Ernest Raymond Rojas v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-05-00028-CR ______________________________ ERNEST RAYMOND ROJAS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the County Criminal Court at Law #4 Harris County, Texas Trial Court No. 1272121 Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Ross MEMORANDUM OPINION Ernest Raymond Rojas was convicted by a jury for the misdemeanor offense of assault, by causing bodily injury to his pregnant girlfriend, Zulma Catalan. The trial court assessed punishment in accordance with the parties' agreed recommendation at 250 days' confinement in jail and sentenced Rojas accordingly. Rojas appeals, alleging in two separate points of error the evidence is legally and factually insufficient to show bodily injury. "Bodily injury" means physical pain, illness, or any impairment of physical condition. Standards of Review In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). This calls on the court to view the relevant 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. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In our review, we must evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). In a factual sufficiency review, the appellate court views all the evidence in a neutral light and determines whether the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or if evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Threadgill v. State, 146 S.W.3d 654, 664 (Tex. Crim. App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 486 (Tex. Crim. App. 2004)). If the evidence is factually insufficient, then we must reverse the judgment and remand for a new trial. Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996). Legal Sufficiency The evidence at trial showed that, in the early morning of August 30, 2004, around 7:00, Catalan went from her house to the house next door where Juana Rayo and Maria Gloria Rayo lived. Juana is Catalan's niece, and Maria is Juana's mother. When Catalan entered the house, she was covering her face with her hand and went to the bathroom. Juana heard water running in the bathroom, and when Catalan exited, she still covered her face with her hand, and went to the front porch. Juana saw Rojas standing in front of the porch but outside a fence, acting angry and threatening Catalan, saying, "[O]nce I get in there, it's your ass, . . . ." Juana also saw Catalan talking on a cell phone while she was on the front porch. An audio tape recording of Catalan's 9-1-1 telephone call was played to the jury. The trial court noted that the recording reflected that Catalan had stated to the operator, "He hit me." After Catalan talked on the cell phone, Juana saw Rojas leave the premises in his truck. After he left, Catalan returned to her house. Rojas later returned and entered the house where Catalan was located. Juana then heard loud "pounding" noises coming from that house. The police responded to the 9-1-1 telephone call around 7:20 a.m. on the same date and went to the house where Catalan was located. When they could not get anyone to answer the door, they summoned a SWAT team. Catalan exited the house just as the SWAT team was preparing to enter. Catalan appeared frightened and looked over her shoulder several times as she exited the house. Maria testified that Catalan's face was "kind of bulky" and that there was blood on her mouth and on her blouse. Danny Lynn Hicks, one of the responding officers, testified Catalan had red marks on her neck and upper chest area "that appeared to be some type of scratches." Another officer, Janet Gill, testified that Catalan "had swelling on the right side of her face" and that she "had a swollen upper lip." Gill further testified that these injuries appeared fresh and were the kind of injuries that would cause pain. Maria overheard Catalan explain to Gill how she received those injuries, and Maria quoted Catalan as saying, "He hit me. He hit me." Maria assumed Catalan was referring to Rojas. Gill also described Catalan as upset, crying, shaking, and "very, very frightened." Catalan told Gill that Rojas came to her house intoxicated and was angry over some of her friends calling her and wanting her to go out with them. She said Rojas left, but later started calling her, telling her that he was lost and wanted her to come get him. Catalan told Gill that Rojas arrived at her house again around 7:00 a.m., forced his way in, and was angry about her not picking him up. She said he slapped her about the face and head. When she tried to get away from him, he grabbed her hair and her shirt and threw her to the ground. She stated that, when she was finally able to get away from him, she ran next door, locking the fence gate behind her, and called the police. She told Gill that Rojas followed her next door, but stopped in front of the fence gate, where he cursed and yelled at her. Catalan said that Rojas then "disappeared" and she went back to her home. The officers entered the residence where they observed "some type of a fight or scuffle had occurred." They also found Rojas in a bedroom, intoxicated, and with no physical injuries to his person. He was taken into custody. In evaluating this evidence—both the direct and the circumstantial—in the light most favorable to the verdict, we hold it is sufficient for the jury to have found beyond a reasonable doubt that Rojas caused bodily injury to Catalan. Rojas' legal sufficiency point of error is overruled. Factual Sufficiency Catalan testified on behalf of Rojas. She said that, on the occasion in question, she and Rojas had been fighting over the use of the telephone and that she had been struck with the telephone by accident. She denied Rojas had struck her with his fist. Catalan also denied she had any injuries to her face, explaining that the redness to her face was due to her crying. Maria testified that, even though Catalan was sobbing when she exited the house, Catalan said she was okay. Catalan told Gill that she did not want to file charges against Rojas and that she did not want him to go to jail. Viewing all the evidence in a neutral light, we conclude the evidence supporting the jury's finding that Rojas caused bodily injury to Catalan is not too weak to support the finding of guilt beyond a reasonable doubt. We further hold that the evidence contrary to that finding is not so strong that the beyond-a-reasonable-doubt standard could not have been met. Accordingly, we overrule Rojas' factual sufficiency challenge. Conclusion We affirm the judgment. Donald R. Ross Justice Date Submitted: August 19, 2005 Date Decided: August 31, 2005 Do Not Publish ing in the trial court, and reiterated in her affidavit, that the motion to dismiss was placed in the United States mail March 22, 2004, postage prepaid. Likewise, the certificate of service on the motion to dismiss states the motion was sent to Alvarez's attorney via certified mail and to three other attorneys by regular mail. In the absence of a legible postmark, an attorney's uncontroverted affidavit establishing the date of mailing may be sufficient evidence of the mailing date and, therefore, of the filing date. Lofton v. Allstate Ins. Co., 895 S.W.2d 693, 693–94 (Tex. 1995); see Arnold v. Shuck, 24 S.W.3d 470, 472 (Tex. App.—Texarkana 2000, pet. denied) (testimony of legal assistant sufficient as evidence of timely mailing); Hodges v. State, 539 S.W.2d 394, 396 (Tex. Civ. App.—Austin 1976, no writ) (counsel's sworn motion, uncontroverted by opposing party, sufficient to demonstrate compliance with Rule 5 where envelope not produced). Alvarez claims that the file mark on Thomas' motion to dismiss (March 25, 2004) should control in determining the date of filing. But there are multiple forms of prima facie evidence by which a court may determine the filing date under the "mailbox rule." Thomas' certificate of service and his attorney's affidavit are both prima facie evidence of the date of mailing. Alvarez offered nothing to controvert either the certificate of service or the attorney's affidavit. Alvarez directs us to Texas Beef Cattle Co. v. Green, 862 S.W.2d 812 (Tex. App.—Beaumont 1993), rev'd on other grounds, 921 S.W.2d 203 (Tex. 1996), as authority that an attorney's affidavit and a postage meter stamp fail to overcome the presumption of date of mailing established by a United States Postal Service postmark. Id. at 814. While that is the holding there, such a comparison is inapposite here, where there is no United States postmark to be considered. True, Rule 5 provides, as Alvarez argues, that a United States postmark is prima facie evidence of the date of mailing. But the rules and caselaw provide for other forms of prima facie evidence which may be considered. See Tex. R. Civ. P. 21a. An attorney's certificate of service constitutes prima facie evidence of service. Meek v. Bishop Peterson & Sharp, P.C., 919 S.W.2d 805, 809 (Tex. App.—Houston [14th Dist.] 1996, writ denied); Havens v. Ayers, 886 S.W.2d 506, 509 (Tex. App.—Houston [1st Dist.] 1994, no writ). Thomas provided prima facie evidence of having placed the motion to dismiss in the United States mail, postage prepaid, by way of the certificate of service and the attorney's affidavit. Alvarez offered no evidence controverting the affidavit of Thomas' counsel or the certificate of service attached to the motion to dismiss. The trial court had ample evidence to find that Thomas' motion for dismissal was mailed March 22, 2004. If Rule 5 applied, as was argued by the parties, the motion would have been filed March 22, before the nonsuit. Article 4590i is explicit. If a plaintiff fails to provide the required expert report within 180 days of the filing of his or her suit, on motion by the defendant, a trial court shall dismiss with prejudice the plaintiff's cause of action. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01. Once a case matures as did this one, without the filing of a qualifying expert report, if thereafter the defendant's motion to dismiss is filed before the plaintiff's nonsuit, the trial court must dismiss with prejudice the plaintiff's suit. Am. Transitional Care Ctr. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001). We affirm the trial court's judgment. Josh R. Morriss, III Chief Justice Date Submitted: May 24, 2005 Date Decided: August 26, 2005