Opinion
No. 05-04-01679-CR
Opinion Issued November 30, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-32707-S. Modified, Affirmed as modified.
Before Justices WHITTINGTON, FRANCIS, and LANG.
OPINION
Michael Todd Reeves appeals his conviction for burglary of a habitation. See Tex. Pen. Code Ann. § 30.02(a)(1) (Vernon 2003). After the jury found appellant guilty as charged, the trial judge assessed punishment, enhanced by a prior felony conviction, at fifteen years' confinement and a $500 fine. In three points of error, appellant contends the evidence is factually insufficient to support his conviction, he was denied his right to a speedy trial, and he is entitled to additional back-time credit for time spent in jail awaiting trial. We affirm the trial court's judgment. In his second point of error, appellant claims he was denied his right to a speedy trial. Appellant did not, however, present a speedy trial motion or objection to the trial judge. Nor did he file a motion to dismiss with the trial court. By failing to present his complaint below, appellant has waived any error. See Mulder v. State, 707 S.W.2d 908, 915 (Tex.Crim.App. 1986) (refusing to address appellant's complaint that his right to speedy trial had been violated because it was not presented to the trial court below); Guevara v. State, 985 S.W.2d 590, 593 (Tex.App.-Houston [14th Dist.] 1999, pet ref'd) (holding that "the right to a speedy trial is a right to be implemented upon request, and that it can, therefore, be waived by want of such a request."). We overrule appellant's second point of error. In his third point of error, appellant contends the evidence is factually insufficient to support his conviction. Under this point, appellant claims (i) he was incarcerated from March 23, 2003 until July 23, 2003 in Erath County and, therefore, could not have committed burglary "on or about March 26, 2003" as alleged in the indictment, and (ii) the State's fingerprint witness's testimony was not credible because she was not certified by the Internal Association of Identification. He argues that, in light of this, the evidence of guilt in this case is so "obviously weak as to undermine confidence in the jury's determination and proof of guilt, although adequate, is greatly outweighed by contrary proof." We disagree. In a factual sufficiency review, we view all of the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004), cert. denied, 125 S. Ct. 1697 (2005) (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004)); Goodrich v. State, 156 S.W.3d 141, 146 (Tex.App.-Dallas 2005, pet. ref'd). The question under this standard is whether, considering all of the evidence in a neutral light, a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484. Evidence can be factually insufficient if (i) the evidence is too weak to support the finding of guilt beyond a reasonable doubt or (ii) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. In examining a factual sufficiency challenge, we defer to the factfinder's determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). A person commits the offense of burglary if, without the effective consent of the owner, he enters a habitation and commits or attempts to commit theft. Tex. Pen. Code Ann. § 30.02(a)(3) (Vernon 2003). A person commits theft if he unlawfully appropriates property with intent to deprive the owner of property. Tex. Pen. Code Ann. § 31.03(a) (Vernon Supp. 2005). During trial, Charlie Carender testified that on March 21, 2003, he arrived home for lunch and found his house had been broken into and ransacked. According to Carender, "everything was sprawled out on the floor" and his television was gone. The intruder had eaten some food and drunk some beer. The intruder also took two shotguns, one rifle, one pistol, several watches, a VCR and DVD player, and a bucket of loose change. Carender found several videotapes on the floor of his living room. Carender testified he had not watched those tapes in about one and one-half years. He also testified that he lived alone, had no roommates, had not lent the videotapes to anyone, and had not had any workers in the house or yard. Officer Gary Brooks testified he responded to a dispatch call on a residential burglary on March 21, 2003. He arrived at Carender's house and did the initial investigation. Officer Symon Davis testified he arrived at Carender's house on March 21, 2003 and processed several items, including a beer bottle and the videotapes, for fingerprints. After lifting fingerprints from the items, he released the items back to Carender. State's exhibits five, six, and seven were fingerprints lifted from the videotapes. Lisa Marie Wideman, a latent print technician from the Texas Department of Public Safety (TDPS) Crime Laboratory, Latent Print Automated Fingerprint Identification Section (AFIS), testified she had approximately twenty-fours years of experience. Prior to her current position, she worked in the Crime Records Division at TDPS for twelve years where she had extensive experience classifying, searching, comparing, and identifying fingerprints. When asked whether she was certified, she answered that she was not. She explained that in order to be certified, a person had to do crime scene investigation and collection/processing of evidence which she does not do. Wideman testified she received a latent print from the Grand Prairie police, identified as State's exhibit seven. She ran it through AFIS, and the system identified appellant's prints as a candidate. After finding in excess of fifteen points of identification, Wideman concluded appellant's prints, taken from the AFIS records, matched those identified as State's exhibit seven taken from the videotape at Carender's house. On the day she appeared in court, Wideman inked appellant's fingers and took his prints. She then compared appellant's current prints to the latent prints from Carender's house. After identifying ten points of identification, she again concluded the two prints were from the same person. Grand Prairie Detective Stephen Davis testified he received the Carender burglary case on March 25th or 26th, 2003, although the burglary had occurred March 21, 2003. In May 2003, the Texas Department of Public Safety notified Detective Davis that appellant's prints matched those found at the Carender house. Detective Davis reopened the case and attempted to locate some of the stolen property. He discovered the VCR had been taken to a pawn shop. The detective was able to locate a Charles Lewis who had pawned the VCR. Conversations with Lewis "furthered [the detective's] opinion of [appellant] as a suspect." The above evidence shows that Carender's house was broken into on March 21, 2003, several items were taken, and appellant's fingerprint was found at the scene. Giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we cannot conclude, after reviewing the evidence in this case, that the State's evidence taken alone is too weak to support the finding of guilt beyond a reasonable doubt. Nor may we conclude that the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. See Zuniga, 144 S.W.3d at 484-85. We therefore conclude the evidence is factually sufficient to support appellant's conviction for burglary. In reaching this conclusion, we necessarily reject appellant's argument that he could not have committed the burglary because he was incarcerated beginning March 23, 2003 in Erath County. The overwhelming evidence shows the burglary occurred on March 21, 2003, two days prior to his incarceration in Erath County. We also reject appellant's argument that Wideman's testimony was not credible because she was not certified by the Internal Association of Identification. The trial judge overruled appellant's objection to the admissibility of Wideman's testimony, and he does not complain of that ruling on appeal. Wideman testified she was not eligible to take the certification exam because she does not process crime scenes and collect evidence. The jury chose to believe Wideman's testimony, and we defer to the jury's determination of a witness's credibility. See Swearingen, 101 S.W.3d at 97. In light of this, we conclude appellant's arguments lack merit. We overrule appellant's third point of error. In his first point of error, appellant contends the trial judge erred because he did not credit appellant for time he served from his "arrest in custody" until his sentence was pronounced. We agree. The code of criminal procedure provides that the trial judge shall give the defendant "credit on his sentence for the time that the defendant has spent in jail in said cause . . from the time of his arrest and confinement until his sentence by the trial court." Tex. Code Crim. Proc. Ann. art. 42.03, § 2(a) (Vernon Supp. 2005) (emphasis added). A defendant seeking credit on his sentence bears the burden of establishing he is entitled to credit by a preponderance of the evidence. Ex parte Pizzalota, 610 S.W.2d 486, 488 (Tex.Crim.App. 1980) (en banc), overruled on other grounds by Ex parte Hale, 117 S.W.3d 866 (Tex.Crim.App. 2003). To receive credit for time served when incarcerated on a different charge or conviction, a defendant must establish "that a detainer or hold was actually lodged with the other jurisdiction for the indictment or charges from which the subsequent conviction resulted." Fernandez v. State, 775 S.W.2d 787, 789 (Tex.App.-San Antonio 1989, no pet.) (citing Nixon v. State, 572 S.W.2d 699, 701 (Tex.Crim.App. 1978)). If a defendant was not credited with the proper amount of back time, we have the power to modify incorrect judgments, provided we have the necessary information to do so. See Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). In this case, appellant was given back-time credit from January 26, 2004 to November 3, 2004. Nevertheless, he argues he is entitled to credit for time spent from the time of his July 28, 2003 arrest to the time of his sentencing on November 3, 2004. In response, the State argues appellant's point lacks merit because the "record does not contain an arrest warrant or executed arrest warrant capias, or any other evidence reflecting that Appellant was arrested for the instant offense on July 28, 2003, or any date prior to January 26, 2004." The clerk's record contains a copy of the "Affidavit for Arrest Warrant" dated July 28, 2003 in which Detective Severance testified Detective Davis determined appellant was serving a two-year sentence in the Texas Department of Criminal Justice on an unrelated charge. The affidavit states that, in light of this information, Detective Davis cancelled the probable cause warrant and filed a case on appellant "in custody-TDCJ." Detective Severance requested that an arrest warrant be issued for appellant. In addition, the reporter's record reflects that, during trial, the State called Detective Davis to testify. Detective Davis testified he issued the arrest warrant for appellant on July 28, 2003. Because the record shows an arrest warrant was issued for appellant on July 28, 2003, we conclude appellant is entitled to back time credit from that date. See Ex parte Pizzalota, 610 S.W.2d at 488 (petitioner in constructive custody of state when warrant placed with federal officials). We modify the trial court's judgment to show an additional back-time credit from July 28, 2003 to January 26, 2004. As modified, we affirm the trial court's judgment.