Opinion
NO. 03-17-00058-CR
05-04-2018
Willie Guillermo Torres, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 391ST JUDICIAL DISTRICT
NO. D-15-0235-SB , THE HONORABLE THOMAS J. GOSSETT, JUDGE PRESIDING MEMORANDUM OPINION
A jury convicted appellant Willie Guillermo Torres of the offense of burglary of a habitation, see Tex. Penal Code §§ 30.02(a)(1) (defining offense of burglary of habitation as entering habitation without effective consent of owner with intent to commit felony, theft, or assault); 30.02(c)(2) (classifying burglary of habitation as, generally, second degree felony). Appellant elected to have the trial court decide his punishment, see Tex. Code Crim. Proc. art. 37.07(2)(b), and the trial judge assessed appellant's punishment, enhanced pursuant to the habitual offender provision of the Penal Code, at confinement for 50 years in the Texas Department of Criminal Justice, see Tex. Penal Code § 12.42(d) (providing that at trial of felony offense other than unaggravated state jail felony, defendant shall be punished by imprisonment for life or any term not more than 99 years or less than 25 years upon proof of two previous sequential felony convictions).
In a single point of error on appeal, appellant challenges the sufficiency of the evidence to support his conviction. We find the evidence sufficient to support the jury's verdict. However, through our own review of the record, we have found non-reversible clerical error in the written judgment of conviction. We will modify the judgment to correct the error and, as modified, affirm the trial court's judgment of conviction.
BACKGROUND
The jury heard evidence that Manfred Thompson lived in the same house on North Oxford street in San Angelo, Texas for over 35 years. He was retired and lived there with his wife and dog. Thompson testified that on the morning of February 25, 2015, after his wife left for work, he left his home at around 10:00 and returned approximately two hours later around lunchtime. He explained that he entered his home through the front door and noticed that the back door was open. He indicated that initially he thought his wife had returned home for some reason. He also saw the half gallon of milk on the coffee table, which he thought odd. Thompson said that when he moved from the entryway into the living room, he saw that the cables from his 55-inch flat screen TV were strung across the floor and the TV was gone. At that point, he "realized something had taken place." Thompson then described how he walked through the rest of his house to assess the situation.
Thompson recalled that in the master bedroom, he found two drawers from his wife's jewelry cabinet on the bed along with two shelves from a nearby cabinet. He further related that the doors to his nightstand were open, and his 9 mm Ruger handgun, which was in its case, was gone. Thompson also said that a bag containing his wife's "good jewelry"— more valuable jewelry such as "dinner rings, some other rings, a tennis bracelet, . . . necklaces, [and] earrings" that he had removed from the safe for his wife to go through—was missing from the top of their dresser. He testified that he then went into the spare bedroom and saw that the smaller flat screen TV usually in that room was gone. Thompson next recounted that he went into the attached sunroom. There, on the floor several feet inside the screen door to the back yard, he saw a large screwdriver, a putty knife, and a metal object that Thompson described as "a keeper for a rain gutter." He recognized the screwdriver and putty knife as tools that came from his shed in the back yard; the keeper was an antique that was normally on a shelf in the sunroom. In addition, Thompson testified that the smaller flat screen TV from the spare bedroom was in the sunroom sitting on the floor. Thompson said that those items were not on the sunroom floor when he left that morning.
The record reflects that the keeper was a metal object that had a shape similar to a pry bar.
Thompson testified that he next went outside into the back yard where he discovered his big screen TV on the walkway close to the gate that led to the front yard. He also observed damage to the back window of his house. He noted that the window was not all the way broken because it was a three-pane window; only the outside pane had been broken. Thompson testified that it looked to him as if the screwdriver had been used to try to pry the back window up. He indicated that the damage to the back window of the house was not there when he left that morning.
Finally, Thompson testified that prior to the burglary of his home, he did not know an individual by appellant's name. Further, he explicitly stated that he had not given appellant permission to enter his home or take any items from his home.
The jury also heard the testimony of Thompson's neighbor, Arturo Constancio, who lived across the street. Constancio testified that on February 25th, he had come home for lunch and noticed a female and a Hispanic male, who was approximately 5' 7", walking on the other side of the street. Constancio observed the individuals through a window as he was inside his house. He said that 15 to 20 minutes later, he went outside to unhitch his trailer from his truck and he saw the same individuals coming from between the Thompsons' house and the neighbor's house. Constancio explained that he became suspicious because the female had a hoodie on and was carrying something hidden beneath it. He said that when the couple saw him, they ran away. Constancio recounted that he then went to Thompson's neighbor because he originally thought the suspicious persons might have come from the neighbor's back yard and were trying to break into the neighbor's house. The neighbor informed Constancio that nothing had happened at his house. Constancio explained that the two then went to the side of the neighbor's house that was next to the Thompsons' house and discovered that the door to the Thompsons' house was open. According to Constancio, they concluded that the Thompsons' house had been burglarized. Constancio testified at trial about his observations of the suspicious individuals, but he did not identify appellant in open court.
The evidence at trial reflected that this general description matched appellant, who was, the evidence showed, a Hispanic male between 5' 5" and 5' 8" tall.
The evidence at trial showed that Officer Deanna Garza, a crime scene technician with the San Angelo Police Department, responded to the burglary call at the Thompsons' house and processed the scene. Garza explained that she took numerous photographs, which were admitted into evidence, including: photographs of the back window of the Thompsons' house, which had broken glass and possible pry marks on it; photographs of the window screen that had been removed from the damaged window, which was on the ground near the window; photographs of the sliding glass back door, which also had possible pry marks on it; and photographs of the tools and the keeper on the floor of the sunroom just inside the entry.
Garza described the keeper as "a bar of some sort, that I would call some sort of pry bar."
Garza also testified about processing the crime scene for fingerprints. She stated that she obtained latent prints from the large TV in the back yard, the door area of the shed, the damaged back window of the house, a large piece of broken glass from that back window, the window screen that had been removed from the damaged back window, and the putty knife found in the sunroom. Garza explained, though, that not all of the prints were suitable for comparison. She said that none of the prints from the TV, none of the prints from the window screen, nor the print from the piece of broken window glass were suitable for comparison. Garza related, however, that two prints from the shed, three prints from the damaged back window, and the print from the putty knife were suitable for comparison. She then explained the process of how she identified the print on the putty knife as the left index finger of appellant and two of the prints on the damaged back window as appellant's right thumb and left index finger.
Garza testified that she digitally scanned the usable latent prints from the crime scene (those suitable for comparison) and marked potential details and areas of interest on the scanned print. She then entered the scanned latent prints into a local fingerprint database, which contains inked prints of the fingers and palms from individuals fingerprinted in the county. Garza said that she then ran a comparison, by computer, of the scanned latent prints against the known inked prints in the database. She explained that the computer comparison generates a list of candidates of possible matches to the scanned prints. According to Garza, the computer comparison in this case generated a list of two candidates—"Willie Torres" and "Willie Hernandez"—with possible fingerprint matches to three of the latent prints obtained from the burglary crime scene—the print from the putty knife and two prints from the damaged back window. Garza testified that she obtained the recorded prints of the two candidates listed. She then manually compared the recorded prints of "Willie Torres" to the recorded prints of "Willie Hernandez" and determined that the same person made both sets of recorded prints. Garza explained that she investigated the matter and discovered that "Willie Hernandez" was an alias used by "Willie Torres."
Garza explained that an inked print is when ink is applied to the friction ridge of the skin of the finger (or palm) and then the ink-covered finger (or palm) is rolled onto a contrasting card to record the person's prints.
The record reflects that the recorded prints were on what Garza called a "ten print card," which was a card that contained inked prints of all ten fingers of the person printed.
Garza further testified that, after determining that "Willie Torres" and "Willie Hernandez" were the same person, she manually compared the recorded prints for "Willie Torres," which were admitted into evidence, to the three possible-match latent prints from the crime scene, which were also admitted into evidence. She identified the latent print from the putty knife as the left index finger of "Willie Torres." She further identified the latent print from the bottom portion of the damaged back window as the right thumb of "Willie Torres" and the latent print from the top area of the window of the damaged back window as the left index finger of "Willie Torres." Garza testified that she next obtained a set of inked prints directly from appellant. She identified appellant in open court as the person from whom she obtained the inked prints, and the inked prints of appellant were admitted into evidence. Garza explained that after she obtained the inked prints from appellant, she manually compared them with the three latent prints from the burglary scene. She testified that the latent prints from the burglary scene, which matched the recorded prints of "Willie Torres," came from appellant.
Garza also testified that another crime scene technician from the police department verified her work. That technician verified that the recorded prints belonging to "Willie Torres" and "Willie Hernandez" were from the same person. She also verified that the latent print from the putty knife and the two latent prints from the damaged back window came from "Willie Torres."
Appellant was subsequently charged by indictment with the burglary of the Thompsons' house. The State called three witnesses at trial: Garza, Constancio, and Thompson. The defense did not call any witnesses. The jury found appellant guilty of burglary of a habitation as charged in the indictment. Appellant elected to have the trial court assess his punishment. After receiving evidence in the punishment phase of trial—including evidence of appellant's four prior convictions for burglary of a habitation—the trial court sentenced appellant to 50 years in prison.
The record reflects that appellant was tried and convicted of a drug offense in this same court earlier in the year and received a 40-year sentence. At sentencing in this case, the trial court denied the State's request to cumulate the sentences and ordered this 50-year sentence to run concurrently with appellant's 40-year sentence for the drug offense.
DISCUSSION
In his sole point of error, appellant challenges the sufficiency of the evidence supporting his conviction for burglary of a habitation.
In his brief, appellant asserts that the evidence was "factually and legally insufficient" to support his conviction. However, in 2010, the Court of Criminal Appeals held that the legal sufficiency standard "is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt." Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Thus, we no longer employ distinct legal and factual sufficiency standards when reviewing the sufficiency of the evidence to sustain a criminal conviction. Accordingly, we analyze appellant's sufficiency arguments solely within the rubric of the legal sufficiency standard of review.
Sufficiency of the Evidence
Due process requires that the State prove, beyond a reasonable doubt, every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 313 (1979); Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014). When reviewing the sufficiency of the evidence to support a conviction, we consider all the evidence in the light most favorable to the verdict to determine whether, based on that evidence and the reasonable inferences therefrom, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). In our sufficiency review we consider all the evidence in the record, whether direct or circumstantial, properly or improperly admitted, or submitted by the prosecution or the defense. Thompson v. State, 408 S.W.3d 614, 627 (Tex. App.—Austin 2013, no pet.); see Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We assume that the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. Jackson, 443 U.S. at 318; see Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We consider only whether the factfinder reached a rational decision. See Morgan v. State, 501 S.W.3d 84, 89 (Tex. Crim. App. 2016) (observing that reviewing court's role on appeal "is restricted to guarding against the rare occurrence when a fact finder does not act rationally") (quoting Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010)). "The key question is whether 'the evidence presented actually supports a conclusion that the defendant committed the crime that was charged.'" Id. (quoting Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)).
The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc. art. 38.04; Blea v. State, 483 S.W.3d 29, 33 (Tex. Crim. App. 2016); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). Thus, when performing an evidentiary sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we must defer to the credibility and weight determinations of the factfinder. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016); Nowlin v. State, 473 S.W.3d 312, 317 (Tex. Crim. App. 2015). In addition, we must "determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict." Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015) (quoting Clayton, 235 S.W.3d at 778). When the record supports conflicting reasonable inferences, we presume that the factfinder resolved the conflicts in favor of the verdict, and we defer to that resolution. Cary, 507 S.W.3d at 757; Blea, 483 S.W.3d at 33; Murray, 457 S.W.3d at 448-49.
Because factfinders are permitted to make reasonable inferences, "[i]t is not necessary that the evidence directly proves the defendant's guilt; circumstantial evidence is as probative as direct evidence in establishing the guilt of the actor, and circumstantial evidence alone can be sufficient to establish guilt." Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)); see Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016); Nowlin, 473 S.W.3d at 317. The standard of review is the same for direct and circumstantial evidence cases. Jenkins, 493 S.W.3d at 599; Nowlin, 473 S.W.3d at 317; Dobbs, 434 S.W.3d at 170.
To determine whether the State has met its evidentiary burden of proving a defendant guilty beyond a reasonable doubt, we compare the elements of the offense as defined by the hypothetically correct jury charge to the evidence adduced at trial. Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)); see Morgan, 501 S.W.3d at 89. "A hypothetically correct jury charge is one that 'accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.'" Jenkins, 493 S.W.3d at 599 (quoting Thomas, 444 S.W.3d at 8, in turn quoting Malik, 953 S.W.2d at 240); see Morgan, 501 S.W.3d at 89. The law as authorized by the indictment consists of the statutory elements of the charged offense as modified by the factual details and legal theories contained in the indictment. Patel v. State, No. 03-14-00238-CR, 2016 WL 2732230, at *2 (Tex. App.—Austin May 4, 2016, no pet.) (mem. op., not designated for publication); see Jenkins, 493 S.W.3d at 599; Thomas, 444 S.W.3d at 8.
As charged in the indictment in this case, a person commits burglary of a habitation if the person, without the effective consent of the owner, enters a habitation with the intent to commit theft. See Tex. Penal Code § 30.02(a)(1). As relevant to this charge, a "habitation" means a structure that is adapted for the overnight accommodation of persons, and includes: (a) each separately secured or occupied portion of the structure, and (b) each structure appurtenant to or connected with the structure. See id. § 30.01(1). A person commits theft if he unlawfully appropriates property with intent to deprive the owner of it. Id. § 31.03(a).
The evidence at trial showed a forcible entry into the Thompsons' home: entry was first gained via a screen door into the sunroom and then a sliding glass back door that was, the evidence indicated, somehow pried open. The evidence further demonstrated that "good jewelry" and a handgun (and its accompanying case) were taken from within the Thompsons' home. In addition, various items throughout the house were displaced.
Thus, the record reflects that there was ample evidence of entry into the Thompsons' home, without permission, coupled with the intent to commit a theft. Appellant concedes that the State presented sufficient evidence demonstrating that a person broke into the Thompsons' home without the Thompsons' consent and with the intent to steal property. He disputes, however, that the evidence demonstrated that he was the person who did so.
Appellant contends that "[t]here is no evidence that [he] entered a habitation nor is there evidence that he intended to commit theft" or "that [he] entered the home or took anything from the home." He maintains that the evidence of his fingerprints at the scene merely demonstrates that he touched the back window and putty knife "on some unknown date and time" and argues that "[t]he fact that [his] fingerprints were on the outside of the window and on a putty knife three feet inside of an open door to the home supports speculation that [he] may have been involved in burglarizing the home," which, he asserts, "is insufficient for a jury to find, beyond a reasonable doubt, that [appellant] entered the home with the intent to commit theft." We disagree.
A criminal conviction may be based on circumstantial evidence. Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014); Temple, 390 S.W.3d at 359; see Clayton, 235 S.W.3d at 778; Hooper, 214 S.W.3d at 13. As noted previously, "[i]t is not necessary that the evidence directly proves the defendant's guilt; circumstantial evidence is as probative as direct evidence in establishing the guilt of the actor, and circumstantial evidence alone can be sufficient to establish guilt." Carrizales, 414 S.W.3d at 742 (citing Hooper, 214 S.W.3d at 13); see Tate, 500 S.W.3d at 413; Nowlin, 473 S.W.3d at 317. In such cases, it is not necessary that every fact and circumstance "point directly and independently to the defendant's guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances." Acosta, 429 S.W.3d at 625 (quoting Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993)). Juries are permitted to draw multiple reasonable inferences from the facts so long as each is supported by the evidence presented at trial. Tate, 500 S.W.3d at 413 (citing Jackson, 443 U.S. at 319); Hooper, 214 S.W.3d at 16-17. "[A]n inference is a conclusion reached by considering other facts and deducing a logical consequence from them." Hooper, 214 S.W.3d at 16; see Anderson v. State, 416 S.W.3d 884, 888 (Tex. Crim. App. 2013); Winfrey v. State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013). Furthermore, jurors may use common sense and apply common knowledge, observation, and experience gained in ordinary affairs of life when drawing inferences from the evidence. Acosta, 429 S.W.3d at 625; Boston v. State, 373 S.W.3d 832, 837 (Tex. App.—Austin 2012), aff'd, 410 S.W.3d 321 (Tex. Crim. App. 2013); Eustis v. State, 191 S.W.3d 879, 884 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd).
The evidence in this case showed pry marks and a broken pane in the back window of the Thompsons' house. Thompson testified that the back window was not damaged when he left that morning. The evidence also indicated that Thompson recognized the screwdriver and putty knife as his tools from the shed in his back yard and the pry-bar-like keeper as an antique from his sunroom. He said that the tools were not inside the sunroom when he left and the keeper was on a shelf in the sunroom, not on the floor. A reasonable inference from the evidence is that the damage to the back window was done when the burglar attempted to use the tools and keeper to gain entry into the home through the window, but that attempt at forcible entry was unsuccessful. The evidence also reflected that the sliding glass back door to the main part of the house had similar pry marks. A reasonable inference from the evidence is that the tools and keeper were once again used to pry open the sliding glass door. This inference is further supported by the fact that the tools were left in the sunroom where entry into the home was made.
Appellant's fingerprints were found on the damaged back window of the house as well as on the putty knife inside the house in the sunroom. A reasonable inference from the evidence is that appellant's fingerprints were left on those items when he attempted to break into the Thompsons' house through the back window, entered the sunroom, and then used to the tools and keeper on the sliding glass door to enter further into the house. It is a further reasonable inference from the evidence that appellant left the putty knife in the sunroom after he gained entry into the house. Thus, the evidence and reasonable inferences from it demonstrate appellant's entry into the Thompsons' home.
The evidence further demonstrated that Thompson did not know appellant or give him permission to enter his home while he was away from his house that morning or to take any of the Thompsons' property. Consequently, the evidence further showed that appellant's entry into the home was without permission.
As for the intent to commit theft, the evidence at trial showed that several items were taken from the home—Thompson's handgun and his wife's good jewelry—without the Thompsons' consent. The evidence of a completed theft supports the reasonable inference that entry was made with the intent to commit theft. In addition, several items were removed from their places but found in the sunroom or outside in the back yard. The items' locations—closer to the exits at the back of the house and the back yard and near the point of break in—supports a reasonable inference that the items were moved with an intent to remove them from the house and premises. A further reasonable inference from the evidence is that the removal of the property items was not completed because the burglary was interrupted.
The evidence at trial showed that during the time frame that the Thompsons' house was burglarized, the Thompsons' neighbor saw a female and a Hispanic male near the house. Then, a short time later, the neighbor saw the same individuals—the female, who looked to be hiding something under her clothing, and the male, who matched the general description of appellant—coming from beside the Thompsons' house from the direction of the Thompsons' back yard. The couple absconded when they saw that they were being observed. A reasonable inference from the testimony of Thompson's neighbor is that the burglars were interrupted by the neighbor's observation. This inference is further supported by the displaced property items.
In sum, the circumstantial evidence in this case supports the inferences that appellant attempted, unsuccessfully, to gain entry into the Thompsons' home through the back window using the tools from the shed and the keeper from the sunroom, that he entered the sunroom of the home, and that he forcibly gained further entry into the home using the tools and keeper on the sliding glass door. In addition, the evidence demonstrating the removal of property from the home—i.e., the theft of the jewelry and the handgun—and the displacement of property throughout house supports the inference that appellant entered the home with intent to commit theft. Consequently, viewing the cumulative force of all of the evidence in this case in the light most favorable to the verdict, we conclude that any rational trier of fact could have found beyond a reasonable doubt—from the evidence presented and reasonable inferences from it—that appellant did in fact enter into the Thompsons' home without the Thompsons' consent and with the intent to commit theft as alleged in the indictment. Therefore, the evidence is sufficient to support appellant's conviction for burglary of a habitation. See Nowlin, 473 S.W.3d at 317 ("[W]here the inferences made by the factfinder are reasonable in light of 'the cumulative force of all the evidence when considered in the light most favorable to the verdict,' the conviction will be upheld.") (quoting Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012)). Accordingly, we overrule appellant's sole point of error.
Error in the Written Judgement
On review of the record, we observe that the written judgment of conviction in this case contains non-reversible clerical error. The judgment states that the "Statute for Offense" is "30.02(c)(2) Penal Code." This statutory provision establishes that the offense of burglary of a habitation as alleged in the indictment here is a second degree felony. However, the applicable statutory provisions for the offense for which appellant was convicted also include section 30.02(a)(1) of the Penal Code, the statutory provision that defines the offense of burglary of a habitation as charged in this case.
This Court has authority to modify incorrect judgments when the necessary information is available to do so. See Tex. R. App. P. 43.2(b) (authorizing court of appeals to modify trial court's judgment and affirm it as modified); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (concluding that Texas Rules of Appellate Procedure empower courts of appeals to reform judgments). Accordingly, we modify the judgment of conviction to reflect that the "Statute for Offense" is "30.02(a)(1), (c)(2) Penal Code."
CONCLUSION
Having concluded that the evidence is sufficient to support appellant's conviction for burglary of a habitation but having found non-reversible clerical error in the written judgment of conviction, we modify the judgment as noted above to correct the error and, as modified, affirm the trial court's judgment of conviction.
/s/_________
Cindy Olson Bourland, Justice Before Justices Puryear, Field, and Bourland Modified and, as Modified, Affirmed Filed: May 4, 2018 Do Not Publish