Opinion
No. 05-09-00577-CR
Opinion Filed March 8, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 7, Dallas County, Texas, Trial Court Cause No. F-09-00248-Y.
Before Justices O'NEILL, RICHTER, and LANG-MIERS.
OPINION
Appellant Damon West was convicted of engaging in organized criminal activity and sentenced to 65 years in prison. He raises six issues on appeal complaining about the sufficiency of the evidence, the jury charge, the trial court's denial of his motion to quash, and the trial court's exclusion of certain testimony during the punishment phase of trial. We resolve appellant's issues against him and affirm the trial court's judgment.
Under chapter 71 of the Texas Penal Code, a person commits the offense of engaging in organized criminal activity "if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, the person commits or conspires to commit one or more" of the object offenses set out in the statute. See Tex. Penal Code Ann. § 71.02(a) (West Supp. 2010). A "combination" consists of "three or more persons who collaborate in carrying on criminal activities." Id. § 71.01(a) (West 2003). And as construed by the court of criminal appeals, the phrase "collaborate in carrying on criminal activities" means that the members of the combination "intend to work together in a continuing course of criminal activities." Nguyen v. State, 1 S.W.3d 694, 697 (Tex. Crim. App. 1999).
Background
According to police officers who testified for the State, appellant was the ring leader of a group that burglarized dozens of apartments and condominiums in and around the Uptown area of Dallas, Texas in 2007 and 2008. Police determined that the burglaries were related because they shared three signature characteristics. First, the group used a unique method of entry, namely a small hole "drilled right above the deadbolt lock to gain entry, as opposed to the usual burglaries where you see the door is kicked in-back door is kicked in." Second, the victims were each out of town for several days when their residences were burglarized, which allowed the burglars to spend a lot of time clearing out property. And third, the types and amount of property taken was generally the same, including unusual items such as women's underwear and used makeup. Police arrested appellant after responding to a call from an apartment complex about a burglary in progress. The caller told police that someone was loading property into an SUV. When police arrived at the complex, appellant was behind the wheel of a stolen SUV attempting to leave the complex. He could not get the gate open, so he backed into a parking spot. Police arrested appellant after questioning him and finding several suspicious items in the SUV, including a bag full of garage door and gate openers, multiple laptop computers, blue tubs full of women's clothing and accessories, and a cordless drill. After appellant was arrested, he made phone calls "instructing people while he was in jail to move things," but Dallas police did not receive any more reports of residential burglaries in which entry was made by drilling a small hole above the deadbolt. Police identified the other members of appellant's group by using security-camera footage, witness interviews, and evidence seized pursuant to multiple search warrants, including text messages sent from and to members of the group. Police were also able to recover some of the property stolen in the burglaries by executing multiple search warrants on locations that appellant's group used to stockpile "mounds and mounds" of stolen property as well as tools that could be used to commit the burglaries. The State's other witnesses included (a) several of the victims whose residences were burglarized, (b) a witness who testified that appellant admitted to participating in the burglaries, and (c) a witness who saw appellant carrying property into one of the locations where police executed a search warrant. Appellant did not testify in his own defense, but he did present testimony of other witnesses to support his defense theory, which was apparently that he deserved leniency because he was a law-abiding citizen from a loving and supportive family until he made the mistake of becoming addicted to illegal drugs.First Issue
In his first issue appellant notes that he was charged with engaging in organized criminal activity by committing the object offense of burglary of a habitation "[o]n or about" July 21, 2008. Appellant argues that the evidence is insufficient to support his conviction because the State did not present evidence to prove "ownership of the habitation burglarized." To the extent that appellant contends the State was required to prove that appellant burglarized one particular habitation on the particular date referenced in his indictment, we disagree. "In an indictment in Texas, `on or about' a certain date means any time preceding the indictment but within the statute of limitations." Moore v. State, 802 S.W.2d 367, 373 (Tex. App.-Dallas 1990, pet. ref'd); see also Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997) ("It is well settled that the `on or about' language of an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the statutory limitation period.") (citing Tex. Code Crim. Proc. Ann. art. 21.02(6)) (additional citations omitted). In short, the State was not required to prove that appellant burglarized a particular habitation on July 21, 2008. Additionally, to the extent that appellant contends the evidence was insufficient to prove the ownership element of the object offense of burglary of a habitation, we disagree. Under the penal code, a person commits the offense of burglary of a habitation if, without the effective consent of the owner, the person enters a habitation and commits theft. Tex. Penal Code Ann. § 30.02(a)(3) (West 2003). We review the sufficiency of the evidence under the standard set forth in Jackson v. Virginia. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307 (1979)). We examine all of 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 offense beyond a reasonable doubt. Brooks, 323 S.W.3d at 899 (citing Jackson, 443 U.S. at 319). In this case, several victims testified that their residences were burglarized while they were out of town. They described their stolen property and identified certain items that were later recovered by police. Police also gave detailed testimony about which items belonging to which victims were found at the locations appellant's group was using to store stolen property. Police also explained how they were able to directly link appellant to those locations. After examining all of the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found the essential elements of the object offense of burglary of a habitation beyond a reasonable doubt. We resolve appellant's first issue against him.Second Issue
In his second issue appellant cites the following excerpt from the application portion of the jury charge: Now, bearing in mind the foregoing instructions, if you find from the evidence beyond a reasonable doubt, that on or about July 21, 2008, in Dallas County, Texas, the defendant, DAMON WEST, acting alone or as a party, did unlawfully, with intent to establish, maintain, or participate in a combination or in the profits of a combination, commit burglary of a habitation, then you will find the defendant guilty as charged. Next, appellant states that "[i]t was error for the [t]rial [c]ourt to not charge the jury on all of the elements of the underlying offense." He also states that "[t]he error was harmful because it lowered the burden of proof." We note, however, that the trial court included an instruction on the statutory elements of burglary of a habitation in the abstract portion of the jury charge. And to the extent that appellant's actual complaint in his second issue is that those elements should have been repeated in the application portion of the jury charge, we disagree. As the court of criminal appeals has explained, a jury charge is adequate if it either contains an application paragraph specifying all of the conditions to be met before a conviction under such theory is authorized, or contains an application paragraph authorizing a conviction under conditions specified by other paragraphs of the jury charge to which the application paragraph necessarily and unambiguously refers, or contains some logically consistent combination of such paragraphs. Plata v. State, 926 S.W.2d 300, 304 (Tex. Crim. App. 1996), overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997). It is unnecessary to repeat every abstract definition in the application paragraph of the jury charge. Holland v. State, 249 S.W.3d 705, 709 (Tex. App.-Beaumont 2008, no pet.). We resolve appellant's second issue against him.Third Issue
In his third issue, appellant argues that the trial court erred when it denied his motion to quash the indictment. More specifically, appellant argues that because the indictment in this case does not allege all of the elements of the object offense of burglary, it fails to state the elements of engaging in organized criminal activity by commission. In response, the State argues that appellant's third issue has not been preserved for appellate review. Alternatively, the State argues that the indictment in this case was not defective.Analysis
Assuming without deciding that appellant has adequately briefed this issue, we cannot address the merits of his third issue because his complaint on appeal does not comport with his complaint in the trial court. See Tex. R. App. P. 33.1(a)(1)(A); Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004) ("it is well settled that the legal basis of a complaint raised on appeal cannot vary from that raised at trial"). In his motion to quash, appellant argued that the indictment does not comply with article 21.02 of the Texas Code of Criminal Procedure because it did not identify any particular burglary, either by identifying the date of the burglary or the name of the complainant. On appeal, appellant does not cite to or otherwise argue that the indictment does not comply with article 21.02. Instead, he complains that the indictment does not allege the elements of the object offense of burglary. As a result, we conclude that appellant did not preserve this issue for appellate review. See Miller v. State, No. 02-09-00167-CR, 2010 WL 4486336, at *2 (Tex. App.-Fort Worth Nov. 8, 2010, no pet.) (per curiam) (defendant's complaint about indictment did not comport with argument raised in motion to quash and was not preserved for appellate review). We resolve appellant's third issue against him.Fourth Issue
In appellant's fourth issue he argues that the trial court erred when it included the following instruction in the jury charge: "It is not required that the prosecution prove guilt beyond all possible doubt; it is only required that the prosecution's proof excludes all `reasonable doubt' concerning the defendant's guilt." Appellant argues that this instruction violates the holding in Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000), because it constitutes a definition of reasonable doubt. As appellant acknowledges, however, we have already concluded that the quoted language does not define reasonable doubt. See O'Canas v. State, 140 S.W.3d 695, 701-02 (Tex. App.-Dallas 2003, pet. ref'd). Additionally, as the State notes in its brief, since our decision in O'Canas, the court of criminal appeals has held that a trial court does not abuse its discretion by including in the jury charge the instruction complained of in this case. See Woods v. State, 152 S.W.3d 105, 115 (Tex. Crim. App. 2004); see also Jimenez v. State, No. 05-06-01374-CR, 2008 WL 663451, at *2 (Tex. App.-Dallas March 13, 2008, no pet.) (not designated for publication). We resolve appellant's fourth issue against him.Fifth Issue
In his fifth issue appellant argues that the trial court erred when it included an instruction to the jury in the punishment charge regarding parole eligibility and good conduct time. Appellant claims that he was not eligible for parole and good conduct time credit because he was "convicted of aggravated robbery," and that the trial court erred when it provided the instruction under section 508.149 of the government code. But appellant was not convicted of committing aggravated robbery-he was convicted of engaging in organized criminal activity. Unlike aggravated robbery, engaging in organized criminal activity is not one of the offenses listed under section 508.149. See Ex parte Adden, No. 74669, 2003 WL 21282552, at *1 (Tex. Crim. App. 2003) (per curiam) (not designated for publication) (noting "engaging in organized criminal activity is not listed among the offenses ineligible for mandatory supervision" under section 508.149). Likewise, appellant does not cite, and the appellate record does not appear to contain, any allegation, evidence, or finding concerning any prior conviction for aggravated robbery. To the contrary, the clerk's record contains a sworn statement from appellant in his application for probation that he has "never before been convicted of a felony offense in this State or in any other state," and he acknowledges later in his brief that his defense theory during the punishment phase of his trial was that he was a law-abiding citizen who "deserved probation." As a result, appellant's argument does not apply. Additionally, the court of criminal appeals rejected a similar argument in Luquis v. State, 72 S.W.3d 355 (Tex. Crim. App. 2002). In Luquis the court acknowledged that the instruction dictated by article 37.07, section 4(b) of the code of criminal procedure may appear to be misleading and inapplicable to some defendants. Id. at 363. Nevertheless, it construed that statute to be an absolute command that the good conduct time instruction be given to the jury. Id. As a result, under Luquis, a trial judge who gives the instruction does not commit error. Id.; see also Borens v. State, No. 05-07-01516-CR, 2009 WL 998678, at *6 (Tex. App.-Dallas Apr. 15, 2009, no pet.) (mem. op.) (not designated for publication). We resolve appellant's fifth issue against him.Sixth Issue
In his sixth issue appellant argues that the trial court erred when it precluded appellant's expert witness from testifying during the punishment phase of appellant's trial regarding "the sexual abuse sustained by [a]ppellant as a child." Appellant's complaint arises from the following exchange, which occurred during the direct examination of one of appellant's expert witnesses, Robert Lovett, Ph.D., a clinical psychologist:[Appellant's Counsel]: In your professional opinion, what kind of treatment does appellant need?
[Dr. Lovett]: He needs to have an intensive drug treatment program. He has had a psychiatric disorder since early childhood. He was a big-time-he had a big-time psychiatric disturbance. He was sexually molested at an early age and-
[The State]: Your Honor, may we approach?
THE COURT: That's sustained. I just told you a minute ago, Doc, that this is my courtroom. You are not to get into any specific instances of what you've done in any way.
[Dr. Lovett]: I was answering the question.
[Appellant's Counsel]: I'm sorry, Judge.
THE COURT: You can't get into any specific instances of conduct, okay?
[Appellant's Counsel]: I'm sorry, Judge. That was my fault.Later, before the defense rested in the punishment phase, appellant's counsel told the trial court that it wanted "to make a bill on the subject of Dr. Lovett." Appellant's counsel further explained, If [Dr. Lovett] would have been allowed to testify, he would have also said that he had determined that there had been sexual abuse as a-when Mr. West was a child, and we feel that should have been allowed and that would have been a determining factor and would have made his testimony more valuable and more credible. In response, the trial court explained that it concluded the testimony was irrelevant. It also explained that any harm was cured because other witnesses "did testify about the alleged sexual abuse." On appeal, appellant argues that his substantial rights were affected by the exclusion of this testimony because it was "relevant on the issue of rehabilitation" and demonstrated that appellant "deserved probation." In response, the State argues, in part, that any error was harmless because Lovett's testimony about appellant's sexual abuse "would have been merely cumulative." We agree with the State. After Lovett testified, appellant's mother testified that appellant was sexually abused by his babysitter when he was nine years old, and appellant's other expert witness, Jay Crowder, M.D., testified that appellant's anxiety disorder related to his childhood sexual abuse. We conclude that the excluded testimony would have been cumulative of this other testimony. Even if we assume, without deciding, that it was error to exclude the testimony, the trial court's exclusion of cumulative evidence is harmless error. Lindsay v. State, 102 S.W.3d 223, 230 (Tex. App.-Houston [14th Dist.] 2003, pet. ref'd). We resolve appellant's sixth issue against him.