Summary
reforming judgment to correct judge, rather than jury, assessed punishment
Summary of this case from George v. StateOpinion
No. 14-10-00552-CR
Opinion filed April 26, 2011. DO NOT PUBLISH. — TEX. R. APP. P. 47.2(b).
On Appeal from the 178th District Court, Harris County, Texas, Trial Court Cause No. 1254306.
Panel consists of Justices BROWN, BOYCE, and JAMISON.
MEMORANDUM OPINION
A jury convicted appellant of unauthorized use of a motor vehicle. The trial court sentenced appellant to confinement for one year in the State Jail Division of the Texas Department of Criminal Justice. Appellant filed a timely notice of appeal. Appellant raises three issues on appeal. First, appellant claims the evidence is legally and factually insufficient to sustain his conviction. The Texas Court of Criminal Appeals recently determined that the Jackson v. Virginia standard is the only standard a reviewing court should apply to determine whether the evidence is sufficient to support each element of a criminal offense the State is required to prove beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010) (plurality op.). Accordingly, under current Texas law, in reviewing appellant's issues we apply the Jackson v. Virginia standard and do not separately refer to legal or factual sufficiency. We view all of the evidence in the light most favorable to the verdict to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Brooks, 323 S.W.3d at 902. We do not sit as a thirteenth juror and may not substitute our judgment for that of the fact finder by re-evaluating the weight and credibility of the evidence. Id. at 901; Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see also Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). We defer to the fact finder's resolution of conflicting evidence unless the resolution is not rational. Brooks, 323 S.W.3d at 907. Our duty as a reviewing court is to ensure the evidence presented actually supports a conclusion that the defendant committed the crime. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The complainant, Joyner Meza, was at home when his car was taken from his driveway. Meza went outside but the car was already in the street. He did not see the driver and did not know appellant. Officer Ivan Santillanes of the Pasadena Police Department was on patrol when he received a call regarding an auto theft and heard a description of the vehicle. He saw a vehicle of that description, called in the license plate and received confirmation that it was the stolen vehicle. Officer Santillanes began following the car. After the car slowed, Officer Santillanes turned on his lights. The car turned into a parking lot and the driver accelerated rapidly all the way through the parking lot, crossed a street, and crashed into a parked vehicle at a trailer park. Officer Santillanes observed the male driver exit the stolen vehicle and run north. The man ran between two trailers and Officer Santillanes followed approximately 30 to 40 feet behind. The man ran past all the trailers and into a field. When another officer approached in front of him, the man began running back towards Officer Santillanes. Officer Santillanes ordered the man to stop and put up his hands. The man went back into the field and Officer Santillanes lost sight of him. There were approximately ten officers on the scene. The trailer park was well-lit but there was minimal light in the field. Officer Santillanes said the man was a young Hispanic with short hair. Officer Santillanes did not get a good look at his face and could not identify him. Officer Tang, a canine officer with the Pasadena Police Department, arrived at the scene and was told by Officer Santillanes that a suspect had been chased into the trailer park. Officer Tang proceeded to perform a track for the suspect with his canine partner, Robby. Officer Tang took Robby to the stolen vehicle and gave the track command. Robby "took off" towards the trailer park, in the direction Officer Santillanes was pointing. Robby's posture indicated he was "on odor," meaning he was tracking the scent picked up from the vehicle. Officer Tang and Robby, accompanied by Officer Santillanes, proceeded between two trailers, across an open field, across a street, and into an area where there were a tire business and an auto business. They proceeded between the two businesses into another small open field. About halfway into the field, Robby turned south. Robby rounded the corner of the tire business where there were weeds and tall grass. As they moved toward that area, Officer Tang saw two hands rise out of the grass and the suspect said, "Stop, stop." Officer Tang identified appellant as the person who rose up and had been tracked by Robby. Appellant was found approximately 300 to 400 yards from the stolen vehicle. No one else was found in the field where appellant was located. Officer Tang testified that, based upon his training and experience, in his opinion Robby properly obtained a scent from the vehicle and that scent is what led them to where appellant was hiding behind the tire business. Robby is trained to detect odors of narcotics as well as people, and can detect the scent of marijuana. Officer Tang testified the command to find narcotics differs from the command to find people. Based on his experience with Robby, Officer Tang can tell the difference in Robby's behavior and posture when he is searching for narcotics as opposed to people. Officer Santillanes took appellant into custody. Appellant appeared to be under the influence of marijuana; his eyes were red and glassy and there was a strong odor of marijuana. Appellant denied stealing the vehicle and said he had been at the home of a friend, John, eating pizza and smoking marijuana with John and John's girlfriend, Ashley. Appellant testified that he remained at John's until he started walking home, about an hour's walk, at approximately 1:40 p.m. When he got to the tire business, he went behind the building to rest and smoke more marijuana. He saw lights from police cars and then a flashlight. He let his presence be known and put his hands up. When he was told to get on the ground and put his hands behind his back, appellant told Officer Santillanes there was a misunderstanding, he had been there and was resting. Appellant did not see anyone else in the area running from the police. Officer Santillanes took appellant to John's house but John was not there. Officer Santillanes spoke to John's mother but no one at John's home had seen appellant earlier that day. Appellant testified he was arrested wearing blue jean pants, a white t-shirt, a black t-shirt on top of it, and a white sweater, with black and white tennis shoes. At trial, Officer Santillanes testified the man was wearing blue pants and a black shirt. He admitted that initially he thought the pants were shorts but realized his mistake after the dog tracked to the suspect. The offense report states the suspect was wearing shorts. After appellant was taken to the jail, he was contacted by Officer Robert Garcia of the Pasadena Police Department. According to Officer Garcia, appellant was wearing a black shirt and blue shorts. Based solely upon Officer Santillanes' report that the suspect was wearing shorts, not pants, appellant claims Officer Santillanes was "highly unreliable as an eyewitness." Appellant does not address Officer Garcia's testimony that he also believed appellant was wearing shorts. Officer Santillanes saw the driver exit the vehicle and followed him into the field. It was the undisputed testimony of Officer Tang that he and Robby tracked the driver from the vehicle to appellant's location. No one, including appellant, testified to the presence of another person in the field. There was no dispute that appellant was the person found by Officer Tang and Robby. The only evidence contrary to the verdict was appellant's testimony that he was not the driver of the vehicle. No evidence was offered in support of appellant's alibi. Considering all the evidence in the light most favorable to the verdict, and giving deference to the jury's determination of credibility and conflicts in the evidence, we hold a rational jury could find all of the elements of the offense beyond a reasonable doubt. See Brooks, 323 S.W.3d at 899. Accordingly, the evidence is sufficient to sustain appellant's conviction and issue one is overruled. Appellant's second issue claims the trial court erred in overruling appellant's motion for instructed verdict because the evidence was insufficient to sustain his conviction. Having found otherwise, we find the trial court did not err in denying the motion. Issue two is overruled. In his third issue appellant requests we order the judgment be reformed to reflect punishment was assessed by the trial court, not the jury. The record reflects the trial court determined appellant's sentence. However, the judgment incorrectly reflects the jury assessed punishment. An appellate court has the power to correct and reform a trial court judgment to make the record speak the truth when it has the necessary data and information to do so. See Nolan v. State, 39 S.W.3d 697, 698 (Tex.App.-Houston [1st Dist.] 2001, no pet.) (citing Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd)); see also Tex. R. App. P. 43.2(b). Accordingly, we sustain appellant's third issue and reform the judgment of conviction to reflect punishment was assessed by the trial court. As reformed, the judgment is affirmed.
443 U.S. 307, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979).