Opinion
No. 05-08-00545-CR
Opinion Filed August 3, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F07-55393-RK.
Before Justices RICHTER, LANG and MURPHY.
OPINION
Appellant was convicted of burglary of a habitation with the commission of theft and sentenced to twelve years' imprisonment. In four issues on appeal, appellant argues the evidence was legally and factually insufficient to prove that he entered the habitation without the owner's consent, the trial court erred in allowing the State to amend the indictment, and the trial court erred when it failed to properly charge the jury on the law of accomplice witness testimony. Finding no reversible error, we affirm the trial court's judgment.
Background
In the early morning hours of July 31, 2007, officer Tom Mortl received a call about a burglary in progress. When officer Mortl arrived at the apartment in question, he noticed that a window was broken and the entire metal framework of the window was pulled away from the building. When his backup arrived, officer Mortl knocked on the apartment door. Appellant and Lourdes Martinez answered the door. Martinez told the officers that one of the occupants of the apartment had given her a key so that she could watch the apartment in his absence. Martinez claimed she lost the key and asked appellant to help her break in to the apartment for caretaking purposes. Appellant also claimed Martinez had asked him to break into the apartment for her. When officer Mortl asked who lived in the apartment, neither appellant nor Martinez could supply any names. Officer Mortl searched the apartment and found the name "Juan Jiminez" on an identification card in the bedroom. When officer Mortl asked appellant and Martinez for identification, appellant removed a wallet containing identification for "Juan Alvarado" from his pocket. Both the identification card found in the bedroom and the identification found in the wallet indicated that "Juan" lived in the apartment. When the apartment manager's husband arrived at the apartment, he told the police that appellant and Martinez did not have a right to be in the apartment. Appellant and Martinez were arrested for burglary of a habitation and appellant was searched. When the police found a watch, a pocket knife, and some nail clippers, all in appellant's left-front pants pocket, appellant claimed the items belonged to him. At trial, the items found in appellant's pocket were admitted into evidence over appellant's objection, and officer Mortl identified appellant as the individual in possession of the items on the day of the offense. Martinez was already serving a sentence for burglary of a habitation as a result of this incident when she testified at trial. Martinez testified that she knew Lorenzo or "Lincho," one of the residents of the apartment, and knew that he worked out of town. Therefore, she suggested to appellant that they break in to the apartment to get property or drugs. She testified that she clearly told appellant they would be committing a burglary and a theft. Martinez also testified that nobody gave her permission to enter the apartment and that both she and appellant were aware that they did not have permission to enter the apartment. Martinez admitted that she had lied to the police when she told them she had asked appellant to help her enter the apartment because she had lost her key. Martinez stated that appellant broke the window to the apartment and they both searched for things to steal. Martinez saw appellant take the watch and pocket knife out of a drawer, and confirmed that the wallet found on appellant's person was also an item he found inside the apartment. Marcelo Guitierrez, husband of the apartment manager, also testified. Guiterrez said that the police had awakened him and asked him to accompany them to the apartment. When he arrived, he saw appellant with another person, and informed the police that the two did not live in the apartment. Guiterrez noticed that everything in the apartment was out of place, and that a box containing various items had been placed by the front door. Juan Alvarado testified that he lived in the apartment with his father and two brothers. Alvarado testified that he uses his mother's surname, "Jiminez" when he is in Mexico. As reflected on his driver's license and voter registration card, his name in the United States is "Juan Jiminez Alvarado." Alvarado travels frequently for work, and was working in Houston when the apartment was burglarized. Alvarado does not know appellant or Martinez, and did not give them permission to enter the apartment. When Alvarado went to Houston, he placed his wallet in a drawer in the bedroom. Alvarado identified the watch, pocket knife, and nail clippers as his father's property. Alvarado testified that one of his brothers is named "Lorenzo," but he does not know if Lorenzo is acquainted with Martinez. After both sides rested and closed, the jury charge was prepared and was submitted to the jury without objection. The charge set out the law regarding accomplice witness testimony but did not instruct the jury that Martinez was an accomplice as a matter of law. The jury found appellant guilty. Appellant then elected to have the court assess punishment. At the punishment hearing, appellant stipulated that he had been convicted of twenty-five prior offenses, seventeen of which were for burglary or theft. The Court sentenced appellant to twelve years' imprisonment and this appeal followed.Discussion
Legal and Factual Sufficiency
We apply well-known standards when reviewing challenges to the legal sufficiency of the evidence. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Laster v. State, 275 S.W.3d 512, 518 (Tex.Crim.App. 2009). We view all of the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Laster, 275 S.W.3d at 518. In a factual sufficiency review, we begin by assuming that the evidence is legally sufficient under Jackson. Id. We consider all of the evidence in a neutral light and determine whether, although legally sufficient, (1) the evidence supporting the conviction is too weak to support the fact-finder's verdict or (2) considering conflicting evidence, the fact-finder's verdict is against the great weight and preponderance of the evidence. Id. Although we afford less deference to the verdict during a factual sufficiency review, we are not free to override the verdict simply because we disagree with it and instead may only find the evidence factually insufficient when necessary to prevent manifest injustice. Id. Appellant argues the evidence is insufficient because the evidence does not show that appellant entered the apartment without the owner's consent. Although appellant concedes the evidence shows Alvarado did not consent, he maintains that the State was also required to prove that Lorenzo did not consent. We disagree. Appellant was charged with burglary of a habitation with the commission of theft. Thus, the State was required to prove that, without the effective consent of the owner, appellant entered a habitation and committed theft. Tex. Penal Code Ann. § 30.02(a)(3) (Vernon 2003). Appellant acknowledges that when there is more than one owner of the property, the State is only required to allege and prove ownership in one of them. See Pickens v. State, 768 S.W.2d 496, 496 (Tex.App.-Houston [1st Dist.] 1989, no pet.). But appellant insists that there is some evidence of "possible consent" from one of the owners and therefore the State "should be required to disprove consent." In support of his argument, appellant relies on Martinez's testimony that she knew Lorenzo and knew that he worked out of town. Appellant also relies on Martinez's initial statement to the police that she had the owner's permission to be in the apartment. We are not persuaded by appellant's argument. Appellant's theory that he did not enter the apartment without the effective consent of the owner does not constitute a statutorily-recognized defense or justification. See Willis v. State, 790 S.W.2d 307, 315 (Tex.Crim.App. 1990) (cataloging defenses and justified conduct under the penal code). Instead, any evidence of consent goes to negate an element of the offense alleged by the State in its indictment. See Tex. Penal Code Ann. § 30.02(a)(3) (Vernon 2003). The State has the burden to prove the elements of the offense beyond a reasonable doubt. Tex. Penal Code Ann. § 2.01 (Vernon 2003). When a defendant raises a defensive theory, the State's burden of proof does not change; the defensive theory merely casts doubt upon whether the State has met its burden. See Walters v. State, 247 S.W.3d 204, 209-210 (Tex.Crim.App. 2007) (discussing burden of proof with regard to alibi and concluding that special instruction on this defensive theory would constitute an unwarranted comment on the weight of the evidence); see also Allen v. State, 253 S.W.3d 260, 267 n. 24 (Tex.Crim.App. 2008) (noting that State has no burden of production of evidence on a defensive issue, but once a defense is raised the State has the burden to persuade the jury with respect to that issue). Because appellant's defensive theory concerning Lorenzo's alleged consent involved negation of an element of the offense, the State had no burden beyond its initial burden to prove the elements of the offense beyond a reasonable doubt. With regard to whether the evidence shows a lack of consent, we note that the owner of the premises testified that he did not give his consent for anyone to enter his apartment. Martinez testified that her initial statement to the police about having the owner's consent to enter the apartment was false; she and appellant both knew that they were not authorized to enter the apartment. Contrary to appellant's assertion, Martinez did not testify that Lorenzo told her he would be out of town. Rather, Martinez's testimony was that she knew one of the residents and knew he worked out of town. Similarly, although Alvarado stated that he had a brother named Lorenzo, he was never asked whether Lorenzo had given Martinez or anyone else permission to enter the premises. The evidence showed that appellant entered the premises by breaking a window and was found inside the apartment in possession of the owner's recently stolen property. Viewing the evidence under the appropriate standard, we conclude the evidence was both legally and factually sufficient to support the conviction. We resolve appellant's first two issues against him.Amendment of the Indictment
This case was initially set for trial on March 31, 2008. On the day of trial, the State filed a motion to amend the indictment in order to change the name of the owner of the premises from "Juan Jiminez" to "Juan Alvarado." The trial court granted the motion, re-set the trial for April 21, 2008, and the indictment was changed. On April 21, 2008, appellant objected to the amendment of the indictment because it had been amended on the day of the first trial setting. The trial court overruled the objection. Appellant now contends on appeal that the trial court erred in allowing the amendment because changing the name of the complainant prejudiced appellant's substantial rights. An objection at trial, however, that does not comport with the complaint on appeal presents nothing for our review. See Tex. R. App. P. 33.1; Chambers v. State, 903 S.W.2d 21, 32 (Tex.Crim.App. 1995). Appellant's third issue is overruled.Accomplice Instruction to the Jury
In his fourth issue, appellant argues that the trial court's accomplice instruction to the jury was in error. Although the jury was instructed on the law of accomplice witness testimony, the trial court did not instruct the jury that Martinez was an accomplice as a matter of law. As a result, appellant contends the jury could have decided that Martinez was not an accomplice and her testimony required no corroboration. According to appellant, the non-accomplice evidence in this case was insufficient to connect him with the offense. We disagree. There was no objection to the charge at trial. Unobjected-to jury charge error will not result in reversal of a conviction in the absence of "egregious harm." Almanza v. Sate, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984); Allen, 253 S.W.3d at 264. Jury charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Allen, 253 S.W.3d at 264; Warner v. State, 245 S.W.3d 458, 461-62 (Tex.Crim.App. 2008). To make this determination, we examine the entire jury charge, the state of the evidence, the arguments of counsel, and any other relevant information revealed by the record of the trial as a whole. Warner, 245 S.W.3d at 461-62. Egregious harm is a difficult standard to prove and must be determined on a case-by-case basis. Ellison v. State, 86 S.W.3d 226, 227 (Tex.Crim.App. 2002). The accomplice instruction given to the jury in this case read as follows:[A]n accomplice, as the term is here used, means anyone connected with the crime charged, as a party thereto, and includes all persons who are connected with the crime by unlawful act or omission on their part transpiring either before or during the time of the commission of the offense, and whether or not they were present and participated in the commission of the crime. A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible or both. Mere presence alone, however, will not constitute one a party to an offense.
A person is criminally responsible for an offense committed by the conduct of another is, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, or aids or attempts to aid the other person to commit the offense. The term "conduct" means any act or omission and its accompanying mental state.The court further instructed the jury that the accomplice's testimony had to be corroborated, stating:
You are further instructed that a conviction cannot be had upon the testimony of an accomplice unless the jury first believe[s] that the accomplice's evidence is true and that it shows the defendant is guilty of the offense charged against him, ands even then you cannot convict unless the accomplice's testimony is corroborated by other evidence tending to connect the dependant with the offense charged, and the corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect the defendant with its commission.
Mere presence of the defendant with an accomplice shortly before or shortly after the commission of a crime is not sufficient corroboration of an accomplice witness' testimony to convict the defendant.During closing argument, the prosecutor argued that Martinez's testimony was corroborated, and highlighted the corroborating evidence for the jury. The prosecutor also told the jury "you can throw Ms. Martinez's testimony out the window if you want, and you still have your case." Counsel for the defense did not really address whether Martinez was or was not an accomplice. Instead, defense counsel tried to suggest that Martinez was aware that the pair had entered the apartment without consent but had duped appellant into believing otherwise. Given the unrefuted, unquestioned evidence that Martinez was an active participant in the offense, along with the expansive accomplice witness instructions and the arguments of counsel, only an "unreasonable jury" would conclude that Martinez was not an accomplice. See DeBlanc v. State, 799 S.W.2d 701, 710-11 (Tex.Crim.App. 1990). Therefore, we conclude that the trial court's failure to instruct the jury that Martinez was an accomplice as a matter of law did not constitute egregious harm. We also reject appellant's argument that Martinez's testimony was not corroborated with other evidence tending to connect appellant with the offense. See Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). When we determine whether testimony is sufficiently corroborated, we eliminate all of the accomplice testimony from consideration and then examine the remaining portions of the record in the light most favorable to the jury's verdict to see if there is any evidence that could be viewed by a rational juror tending to connect the defendant to the commission of the offense. Simmons v. State, 282 S.W.3d 504, 508-09 (Tex.Crim.App. 2009). It is not necessary that the corroborating evidence be sufficient by itself to establish guilt; there simply needs to be "other" evidence "tending to connect" the defendant to the offense alleged in the indictment. Castillo v. State, 221 S.W.3d 689, 691 (Tex.Crim.App. 2007). Although the defendant's mere presence in the company of the accomplice before, during, and after the commission of the offense is insufficient by itself to corroborate accomplice testimony, evidence of such presence, coupled with other suspicious circumstances, may tend to connect the accused to the offense. Davis v. State, 68 S.W.3d 273, 281-82 (Tex.App.-Dallas 2002, pet ref'd). In the present case, Alvarado testified that he did not consent to anyone entering the apartment in his absence. The apartment manager's husband confirmed that appellant did not have a right to be in the apartment. Officer Mortl caught appellant inside the apartment with property stolen from the apartment. The window had been broken to gain entry. We conclude that a rational jury could view this evidence as tending to connect appellant with the offense. Appellant's fourth issue is overruled.