Opinion
NO. 03-14-00676-CR
03-10-2016
Angelita Rodriguez Pacheco, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF BURNET COUNTY, 424TH JUDICIAL DISTRICT
NO. 41988, HONORABLE DANIEL H. MILLS, JUDGE PRESIDINGMEMORANDUM OPINION
Angelita Rodriguez Pacheco was charged with and convicted of two offenses of burglary of a habitation that occurred on the same day. See Tex. Penal Code § 30.02(a) (setting out elements of offense). Those offenses were alleged to have occurred at a hotel where Pacheco was working as a maid, and Pacheco is alleged to have entered two rooms in the hotel without the effective consent of the guests in those rooms and to have either taken or attempted to take personal property from those rooms. Regarding the first offense, the jury charge instructed the jury to find Pacheco guilty if the jury determined that she entered the room of Frank Alderete, Jr., without his effective consent and "attempted to commit or committed theft of property" by taking Alderete's cell phone. Regarding the second offense, the jury charge directed the jury to find Pacheco guilty if it concluded that she entered the room of Luis Arguello without his effective consent and "attempted to commit or committed theft of property" by taking Arguello's iPad.
In addition, the jury charge also contained instructions for lesser-included offenses for theft in the event that the jury determined that Pacheco was not guilty of the burglary charges. See id. § 31.03 (outlining offense of theft). First, the charge directed the jury to consider whether Pacheco "did then and there unlawfully appropriate, by acquiring or otherwise exercising control over" Alderete's cell phone "of the value of $500.00 or more but less than $1,500.00" without Alderete's effective consent and, alternatively, whether Pacheco was guilty of another lesser-included offense for committing theft but specifying that the phone had a value of "$50.00 or more but less than $500.00." Second, the charge contained an instruction for a lesser-included offense of theft asking the jury to decide whether Pacheco "did then and there unlawfully appropriate, by acquiring or otherwise exercising control over" Arguello's iPad "of the value of less than $50.00" without Arguello's effective consent.
At the end of the guilt-or-innocence phase of the trial, the jury found Pacheco guilty of the two alleged burglary offenses. During the punishment phase, the jury recommended that Pacheco be sentenced to eighteen years' imprisonment for both offenses, and the district court rendered its judgments of conviction in accordance with the jury's verdicts. See id. § 30.02(c)(2) (providing that offense is second-degree felony "if committed in a habitation"); see also id. § 12.33 (listing permissible punishment range for second-degree felony). In four issues on appeal, Pacheco challenges the sufficiency of the evidence supporting her convictions, asserts that she suffered egregious harm from alleged errors in the jury charge, argues that the district court erred by excluding during the punishment phase "evidence of a lack of felony convictions" through one of her witnesses, and contends that her Fifth Amendment right to not be compelled to testify as a witness against herself was violated. After sustaining Pacheco's first issue on appeal, we will reverse the district court's judgments of conviction and render judgments of acquittal.
DISCUSSION
The Evidence is Legally Insufficient
In her first issue on appeal, Pacheco contends that the evidence is legally insufficient to support either of her convictions.
Under a legal-sufficiency standard of review, appellate courts view the evidence in the light most favorable to the verdict and 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). When performing this review, an appellate court must bear in mind that it is the factfinder's duty to weigh the evidence, to resolve conflicts in the testimony, and to make reasonable inferences "from basic facts to ultimate facts." Id.; see also Tex. Code Crim. Proc. art. 36.13 (explaining that "jury is the exclusive judge of the facts"). Moreover, appellate courts 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." Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). Furthermore, appellate courts presume that conflicting inferences were resolved in favor of the conviction and defer to that resolution. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In addition, courts must bear in mind that "direct and circumstantial evidence are treated equally" and that "[c]ircumstantial evidence is as probative as direct evidence in establishing the guilt of an actor" and "can be sufficient" on its own "to establish guilt." Kiffe v. State, 361 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd). Furthermore, reviewing courts "measure the sufficiency of the evidence by the so-called hypothetically correct jury charge, one which 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." See DeLay v. State, 465 S.W.3d 232, 244 n.48 (Tex. Crim. App. 2014). The evidence is legally insufficient if "the record contains no evidence, or merely a 'modicum' of evidence, probative of an element of the offense" or if "the evidence conclusively establishes reasonable doubt." Kiffe, 361 S.W.3d at 107 (quoting Jackson, 443 U.S. at 320).
Under the relevant provisions of the Penal Code at issue, "[a] person commits an offense if, without the effective consent of the owner, the person . . . enters a building or habitation and commits or attempts to commit a felony, theft, or an assault." Tex. Penal Code § 30.02(a)(3). Moreover, the Code defines "owner" as "a person who . . . has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor." Id. § 1.07(a)(35). In addition, the Code specifies that "'[h]abitation' means a structure or vehicle that is adapted for the overnight accommodation of persons, and includes . . . each separately secured or occupied portion of the structure or vehicle." Id. § 30.01(1); see Frazier v. State, 760 S.W.2d 334, 336 (Tex. App.—Texarkana 1988, pet. ref'd) (determining that definition includes motel rooms). Further, the Code explains that "'[c]onsent' means assent in fact, whether express or apparent," Tex. Penal Code § 1.07(a)(11), and that "'[e]ffective consent' includes consent by a person legally authorized to act for the owner, id. § 1.07(a)(19). However, the Code instructs that "consent is not effective if" it is "induced by force, threat, or fraud." Id. § 1.07(a)(19)(A).
When challenging the sufficiency of the evidence in this case, Pacheco does not contend that there is insufficient evidence establishing that she entered the hotel rooms and that she attempted to or did commit theft while in those rooms. Instead, Pacheco limits her attack to whether the evidence showed a "lack of effective consent of the owner" to enter those rooms. See id. § 30.02(a). Accordingly, we will limit our consideration to evidence pertaining to that element.
During the trial, the State called to the stand Alderete and Arguello, who were staying at the hotel during the relevant time and who allegedly had property taken from their rooms. In his testimony, Alderete admitted that he did not tell anyone at the hotel that he did not want his room cleaned. Moreover, Alderete also explained that he could not remember if the hotel had door hangers that the occupants could use to signal that they did not want anyone to enter the room, but he postulated that if the hotel did have those types of hangers, he would have used one. Further, Alderete recalled that he stayed at the hotel for a month, that anyone entering the room had to use a "plastic key" to get in, that he had the exclusive right to the hotel room, that no one at the hotel asked him if he wanted his room cleaned while he was gone, that it was unnecessary to clean his room even though he was staying for a month, that he did not give anyone consent to enter his room or take his belongings, and that if someone had asked him, he would have told them to not clean the room because "all my belongings" were in the room and because he was "kind of sensitive to having people go in when I have everything there." Similarly, Arguello testified that he did not give anyone permission to enter the room while he was gone and that if he had given consent, he would not have consented to someone coming in and taking his property. However, Arguello also admitted that he did not tell anyone at the hotel that he did not want his room cleaned and that he did not place the do-not-disturb sign on the door.
In addition to calling Alderete and Arguello, the State also called Melina Escobar to the stand. In her testimony, Escobar explained that she was working as a maid at the hotel during the relevant time, that the owner of the hotel hired Pacheco, and that the owner asked Escobar to train Pacheco "so she could clean rooms." When describing their duties, Escobar testified that she would receive a list of rooms to clean for the day from a hotel employee, that she had a master key to all of the rooms, that she would open the doors to the rooms that she and Pacheco would clean, and that she would leave Pacheco in a room after opening it so that she could clean a different room at the same time. Moreover, Escobar asserted that she was the only one who had a master key, that Pacheco could not have entered any room without Escobar opening the room first, and that Escobar never saw Pacheco in any rooms other than the ones that she was supposed to clean. In addition, Escobar related that each room has "a little magnet sticky thing" containing the phrase "no room service" or "don't disturb" and that if any occupant did not want his room cleaned, he could put one of those signs on the outside of the door.
When arguing that the evidence is sufficient to establish that Pacheco did not have "effective consent," the State points to the testimony from Alderete in which he explained that he did not give consent to anyone to enter his room and to the testimony from Alderete and Arguello in which they communicated that they would not have given anyone consent to come into their rooms and take their property. However, as summarized above, they both admitted that they never told anyone at the hotel that they did not want their rooms cleaned, and Arguello also admitted that he did not hang the do-not-disturb sign when he left the room on the day at issue. More importantly, the undisputed testimony from Escobar established that Pacheco entered the rooms with the consent of the owner of the hotel as well as Escobar, who was acting on behalf of the owner. See id. § 1.07(a)(19) (expressing that effective consent may be given by person authorized to act for owner), (35) (defining owner); see also Salas v. State, 548 S.W.2d 52, 53-54 (Tex. Crim. App. 1977) (commenting that renter of hotel room and hotel manager are owners under burglary statute). Specifically, the evidence shows that the owner of the hotel hired Pacheco for the purpose of cleaning hotel rooms, that the owner entrusted Escobar with a master key to be used when cleaning the rooms and with the task of training Pacheco, that Pacheco did not have a master key, that the hotel provided a list of rooms for Escobar and Pacheco to clean, that Escobar opened the rooms that were scheduled for cleaning, and that Escobar instructed Pacheco to enter the rooms and clean them. Accordingly, we must conclude that the evidence is legally insufficient to support the jury's determination that Pacheco did not have effective consent from an owner to enter the rooms.
In its brief, the State seems to assert that it is irrelevant that the owner of the hotel and Escobar gave consent for Pacheco to enter the rooms for the purpose of cleaning them because the indictment alleged that Alderete and Arguello were the "owners" of the rooms in question. As support for this proposition, the State refers to Fletcher v. State, 396 S.W.2d 393 (Tex. Crim. App. 1965). However, we believe that the State's reliance on Fletcher is misplaced. In that case, the victim testified that he owned the business that was burglarized and that he did not know Fletcher or give Fletcher consent to enter the building where the business was located. Id. at 395. On appeal, Fletcher argued that the State did not meet its burden of proof regarding consent because the victim testified that he "was out of town" on the date of the offense and because the State did not call the victim's brother to testify even though the brother was the store manager. Id. When disposing of that issue, the court of criminal appeals explained that "[h]aving proved want of consent of the owner and occupant of the building as alleged in the indictment, the state was not required to allege or prove want of consent of any other party claimed to have authority to give consent to the breaking and entry of the building, this being purely a matter of defense." Id. at 395-96.
Although Fletcher explains that the State does not have a duty to prove lack of consent for an additional owner that was not named in the indictment, that case does not stand for the proposition that consent cannot be established through evidence showing that an owner other than the one named in the indictment authorized the entry. Cf. Villanueva v. State, 711 S.W.2d 739, 740 (Tex. App.—San Antonio 1986, pet. ref'd) (explaining that even though owner testified that she did not give defendant permission to enter her home, evidence was insufficient to establish that defendant entered home without effective consent of owner because evidence indicated that homeowner's son, who was also owner, gave his consent). Moreover, unlike in Fletcher, evidence was introduced establishing that Pacheco had permission from the owner of the hotel as well as Escobar to enter hotel rooms, including the two at issue, for cleaning purposes.
In an alternative argument, the State contends that even if Pacheco was given consent to enter the rooms, that consent was ineffective because the evidence established that the consent "was induced by [Pacheco]'s fraud." See Tex. Penal Code § 1.07(a)(19)(A). As support for this, the State refers to evidence establishing that the offenses occurred within a few days of Pacheco starting to work for the hotel and on the first day that she was left unsupervised and argues that based on that evidence, "a rational jury could conclude that [Pacheco] began working at the [hotel] with a design to gain access to the rooms and steal from the occupants." Cf. Gardner v. State, 306 S.W.3d 274, 287 (Tex. Crim. App. 2009) (relying on circumstantial evidence to show that defendant did not have consent to enter premises, including physical condition of room after defendant entered and prior expressions by victim that she was afraid that defendant would hurt her).
As support for this proposition, the State primarily relies on Gordon v. State, 633 S.W.2d 872 (Tex. Crim. App. 1982). In that case, Gordon asked the owner of a home if he could use her phone, went inside the home after the homeowner agreed to let him in to use the phone, pretended to use the phone, and stole the homeowner's stereo immediately after he finished pretending to use the phone. Id. at 874. During the trial, Gordon "moved for a directed verdict of not guilty" because the homeowner "had given [Gordon] permission to enter her residence," but the State argued that Gordon "had 'lured his way into her house under the pretense of wanting to use her phone,' so his entry was 'secured by fraud,' thereby negating effective consent." Id. at 875. The trial court overruled the motion, and the court of criminal appeals affirmed the trial court's ruling and determined that a "rational trier of fact could have found the essential element of entry without the effective consent of [the homeowner] beyond a reasonable doubt." Id.
Unlike the current case, the homeowner in Gordon gave the offender permission to enter because the offender misrepresented why he wanted to enter the premises for the purpose of gaining entry into the home. Id. at 874. That type of misrepresentation is present in other cases that have determined that an owner's consent was ineffective because it was obtained by fraud. See Griego v. State, No. 07-08-00130-CR, 2010 Tex. App. LEXIS 2438, at *1-2, *8-9 (Tex. App.—Amarillo Apr. 5, 2010, no pet.) (mem. op., not designated for publication) (holding that evidence was legally sufficient to establish lack of consent and burglary where defendant knocked on elderly victim's door, asked for money, returned hours later, stated that she wanted to pay victim back, entered victim's home, and proceeded to grab victim's wallet and take money from wallet); Releford v. State, No. 10-05-00419-CR, 2007 Tex. App. LEXIS 1537, at *10 (Tex. App.—Waco Feb. 28, 2007, pet. ref'd) (mem. op., not designated for publication) (determining that evidence was sufficient to establish that consent for defendant "to come in the house was ineffective because it was procured by [the defendant]'s fraudulent statement that he was there to deliver a Christmas gift"). In contrast, in this case, there is no evidence indicating that Pacheco made any misrepresentations for the purpose of gaining entry into the rooms. Cf. Eppinger v. State, 800 S.W.2d 652, 653, 654 (Tex. App.—Austin 1990, pet. ref'd) (concluding that evidence was insufficient to establish lack of consent where defendant knocked on door of home, where owner told defendant to enter because owner mistakenly believed it was his friend knocking, where defendant "did nothing to foster that mistaken belief," and where defendant entered home and took money from inside home).
At least one of our sister courts of appeals has considered whether there was a fraudulent plan that rendered any consent given to enter the victim's home ineffective. See Acker v. State, No. 12-03-00266-CR, 2004 Tex. App. LEXIS 6283, at *7-8 (Tex. App.—Tyler July 14, 2004, no pet.) (mem. op., not designated for publication). In that case, the appellate court determined that the evidence showed that the defendant and three other men "had concocted a fraudulent plan to gain access to the homes of elderly persons under the pretext of looking for roof leaks" and concluded that the evidence was sufficient to support the jury's determination that any consent given by the victim was ineffective because it was "procured by fraud." Id. However, as in the cases summarized above, the defendant made misrepresentations to the victim for the purpose of gaining entry by telling the victim that he wanted to check her home for leaks and by telling the victim that she did in fact have leaks in her roof before entering the home. See id. at *1-2. Moreover, evidence was presented during the trial establishing that one week before that offense for which he was convicted, the defendant had targeted another elderly victim and similarly claimed that the victim's roof was in need of repair. Id. at *6.
In this case, as described earlier, Pacheco made no misrepresentation for the purpose of gaining entry and was instead allowed into the room for work purposes, and no evidence was presented during the trial showing that Pacheco had devised a plan prior to her employment to steal from the rooms or had engaged in similar conduct beforehand. Recognizing the deficiencies in the evidence, the State essentially argues that the acts of Pacheco applying for a job, being given work responsibilities that required her to enter the rooms in the hotel, and taking advantage of those responsibilities shortly after being hired are sufficient to allow a jury to infer that any consent for entry into the rooms was ineffective because it was obtained by fraud. Under the circumstances here and in the absence of any evidence establishing that Pacheco made a misrepresentation for the purpose of gaining entry into the rooms or that Pacheco had previously devised a plan to steal from the hotel rooms when she applied for the job, we believe that the evidence is legally insufficient to establish beyond a reasonable doubt that the consent that Pacheco received to enter the rooms was obtained fraudulently. The reasoning proposed by the State would essentially omit in this case the element of the burglary statute requiring that a defendant attain entry into a habitation without the owner's effective consent and would authorize a conviction if the evidence showed that Pacheco entered the rooms and committed or attempted to commit a theft. Tex. Penal Code § 30.02(a)(3); see Eppinger, 800 S.W.2d at 654. Regardless of what the evidence presented during the trial may have suggested regarding Pacheco's criminal responsibility, the evidence is not legally sufficient to establish that Pacheco was guilty of the offenses for which she was convicted.
Having determined that the evidence was legally insufficient to support Pacheco's burglary convictions, we must now consider whether those convictions should be reformed to convict Pacheco of the lesser-included offenses of theft or whether acquittals are warranted. See Canida v. State, 434 S.W.3d 163, 166 (Tex. Crim. App. 2014). If an appellate court finds "the evidence insufficient to support an appellant's conviction for a greater-inclusive offense," the court must consider the following two questions when "deciding whether to reform the judgment to reflect a conviction for a lesser-included offense": "1) in the course of convicting the appellant of the greater offense, must the jury have necessarily found every element necessary to convict the appellant for the lesser-included offense; and 2) conducting an evidentiary sufficiency analysis as though the appellant had been convicted of the lesser-included offense at trial, is there sufficient evidence to support a conviction for that offense?" Thornton v. State, 425 S.W.3d 289, 299-300 (Tex. Crim. App. 2014); see Rabb v. State, No. PD-1472-14, 2016 Tex. Crim. App. LEXIS 21, at *11 (Tex. Crim. App. Feb. 10, 2016). "If the answer to either of these questions is no, the court of appeals is not authorized to reform the judgment. But if the answers to both are yes, the court is authorized—indeed required—to avoid the 'unjust' result of an outright acquittal by reforming the judgment to reflect a conviction for the lesser-included offense." Thornton, 425 S.W.3d at 300 (internal footnote omitted); cf. Nowlin v. State, 473 S.W.3d 312, 316-17, 319 (Tex. Crim. App. 2015) (concluding that there was no evidence of aggravating factor that elevated misdemeanor to felony and reforming judgment under Thornton to lesser included misdemeanor offense because all of elements were met except aggravating factor); Canida v. State, 446 S.W.3d 601, 603-05 (Tex. App.—Texarkana 2014, no pet.) (determining on remand that Thornton factors were met and reforming judgment from conviction for manufacture of methamphetamine in amount of one to four grams to lesser offense of manufacture of methamphetamine in amount of less than one gram); Gaddy v. State, 433 S.W.3d 128, 131 (Tex. App.—Fort Worth 2014, pet. ref'd) (determining that both prongs of Thornton analysis were met because evidence was sufficient to support lesser misdemeanor offense for driving while intoxicated and because "[t]he offense elements of felony DWI in this case are the same as the offense elements of misdemeanor DWI, save and except for the offense-enhancement paragraphs. Therefore, the jury necessarily found Gaddy guilty of misdemeanor DWI in the course of convicting him of felony DWI." (internal citations omitted)).
In this case, as set out above, the jury charge contained instructions for two burglary offenses and for several lesser-included offenses of theft. By finding Pacheco guilty of burglary under the circumstances of this case and in accordance with the Penal Code, the jury determined that Pacheco entered Alderete's and Arguello's hotel rooms without effective consent and committed or attempted to commit a theft. See Tex. Penal Code § 30.02(a)(3). In contrast, to find Pacheco guilty of the lesser offenses charged in this case, the jury would have had to find that there were completed thefts. See id. § 31.03(a), (b). Specifically, the jury would have had to find that Pacheco unlawfully appropriated property from Alderete and Arguello with the intent to deprive them of the property by taking the property without their effective consent. See id. § 31.03(a), (b)(1). Accordingly, by finding Pacheco guilty of burglary, the jury did not necessarily find every element needed to convict Pacheco of theft because the jury could have instead found Pacheco guilty of burglary by finding that Pacheco attempted to commit theft. See id. § 15.01 (explaining that "[a] person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended"); see also Morgan v. State, 465 S.W.3d 327, 330 (Tex. App.—Fort Worth 2015, pet. granted) (concluding that there was insufficient evidence of lack of consent for burglary conviction because defendant was tenant at habitat and explaining that because burglary offense "was charged via intent to commit an assault, attempt to commit an assault, or a completed assault, the jury did not 'necessarily f[i]nd every constituent element of th[e] lesser offense' [of assault]. That is, we do not know which burglary theory the jury relied on in reaching its verdict"). For that reason, the first prong under Thornton is not satisfied, and reformation of the judgments of conviction is, therefore, not permissible in this case. See Wright v. State, No. 11-13-00061-CR, 2015 Tex. App. LEXIS 9745, at *30-32 (Tex. App.—Eastland Sept. 17, 2015, no pet.) (rendering judgment of acquittal after performing Thornton analysis and after concluding that evidence did not establish lower culpable mental state for one offense or physical injury for other offense and was, therefore, insufficient to support convictions for lesser-included offenses); McNeal v. State, No. 07-14-00355-CR, 2015 Tex. App. LEXIS 7433, at *11-12 (Tex. App.—Amarillo July 17, 2015, no pet.) (mem. op., not designated for publication) (declining to reform judgment from conviction for tampering with evidence to attempted tampering with evidence after concluding that evidence would be insufficient to support attempt as required under second prong of Thornton and rendering judgment of acquittal); Yarbrough v. State, No. 07-14-00044-CR, 2015 Tex. App. LEXIS 4885, at *11-14 (Tex. App.—Amarillo May 13, 2015, no pet.) (mem. op., not designated for publication) (determining that reformation to attempt was not appropriate under Thornton because evidence was also insufficient to establish attempt to commit crime and rendering judgment of acquittal).
After recognizing that the Thornton factors were not satisfied, the appellate court in Morgan v. State went on to reform the judgment of conviction to reflect a conviction for assault because the case presented a "unique situation." 465 S.W.3d 327, 331 (Tex. App.—Fort Worth 2015, pet. granted). Specifically, the court determined that reformation was permissible because Morgan admitted his guilt for the assault during the trial and only contested his guilt for the burglary charge, because Morgan again conceded his guilt for the assault charge in his appellate brief, and because Morgan specifically asked the appellate court to reform the judgment to reflect a conviction for assault. Id. at 330-31. Those unique circumstances are not present here. --------
For the reasons previously given, we must conclude that the evidence was legally insufficient to support Pacheco's convictions and sustain Pacheco's first issue on appeal. In light of our disposition of his insufficiency claim, we need not address the remainder of Pacheco's issues.
CONCLUSION
Having sustained Pacheco's first issue on appeal, we reverse the district court's judgments of conviction and render judgments of acquittal.
/s/_________
David Puryear, Justice Before Justices Puryear, Goodwin, and Bourland Reversed and Rendered Filed: March 10, 2016 Do Not Publish