Opinion
No. 01-02-00094-CR.
Opinion Issued March 20, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).
Appeal from the 185th District Court, Harris County, Texas, Trial Court Cause No. 857604.
Before Justices TAFT, KEYES, and HIGLEY.
MEMORANDUM OPINION
Appellant, William Lester Rice, Jr., was charged by indictment with burglary of a habitation. A jury found appellant guilty, found two enhancement paragraphs to be true, and assessed punishment at 30 years' confinement. In addressing appellant's seven points of error, we address whether the trial court erred in (1) allowing appellant to represent himself at trial, (2) failing to suppress out-of-court and in-court identifications of appellant, (3) failing to grant appellant's motion to suppress evidence, (4) failing to discharge the jury panel after appellant's Batson challenge, and (5) finding the evidence legally and factually sufficient to support appellant's conviction. We affirm.
Batson v. Kentucky, 476 U.S. 79, 85, 106 S.Ct. 1712, 1717 (1986).
Background
On September 27, 2000, while she was away from home, Laandrea Hunter's house was burglarized. Hunter's neighbor, Patricia Arseno, was outside her home when she observed appellant walking from Hunter's yard, carrying an orange electrical cord and another large object covered by a sheet. Arseno and appellant looked at each other for a couple of minutes and then appellant walked away. When Hunter returned home that day, she observed that the back door was kicked in and wires were strewn across the house. Hunter noticed that a satellite box, a VCR, and two leather coats were missing. After the police arrived, Hunter and the officer walked into the back yard. Hunter then realized that the storage shed had been burglarized and discovered that lawn mowers, a weed-eater, a moped, a bicycle, and yard equipment were missing. Hunter was acquainted with appellant, who had previously done odd jobs for Hunter's husband. After learning that Arseno had seen someone coming from her home on the day of the burglary, Hunter contacted the police and provided them with the new information. Officer Timothy Porche conducted an investigation and subsequently showed Arseno a photo spread. Arseno identified appellant in the photo spread as the man she saw leaving Hunter's home on the day of the burglary. Officer Porche, pursuant to an outstanding parole warrant, went to appellant's home to arrest him. While searching the house for appellant, Officer Porche noticed, in plain view, several items matching the description of those taken from Hunter's home. Porche seized the items, which Hunter later identified as items which had been stolen from her home.Procedural History
Appellant's first trial commenced on August 7, 2001. Appellant was represented by appointed counsel at the first trial. After conducting a hearing on appellant's motion to suppress evidence and motion to suppress identification, the trial court denied the motions. The trial terminated in a mistrial on August 10, 2001. On October 3, 2001, a hearing was conducted and appellant's motion for self-representation was granted. A hearing was held on November 19, 2001 on appellant's pre-trial motions, and the second trial commenced on November 26, 2001. Appellant requested and received stand-by counsel to provide him with advice on the law during his second trial.Self-Representation
In his first point of error, appellant asserts that the trial court erred in permitting appellant to represent himself at trial. Appellant contends that the record indicates that appellant did not understand criminal law and procedure adequately to represent himself. Appellant's counsel asserts that, during appellant's hearing on self-representation, appellant did not "appear to understand that he would have a right of cross-examination at his second trial" and did not "appear to understand the rules regarding criminal discovery." The Sixth and Fourteenth Amendments guarantee the right to assistance of counsel, as well as the right to waive counsel and represent one's self. Faretta v. California, 422 U.S. 806, 807-08, 818-20, 95 S.Ct. 2525, 2527-28, 2533 (1975); Hatten v. State, 71 S.W.3d 332, 333 (Tex.Crim.App. 2002). A criminal defendant's waiver of the right to counsel and decision of self-representation must be made "knowingly and intelligently," and the defendant should be warned of the "dangers and disadvantages" accompanying such waiver. Faretta, 422 U.S. at 835; 95 S.Ct. at 2541; Hatten, 71 S.W.3d at 333. Such a decision should also be made competently and voluntarily. Faretta, 422 U.S. at 834-36, 95 S.Ct. at 2540-41; Collier v. State, 959 S.W.2d 621, 625 (Tex.Crim.App. 1997). The decision to waive counsel and proceed pro se is made "knowingly and intelligently" if it is made with a full understanding of the right to counsel, which is being abandoned, as well as the dangers and disadvantages of self-representation. Collier, 959 S.W.2d at 626. The decision is made voluntarily if it is uncoerced. Id. The competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent one's self. Godinez v. Moran, 509 U.S. 389, 399, 113 S.Ct. 2680, 2687 (1993). The defendant's "technical legal knowledge" is "not relevant" to the determination whether he is competent to waive his right to counsel. Faretta, 422 U.S. at 836, 95 S.Ct. at 2541. Here, the record reflects that, before the trial court granted appellant's request to proceed pro se, the court questioned appellant regarding his education and discovered that he had a general equivalency degree and had attended a Microsoft certified engineering course at Rice University. The trial court instructed appellant that he would have to follow the rules of evidence and procedure and that he would receive no special treatment. Appellant was provided written Faretta warnings and was asked to sign a waiver of court appointed counsel. After reviewing the document, appellant asked several questions, and the trial court explained that appellant was charged with burglary of a habitation. Appellant responded that he understood the charge, as well as the range of punishment. A discussion took place regarding discovery; the court informed appellant that his previous attorney, Hayes, could provide most of the documents that appellant had requested, that some of the documents were not discoverable pre-trial, and that a hearing could be set for any other documents he might still need. Throughout the hearing, the trial court questioned appellant numerous times as to whether he still wanted to represent himself. Appellant consistently responded that he still wanted to proceed pro se. At the conclusion of the hearing, appellant signed the Faretta warnings, waiving his right to counsel. On this record, we do not find anything to indicate that appellant's decision to proceed pro se was anything less than knowing and intelligent. Nor can we find anything in the record indicating that appellant's decision to represent himself was not voluntary. This situation is similar to Collier. 959 S.W.2d 621. In Collier, the court held that the trial court did not err in granting the appellant's request to proceed pro se. Id. at 626. The trial court had questioned appellant regarding his education, explained his right to have appointed counsel, explained that the rules of evidence and procedure applied at trial and that he would receive no special consideration, explained the charges against appellant, and repeatedly impressed upon appellant the gravity of his request and the likelihood that it was a serious mistake. Id. Because the competence required in this situation is the competence to waive the right to counsel, not the competence to represent himself, we find nothing in the record to indicate appellant was not competent to waive the right. Godinez, 509 U.S. at 399, 113 S.Ct. at 2687. The defendant's "technical legal knowledge" is "not relevant" to the determination whether he is competent to waive his right to counsel. Faretta, 422 U.S. at 836, 95 S.Ct. at 2541. We overrule appellant's first point of error.Motions to Suppress Standard of Review
In reviewing the trial court's ruling on the motion to suppress, we apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000). We give almost total deference to the trial court's determination of historical facts, while we conduct a de novo review of the trial court's application of the law to those facts. Id. During a motion to suppress hearing, the trial court is the sole trier of fact; accordingly, the trial judge may choose to believe or disbelieve all or any part of a witness's testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000); King v. State, 35 S.W.3d 740, 742 (Tex.App.-Houston [1st Dist.] 2000, no pet.). When, as here, no findings of fact are filed, we must view the evidence in the light most favorable to the ruling and sustain the decision if it is correct on any applicable theory of the law. Ross, 32 S.W.3d at 855-56; King, 35 S.W.3d at 742. Suppression of Out-of-Court and In-Court Identifications In his second point of error, appellant contends that the court erred in failing to suppress the out-of-court identification of appellant by a witness because the identification procedure was impermissibly suggestive. In his third point of error, appellant contends that the trial court erred in failing to suppress the in-court identification of appellant because it was the fruit of an impermissibly suggestive out-of-court identification procedure. A pretrial identification procedure may be so suggestive and conducive to mistaken identification that subsequent use of that identification at trial would deny the accused due process of law. Conner v. State, 67 S.W.3d 192, 200 (Tex.Crim.App. 2001) (citing Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967 (1967) and Barley v. State, 906 S.W.2d 27, 33 (Tex.Crim.App. 1995)). In determining the admissibility of an in-court identification, we follow a two-step analysis: (1) whether the out-of-court identification procedure was impermissibly suggestive; and, if unduly suggestive, (2) whether that procedure gave rise to a substantial likelihood of irreparable misidentification. Conner, 67 S.W.3d at 200 (citing Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967 (1968) and Barley, 906 S.W.2d at 33). Only if the first prong is proved do we proceed to the second prong. In analyzing the second prong, the following factors are considered: (1) the opportunity of the witness to view the perpetrator at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the perpetrator; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) length of time between the crime and the confrontation. Barley, 906 S.W.2d at 34-35. An analysis under these steps requires an examination of the totality of the circumstances surrounding the particular case and a determination of the reliability of the identification. Conner, 67 S.W.3d at 200. Appellant must show by clear and convincing evidence that the identification was irreparably tainted before his conviction will be reversed. Barley, 906 S.W.2d at 34. Turning to the first prong of the analysis, we first note that a pretrial procedure may be suggestive, but that does not necessarily mean it is impermissibly so. See id. Suggestiveness may be created by the manner in which the pre-trial identification procedure is conducted, for example, by police pointing out the suspect or suggesting that a suspect is included in the line-up or photo array. Id. at 33. However, a pretrial identification procedure is not impermissibly suggestive merely because a witness may have believed one of the individuals in the photo array was a suspect. Abney v. State, 1 S.W.3d 271, 275 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd) (citing Harris v. State, 827 S.W.2d 949, 959 (Tex.Crim. App. 1992)). Suggestiveness may also be created by the content of the line-up itself if the suspect is the only individual closely resembling the pre-procedure description. Barley, 906 S.W.2d at 33. Furthermore, an individual procedure may be suggestive, or the cumulative effect of procedures may be suggestive. Id. Here, Officer Porche showed the witness, Arseno, a photo array consisting of six subjects, including appellant. All of the subjects in the photo array had similar characteristics with regard to race, height, and facial features, in order to ensure that one photo did not stand out when compared to the others. Appellant complains that Officer Porche suggested to Arseno that there was a suspect in the pictures. On direct-examination by the State, Porche indicated that he did not do anything in a suggestive manner or give Arseno any hints; he just explained the purpose of the photo spread to Arseno and asked her to identify the person she saw commit the offense. On cross-examination by the defense, Porche initially responded in the affirmative to a question as to whether he may have suggested there was a suspect in the pictures. However, Porche also responded to follow-up questions indicating that he did not think that the procedure was indicative that Arseno should pick someone from the photos and that the instructions he gave her would not have led her to choose someone unless she could identify him as the person coming from the crime scene. Additionally, Arseno testified that Officer Porche did not tell her that the person who committed the crime was in the photos when he gave her the photo array to review. Arseno further stated that no one made any suggestions to her to assist in picking appellant out of the photo array, and that she was absolutely positive that appellant was the person she had seen coming from Hunter's house. We find that the out-of-court identification procedure was not impermissibly suggestive. Therefore, the trial court did not abuse its discretion in refusing to suppress evidence of the out-of-court identification procedure. Having determined that no impermissibly suggestive procedure was utilized, we need not evaluate whether the procedure created a substantial likelihood of misidentification. In re G.A.T., 16 S.W.3d 818, 827 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). We find that the trial court did not err in refusing to suppress the in-court identification. We overrule appellant's second and third points of error. Motion to Suppress Evidence In his fourth point of error, appellant contends that the court erred in failing to suppress evidence seized from appellant's home. Appellant asserts that the evidence was seized outside an area within a valid search incident to arrest, thus constituting an unreasonable search and seizure. The evidence that appellant argued should be suppressed was seized when Officer Porche executed an outstanding blue warrant for appellant. Officer Porche testified that, while executing the warrant, and searching the house for appellant, who was subsequently found hiding in the attic, Porche observed items, in plain view, matching the description of those stolen from Hunter's home. The Fourth Amendment protects against unreasonable searches and seizures. U.S. Const. Amend. IV; Walter v. State, 28 S.W.3d 538, 540 (Tex.Crim.App. 2000). Seizing contraband or other evidence of a crime in plain view does not run afoul of the Fourth Amendment. Walter, 28 S.W.3d at 541. The "plain view" doctrine requires that (1) law enforcement officials have the right to be where they are, and (2) it be immediately apparent that the item seized constitutes evidence, that is, there is a probable cause to associate the item with criminal activity. Id. In determining whether the officer had a right to be where he was, the Supreme Court requires that "the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed." Id. A valid arrest warrant provides an officer authority to enter the residence of the person named in the warrant in order to execute the warrant. Morgan v. State, 963 S.W.2d 201, 203 (Tex.App.-Houston [14th Dist.] 1998, no pet.) (citing Payton v. New York, 445 U.S. 573, 603 (1980)). Officers executing an arrest warrant must have a "reasonable belief that the suspect resides at the place to be entered . . . and [have] reason to believe that the suspect is present" at the time the warrant is executed. Morgan, 963 S.W.2d at 204. Here, before going to 3513 Grassmere Street, the officers had evidence from appellant's driver's license records that appellant lived there. Before entering the house, the officers were also informed by two people outside the house that appellant was inside the house at the time. This evidence was sufficient to provide the officers with reasonable belief that appellant resided at the house and was present at the time they executed the warrant. Therefore, the first element of the "plain view" doctrine was satisfied. Officer Porche's investigation of the burglary of Hunter's home, his knowledge that appellant had been identified as a suspect in the case, and his knowledge of the description of items stolen from Hunter provided probable cause for Porche to associate the items he saw in appellant's home with those taken from Hunter's home. Therefore, we find that the second element of the "plain view" doctrine has also been satisfied. We find the seizure of evidence from appellant's home did not violate appellant's right against unreasonable search and seizure. We overrule appellant's fourth point of error. Batson Challenge In his fifth point of error, appellant contends that the court erred in failing to discharge the jury panel pursuant to his Batson challenge. Appellant asserts that he identified a total of 11 veniremen who were black and were struck by the State and that the State only gave reasons for striking four of the 11 veniremen. The Fourteenth Amendment's equal protection clause prohibits purposeful racial discrimination by the State in its use of peremptory strikes. Batson, 476 U.S. at 85, 106 S.Ct. at 1717 (1986); see also Tex.Crim. Proc. Code Ann. § 35.261(a) (Vernon 1989). To assert a Batson challenge, the defendant must establish a prima facie case of purposeful discrimination in the State's use of peremptory strikes. Harris v. State, 827 S.W.2d 949, 955 (Tex.Crim.App. 1992). Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a racially neutral explanation for challenging the jurors in question. Id. The burden to show purposeful discrimination shifts back to the defendant to impeach or refute the neutral explanation or show that it is merely a pretext. Salazar v. State, 795 S.W.2d 187, 192 (Tex.Crim.App. 1990). The trial court's ruling on a Batson challenge must not be disturbed unless it is clearly erroneous. Harris, 827 S.W.2d at 955. To establish a prima facie case, a defendant must show that (1) he is a member of a cognizable racial group, (2) the prosecutor exercised peremptory challenges to remove from the venire members of the defendant's race, and (3) these facts and any other relevant circumstances raise an inference that the prosecutor used the peremptory challenges to exclude the veniremembers on account of their race. Salazar, 795 S.W.2d at 193. A review of the record regarding appellant's Batson challenge reveals that appellant challenged the prosecutor with improperly striking the following veniremen: 7, 15, 25, and 29. The State then provided the following racially neutral explanations for challenging those jurors:1. Venireman number 7 was a member of the defense bar.
2. Venireman number 15 had a prior aggravated assault conviction.
3. Venireman number 25 was not paying attention during the prosecutor's voir dire, was looking around, and did not laugh at any of his jokes.
4. Venireman number 29 could not set aside personal feelings and the court denied the prosecutor's challenge for cause for this venireman.The burden then shifted back to the defendant to impeach or refute the prosecutor's neutral explanation or show that it was merely a pretext. Appellant did not meet this burden. Therefore, we do not find that the trial court erred in denying appellant's Batson challenge. We overrule appellant's fifth point of error. Sufficiency of the Evidence In his sixth and seventh points of error, appellant challenges the legal and factual sufficiency of the evidence. Appellant asserts that the State's eyewitness, Arseno, was not credible and that Arseno's observation of appellant leaving Hunter's house was from too great a distance to be accurate. Appellant also contends that the State cannot rely on an inference of guilt from the evidence seized from his property because he claims there is no evidence that he exercised control over the property. A legal sufficiency challenge requires us to determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Howley v. State, 943 S.W.2d 152, 155 (Tex.App.-Houston [1st Dist.] 1997, no pet.). We note that, as the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given their testimony, the jury may believe or disbelieve all or any part of a witness' testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App. 1981) ("A jury is entitled to accept one version of the facts and reject another or reject any of a witness's testimony."). Under the factual sufficiency standard, we ask "whether a neutral review of all of the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." King v. State, 29 S.W.3d 556, 563 (Tex.Crim.App. 2000). We will reverse the fact finder's determination only if a manifest injustice has occurred. Id. In conducting this analysis, we may disagree with the jury's determination, even if probative evidence supports the verdict, but we must avoid substituting our judgment for that of the fact finder. Id. A person commits the offense of burglary if, without the effective consent of the owner, the person: (1) enters a habitation or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; . . . or (3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault. Tex. Penal Code Ann. § 30.02 (Vernon Supp. 2003). In Solis v. State, the court acknowledged a long line of cases where the court has held that recent and unexplained "possession of all or any parts of the items taken in a burglary is sufficient to sustain a conviction for burglary." 792 S.W.2d 95, 98 (Tex.Crim.App. 1990). Where there is independent evidence of a burglary, recent unexplained possession of property taken in that burglary will support an inference of guilt. Gomez v. State, 905 S.W.2d 735, 741 (Tex.App.-Houston [14th Dist.] 1995), aff'd on other grounds, 962 S.W.2d 572 (Tex.Crim.App. 1998). Here, the State had even more than evidence of appellant's possession of recently stolen property. Hunter's house was burglarized on September 27, 2000. Some of Hunter's stolen property was found in appellant's home on October 5, 2000. Appellant offered no explanation as to why Hunter's stolen property was found in his home. In addition, Arseno was certain that appellant was the person she saw coming out of Hunter's house on the day of the burglary. Arseno and appellant looked at each other for about two minutes and then appellant left Hunter's yard carrying items covered with a sheet. Arseno then walked through a trail near the houses and watched appellant as he turned on Grassmere street. Arseno testified that, although she did not know appellant's name, she had seen him in the neighborhood previously, particularly about four times on Grassmere street. Independent evidence of the burglary was presented, as well as evidence of appellant's recent, unexplained possession of some of the stolen property. A rational jury could have found the essential elements to prove appellant guilty of committing the burglary of Hunter's home. As exclusive judges of the facts, the credibility of the witnesses, and the weight to be given their testimony, the jury was free to believe or disbelieve all or any part of a witness's testimony. Penagraph, 623 S.W.2d at 343. After reviewing the record and all of the evidence, we do not find that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or that the proof of guilt is greatly outweighed by contrary proof. See King, 29 S.W.3d at 563. Therefore, we find the evidence was both legally and factually sufficient to support the verdict. We overrule appellant's sixth and seventh points of error.