in July
2010, appellant pleaded guilty to retaliation, a third-degree felony. See id. § 36.06
(West 2011). The trial court sentenced him to ten years’ imprisonment, suspended the
sentence, and placed him on community supervision for five years.
In May 2011, the State filed the same motion to revoke as filed in appellate
cause number 13-12-311-CR, alleging numerous violations of the conditions of
community supervision. As in appellate cause number 13-12-311-CR, appellant signed
a “Stipulation of Evidence.” Following the January 24, 2011 hearing, in which the trial
court heard appellate cause numbers 13-12-311-CR and 13-12-312-CR together, the
trial court found the State’s alleged violations “true,” revoked appellant’s community
supervision, and sentenced him to five years’ imprisonment. The sentences in cause
numbers 13-12-311-CR and 13-12-312-CR were ordered to run concurrently.
A. ANDERS BRIEF
Appellant’s appellate counsel has filed a motion to withdraw and a brief in
support thereof in which he states that he has diligently reviewed the entire record in
appellate cause numbers 13-12-311-CR and 13-12-312-CR and has concluded that
1 We note that the “Stipulation of Evidence” incorrectly states that appellant was sentenced to ten years’ confinement and placed on community supervision for five years in cause number 13-12-311-CR. 7 there is no reversible error. See Anders v. California, 386 U.S. 738 (1967); High v.
State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978). Counsel has informed
this Court that he has (1) examined the record and has found no arguable grounds to
advance on appeal, (2) served copies of the brief and motion to withdraw on appellant,
and (3) informed appellant of his right to review the record and to file a pro se
response.2 See Anders, 386 U.S. at 744; Stafford v. State, 813 S.W.2d 503, 510 n.3
(Tex. Crim. App. 1991). More than an adequate time has passed, and no pro se
response has been filed in either cause. See In re Schulman, 252 S.W.3d 403, 409
n.23 (Tex. Crim. App. 2008).
B. INDEPENDENT REVIEW
Upon receiving an Anders brief, we must conduct a full examination of all the
proceedings to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488
U.S. 75, 80 (1988). We have reviewed the entire record and counsel’s briefs, and find
that the appeals are wholly frivolous and without merit. See Bledsoe v. State, 178
S.W.3d 824, 827–28 (Tex. Crim. App. 2005) (“Due to the nature of Anders briefs, by
indicating in the opinion it considered the issues raised in the brief and reviewed the
record for reversible error but found none, the court of appeals met the requirements of
Texas Rule of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 509. Accordingly,
we affirm the judgments of the trial court in appellate cause numbers 13-12-311-CR and
13-12-312-CR.
C. MOTION TO WITHDRAW
2 The Texas Court of Criminal Appeals has held that “the pro se response need not comply with the rules of appellate procedure in order to be considered. Rather, the response should identify for the court those issues which the indigent appellant believes the court should consider in deciding whether the case presents any meritorious issues.” In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008) (quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)).
8 In accordance with Anders, appellant’s counsel has filed a motion to withdraw as
his appellate counsel in both causes. See Anders, 386 U.S. at 744; see also In re
Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779–80
(Tex. App.—Dallas 1995, no pet.) (“If an attorney believes the appeal is frivolous, he
must withdraw from representing the appellant. To withdraw from representation, the
appointed attorney must file a motion to withdraw accompanied by a brief showing the
appellate court that the appeal is frivolous.”) (citations omitted)). We grant the motion to
withdraw.
We order that counsel must, within five days of the date of this opinion, send a
copy of the opinion and judgments to appellant and advise him of his right to file a
petition for discretionary review.3 See TEX. R. APP. P. 48.4; see also In re Schulman,
252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).
DORI CONTRERAS GARZA Justice
Do not publish. TEX. R. APP. P. 47.2(b)
Delivered and filed the 10th day of January, 2013.
3 No substitute counsel will be appointed. Should appellant wish to seek further review of these cases by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the clerk of the Texas Court of Criminal Appeals. See id. R. 68.3. Any petition for discretionary review must comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See id. R. 68.4.