Opinion
NO. 12-19-00256-CR
06-05-2020
ESTEVAN CAMACHO, v. THE STATE OF TEXAS
APPEAL FROM THE 7TH JUDICIAL DISTRICT COURT SMITH COUNTY , TEXAS
MEMORANDUM OPINION
Estevan Camacho appeals his conviction of first degree felony burglary of a habitation. In two issues, Appellant argues that the evidence is insufficient to support the trial court's judgment and the trial court abused its discretion in admitting testimony as an excited utterance over Appellant's hearsay objections. We affirm.
BACKGROUND
Appellant was charged by indictment with burglary of a habitation with the intent to commit or attempt to commit aggravated assault and pleaded "not guilty." The matter proceeded to a jury trial. Following the presentation of evidence and arguments of counsel, the jury found Appellant "guilty" as charged. At the conclusion of the subsequent trial on punishment, the jury assessed Appellant's punishment at imprisonment for forty years. The trial court sentenced Appellant accordingly, and this appeal followed.
EVIDENTIARY SUFFICIENCY
In his first issue, Appellant argues that the evidence is insufficient to support the trial court's judgment. Standard of Review
The Jackson v. Virginia 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. See Brooks v . State , 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. See Jackson , 443 U.S. at 315-16, 99 S. Ct. at 2786-87; see also Escobedo v . State , 6 S.W.3d 1, 6 (Tex. App.-San Antonio 1999, pet. ref'd). The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson , 443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v . State , 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to the verdict. See Jackson , 443 U.S. at 320, 99 S. Ct. at 2789; Johnson , 871 S.W.2d at 186. A jury is free to believe all or any part of a witness's testimony or disbelieve all or any part of that testimony. See Lee v . State , 176 S.W.3d 452, 458 (Tex. App.-Houston [1st Dist.] 2004), aff'd, 206 S.W.3d 620 (Tex. Crim. App. 2006). A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v . Florida , 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-18, 72 L. Ed. 2d 652 (1982).
Circumstantial evidence is as probative as direct evidence in establishing guilt, and circumstantial evidence alone can be sufficient to establish guilt. Rodriguez v. State , 521 S.W.3d 822, 827 (Tex. App.-Houston [1st Dist.] 2017, no pet.) (citing Sorrells v. State , 343 S.W.3d 152, 155 (Tex. Crim. App. 2011)). Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. See Hooper v . State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Juries are permitted to draw multiple reasonable inferences as long as each inference is supported by the evidence presented at trial. Id. at 15. Juries are not permitted to come to conclusions based on mere speculation or factually unsupported inferences or presumptions. Id. An inference is a conclusion reached by considering other facts and deducing a logical consequence from them, while speculation is mere theorizing or guessing about the possible meaning of facts and evidence presented. Id. at 16.
The sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge. See Malik v . State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would include 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 is tried." Id. Discussion
To meet its burden of proof that Appellant committed the first degree felony of burglary of a habitation as charged, the State was required to prove that he entered a habitation without the effective consent of Rosa Marie Sell and intentionally committed or attempted to commit aggravated assault. See TEX. PENAL CODE ANN. § 30.02(a)(1), (d) (West 2019). A person commits aggravated assault if he intentionally or knowingly threatens another with imminent bodily injury and uses or exhibits a deadly weapon during the commission of the assault. See id . §§ 22.01(a)(2), 22.02(a)(2) (West Supp. 2019).
In the instant case, Smith County Sheriff's Department Detective Joshua Hill testified that on December 12, 2018, he traveled to a residence in Smith County, Texas to investigate the incident in question. Upon his arrival on the scene, he interviewed Rosa Marie Sell (Sell), who lived at the residence with her husband, Larry Vega, Jr. The evidence further indicates that Sell's daughter, Rachel Sell, who was Appellant's estranged, common law wife, had been living with them at the residence for the past few days. The State offered a video from Hill's body camera, which depicted his interview with Sell.
In the video, Sell stated to Hill that Appellant walked into her home uninvited that day. She further stated that Rachel did not invite Appellant over that day because she was scared of him and that he previously had threatened to kill her. Moreover, Sell conveyed to Hill that Appellant had no legal reason to be in her residence that day. She stated that Appellant never before had entered her house unannounced, nor had he ever resided there with Rachel. She further stated that Appellant tried to confront Rachel in the living room of the residence and said to her, "You know what's coming to you." Sell described Appellant as having a look of anger on his face she never had seen before. As Appellant approached Rachel, according to Sell's statement to Hill, she jumped between the two of them as they began to yell at one another and pushed Appellant out the door of the residence. Sell told Hill that as Appellant left the residence by way of the front porch steps, she saw a silver gun, which he held at his side. The record reflects that at some time after Appellant's departure, Sell contacted Vega, who, thereafter, contacted the authorities.
Sell's trial testimony largely contradicted her description of the events made to Hill on the day of the incident. At trial she testified that Appellant always was welcome in her home, she did not push Appellant out of the residence, and she mistook Appellant's keys for a gun. She did, however, acknowledge making contrary statements to Hill when presented with the video evidence of their conversation. Likewise, Rachel's testimony either largely contradicted Sell's statements to Hill on the day of the incident or, in other instances, she had trouble remembering the details of the event. Similarly, Appellant's niece, Cecelia Camacho's, testimony contradicted many of Sell's statements to Hill. She, too, had trouble remembering the details of the event during her trial testimony.
We have reviewed the record in its entirety in the light most favorable to the jury's verdict. Having done so, we remain mindful that the jury is free to believe or disbelieve all or any part of a witness's testimony. See Lee , 176 S.W.3d at 458. As such, the jury was free to determine that Sell's recorded statement to Hill made the same day as the events in question was an accurate description of the incident, while her recantations and the testimonies of Rachel and Cecelia were not credible.
Based on our review of the record, we conclude that there was ample evidence to permit the jury to find beyond a reasonable doubt that Appellant entered Sell's habitation without her effective consent and intentionally threatened Rachel with imminent bodily injury while exhibiting a firearm. See TEX. PENAL CODE ANN. §§ 22.01(a)(2), 22.02(a)(2), 30.02(a)(1), (d); see also id . § 1.07(a)(17)(A) (West Supp. 2019) (firearm is a "deadly weapon"). Therefore, we hold that the evidence is legally sufficient to support the trial court's judgment. Appellant's first issue is overruled.
HEARSAY
In his second issue, Appellant argues that the trial court abused its discretion in admitting testimony as an excited utterance over Appellant's hearsay objections. Specifically, Appellant objected to Vega's testimony that during their phone conversation after the incident occurred, Sell told him that Appellant came into the house with a gun.
A trial court's ruling on the admissibility of evidence is reviewed under an abuse of discretion standard. Moses v. State , 105 S.W.3d 622, 627 (Tex. Crim. App. 2003); Manuel v. State , 357 S.W.3d 66, 74 (Tex. App.-Tyler 2011, pet. ref'd). If the ruling is within the zone of reasonable disagreement, an appellate court will not disturb it. Manuel , 357 S.W.3d at 74.
Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." TEX. R. EVID. 801(d). "Hearsay is not admissible except as provided by statute or [the Rules of Evidence] or by other rules prescribed pursuant to statutory authority." TEX. R. EVID. 802. The excited utterance exception, upon which the State relied at trial, is one of the recognized exceptions to the hearsay rule and applies to "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." TEX. R. EVID. 803(2); see McCarty v . State , 257 S.W.3d 238, 239 (Tex. Crim. App. 2008).
However, even assuming arguendo that Vega's testimony about Sell's statement to him during their phone call on the day in question is inadmissible hearsay, our resolution of Appellant's second issue would not differ. With two exceptions not applicable based on the record in the instant case, error in the admission of testimony is deemed harmless and is waived if the objecting party subsequently permits the same or similar evidence to be introduced without objection. See Leday v . State , 983 S.W.2d 713, 718 (Tex. Crim. App. 1998); Volkswagen of Am., Inc. v. Ramirez , 159 S.W.3d 897, 907 (Tex. 2004).
Here, after Vega testified, the State offered as an exhibit the body camera video of Hill's conversation with Sell. When this evidence was offered, Appellant stated that he had "no objection" to its admission. In that video, Sell told Hill that Appellant entered her residence without her consent and that she observed Appellant holding a silver gun at his side. Accordingly, we hold that by his stating he had "no objection" to the admission of the aforementioned video, in which Sell made a similar statement to Hill as she made to Vega during their phone conversation, Appellant waived any error in the admission of this portion of Vega's testimony, and any error in the trial court's admission of such testimony was harmless. See id . Appellant's second issue is overruled.
DISPOSITION
Having overruled Appellant's first and second issues, we affirm the trial court's judgment.
JAMES T. WORTHEN
Chief Justice Opinion delivered June 5, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
ESTEVAN CAMACHO, Appellant
v.
THE STATE OF TEXAS, Appellee Appeal from the 7th District Court of Smith County, Texas. (Tr.Ct.No. 007-0237-19)
THIS CAUSE came to be heard on the appellate record and the briefs filed herein, and the same being considered, because it is the opinion of this court that there was no error in the judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this court that the trial court's judgment be affirmed; and that this decision be certified to the court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.