Poncio v. State

Full title: DAVID GUZMAN PONCIO, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, First District, Houston

Date published: Dec 2, 2004

No. 01-02-1174-CR (Tex. App. Dec. 2, 2004)

Opinion

No. 01-02-1174-CR

Opinion issued December 2, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).

On Appeal from the 337th District Court, Harris County, Texas, Trial Court Cause Nos. 902710.

Mary Connealy Acosta, Houston, TX, and Patrick F. McCann, Law Offices of Patrick F. McCann, Houston, TX, for Appellant. Charles A. Rosenthal, Jr., D.A., Amanda J. Peters, Asst. D.A., Harris County, Houston, TX, for State.

Panel consists of Justices NUCHIA, HANKS, and HIGLEY.

MEMORANDUM OPINION

GEORGE C. HANKS, Jr. Justice.

A jury convicted appellant, David Guzman Poncio, of burglary of a habitation, and the trial court sentenced him to 60 years in prison. In two points of error, appellant contends that 1) the evidence of burglary of a habitation was legally insufficient and 2) the trial court erred in denying appellant's motion for mistrial after the introduction of extraneous offenses. We affirm.

Background

At approximately 11 a.m. on January 9, 2002, Steven Wedemeyer returned after an hour at the gym and discovered that his home had been burglarized, and two guitars were missing. Wedemeyer testified that, one month after the burglary, a friend called from the Rockin Robin Guitar Store to tell him that someone had brought Wedemeyer's guitars in and sold them to the store. Wedemeyer confirmed that the guitars in the store were the ones stolen from his home. Houston Police Department Officer J. Gray testified that, despite multiple attempts, he was unable to retrieve any usable fingerprints from Wedemeyer's home. William Benitez, a pawnbroker with Value Pawn, testified that, at 10:29 a.m. on the day of the burglary, appellant pawned two guitars — a Taylor acoustics and a yellow Fender with a black case.¹ Benitez explained that "the process of a pawn is, basically, a 60 day loan." Interest accrues during the two months, and, if the customer does not return within two months, "it then becomes our property and we sell it." He testified that the Value Pawn receipts indicated that, on January 18th, Jose Rodriguez, the assistant manager, "redeemed" or sold the guitars back to appellant. Houston Police Officer M. Lazar testified that he decided to look in the Value Pawn during the course of his investigation of the high-crime area around the pawn shop. The Value Pawn was located less than one mile from Wedemeyer's home. Lazar discovered that the guitars² were on the list of items that had recently been pawned. Benitez told Officer Lazar that they had later released the guitars to appellant. During the course of his investigation, Officer Lazar learned that Jose Rodriguez, the Value Pawn assistant manager, was the person who actually sold the guitars to the Rockin Robin Guitar Store.³ Appellant was indicted with the felony offense of burglary of a habitation. The indictment was enhanced with two prior felony convictions of robbery and burglary of a building.

Legal Sufficiency of Evidence

In point of error one, appellant alleges that the evidence presented at trial was legally insufficient to support his conviction. Appellant contends that under a Jackson v. Virginia, 443 U.S.307, 99 S. Ct. 2781 (1979) standard of review for legal sufficiency, his conviction would not stand because there were no witnesses to the crime and "no piece of forensic evidence was ever recovered to link him to the crime." We disagree. In Verduzco v. State, 24 S.W.3d 384 (Tex.App.-Houston [1st Dist.] 2000, no pet.), we held that, in a legal-sufficiency review under Jackson, the critical inquiry on review is whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. Id. at 385. The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. The unexplained possession of recently stolen property is a circumstance of guilt in a robbery case. Girard v. State, 631 S.W.2d 162, 163 (Tex.Crim.App. 1982) Here, the evidence showed that, on January 9, 2002, two guitars were stolen from Steven Wedemeyer's home. Within two hours of when the burglary occurred, appellant pawned two guitars (later identified as the ones that were stolen) at Value Pawn which is located approximately three-quarters of one mile from where the burglary occurred. The jury unanimously inferred from the facts that appellant was guilty beyond a reasonable doubt. We hold that, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. We overrule point of error one.

Mistrial

In point of error two, appellant contends that the trial court erred by denying his motion for mistrial after the introduction of extraneous offenses. When the State rested, appellant requested a mistrial on the basis "that the prosecutor and her witness, Officer Lazar, blatantly violated the Motion in Limine . . . [that] instructed [the prosecutor] that before she interjected or attempted to interject or bring into evidence prior convictions or any extraneous offenses that she would first approach the bench." Appellant contends that, during Lazar's direct-examination, two specific exchanges between the prosecutor and Officer Lazar unfairly prejudiced the jury. The first occurred during the following exchange:

Q: Now, obviously, you know we're here for a case that involves a burglary of a habitation; correct?

A: Correct.

Q: Tell the Jury what your involvement in that case was. How did you get into the case?

A: I was asked by my lieutenant to investigate a series of burglary — of burglaries that happened.

Defense Counsel: Object to the scope of that question. Ask to approach the bench now, please.

Court: The objection's sustained. The [request to] approach the bench is overruled.

The second occurred when Officer Lazar offered the following testimony:

Q: When did you start to develop David Poncio as a possible suspect in this case?

A: We started looking at different items he had taken and tried to match them up with other burglaries.

Defense Counsel: Objection. Approach?

Court: The objection's sustained.

Q: Now, just with regard to the guitars —

Defense Counsel: Excuse me. Would you instruct this witness to be responsive to the questions, or instruct the prosecutor to make her questions — we're asking global questions here. We're getting nonresponsive or overresponive answers. There is a Motion in Limine in place, and that's why I'd like to approach the bench.

Court: All right. Officer, make sure you listen to the question and ask — or answer only the questions asked of you.

Witness: Yes, sir.

Court: Tailor your questions —

Prosecutor: Certainly, Judge.

Court: — to the specific question.

Standard of Review

Mistrial is a remedy appropriate for a narrow class of highly prejudicial and incurable errors. Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App. 2000). We review a trial court's ruling denying a mistrial under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). A mistrial is a device used to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Id. Thus, a trial court may properly exercise its discretion to declare a mistrial if an impartial verdict cannot be reached or if a verdict of conviction could be reached, but would have to be reversed on appeal due to an obvious procedural error. Id. The appellate court must review the trial court's ruling in light of the arguments that were before the trial court at the time it ruled. Wead v. State, 129 S.W.3d 126 (Tex.Crim.App. 2004). Determining whether a given error necessitates a mistrial must be made by examining the particular facts of the case. Ladd, 3 S.W.3d at 567.

Extraneous Offense

Evidence of an extraneous offense must necessarily involve evidence of prior criminal conduct by the accused. McKay v. State, 707 S.W.2d 23 (Tex.Crim.App. 1985); Ramirez v. State, 822 S.W.2d 240 (Tex.App.-Houston [1st Dist.] 1991, pet. ref'd). If the evidence fails to show that an offense was committed or that the accused was connected to the offense, then evidence of an extraneous offense is not established. McKay, 822 S.W.2d at 32. Here, Officer Lazar's testimony does not involve any evidence of prior criminal conduct by appellant and therefore, evidence of an extraneous offense was not established. Accordingly, the trial court did not abuse its discretion in denying appellant's motion for mistrial, and we overrule point of error two.

Conclusion

We affirm the judgment of the trial court.