Matini v. State

Full title: CLIVE MATINI, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: May 17, 2004

No. 05-03-00686-CR (Tex. App. May. 17, 2004)

Opinion

No. 05-03-00686-CR.

Opinion Filed May 17, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 401^st Judicial District Court, Collin County, Texas, Trial Court Cause No. 401-80410-02. Affirm.

Before Justices JAMES, BRIDGES, and LANG-MIERS.

OPINION

Opinion By Justice LANG-MIERS.

Clive Matini appeals his conviction for the burglary of a habitation. After a jury trial, the appellant's punishment was assessed at ten years imprisonment. The appellant challenges the legal and factual sufficiency of the evidence to support his conviction. The appellant also argues that the trial court erred in denying his motion for a mistrial following an improper jury argument by the State. We affirm the trial court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On the night of October 27, 2003, the appellant attended a birthday party for Judy Lewis at her home.¹ The appellant consumed alcoholic beverages at the party.² Around 6:30 a.m. the next morning, October 28, 2001, Val Gavito was walking his dog in Lewis' neighborhood and saw a man that looked like the appellant. First, he saw him running in an uncoordinated and labored gait behind him. Next, he saw a similar looking man in an alleyway standing in a corner where a fence connected to a house. He was standing upright and rigid with his fists clenched. Gavito also saw the man in a crouched position darting in and out of the bushes up next to the house, tree, and bush lines. Gavito was alarmed. He returned to his home, put the dog in the house and went back outside. He walked down the alley and heard a huge crashing sound like glass breaking. He ran back to his house to call 9-1-1. Kay and James Ramsey live in the same neighborhood. At approximately 6:30 a.m. that morning, Kay Ramsey was awakened by a loud banging on her bedroom window. She called out, asking if it was her son. She did not hear any knocking on the front door. She got out of bed and told her husband to wake up. When they returned to the bedroom, they heard glass breaking. Her husband pushed back the window blinds to see who was at the window. They saw a dark-skinned man screaming at them to open the window. Her husband yelled at the man to go away. Instead, the appellant violently kicked in the bedroom window, glass flew into the room and all over James Ramsey. Kay Ramsey ran to the kitchen to search for her phone. The phone was dead and she grabbed her cell phone. At the same time, James Ramsey ran into the master bedroom closet to get his gun. About that time the appellant entered the house. When Kay Ramsey saw the appellant in her home she started yelling at him to leave and warned him that she was calling the police. Meanwhile, James Ramsey returned to the bedroom with his loaded gun. When he heard his wife scream, he ran into the living room. At the same time, the Ramseys' daughter awoke, walked out of her room and came face-to-face with the appellant. James Ramsey told her to go back in her room. Kay Ramsey yelled at the appellant to get out of their home, told him that she was calling the police, and that they were going to haul him off. He said, "Call them. I don't care. There's something wrong here. There's something wrong with the world. This is Jihad." James Ramsey yelled at the appellant to leave his home and yelled "don't come at me or I'll shoot you." He warned the appellant at least three times not to come at him or he would shoot. Each time the appellant took another step forward and James Ramsey took a step back, yelling to the appellant not to come toward him or that he would shoot and to leave his house. The final time, the appellant took another step forward, James Ramsey took another step backward and backed into the window. The appellant was enraged and still yelling something that included the word "kill." While James Ramsey was yelling "Don't do it," the appellant lunged and came at him with his hands toward his face and neck. James Ramsey fired the gun, shooting the appellant in the chest. The appellant continued to take a few steps toward James Ramsey before falling to the floor. After the confrontation was over, James Ramsey had a scratch on his face, which was not there previously. The appellant survived the gunshot wound and was indicted for the offense of burglary of a habitation. The indictment alleged that on October 28, 2001, the appellant "did then and there intentionally and knowingly, without the effective consent of James Ramsey, the owner thereof, enter a habitation with the intent to commit assault, attempted to commit assault, and did commit assault."³ During closing argument, the prosecutor commented on the crime charged and the lessor included offense and stated "[t]his is not a misdemeanor trespass. This is a burglary of a habitation." The appellant objected to the comment. The trial court sustained the objection and, at the appellant's request, instructed the jury to disregard the statement. The appellant also moved for a mistrial, which the trial court denied. At the conclusion of the trial, the jury found the appellant guilty of burglary of a habitation. After a hearing on punishment, the trial court sentenced the appellant to ten years in prison. The appellant appeals his conviction for burglary of a habitation.

SUFFICIENCY OF THE EVIDENCE

The appellant challenges the sufficiency of the evidence to sustain his conviction for the burglary of a habitation. In the appellant's first through seventh issues on appeal, he challenges the legal and factual sufficiency of the evidence to prove that he: (1) intended to commit assault; (2) attempted to commit assault; and (3) committed assault.

A. Legal Sufficiency of the Evidence

In reviewing a challenge to the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Young v. State, 14 S.W.3d 748, 753 (Tex.Crim. App. 2000). Cf. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App. 1995) (en banc), cert. denied 516 U.S. 1051 (1996). We do not re-weigh the evidence or substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000) (en banc). The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996), cert. denied 522 U.S. 832 (1997). In a legal sufficiency review of the evidence, the jury's inference of intent is afforded greater deference than the evidence supporting proof of conduct; circumstantial evidence of intent is not required to meet the same rigorous criteria for legal sufficiency as circumstantial proof of other offensive elements. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000) (en banc) (citing Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995)). A legal sufficiency review of the evidence does not involve any weighing of favorable and non-favorable evidence. See Margraves, 34 S.W.3d at 917.

B. Factual Sufficiency of the Evidence

There is only one question to be answered by the reviewing court in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex.Crim.App. Apr. 21, 2004). Three principles guide a review of the evidence for factual sufficiency. Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim. App. 1997) (en banc). First, deference is given to the jury's findings. Id. at 407. Second, a court of appeals must support a finding of factual insufficiency with a detailed explanation of that finding so that the Court of Criminal Appeals can ensure that the appellate court accorded proper deference to the jury findings. Id. Third, a court of appeals must review all of the evidence in a neutral light. Zuniga, 2004 WL 840786, at *4. See Cain, 958 S.W.2d at 408; Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000) (en banc); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996) (en banc). The evidence weighed by the fact finder tending to prove the existence of the fact in dispute is compared to the evidence tending to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 2003) (en banc). This standard is applied to both circumstantial and direct evidence. King, 29 S.W.3d at 565; Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999); Smith v. State, 895 S.W.2d 449, 452 (Tex. App.-Dallas 1995, pet. ref'd). Reversal for factual insufficiency occurs only when: (1) the evidence is so obviously weak that a conviction is clearly wrong and manifestly unjust; or (2) based upon the contrary evidence, the beyond a reasonable doubt burden of proof could not have been met. Zuniga, 2004 WL 840786, at *7. Cf. Vasquez, 67 S.W.3d at 236; Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129.

C. Applicable Law

Section 30.02(a)(1) of the Texas Penal Code establishes one manner in which a burglary may be committed. It states that:

(a) A person commits [burglary], if without the effective consent of the owner, the person:

(1) enters a habitation, or building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault.

Tex. Penal Code Ann. § 30.02 (Vernon 2003). Proof of intent to commit a felony, theft, or assault is required for the offense of burglary. See Moore v. State, 54 S.W.3d 529, 539 (Tex. App.-Fort Worth 2001, pet. ref'd); McGee v. State, 923 S.W.2d 605, 608 (Tex. App.-Houston [1^st Dist.] 1995, no pet.). Under Section 30.02(a)(1) of the Penal Code, the intent to commit an assault must exist at the moment of entry into the building or habitation. See In re J.L.H., 58 S.W.3d 242, 249 (Tex. App.-El Paso 2001); Moore, 54 S.W.3d at 539. See also DeVaughn v. State, 749 S.W.2d 62, 64-65 (Tex.Crim.App. 1988) (en banc). The offense is complete upon entry; a completed felony, theft, or assault is unnecessary. Moore, 54 S.W.3d at 539. See also DeVaughn, 749 S.W.2d at 65. The jury determines the issue of intent. See Moore, 54 S.W.3d at 539. The jury may infer the intent of the accused from his acts, words, and conduct. Moore, 54 S.W.3d at 539; Dues v. State, 634 S.W.2d 304, 305 (Tex.Crim. App. 1982). However, the intent of the accused cannot be determined merely from the victim's fear at the time of the offense. See Dues, 634 S.W.2d at 305. Section 30.02(a)(3) of the Texas Penal Code provides another means by which a burglary may be committed. It states that:

(a) A person commits [burglary], if without the effective consent of the owner, the person:

(3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.

Tex. Penal Code Ann. § 30.02. Under Section 30.02(a)(3) of the Penal Code, the State must prove, beyond a reasonable doubt, that the accused, without effective consent, entered a building or habitation lacking the intent to commit an assault, but subsequently formed that intent and then committed or attempted to commit assault. See In re J.L.H., 58 S.W.3d at 249. See also DeVaughn, 749 S.W.2d at 65. Pursuant to Section 20.01 of the Texas Penal Code an assault occurs when a person:

(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse;

(2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or

(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

Tex. Penal Code Ann. § 20.01 (Vernon 2003). A criminal attempt occurs when a person "with specific intent to commit an offense, does an act amounting to more than mere preparation, which tends but fails to affect the offense intended." Tex. Penal Code § 15.01. An "attempt" implies an intent and an active effort to carry out or consummate the intent or purpose. Flores v. State, 902 S.W.2d 618, 620 (Tex. App.-Austin 1995, pet. ref'd); Robinson v. State, 630 S.W.2d 394, 398 (Tex. App.-San Antonio 1982, pet. ref'd).

D. Application of the Law to the Facts

The appellant argues that the evidence adduced at trial was legally and factually insufficient to prove burglary of a habitation with intent to commit assault, or attempted assault, or assault. Specifically, the appellant maintains that the State failed to prove intent under any of its three theories of burglary of a habitation. The State responds that the evidence demonstrates that a rational trier of fact could have found beyond a reasonable doubt that the appellant intended to commit assault, attempted to commit assault, and did commit assault. Viewing the evidence in the light most favorable to the verdict, there was evidence that the appellant entered the Ramseys' home without consent by kicking in their bedroom window. Also, James and Kay Ramsey testified that the appellant was enraged, that he was shouting something that included the word "kill," that he referred to a Jihad, and that he lunged with his hands raised toward James Ramsey's face and throat after backing James Ramsey up against a window. James Ramsey testified that he warned the appellant at least three times that he would shoot if the appellant continued moving toward him. Additionally, there was evidence that James Ramsey was covered with glass when the appellant kicked in the bedroom window and that he sustained a scratch to his face during the incident. A reasonable fact finder could find that the appellant intended to commit assault, attempted to commit assault, or did commit assault; the evidence was legally sufficient. Viewing the evidence in a neutral light, we conclude that there is ample evidence from which a fact finder could conclude that the appellant committed burglary of a habitation and that the appellant intended to commit assault, attempted to commit assault, or committed assault. The appellant claims that absent the Ramseys' testimony regarding their fear of the appellant, there is no evidence that the appellant intended to commit assault. However, a neutral review of the entire record shows that there was evidence other than the Ramseys' testimony about their fear that supports the appellant's conviction. That evidence includes the following: (1) Val Gavito's testimony that prior to entering the Ramseys' home, the appellant was behaving in an odd manner that suggested he was trying to conceal his activities; (2) James Ramsey's testimony that the appellant was enraged when he would not unlock the bedroom window; (3) James Ramsey's testimony that the appellant violently kicked in the bedroom window, covering him with glass; (4) James Ramsey's testimony that once he was in the house the appellant remained enraged and did not leave, although Ramsey confronted him with a gun; (5) James Ramsey's testimony that the appellant continued to advance upon him enraged and with clenched fists, despite his warnings that he would shoot if the appellant continued toward him; (6) James and Kay Ramsey's testimony that the appellant was yelling something unintelligible that included the word "kill" or "kill me" and yelled that it was Jihad; (7) James Ramsey's testimony that the appellant lunged toward his face and throat; and (8) James Ramsey's testimony that something struck him after he shot the appellant and that he realized that he had a scratch on his face after the incident. The appellant's challenge to the factual sufficiency of the evidence is actually an attack on the credibility and weight assigned to the evidence by the jury. We conclude that the jury's verdict was neither so contrary to the evidence that it is clearly wrong and unjust, nor was the contrary evidence sufficient to establish that a rational trier of fact could not have found the appellant guilty beyond a reasonable doubt. After reviewing all of the evidence under the appropriate standards of review, we conclude that the appellant has not demonstrated that the evidence is not legally or factually sufficient to support the appellant's conviction for burglary of a habitation. The appellant's issues one through seven are overruled.

MOTION FOR MISTRIAL

The appellant argues in his eighth issue on appeal that the trial court erred in denying his motion for a mistrial. Specifically, the appellant contends that the trial court's instruction to the jury to disregard the State's improper statement made during closing argument was not adequate to cure the statement's harm.

A. Standard of Review

A trial court's denial of a mistrial is reviewed under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim. App. 1999), cert. denied 529 U.S. 1070 (2000). There is no abuse of discretion by the trial court when its decision is within the zone of reasonable disagreement. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on reh'g).

B. Applicable Law

Jury argument is proper in the following areas: (1) the summation of the evidence; (2) reasonable deductions from the evidence; (3) answers to opposing counsel's arguments; and (4) pleas for law enforcement. See Shannon v. State, 942 S.W.2d 591, 597 (Tex.Crim.App. 1996) (en banc); Cooks v. State, 844 S.W.2d 697, 727 (Tex.Crim.App. 1992) (en banc), cert. denied 509 U.S. 927 (1993). Counsel is generally given wide latitude in drawing inferences from the evidence as long as they are reasonable, fair, legitimate, and offered in good faith. Shannon, 942 S.W.2d at 597. Even if a jury argument falls outside the permissible areas, reversal will not occur unless the argument was extreme or manifestly improper, violated a mandatory statute, or injected new facts that were harmful to the accused. See Shannon, 942 S.W.2d at 597; Cooks, 844 S.W.2d at 727. An instruction to disregard the improper statement will, in most instances, cure any error. See Martinez v. State, 17 S.W.3d 677, 691 (Tex.Crim.App. 2000) (en banc); Shannon, 942 S.W.2d at 597. A mistrial is an appropriate remedy for a narrow class of highly prejudicial and incurable errors. See Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App. 2000). A mistrial is only required when the impropriety is of a character that suggests that it would be impossible to withdraw the impression produced on the minds of the jury. See Hinojosa v. State, 4 S.W.3d 240, 253 (Tex.Crim.App. 1999).

C. Application of the Law to the Facts

The appellant argues that the trial court should have granted his motion for a mistrial because the trial court's instruction to the jury to disregard the State's improper statement was inadequate to cure the statement's harm. During jury argument, the State commented that "[t]his is not a misdemeanor trespass. This is a burglary of a habitation." The State did not comment on the punishment assigned to felonies and misdemeanors. The trial court sustained the appellant's objection to the State's comment. The trial court also instructed the jury to disregard the statement. The appellant contends that we should be guided by McClure v. State, 544 S.W.2d 390, 393-394 (Tex.Crim.App. 1976) where the court reversed and remanded a conviction because of the State's repeated references to the difference in the range of possible punishments for murder and voluntary manslaughter. The prosecutor continued making the references even after several objections had been sustained, motions to instruct the jury to disregard were granted, and motions for mistrial denied. However, McClure does not control here, because the State did not refer to any differences in the range of punishment. After reviewing the facts and circumstances of this case, we conclude that the argument was not so prejudicial that it was not possible to withdraw the impression produced on the minds of the jury by an instruction to disregard the improper comment. See generally Hughes v. State, 878 S.W.2d 142, 154 (Tex.Crim.App. 1992) (orig. opin.) (instruction to disregard adequate to cure police officer's unembellished reference to defendant's parole officer), cert. denied 511 U.S. 1152 (1994); Ridyolph v. State, 545 S.W.2d 784, 787 (Tex.Crim.App. 1977) (instruction to disregard non-responsive reference to extraneous shooting sufficient to cure the error); Tennard v. State, 802 S.W.2d 678, 685 (Tex.Crim. App. 1990) (per curiam) (instruction to disregard adequate to cure unresponsive mention of defendant's prior stay in the penitentiary), cert. denied 501 U.S. 1259 (1991); Gardner v. State, 730 S.W.2d 675, 696-97 (Tex.Crim.App. 1987) (en banc) (instruction to disregard adequate to cure non-responsive mention of defendant's being in the penitentiary), cert. denied 484 U.S. 905 (1987); Richardson v. State, 624 S.W.2d 912, 914 (Tex.Crim. App. 1981); Kemp v. State, 846 S.W.2d 289, 308 (Tex.Crim. App. 1992) (en banc) (instruction to disregard sufficient to cure error of uninvited unembellished testimony implying extraneous offenses in violation of a motion in limine), cert. denied 508 U.S. 918 (1992). We conclude that the appellant has not demonstrated that the trial court abused its discretion in denying the appellant's motion for a mistrial. The appellant's eighth point of error is overruled.

D. Harmless Error

Even assuming that the trial court should have granted the appellant's motion for mistrial, the non-constitutional error does not warrant reversal. Most improper comments during jury argument are considered non-constitutional error. See Martinez, 17 S.W.3d at 692. The standard in Appellate Procedure Rule 44.2 is applied to review the harm of an improper jury argument and provides that a non-constitutional error "that does not affect substantial rights must be disregarded." Tex.R.App.P. 44.2. See Martinez, 17 S.W.3d at 692; Mosely v. State, 983 S.W.2d 249, 259 (Tex.Crim. App. 1998) (en banc), cert. denied, 526 U.S. 1070 (1999). To determine the harm of an improper jury argument, three factors must be balanced: (1) the severity of the misconduct (prejudicial effect); (2) curative measures; and (3) the certainty of the conviction in the absence of misconduct. Martinez, 17 S.W.3d at 692-93. The trial court's instruction to disregard the State's improper jury argument cured any harm created by the State's comment. The State's reference to the misdemeanor status of the lesser included offense was mild and the trial court took curative measures by granting the appellant's objection and instructing the jury to disregard the statement. See generally Martinez, 17 S.W.3d at 693 (commenting that prosecutor's misconduct in stating that the victims and their families cry out for the death penalty was mild). Further, based upon the record, it does not appear that the certainty of the appellant's conviction would be altered without the State's improper jury argument. Therefore, considering the entire record, no substantial right of the appellant was affected and any error created by the trial court's denial of a mistrial was harmless.

CONCLUSION

We conclude that the appellant has not demonstrated that the evidence was legally or factually insufficient to support the jury's conviction of the appellant for burglary of a habitation. We also conclude that the trial court's denial of the appellant's motion for a mistrial was not an abuse of discretion. Further, we conclude that even if the trial court had abused its discretion in denying the appellant's motion for a mistrial, the non-constitutional error would have been harmless. The trial court's judgment is affirmed.