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Gutierrez v. State

Court of Appeals of Texas, Fourth District, San Antonio
Nov 22, 2006
No. 4-05-00714-CR (Tex. App. Nov. 22, 2006)

Opinion

No. 4-05-00714-CR

Delivered and Filed: November 22, 2006. DO NOT PUBLISH.

Appeal from the 175th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CR-2202, Honorable Mary Román, Judge Presiding. Affirmed.

Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Sarah B. DUNCAN, Justice.


MEMORANDUM OPINION


Carlos Espinosa Gutierrez was charged as a habitual offender with burglary of a habitation with intent to commit theft and with burglary of a habitation by committing or attempting to commit theft after he was found attempting to steal tools from a garage. After the trial, the jury found Gutierrez guilty of the above offenses and assessed punishment at sixty years of confinement in the Institutional Division of the Texas Department of Corrections. Gutierrez appeals, arguing that the evidence is both legally and factually insufficient to support the jury's findings. On October 11, 2006, we affirmed the judgment of the trial court. We withdraw our opinion and judgment dated October 11, 2006, and substitute the following in their place.

Standard of Review

When considering a legal sufficiency challenge, we review all of the evidence in the light most favorable to the verdict and then determine whether any rational trier of fact could have found all of the essential elements of the offense proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Reconciliation of conflicts in the evidence is within the exclusive province of the jury because the jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony. Whitaker v. State, 977 S.W.2d 595, 598 (Tex.Crim.App. 1998). In conducting a factual sufficiency review, this court views all of the evidence in a neutral light and sets aside the verdict only if: (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust; or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). "[D]ue deference must be accorded the fact finder's determinations, particularly those determinations concerning the weight and credibility of the evidence;" and a reviewing court's disagreement "with the fact finder's determination is appropriate only when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice." Id. at 9.

Discussion

The indictment alleged that Gutierrez knowingly and intentionally entered a habitation with the intent to commit theft and that he knowingly and intentionally entered a habitation and attempted to and committed theft, both of which were without the consent of the owner of the habitation. The relevant section of the Texas Penal Code states that a person commits the offense of burglary of a habitation if he, without the effective consent of the owner, enters a habitation not then open to the public, with intent to commit a felony, theft, or an assault or if he commits or attempts to commit a felony, theft, or an assault. Tex. Pen. Code Ann. § 30.02(a) (Vernon 2003). The Penal Code defines "enter" to mean when one intrudes any part of his body or any physical object connected with his body. Id. § 30.02(b). Additionally, "habitation" means a structure that is adapted for the overnight accommodation of persons. This definition includes a separately secured or occupied portion of the structure and each structure appurtenant to or connected with the structure. Id. § 30.01(1). The State presented five witnesses at trial. The State's first witness, Hurshal Wayne Feazel, II, was the owner of the garage that Gutierrez allegedly burglarized. Feazel testified that he arrived home at 6:00 a.m. on January 5, 2004 after spending the night at a relative's home where he had watched a game while drinking about eight beers the night before. As he pulled into his driveway that was in front of the garage attached to his house, he saw that the garage door was about half way up and noticed someone standing in his garage. The person in his garage was standing next to the tool box where he kept the majority of his tools and held Feazel's yellow drill in his hand. Because it was a dark morning, Feazel had his headlights on and at first he thought that the man was one of his sons. However, when the person turned around, Feazel realized that the man was a stranger who he later identified as Gutierrez. Gutierrez then started to run away. Feazel's foot slipped and hit the gas pedal, and his vehicle, a 1998 GMC Yukon, subsequently struck Gutierrez and the passenger tire rolled onto Gutierrez's ankle. Feazel refused to move his vehicle; however, Gutierrez was able to pull his foot out from under the vehicle and attempted to exit the garage. The two men started fighting as Feazel tried to keep Gutierrez in the garage. Gutierrez pleaded to be released, telling Feazel that he was sorry and that he would not come back. The police shortly thereafter arrived and arrested Gutierrez, who refused to speak to the officers. After Gutierrez was arrested, Feazel noticed that a vent grate on his garage door was missing. He believed that the garage door had been cut with a tool such as tin snips to enlarge the vent hole to allow someone to crawl into the garage. No such tool was ever recovered, but the missing vent grate was later found inside the garage. Feazel also discovered that his belt sander was missing after the incident. On February 19, 2004, Feazel gave his statement of the incident to police and identified Gutierrez as the intruder. Feazel's son, Hurshal Wayne Feazel, III, testified he was in the living room of the Feazel house playing video games with a friend on the morning of the incident. He first heard a crash outside and about five minutes later he heard his father yelling outside the house. He opened the front door and saw his father wrestling a man to the floor. At that point he went back into the house to get his friend to help and as he was returning outside to aid his father, the police arrived. He stated that he did not get a good look at the person his father was wrestling with until he was arrested but noted that the person was a male with light colored skin wearing light colored clothing. Feazel's other son, Thomas Feazel, also testified, stating that he was at home asleep on the night of the alleged burglary and did not notice anything unusual. He said that the night before the incident he took the garbage out through the garage door and locked the door on his way back into the house. Additionally, he noted that the vent was on the garage door when he took the garbage out, but on the day after the alleged burglary, he noticed that the vent was gone and that someone had enlarged the area in the garage door where the vent would normally fit. Detective Anna Zuniga of the San Antonio Police Department, testified that the statement Feazel gave her and which she transcribed was consistent with the initial handling officer's report. While Feazel was in Zuniga's presence, he also signed a non-consent form and identified Gutierrez in a photograph. The State's last witness was Monica Garza, a crime scene technician with the San Antonio Police Department. Garza went to Feazel's house on the morning of the alleged burglary and spoke with the officer on the scene and took photographs of the area. She additionally processed the area for fingerprints but was not able to find any, nor was she able to find any trace evidence, such as blood, hair, skin, or fibers. She also testified that when she arrived at the scene she saw a hole cut in the garage door but she did not measure this hole. The defense's first witness was Martha Ray Acevedo who lived three houses down from Feazel. She testified that she noticed in November 2003 that the right vent cover in Feazel's garage door was missing and believed that it was not replaced until June 2004. Terri Lane Click testified that she knew Gutierrez before the alleged burglary and that on the night of the alleged burglary, Gutierrez was intoxicated when he came to her house at 1:00 a.m. to borrow $10. Click and Gutierrez subsequently split a twelve pack of beer, and Gutierrez had about eight beers. Click testified that she sat outside with Gutierrez and her son until about 5:00 a.m. and at that point Gutierrez was still intoxicated. She said that her son stayed outside with Gutierrez until about 5:30. Click also stated that in order to get to her home from the home where Gutierrez lived, Gutierrez would have to walk past Feazel's house. Finally, she testified that prior to January 5, 2004, Feazel's garage door had a hole on its right side at the bottom and that it was repaired in June 2004. The final defense witness was Dr. John Sparks, the Medical Director at the Bexar County Adult Detention Center. He testified about Gutierrez's medical condition on January 5, 2004, stating that he had two fractured toes on his left foot. On appeal, Gutierrez challenges the legal sufficiency of the evidence to support his conviction. Gutierrez contends the evidence shows that the unlit garage was so full at the time of the alleged burglary that Feazel was unable to park his vehicle in it. He concludes that under these facts it is illogical to believe that he could have been in the garage committing theft in such a dark and cluttered space. Gutierrez also criticizes as "nonsensical" Feazel's account that his foot accidentally slipped off the brake pedal and onto the accelerator. Finally, Gutierrez points to the fact that he suffered minimal injury after supposedly having his foot stuck under Feazel's vehicle. He states that it would have been impossible for him to remove himself from under the vehicle and escape if he was as seriously injured as Feazel claimed. Gutierrez contends that Feazel's accounts were both impossible and preposterous, such that the jury could not have found beyond a reasonable doubt that Gutierrez actually entered Feazel's garage. Gutierrez thus concludes that the evidence was legally insufficient because entry into the habitation was an essential element of the charged crime. We reject Gutierrez's contentions. The jury was the judge of the facts and credibility of the witnesses and was free to believe or not believe witnesses such as Feazel. See Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). Viewed in the light most favorable to the verdict, the evidence shows that Gutierrez intended to break into Feazel's garage and attempted to or succeeded in committing theft. In light of Feazel's statements and the other evidence and testimony presented, we hold that a rational trier of fact could have believed that Gutierrez entered Feazel's garage with intent to commit theft as stated in the indictment. We thus overrule Gutierrez's first and second issues. Gutierrez also argues that the evidence is factually insufficient to support the jury's finding that Gutierrez entered a habitation with intent to commit theft or that he did commit or attempted to commit theft. As support for his contention, Gutierrez cites the narrow time window in which he had to burglarize Feazel's garage and the fact that the tin snips that Gutierrez supposedly used to cut the garage door were never found, nor was the sander which Feazel claimed was missing from his garage. Gutierrez again contends Feazel's account of the incident is "absurd." Regardless of how absurd the facts may appear to Gutierrez, the jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Viewing the evidence in a neutral light, the supporting evidence is not so weak that a finding of guilt could not have been made. Additionally, the evidence contrary to the verdict is not so strong that the beyond-a-reasonable-doubt standard could not have been met. We therefore conclude that the above evidence is factually sufficient to support the verdict and overrule Gutierrez's third and fourth issues.

Conclusion

Based on the foregoing, the judgment of the trial court is affirmed.


Summaries of

Gutierrez v. State

Court of Appeals of Texas, Fourth District, San Antonio
Nov 22, 2006
No. 4-05-00714-CR (Tex. App. Nov. 22, 2006)
Case details for

Gutierrez v. State

Case Details

Full title:CARLOS ESPINOSA GUTIERREZ, Appellant, v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fourth District, San Antonio

Date published: Nov 22, 2006

Citations

No. 4-05-00714-CR (Tex. App. Nov. 22, 2006)