Opinion
No. 05-03-00441-CR
Opinion issued February 6, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-73034-W. Affirmed.
Before Justices WHITTINGTON, JAMES, and O'NEILL.
OPINION
Clinton Tyrone Berry appeals his conviction for burglary of a habitation. A jury found appellant guilty and assessed punishment at confinement for twenty-two years. Appellant brings four issues on appeal contending: (1) the evidence was factually and legally insufficient; (2) the court erred in allowing the testimony of a lay witness that embraced a legal conclusion; and (3) the prosecutor's argument was an improper emotional plea and misstated the law. We affirm the trial court's judgment.
Background
On a summer evening in 2002, twelve-year old C.M. and eleven-year old K.O. were spending the night at the home of C.M.'s aunt, Kian Milton. They had been playing in the front yard most of the afternoon, listening to a radio that was plugged in through the bedroom window. Some time after midnight, K.O. locked the window. As the girls went to bed around 1:00 a.m., C.M. asked K.O. if she thought she saw someone in the bedroom closet. A few hours later, they awoke to find someone touching them. C.M. said the person touched her on her breasts and buttocks, and K.O. said she had been touched on her buttocks. The person touching them identified himself as "T-Bird"; "T-Bird" had previously dated Kian. He had stopped by the house earlier that afternoon while the girls had been playing in the front yard. Both girls said they recognized the person's voice as appellant's. The girls stated they began yelling, and appellant left through the bedroom window. Kian heard K.O.'s yells, rushed to the room, and saw appellant as he left the house. Kian stated she ran after appellant but was unable to catch him. She returned to the house, and they called the police. The police found no signs of forced entry. The police did find a spot on C.M.'s pillow, later identified as seminal fluid. The DNA extracted from the seminal fluid on the pillow matched that of appellant. Kian, C.M., and K.O. all stated they had not given appellant permission to enter the house. Appellant admitted to touching C.M., but he said he had knocked on the door late that night while under the influence of marijuana and PCP. Appellant claimed C.M. had let him in the house, led him to the bedroom she was sharing with K.O., and began making advances towards him.Factual and Legal Sufficiency
In his first two issues, appellant argues the evidence was factually and legally insufficient to support a finding of intentionally or knowingly entering a habitation without effective consent. In a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). The reviewing court must be appropriately deferential to avoid substituting its judgment for the fact finder's, and any evaluation should not substantially intrude on the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Johnson, 23 S.W.3d at 7. In a legal sufficiency review, this Court must examine 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. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). In making this determination, the reviewing court considers all the evidence admitted, including improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998). For first-degree burglary, the State was required to prove beyond a reasonable doubt that appellant, without the effective consent of the owner, entered Kian Milton's home with intent to commit a felony other than theft-namely, indecency with a child — and committed a felony. See Tex. Pen. Code Ann. § 30.02(a)(3), (d) (Vernon 2003). Appellant admitted to the underlying felony of indecency with a child. On appeal, he complains only of the sufficiency of the evidence to support the charge he entered a habitation without the effective consent of the owner. In making his argument, appellant points out several conflicts in the record. He states the police officer who interviewed the girls testified the girls were "calm" when he interviewed them. Kian, however, testified the girls were terrified immediately after the incident and did not want to sleep in the room anymore. Before the police were at the house, Kian enlisted the aid of a neighbor, Leland Lively, to search the house. Appellant also claimed that when he had stopped by the house earlier that day, he spoke with C.M. and she asked him to return to the house later that night. C.M. said she spoke with appellant that afternoon when he went to the door of the house and asked whether Kian was home, but that was the limit of their conversation. Burgundy, Kian's daughter, stated that while appellant was at the house that afternoon, C.M. had been with her the entire time; she never saw C.M. and appellant talking away from the group. Regarding his entry into the house, appellant asserts several arguments to contest the sufficiency of the evidence. He argues that C.M. had greater right of possession to Kian's home than he did and, therefore, her consent to enter would vitiate his conviction. However, C.M.'s status as having greater right of possession is irrelevant: C.M. denied giving appellant access to the house that night. The jury was free to believe C.M. instead of appellant. Appellant does offer support for his version of events by arguing that all the doors and windows were locked. However, the window to the girls' bedroom was unlocked until after midnight. Furthermore, C.M. testified she told K.O. she thought someone was hiding in the closet when they went to sleep. Appellant also raises the issue of the unlocked status of the door leading from the garage to the house. Kian stated she awoke about 3:00 am and put her puppy in the garage. She said the door had been locked when she let the puppy out and that she locked it back. As appellant points out, after appellant fled from the home, Lively checked the house; according to Kian, Lively told her the door from the garage to the house was unlocked. The garage door, however, was closed, although it was unlocked because the lock did not work. Kian, C.M., and K.O. all testified they did not give appellant permission to enter the home that night. Reconciliation of the conflicts on the evidence was within the exclusive province of the fact finder. See Johnson, 23 S.W.3d at 7; Mosley, 983 S.W.2d at 254. Appellant argues his version of events was more reliable. However, the jury heard appellant testify that he was under the influence of marijuana and PCP that night and that he could not remember everything that happened. The evidence showing a lack of a forced entry does not greatly outweigh the proof of guilt. Based on the testimony, the jury could have believed appellant came through the window before the girls locked the window and hid in the closet until they were asleep. Having reviewed the evidence in a neutral light, we conclude the evidence is factually sufficient. The proof of guilt is not so obviously weak as to undermine confidence in the jury's determination, and the proof of guilt is not greatly outweighed by contrary proof. See Johnson, 23 S.W.3d at 11. Furthermore, having examined the evidence in the light most favorable to the verdict, we conclude the jury could have found that appellant entered the house without the effective consent of the owner. See Young, 14 S.W.3d at 753. We resolve appellant's first and second issues against him.Lay Witness Testimony
In his third issue, appellant argues the court erred by allowing appellant to testify to a legal conclusion. He complains of the questions the State asked appellant during cross-examination. The State asked appellant of his understanding of lesser included offenses and his rights to counsel. Specifically, appellant objected to the following two questions:*
Okay, I guess your defense is you're going for the lesser included offense, right?
*
Okay, And you're aware that the Sixth Amendment doesn't allow an officer to interrogate you without the permission of your attorney?Appellant argues the questions asked appellant to draw legal conclusions. Regarding the first question, the State repeated the question later and appellant answered without raising an objection. Because appellant did not object when the question was asked a second time, he has waived error. See Martinez v. State, 98 S.W.2d 189, 193 (Tex.Crim.App. 2003). Therefore, only the objection to the second question is preserved for our review. Regarding the second question, the State asked appellant if he was aware of a specific right under the Sixth Amendment. This questioning is analogous to the facts presented in Whittington v. State, 781 S.W.2d 338 (Tex.App.-Houston [14th Dist.] pet. ref'd). In Whittington, the State asked the defendant, "What do you understand probation to be?" Id. at 341. The court held that the question sought a factual response and not a legal conclusion because the question asked what the defendant personally believed probation to be-not for the defendant to define probation for the jury. See id. In the present case, the State asked whether appellant personally knew he had a right not to be interrogated without permission of counsel once he had retained counsel; the State did not ask appellant to define any Sixth Amendment rights for the jury. We conclude no error occurred regarding the second question. However, even had error occurred, appellant has not been harmed. We will not reverse the trial court's judgment unless an error affected appellant's substantial rights. See Tex.R.App.P. 44.2(b). "A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). We consider the entire record to determine whether any erroneously admitted evidence adversely affected the jury's decision. See Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2002). As we have concluded above, the evidence was both legally and factually sufficient to support the jury's verdict. There is no evidence in the record showing the jury was confused by the complained-of question. Accordingly, we conclude any error did not affect appellant's substantial rights. We resolve appellant's third issue against him.
Prosecutor's Argument
In his fourth issue appellant contends the court erred in overruling his objection to argument during the punishment phase of the trial. To preserve error from jury argument, a party must object and pursue his objection to an adverse ruling. Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996). Furthermore, the objection at trial must comport with the complaint on appeal. See Tex.R.App.P. 33.1(a); Turner v. State, 87 S.W.3d 111, 117 (Tex.Crim.App. 2002), cert. denied, 123 S.Ct. 1760 (2003). Appellant quotes three separate portions of the prosecutor's argument. He contends the quoted portions of the argument went beyond a plea for law enforcement in that they were "improper emotional plea[s]," and the prosecutor misstated the law. Regarding the first complained-of portion, the prosecutor stated:Now, yesterday I left here — y'all were out for, what, a hour, hour and a half, and I was a little bit concerned, because the application paragraph is really the important thing in the charge. You read through it and if you agree with the application paragraph, then the individual is guilty based on the law and the facts. And it's as simple as that.Appellant did not object to this portion of the argument. He has waived any complaint on appeal. See Cockrell, 933 S.W.2d at 89. In the second portion of the argument appellant complains of on appeal, the prosecutor stated:
I'm sure you guys read through the charge more than once and you know what the charge said. It's as simple as that. It concerns me that at least one of you went back there and thought that this little girl came up and lied to you. I couldn't figure out why.
Is it because she was 12? Because she was easily confused? Because she wasn't very articulate? Or is it because she's a little girl from South Dallas that nobody cared about?Again, appellant did not object to this argument. He waived any complaint on appeal. See id. In the third portion of the argument appellant complains of on appeal, the prosecutor stated the following:
What you have to look at is what kind of guy this is. Whatever sentence you give him, he's gonna get out one day. And when he gets out, he's gonna be back in Dallas. He's gonna be back in your community, and maybe next time he gets whacked on PCP, he won't stay in South Dallas. Maybe the next victim of his will be someone you will care about.The following exchange took place between appellant and the court:
APPELLANT: Your Honor, I object. That's arguing outside the facts of the case.
COURT: Members of the jury, you have the facts and you have the law. That's the only thing you're bound by.
Overruled.
APPELLANT: And that's assuming facts not in evidence.
COURT: Members of the jury, you have the facts and you have the law. That's the only thing you're bound by.Appellant's objection at trial does not comport with his complaint on appeal. His complaint, therefore, is not preserved. See Turner, 87 S.W.3d at 117. Appellant failed to preserve his complaints regarding jury argument; we resolve appellant's fourth issue against him. We affirm the trial court's judgment.