No. 05-04-00968-CR
Opinion Filed April 20, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-73588-NR. Affirmed.
Before Justices WRIGHT, MOSELEY and LANG.
LANG, Justice.
Miguel Antonio Morga appeals his conviction for aggravated assault. After Morga waived his right to a trial by jury, the trial court adjudicated his guilt and assessed punishment at twelve years confinement in the Institutional Division of the Texas Department of Criminal Justice. Morga contends, in two issues, that (1) the evidence is factually insufficient to support the conviction, and (2) the trial court erred by allowing witness testimony that Morga had a prior conviction and was known to carry guns. For the reasons below, we decide against Morga on his two issues and affirm the trial court's judgment. I. FACTUAL CONTEXT Angelica Cardenas testified that on September 29, 2002, around 7:00 or 8:00 p.m., she went to pick up her two daughters at the home of Morga's aunt. Cardenas's boyfriend accompanied her and stayed in Cardenas's truck while she went into the home to wait for Morga to arrive with her children. When Morga arrived, he became upset that Cardenas had brought her boyfriend with her. At that point, Morga pointed a gun at Cardenas and threatened to kill her. Morga told her he was "not kidding" and she should "try him" if she thought he was kidding. Cardenas was in fear for her life. When Morga put the gun away, Cardenas grabbed her daughters and went home to call the police. Dallas police officer, Matthew Smith, responded to Cardenas's domestic call, and testified that Cardenas was "very upset" and appeared to be under the stress and excitement of a recent startling event. Cardenas recounted to Smith the events of that night, including Morga pointing the gun at her and threatening her to "try him" if she thought he was kidding. The following day, Cardenas gave a written statement to a detective, in which she described in detail the events of the day in question. Cardenas stated that during the offense, Morga pointed the gun at her and was pointing the gun at the truck saying he would shoot the person inside the truck, Cardenas's boyfriend. In his defense, Morga called Juan Torres, a friend who was in Morga's car during the incident in question. Torres testified that he looked up only once and did not see a gun in Morga's hand. Rather, Torres testified that he saw Morga holding a cellular telephone, and felt that he would have seen a gun had Morga been holding one. On cross examination, Torres was asked whether he knew Morga to carry guns, at which point Morga's counsel objected, claiming the testimony was irrelevant since it constituted prior bad acts. The trial court overruled the objection. Then, Torres replied that he knew Morga to carry guns because Morga "had a conviction for that."
II. IMPROPER ADMISSION OF EVIDENCE
In his second issue, Morga contends that the trial court erred in admitting testimony that Morga was known to carry guns. Specifically, he asserts that Torres's testimony that Morga was known to carry guns was irrelevant because it pertained to a prior bad act and was being used to prove Morga's general criminal character. We disagree. Evidence is relevant if it has the tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401. Evidence which is not relevant is inadmissible. Tex. R. Evid. 402. In a trial before the court, the trial judge is presumed to have disregarded inadmissible evidence, and the appellant carries the burden of proving that the trial court relied upon, or even considered, inadmissible evidence in reaching its verdict. Tolbert v. State, 743 S.W.2d 631, 633 (Tex.Crim.App. 1988). In the present case, there was conflicting testimony as to whether Morga was carrying a gun on the night in question. Morga and Torres both testified that Morga was not carrying a gun, while Cardenas testified that Morga was pointing a gun at her and threatening her. Torres's cross-examination testimony, over Morga's objection, that Morga was known to carry guns did not pertain to prior bad acts and was relevant to the issue of whether or not Morga was in fact carrying a gun on the night in question. Accordingly, such evidence was admissible. See Warren v. State, 562 S.W.2d 474, 477 (Tex.Crim.App. 1978) (concluding that appellant's story that deceased pulled a gun was supported by evidence that deceased was known to carry a pistol). Moreover, even if the complained-of evidence was inadmissible, Morga has failed to carry his burden of proving that the trial court relied on such evidence in reaching its verdict. See Tolbert, 743 S.W.2d at 633. III. FACTUAL SUFFICIENCY
In his first point, Morga contends that the evidence was factually insufficient to support the judgment finding him guilty of aggravated assault. Specifically, Morga contends that the evidence was insufficient to prove beyond a reasonable doubt that Morga pointed a gun at and threatened his ex-wife, Angelica Cardenas. We disagree. When conducting a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding. Johnson v. State, 23 S.W.3d. 1, 11 (Tex.Crim.App. 2000); see also Edwards v. State, 106 S.W.3d 833, 839 (Tex.App.-Dallas 2003, pet. ref'd). We must determine whether a neutral view of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). The trial court, as trier of fact, is the sole judge of the credibility of witnesses and the weight to be given to their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). As such, the trial court may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). The court was free to believe Cardenas's testimony, corroborated by officer Smith, that Morga pointed a gun at Cardenas and threatened to kill her. See Sharp, 707 S.W.2d at 614; McCray, 861 S.W.2d at 407. Likewise, the court was free to disbelieve Torres's version of the events. Id. Accordingly, we conclude that the evidence was factually sufficient to support Morga's conviction. See Zuniga, 144 S.W.3d at 484-85. IV. CONCLUSION For the reasons stated above, we decide Morga's two issues against him and affirm the trial court's judgment.