Fernando Gomez v. The State of Texas--Appeal from County Criminal Court No. 9 of Tarrant County

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Laws-info.com » Cases » Texas » 2nd District Court of Appeals » 2003 » Fernando Gomez v. The State of Texas--Appeal from County Criminal Court No. 9 of Tarrant County

State: Texas

Court: Texas Northern District Court

Docket No: 02-02-00203-CR

Case Date: 05/01/2003

Plaintiff: Kenneth A. Korth

Defendant: James B. Ragan--Appeal from County Court at Law No 1 of Nueces County

Preview:Jesse Ramirez Rodriguez v. The State of Texas--Appeal
from 175th Judicial District Court of Bexar County
No. 04-00-00235-CR
Jesse Ramirez RODRIGUEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 1999-CR-2148
Honorable James E. Barlow, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Phil Hardberger, Chief Justice
Paul W. Green, Justice
Karen Angelini, Justice
Delivered and Filed: January 16, 2002
AFFIRMED
A jury found Jesse Ramirez Rodriguez guilty of burglary of a habitation. The jury sentenced Rodriguez, as a habitual
offender, to sixty years confinement. In five issues, Rodriguez appeals. We affirm the trial court's judgment.
Factual & Procedural Background
On March 9, 1999, Carlos Gaitan, accompanied by his girlfriend, left his house to run errands. As he was leaving his
house, Gaitan noticed a man driving a car that turned onto his street. Gaitan later drove back past his house and saw a
man standing inside. Gaitan testified the man had on a white shirt and either blue or khaki pants and did not have his
consent to enter his home. He noticed that although his front door had been closed when he left, the door was now
open. Gaitan stopped his car and instructed his girlfriend to call 911. Gaitan approached the front porch of his house,
but the intruder fled the house through the rear. Gaitan noticed his television set had been removed from the
entertainment center and was left on the kitchen floor. The remote control to the television was missing. Because
Gaitan was unable to locate the intruder inside his house, he continued his search in the surrounding neighborhood.
Gaitan picked up a post from his yard and carried it with him while he searched. He found the missing television
remote control in an alley behind his house.
Rudy Davila was working nearby on the morning of the burglary. Davila was outside the back of his building, when he
saw a man run past. He only saw the man for a few seconds. It appeared to Davila as if the man was being followed.
According to Davila, the man was wearing a white t-shirt and dark pants and looked as if he was carrying a mobile
phone. Davila testified the object could have been a television remote control.
Later, Gaitan went into Davila's shop. Gaitan told Davila someone had broken into his house. According to Davila, he
asked Gaitan if the man who had broken into his house was wearing a white shirt and dark pants. Gaitan answered yes.
Davila then told Gaitan that someone who fit that description had run by in the alley. Gaitan left and Davila then got
into his car and searched the surrounding area for the man he had seen in the alley. Davila identified Rodriguez, in
court, as the man he saw in the alley.
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Robert Carter, a San Antonio Police Officer, received a call concerning the burglary of Gaitan's house at about 11:00
a.m. He arrived at the scene within minutes of the call. When he arrived, Carter met Gaitan, who advised Carter that
his house had been burglarized and that the suspect had fled out the back. Gaitan described the suspect to Carter as a
Latin male, wearing a white shirt and black jeans. As Carter was gathering more information about the crime, Davila
drove up and told him he saw a man "running and jumping fences behind the location." Carter assumed it was the
same person who had burglarized Gaitan's house and went to look for him. Carter found the suspect, who matched
Gaitan's description, walking near Gaitan's residence. Carter detained him. The suspect was sweaty and breathing
heavily. Carter identified Rodriguez, in court, as the suspect. Carter took Rodriguez to Gaitan's house and conducted a
one-on-one identification, at which time Gaitan identified Rodriguez as the person he saw inside his house. No one
else was offered for Gaitan to identify. Carter immediately arrested Rodriguez.
Richard Rodriguez, an investigator with the San Antonio Police Department, assisted with Gaitan's one-on-one
identification of Rodriguez. He testified that Rodriguez was the suspect Gaitan identified and that during the
identification procedure, he used no comments that would have suggested to Gaitan that Rodriguez was the suspect.
Officer Joe Regalatto was present at the identification procedure, but did not participate.
Carter learned that the intruder had pried open Gaitan's back door to enter the house. Carter found a screwdriver in
Rodriguez's back pocket.
A blue car was found in a parking lot next to Gaitan's house. The window was broken. Officer Rodriguez testified that
the car belonged to Rodriguez. Officer Rodriguez noticed broken glass near the car. He was unsure, however, whether
the car window had been broken from the inside or the outside of the car. Officer Joe Regalatto impounded the car.
Officer Regalatto inventoried the contents of the car and found a pair of pants and a shirt. Rodriguez's sister-in-law,
the car's actual owner, testified at trial that the car appeared to have been beaten with a club or baseball bat.
Officer Mark A. Machado, an evidence technician with the San Antonio Police Department, conducted an investigation
in Gaitan's house. He searched for latent fingerprints and found a partial print on a stepladder that was placed near the
rear door. Officer Machado was unable to detect any fingerprints on the television.
Gerard Hernandez testified on Rodriguez's behalf. He is a sales manager at Aaron's Rental Purchase and testified about
the dimensions and weight of a 36-inch television. In his opinion, one person should not carry a television of that size.
He later admitted, however, one person could carry such a television with some difficulty.
Sufficiency of the Evidence
In his first two issues, Rodriguez challenges the sufficiency of the evidence supporting the jury's verdict. Specifically,
he argues there is factually insufficient evidence that he actually entered Gaitan's residence. Rodriguez further
maintains the evidence is legally and factually insufficient to prove that he had the specific intent to commit a felony
or theft.
Standard of Review
In reviewing a legal sufficiency challenge, we view 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); Whitaker v. State, 977 S.W.2d 595, 598 (Tex. Crim. App. 1998). The
trier of fact is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony.
Whitaker, 977 S.W.2d at 598. In reviewing a challenge to the factual sufficiency of the evidence, we consider all of the
evidence without substituting our judgment for that of the trier of fact. Clewis v. State, 922 S.W.2d 126, 129 (Tex.
Crim. App.1996); De Los Santos v. State, 918 S.W.2d 565, 569 (Tex. App.-San Antonio 1996, no pet.). We may set
aside the judgment only where "the verdict is against the great weight of the evidence presented at trial so as to be
clearly wrong and unjust...." Clewis, 922 S.W.2d at 135.
Rodriguez was charged with burglary. A person commits the offense of burglary if, without
the effective consent of the owner, the person:
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(1) enters a habitation, or building (or any portion of a building) not 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. Pen. Code Ann. 30.02 (Vernon Supp. 2001).
Entry
Rodriguez contends that evidence of his mere presence at the scene, the suggestive nature of the one-on-one
identification, and the absence of corroborating evidence affirmatively linking him to Gaitan's residence all render the
evidence factually insufficient to support the finding that he actually entered the house.
The mere presence of an accused at the scene of an offense is not alone sufficient to support a conviction; however, it
is a circumstance tending to prove guilt which, combined with other facts, may suffice to show that the accused was a
participant. Thomas v. State, 645 S.W.2d 798, 800 (Tex. Crim. App. 1983); Miranda v. State, 813 S.W.2d 724, 733
(Tex. App.-San Antonio 1991, pet. ref'd).
Gaitan saw a man inside his home and later identified Rodriguez as that man. The door to Gaitan's home had been
pried open and the police found a screwdriver in Rodriguez's possession. In addition, Rodriguez was apprehended
walking near Gaitan's house. No fingerprints were ever found directly linking Rodriguez to Gaitan's residence.
Rodriguez claims that the one-on-one identification procedure was impermissibly suggestive. We note that although no
other suspects were presented to Gaitan for identification, each officer present at the identification testified that the
procedure was administered in an impartial manner. Rodriguez points out no evidence to the contrary.
Finally, Rodriguez asserts that there is factually insufficient evidence that he entered Gaitan's house because there is no
evidence corroborating Gaitan's testimony. Rodriguez offers no legal support for his assertion. And, there is evidence
corroborating Gaitan's testimony. First, a disinterested third party saw Rodriguez near the crime scene, running as if he
was being chased. Rodriguez was apprehended near Gaitan's house. When Rodriguez was apprehended, he was sweaty
and breathless, as if he had been running. Finally, Rodriguez possessed a screwdriver capable of effectuating a forced
entry. No study was conducted to determine if the screwdriver was the instrument actually used to force open Gaitan's
house.
Viewing the evidence in a neutral light, we cannot say the jury's verdict is against the great weight and preponderance
of the evidence. Clewis, 922 S.W.2d at 135. Rodriguez's first issue is overruled.
Specific Intent
Rodriguez also asserts the evidence is legally and factually insufficient to support the jury's finding that he acted with
the necessary specific intent. Specifically, Rodriguez alleges there is no evidence of the time he entered the residence,
of the length of time he remained in the residence, and that no one else had entered Gaitan's home without his consent
before Rodriguez. The indictment charged that Rodriguez entered Gaitan's home "with intent to commit theft" and,
alternatively, "attempted to commit and committed theft."The jury charge allowed for conviction under either theory.
Viewing the evidence in the light most favorable to the jury's verdict, the record circumstantially demonstrates that
Rodriguez entered Gaitan's residence with the intent to commit theft or actually attempted and committed theft. The
record shows that Rodriguez drove his sister-in-law's car to a parking lot near Gaitan's house. With a screwdriver,
Rodriguez forcefully entered Gaitan's home and attempted to remove a television. The evidence shows Rodriguez did,
in fact, remove a television remote control, which he later discarded in an alley. Likewise, viewing the evidence in a
neutral light, we cannot say the jury's verdict is against the weight of the evidence and manifestly unjust. The evidence
circumstantially suggests Rodriguez entered Gaitan's home with the intent to commit theft. Although there is no direct
evidence of his intent, the lack of such evidence does not render the whole of the evidence factually insufficient.
Rodriguez's second issue is overruled.
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Exculpatory Evidence
In his third issue, Rodriguez maintains the trial court reversibly erred in excluding his exculpatory explanation of why
his car was parked next to Gaitan's residence.
After Rodriguez was arrested, Rodriguez told Officer Carter that the vehicle in question belonged to his sister-in-law.
On cross-examination, Rodriguez's trial counsel asked Carter what else Rodriguez told him about the car. The State
objected that Rodriguez's statements to Carter constituted hearsay. The trial court sustained the objection and excluded
any testimony about the state of the automobile. Rodriguez argues that the exclusion of this testimony is reversible
error because it offers an exculpatory explanation for the car being parked near Gaitan's house-that it was broken
down.
Rodriguez has waived his issue. Error may not be predicated upon a ruling which excludes evidence unless the
substance of the evidence was made known to the court by offer of proof or was apparent from the context within
which questions were asked. Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998). An offer of proof may be in
question-and-answer form, or it may be in the form of a concise statement by counsel. Id.; Love v. State, 861 S.W.2d
899, 901 (Tex. Crim. App. 1993). Here, Rodriguez did not make an adequate offer of proof. His counsel did state to
the trial court, however, "We need to know if the police officer had any reason to believe if the car was broken."
Although this statement may have made the judge aware of counsel's question, it does not make known the substance
of the evidence-that being an answer to the question. Rodriguez's third issue is overruled.
Ineffective Assistance of Counsel
In his fourth issue, Rodriguez charged he received ineffective assistance at trial. The right to assistance of counsel
includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). In
assessing the effectiveness of counsel, this court applies the two-prong test set forth by the Supreme Court in
Strickland v. Washington. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Holland v. State, 761
S.W.2d 307, 315 (Tex. Crim. App. 1988). This test requires us first to determine whether counsel's performance was
deficient. Thompson, 9 S.W.3d at 812; Jimenez v. State, 804 S.W.2d 334, 338 (Tex. App. -San Antonio 1991, pet.
ref'd). If so, we then review whether there is a reasonable probability that the outcome would have been different but
for counsel's deficient performance. Thompson, 9 S.W.3d at 812. In order to meet this standard, the appellant must
overcome the presumption that counsel's conduct lies within the "wide range of reasonable representation." McFarland
v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), overruled on other grounds, Mosley v. State, 983 S.W.2d 249,
263 (Tex. Crim. App. 1998). Whether an appellant has met this standard is judged by the totality of the representation
rather than by scrutinizing individual acts or omissions committed by trial counsel. Butler v. State, 716 S.W.2d 48, 54
(Tex. Crim. App. 1986); Paez v. State, 995 S.W.2d 163, 170 (Tex. App. -San Antonio 1999, pet. ref'd).
Rodriguez points to an alleged single error of his trial counsel, the failure to request a jury instruction on the lesser
included offense of criminal trespass. Although it is possible that a single error may constitute ineffective assistance,
that is not the case here. Thompson, 9 S.W.2d at 813. Furthermore, the record before us is silent regarding why counsel
did not request a lesser included offense instruction and is, therefore, inadequate to rebut the strong presumption that
Rodriguez's trial counsel acted reasonably. Id. Rodriguez's fourth issue is overruled.
Sentencing
Finally, Rodriguez claims the trial court erred in sentencing him under the habitual offender statute. In particular,
Rodriguez argues that because the prior offenses used to enhance his sentence are state jail felonies, they could not
permissibly be used for enhancement purposes.
Rodriguez was indicted as a habitual offender. The indictment, with regard to the enhancement paragraphs, charged as
follows:
Before the commission of the offense alleged above, hereafter styled primary offense, on the 14TH day of
FEBRUARY A.D., 1985 in Cause No. 84-CR-2376 in BEXAR COUNTY, TEXAS the Defendant was convicted of
the felony of POSSESSION OF LSD.
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Before the commission of the primary offense, and after the conviction in Cause No. 84-CR-2376 was final, the
Defendant committed the felony of POSSESSION OF COCAINE UNDER 28 GRAMS and was convicted on the 8TH
day of JULY, A.D., 1996, in Cause No. 91-CR-5768, in BEXAR COUNTY, TEXAS.
Rodriguez pleaded true to both enhancement allegations. The State introduced documentary proof in support of the
enhancement offenses. Ultimately, the jury found the alleged enhancements to be true and sentenced Rodriguez to
sixty years confinement.
Penal Code, section 12.42(e) provides "[a] previous conviction for a state jail felony punished under Section 12.35(a)
may not be used for enhance purposes under Subsection (b), (c), or (d)." Tex. Pen. Code Ann. 12.42(e) (Vernon Supp.
2001) According to Rodriguez, because possession of cocaine has been reclassified as a state jail felony and
possession of LSD as a third degree felony, the offenses may not be used to enhance his sentence under section 12.42.
Rodriguez fails to take into account the statute applicable at the time he committed the prior offenses. At the time
Rodriguez was convicted of possession of LSD, the offense was a felony. Tex. Health & Safety Code Ann. 481.102(5);
.115(b) (Vernon 1992). Likewise, when Rodriguez was convicted of possession of cocaine, the offense was a felony.
Id. 481.102(3)(D); .115(b). Yet, when Rodriguez was tried for the burglary in question, possession of LSD has been
reclassified as a third degree felony and possession of cocaine as a state jail felony. Tex. Health & Safety Code Ann.
481.115(b), (c) (Vernon Supp. 2001). Section 12.42(d) allows the State to enhance a sentence for a felony offense if
the defendant has been finally convicted of two prior felony offenses, provided that the second previous felony
conviction occurred after the first prior conviction became final. Id. 12.42(d). Accordingly, the trial court did not err in
enhancing Rodriguez's sentence under section 12.42 of the Penal Code. Rodriguez's final issue is overruled.
Conclusion
Rodriguez's issues on appeal are overruled. The trial court's judgment is affirmed.
Karen Angelini, Justice
DO NOT PUBLISH
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