Opinion
No. 04-15-00265-CR No. 04-15-00266-CR
05-04-2016
Arestede James TREADWAY, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 175th Judicial District Court, Bexar County, Texas
Trial Court Nos. 2013CR11505 & 2013CR11506
Honorable Mary D. Roman, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Karen Angelini, Justice Luz Elena D. Chapa, Justice Jason Pulliam, Justice AFFIRMED IN PART, REVERSED AND RENDERED IN PART
Arestede James Treadway was charged in Trial Court No. 2013CR11505 with the offense of burglary of a habitation by attempting and committing aggravated assault - habitual offender. In Trial Court No. 2013CR11506, Treadway was charged with the offense of burglary of a habitation by attempting to commit and committing theft - habitual offender. After a bench trial, Treadway was found guilty and sentenced to two concurrent sentences of twenty-five years of imprisonment. He now argues on appeal that the evidence was insufficient to support the trial court's findings that (1) he intentionally or knowingly entered a habitation and attempted to commit and committed aggravated assault; and (2) he intentionally or knowingly entered a habitation and attempted to commit and committed theft. Treadway also argues that his convictions violated his right to be free from double jeopardy under the Constitution. Because the evidence is sufficient to support the trial court's finding that Treadway committed the offense of burglary of a habitation, we affirm the trial court's judgment in Trial Court No. 2013CR11505. However, because Treadway's constitutional right to be free from double jeopardy was violated, we reverse the trial court's judgment in Trial Court No. 2013CR11506 and render a judgment of acquittal.
BACKGROUND
Treadway was charged with burglarizing Sean Smagacz's home. At trial, Smagacz testified that he had known Treadway for years, having hired Treadway to do contract work for his construction company. According to Smagacz, he considered Treadway to be a friend. On Friday, April 12, 2013, Smagacz and Treadway were working together on a job site. After work, Smagacz, Treadway, and another worker, Wilson Brown, met at Smagacz's home. Wilson later left to go pick up his son in Floresville, Texas. After Brown left, Treadway realized he had left his car keys in Brown's truck. Smagacz testified that because Treadway had no means of leaving in his truck parked in Smagacz's driveway, Smagacz allowed Treadway to stay the night at his home. Treadway also stayed Saturday night.
On Sunday morning, Smagacz testified that while they were playing basketball, Treadway began acting in a strange manner, claiming that an elderly gentleman, who was exercising by walking up and down the street, was spying on him. Smagacz told Treadway that the man was not spying on him but was simply exercising. "And then all of a sudden [Treadway] acted - started acting as if we were in the jail playing basketball and asked me if I wanted to shank him. And I thought that was extremely strange. And [Treadway] got in my face like he wanted to fight me." According to Smagacz, Treadway was acting delusional. They went back to Smagacz's house, ordered a pizza and watched television. Later, Treadway went outside to clean his truck. Smagacz then received a phone call from Brown. Smagacz went outside to inform Treadway that Brown had called, and they needed to go pick up Treadway's car keys from him. According to Smagacz, Treadway replied that he was not going, which Smagacz thought "was extremely strange because they weren't [Smagacz's] keys." Smagacz testified that he was upset that Treadway would not go to retrieve his own keys, so Smagacz "shut [the] garage door and told [Treadway] he was going to have to wait outside until [Smagacz] got back." Smagacz testified that he did not give Treadway permission to go inside his home. Smagacz shut the garage door and set the house alarm. When Smagacz last saw Treadway, Treadway was standing in the driveway next to his vehicle. Smagacz testified that Treadway had not brought any belongings with him that weekend, and that when Smagacz left to pick up the keys, Treadway did not have any possessions in Smagacz's home.
Smagacz testified that he was gone about fifteen minutes, and when he returned to his house, he saw Treadway's truck in his driveway but he did not see Treadway. Smagacz opened his garage door and went into the laundry room. The door swung open and hit Treadway, who was standing on top of Smagacz's washer and dryer. Smagacz testified that Treadway was going through the cabinets and the home alarm was blaring. Smagacz testified that he saw a 9-millimeter pistol in Treadway's pants that looked like the one that belonged to Smagacz. "It had my gun case around it or what looked to be my gun case." Smagacz testified that he said to Treadway, "Dude, you broke into my house." Treadway then pulled out the gun and told him not to move. Treadway pointed the gun directly at his face. Smagacz testified that he felt threatened and scared. Smagacz started to walk backwards toward his bedroom because he had a rifle in there. Treadway kept telling Smagacz not to move and demanded to know where Smagacz's money was located. Smagacz kept walking backwards into his bedroom. Smagacz lied and replied that he did not have any money. Smagacz testified that Treadway then "punched [him] across the face," hitting his left eye. Smagacz asked Treadway "why he was doing this" and Treadway "punched [Smagacz] again." Smagacz testified that as his head was coming back up, Treadway hit him "in the back of the head with the pistol, the butt of the pistol or what felt like the butt of [the] pistol." According to Smagacz, he "saw stars [and] fell down to one knee." When Smagacz looked up, Treadway again yelled at Smagacz to give him money. Smagacz testified that the gun was pointed at him when he heard a gunshot. Smagacz was not hit by the bullet. Smagacz then "heard another click of the trigger," like Treadway pulled the trigger but no bullet came out. According to Smagacz, Treadway was "definitely aiming and intending to shoot at me." Smagacz testified that he was "scared for [his] life, so [he] kicked the gun out of [Treadway's] hand." By that point, Treadway and Smagacz were in Smagacz's bedroom, and the gun fell onto the bed. Smagacz and Treadway "wrestled around for a minute, and then [Smagacz] grabbed the gun and ran out of the room." Smagacz ran toward the garage and saw his neighbors who had heard the gunshot. Smagacz yelled at them to call the police, "that somebody broke into my house and tried to kill [him]." Later, Smagacz attempted to locate his rifle, which he always kept next to his bed, but the rifle was gone.
Smagacz testified that his patio door, which had been locked, was broken.
Officer Eric Woodard of the San Antonio Police Department testified that on April 14, 2013, he was on patrol when he received a call for a burglary alarm. The call then changed to a burglary in progress. When Officer Woodard arrived at the scene, he was flagged down by Smagacz, who gave consent to search his home. Officer Woodward testified he collected a 9-millimeter handgun and a 9-millimeter shell casing. According to Officer Woodward, the back door to Smagacz's home looked like it had been forced open - the frame was broken.
Treadway testified on his own behalf. He admitted to having been previously convicted of the following crimes: robbery, burglary by force with intent to commit theft, possession of LSD, being a felon in possession of a firearm, and possession of an unregistered firearm. Treadway claimed that on Sunday, April 14, 2013, he never attempted to enter Smagacz's home or attempted to enter Smagacz's home with the intent to steal or commit any other felony. Treadway admitted that he was present at Smagacz's home on Sunday, April 14, 2013. According to Treadway, he had been at Smagacz's home since Wednesday of that week and had stayed at Smagacz's home "many times" when Smagacz's wife was away.
Treadway testified that after he and Smagacz played basketball, they put their clothes in the washer. According to Treadway, Smagacz did not want him to go along on the trip to pick up Treadway's keys from Brown. After Smagacz left, Treadway walked to a convenience store to buy cigarettes. Treadway testified that as he was walking on the way to the store, Smagacz passed him. Because Smagacz had not had enough time to retrieve the keys from Brown, Treadway thought that Smagacz had forgotten something at the house. So, Treadway turned back toward the house. When Treadway arrived, he saw the garage door open and walked into the garage. Treadway testified that he asked Smagacz, "Hey, did you get my keys or did you have a chance to meet him?" Treadway testified that Smagacz replied, "No." Treadway then asked "if the cycle was done on the washer." Smagacz "walked towards my truck and threw something in the passenger seat of the truck." When Treadway "went to look, it was some clothes." Treadway testified that he went back into the house "to get the other set of clothes that was in the washer." When Treadway opened the washer door, Smagacz "ran in and told [Treadway] to not open the door." Treadway testified that he did not know that the alarm had been triggered. Smagacz was trying to get around Treadway and pushed Treadway into the washer, which Treadway interpreted at the time as Smagacz trying to "push [him] around." Treadway, however, came to believe later that Smagacz was simply trying to get to the keypad to disarm the alarm. After Smagacz pushed Treadway, Treadway hit Smagacz in the upper chest area.
Treadway testified that his and Smagacz's relationship was "a little contentious." Treadway testified that at the time of the incident, he thought Smagacz "was trying to go for his gun." Treadway testified he saw Smagacz grab the gun off the counter. They began "tussling for the gun," and Smagacz hit his head on one of the cabinet doors. According to Treadway, he never had control of the gun, he never pointed the gun at Smagacz, and he never attempted to fire or fired the gun at Smagacz. Treadway testified that he believed that the "gun misfired or the gun went off" when he and Smagacz were "fighting for control of it." Treadway believed that he broke the back door when he "was running from the scene after the altercation." Treadway denied having taken Smagacz's rifle.
Treadway claimed that he and Smagacz had argued about money and that he had asked Smagacz for his "payroll," stating that he was due three days of pay. Treadway testified, Smagacz replied that because of "the room and board for [Treadway] staying at his house, the pizza, the beer," and Treadway's ex-girlfriend giving Smagacz "some counterfeit money," Treadway was not owed any money. According to Treadway, "We had a good argument for about five minutes."
Treadway also admitted that he did not relay this story to the police on the day of the incident but instead told officers that he did not remember anything. According to Treadway, "I do not cooperate with the authorities." Treadway also admitted that on the day of the incident, he told the police that he was "on drugs" and that he was not injured. Treadway testified that on the day in question, he had used the illegal drugs of "Ice" and Xanax. Treadway testified that he fled the scene because Smagacz "had a gun and was shooting at me." Treadway testified that he intended to only take his "clothes and [] personal effects" from Smagacz's home.
After hearing all the evidence, the trial court found Treadway guilty of both counts of burglary of a habitation. Treadway appeals.
SUFFICIENCY OF THE EVIDENCE
In a federal due-process evidentiary-sufficiency review, we view all the evidence in the light most favorable to the verdict to 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); Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011). The court of criminal appeals has explained that this standard "recognizes the trier of fact's role as the sole judge of the weight and credibility of the evidence after drawing reasonable inferences from the evidence." Adames, 353 S.W.3d at 860. Therefore, on appellate review, we determine whether based on "cumulative force of all the evidence" the necessary inferences made by the trier of fact are reasonable. Id. We conduct this constitutional review by measuring the evidentiary sufficiency with "explicit reference to the substantive elements of the criminal offense as defined by state law." Id.
Treadway was charged with two counts of burglary of a habitation. As applicable in this case, a person commits the offense of burglary of a habitation if he, without the effective consent of the owner, intentionally or knowingly enters a habitation and commits or attempts to commit a felony, theft, or an assault. See TEX. PENAL CODE ANN. § 30.02(a)(3) (West 2011). In this case, Treadway was alleged to have entered the habitation and attempted to commit or committed theft. Treadway was also alleged to have entered the habitation and attempted to commit or committed aggravated assault.
Treadway first argues that the evidence was insufficient to support the trial court's finding that he intentionally or knowingly entered a habitation and attempted to commit or committed theft. He emphasizes that theft requires that the State prove he intended to deprive the owner of property. See TEX. PENAL CODE ANN. §§ 30.02(a)(3), 31.03(a) (West 2011 & Supp. 2015). Treadway points to his own testimony that he did not take Smagacz's rifle and that the only property Treadway intended to take from Smagacz's home were his own clothes and personal effects. Treadway also points to his testimony that he did not break into Smagacz's home, that he did not trigger Smagacz's alarm, and that he did not seek to take any money from Smagacz except for what was due to him for back pay. According to Treadway, "[t]his testimony negates the necessary intent to deprive the owner, Mr. Smagacz, of property, and therefore negates the theft element."
Treadway, however, ignores the circumstantial evidence in this case showing that he intended to deprive Smagacz of his property. "Direct evidence of the requisite intent is not required." Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002). A factfinder "may infer intent from any facts that tend to prove its existence, including the acts, words, and conduct of the accused, and the method of committing the crime." Id. (citation omitted). "As long as the [factfinder]'s finding of culpable intent is supported by a reasonable inference, it is within the province of the factfinder to choose which inference is most reasonable." Isassi v. State, 330 S.W.3d 633, 643 (Tex. Crim. App. 2010) (citation omitted).
Here, Smagacz's testimony was circumstantial evidence showing Treadway's intent to deprive Smagacz of property. Smagacz testified that he told Treadway to remain outside while he was gone. Smagacz testified that he closed the house and set the alarm. When Smagacz returned, his alarm had been triggered, his back door had been broken, and he saw Treadway searching through his cabinets. Smagacz also saw what appeared to be his pistol and holster in Smagacz's pocket. From Smagacz's testimony, the factfinder could reasonably infer that Treadway intended to deprive Smagacz of his property.
Thus, there is a factual dispute on the issue of whether Treadway intended to deprive Smagacz of property. Whether Smagacz or Treadway testified truthfully on the matter was a credibility question for the factfinder. When contradictory testimonial evidence turns on an evaluation of credibility and demeanor of the witnesses, we must defer to the factfinder. See Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).
Similarly, Treadway also argues that the evidence was insufficient to support the trial court's finding that he intentionally or knowingly entered a habitation and attempted to commit or committed aggravated assault. See TEX. PENAL CODE ANN. §§ 22.01(a)(1), (a)(2), 22.02(a), 30.02(a)(3) (West 2011 & Supp. 2015). He again points to his own testimony that Smagacz was the aggressor and that he hit Smagacz in self-defense. Treadway also points to his testimony where he denied pointing the gun at Smagacz, denied attempting to shoot Smagacz, denied shooting at Smagacz, and denied ever having control of the gun. Treadway claims that his testimony "clearly negates the aggravated assault element." Treadway again ignores Smagacz's testimony showing that Treadway did commit aggravated assault. Smagacz testified that he did not provoke Treadway and that Treadway pointed a gun at him, fired a gun at him, and hit him several times, causing serious bodily injury. Once again, when there is disputed evidence that turns on an evaluation of credibility and demeanor of the witnesses, we must defer to the factfinder. See Johnson, 23 S.W.3d at 8.
We therefore hold that the evidence was sufficient to support the trial court's findings that Treadway committed burglary of a habitation by (1) intentionally or knowingly entering a habitation and attempting to commit or committing theft; and (2) intentionally or knowingly entering a habitation and attempting to commit or committing aggravated assault.
DOUBLE JEOPARDY
In his final issue, Treadway argues that his constitutional right to be free from double jeopardy was violated because he was convicted twice for burglary of a habitation arising from the same entry. The Double Jeopardy Clause protects against multiple punishments for the same offense. Illinois v. Vitale, 447 U.S. 410, 415 (1980). A defendant suffers multiple punishments for the same offense when he is convicted of more offenses than the Legislature intended. Ex parte Cavazos, 203 S.W.3d 333, 336 (Tex. Crim. App. 2006). Treadway emphasizes that the Texas Court of Criminal Appeals has stated that "the gravamen of a burglary is the entry without the effective consent of the owner and with the requisite mental state." Id. at 337. When a burglary is committed, "the harm results from the entry itself." Id. "The offense is completed once the unlawful entry is made, without regard to whether the intended theft or felony is also completed." Id. Burglary is "a crime against property." Id. "Thus, the complainant is not the appropriate allowable unit of prosecution in a burglary; rather, the allowable unit of prosecution in a burglary is the unlawful entry." Id. In response to Treadway's argument, the State concedes that Treadway's right to be free from double jeopardy has been violated by the imposition of two sentences relating to his conviction for burglary of a habitation.
When a defendant is convicted of two offenses that are the "same" for double-jeopardy purposes, we retain the "most serious" offense and set aside the other conviction. Id. at 337. The "most serious" offense is "determined by the degree of the felony, range of punishment and sentence imposed, with rules of parole eligibility and good-conduct time as a tie-breaker." Id. (citation omitted). Burglary of a habitation by attempting to commit or committing a felony offense is a first-degree felony. See TEX. PENAL CODE ANN. § 30.02(d) (West 2011). Burglary of a habitation by attempting to commit or committing theft is a second-degree felony. Id. § 30.02(c). Because burglary of a habitation by attempting to commit or committing a felony offense is a first-degree felony, the State argues that it is the "most serious" offense. We agree with the State. We therefore retain the judgment in Trial Court No. 2013CR11505, which found that Treadway had committed the offense of burglary of a habitation by attempting to commit or committing aggravated assault. We set aside the judgment in Trial Court No. 2013CR11506, which found that Treadway had committed the offense of burglary of a habitation by attempting to commit or committing theft.
Karen Angelini, Justice Do not publish