Torres, Adrian v. The State of Texas--Appeal from 120th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ADRIAN TORRES, )

) No. 08-01-00483-CR

Appellant, )

) Appeal from the

v. )

) 120th District Court

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 20010D02752)

)

O P I N I O N

Adrian Torres appeals his conviction for the offense of burglary of habitation. Over his plea of not guilty, a jury found Appellant guilty of the charged offense. The trial court assessed punishment at 10 years= imprisonment in the Institutional Division of the Texas Department of Criminal Justice. Appellant raises three issues on appeal; whether the evidence was (1) legally and (2) factually sufficient to sustain the conviction, and (3) whether the trial court erred in admitting an extraneous offense which was more prejudicial to Appellant than of probative value. We affirm.

On March 29, 2001, Jose and Elsa Ortiz received a telephone call around 11 a.m. from the El Paso Police Department, asking them to come into the station to see if they could identify property taken from their home in a burglary on March 16, 2001. Mr. and Mrs. Ortiz then left their house in separate vehicles to go to the police station. Mrs. Ortiz returned home approximately seventy minutes later. She entered the house and as she opened the door, she noticed that a sliding glass door within the house was shattered and she saw broken glass everywhere. She heard noises upstairs in the master bedroom, which sounded to her like someone opening the dresser drawers or the office door. Mrs. Ortiz left her house and went out to the street to call emergency 911 on her cell phone. While she was on her cell phone, Mrs. Ortiz saw a patrol officer driving by and flagged him down. Mrs. Ortiz told the officer that she thought someone was in her house. Mrs. Ortiz did not actually see anyone in the house nor did she see anyone leave through the front entrance of the house. The officer entered the house, announced his presence, and waited for back-up. Within minutes several police officers arrived. Mrs. Ortiz advised the officers that there were weapons in the house and they proceeded to secure the house. After the officers determined that no one was in the house, they asked Mrs. Ortiz and her husband, who had by then returned home, to enter the house and identity what property, if any, was missing. Mrs. Ortiz testified that a crystal vase, a crystal egg holder, two Rolex watches, Mont Blanc pens, and a gun were missing. She also noticed that several other items, including a VCR and a laptop computer had been moved. In addition, police officers found a black duffel bag belonging to Mr. Ortiz in a concrete drainage ditch behind the back wall of the Ortiz property. The police also found pieces of broken crystal near the bag. Mrs. Ortiz testified that a previously locked side entrance door had been pulled open. Her husband testified that he, as owner of the house, had not given consent to anyone to enter his house and take the missing items. Fingerprints taken at the scene were later found to have no evidentiary value.

About six months prior to the March 29 burglary, Mr. and Mrs. Ortiz had a security video camera installed in their home, which recorded the view from the front of their property. Whenever Mr. and Mrs. Ortiz left the house, they turned on the security camera. On the date in question, Mrs. Ortiz turned on the security camera when she and her husband left the house to go to the police station and the security camera remained on until police officers arrived after the burglary. The videotape from the security camera was admitted into evidence at Appellant=s trial. The videotape shows the Ortizes leaving their house in separate vehicles. Approximately thirty minutes later, a man is seen walking up the driveway to the front door of the Ortiz house. The man then walks around the side of the house toward the back, outside the view of the security camera. The man then walked back to the front door in view of the camera and then again walks around the side of the house out of view. Approximately thirty-five minutes later, the videotape shows Mrs. Ortiz returning, entering the house, then leaving, and calling the police. The videotape also shows the police arriving and entering the house. Mr. Ortiz and police officers testified that a person leaving through the front of the property would have appeared on the videotape given the scope of the security camera=s view. The State argued at trial that based on witness testimony the only way to exit the property without being recorded by the security camera, was by jumping over the four to four-and-a-half foot rock wall surrounding the Ortizes= backyard, which drops down nine to nine-and-a-half feet into the rear concrete drainage ditch, or by exiting on the side of the property through shrubbery.

Mr. Ortiz testified that when he and his wife were leaving the house on Thursday, March 29, 2001, to go to the police station, he noticed a gentleman watering trees in front of the adjacent house. Though they had never met, Mr. Ortiz assumed that the man, later identified as Appellant, was his neighbor. On the following night, Friday, March 30, 2001, Mr. Ortiz and his family went out for pizza and when they returned home, Mr. Ortiz retrieved their trash cans and brought them to the side of the house. Mr. Ortiz stated that while he was putting away the trash cans, Appellant approached him from the side fence. Appellant told Mr. Ortiz that someone had stolen an outdoor grill from Appellant=s property, remarked on the number of break-ins in the neighborhood, and asked Mr. Ortiz if he had been robbed. Mr. Ortiz testified that Appellant asked him if they had gotten an alarm system put into the house and Mr. Ortiz told Appellant that they were looking into it. Mr. Ortiz advised Appellant to find out what else was missing on his property and to call the police.

On the following morning, Saturday, March 31, 2001, Mr. Ortiz was leaving his house around 6:30 a.m. when he observed Appellant washing a truck in Appellant=s front yard. Mr. Ortiz noticed that Appellant was looking at him as he drove away. Mr. Ortiz then drove around the neighborhood and came back home. He told his wife that it seemed to him that Appellant was the man on the security camera videotape. Mr. Ortiz took photographs of Appellant on that Saturday morning after talking with his wife. Mr. Ortiz=s wife took the roll of film and had the photographs developed. On Monday morning, Mr. and Mrs. Ortiz contacted Detective Alan Mills who asked them to bring the photographs over to him. These photographs were admitted into evidence at trial.

On Tuesday, April 3, 2001, in the course of canvassing the area as part of their investigation, Detective Mills and Detective John Hernandez went to Appellant=s house and spoke to Appellant and Maria Macias. Detective Hernandez testified that Appellant gave a false date of birth and stated that he was not home at the time of the burglary of the Ortiz house. Appellant also told Detective Hernandez that he only found out about the burglary when he saw police cars next door when he arrived home. The next day, April 4, 2001, Appellant was taken into custody for outstanding traffic warrants and failure to identify. None of the Ortizes= missing property was found in Appellant=s house when he was taken into custody. On June 19, 2001, a grand jury indicted Appellant for the instant offense of burglary of habitation.

Admissibility of Extraneous Offense

In Issue Three, Appellant asserts that the trial court erred in allowing the State to introduce evidence that Appellant gave Detective Hernandez a false date of birth as such evidence was more prejudicial to the Appellant than it was probative.

At trial, the State sought to introduce the proffered testimony of Detective Hernandez with respect to the fact that Appellant gave a false date of birth to the detectives when they spoke with him on April 3, 2001. The State argued that this evidence was admissible under Texas Rule of Evidence 404(b) to show consciousness of guilt. Defense counsel objected to the admission of Appellant=s statement and argued that the prejudicial effect far outweighed its probative value. Defense counsel also stated that Appellant gave the wrong birth date because he had outstanding traffic warrants. The trial court overruled Appellant=s objection.

The trial court has wide discretion in deciding whether to admit or exclude extraneous offense evidence under Rule 404(b). Montgomery v. State, 810 S.W.2d 372, 390 (Tex.Crim.App. 1990)(Opin. on reh=g). As long as the trial court=s ruling is within the zone of reasonable disagreement, an appellate court will not disturb that ruling absent a clear abuse of discretion. See id.

Rule 404(b) provides:

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State=s case-in-chief such evidence other than that arising in the same transaction.

Tex.R.Evid. 404(b). The enumerated Rule 404(b) exceptions are neither mutually exclusive nor collectively exhaustive. Montgomery, 810 S.W.2d at 377. In order for an extraneous offense to be admissible, it must be relevant apart from supporting an inference of character conformity. See id. at 387; Tex.R.Evid. 401. While evidence of other wrongs or acts may be relevant for some other permissible purpose, the evidence may be excluded Aif its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.@ Tex.R.Evid. 403.

Criminal acts designed to reduce the likelihood of prosecution, conviction, or incarceration for the instant offense are admissible under Rule 404(b) to show the defendant=s consciousness of guilt. See Ransom v. State, 920 S.W.2d 288, 299 (Tex.Crim.App.)(Opin. on reh=g), cert. denied, 519 U.S. 1030, 117 S. Ct. 587, 136 L. Ed. 2d 516 (1996). In Felder v. State, the Court of Criminal Appeals stated that presentation of false identification by a defendant indicates a Aconsciousness of guilt@ and an awareness of a need to conceal one=s identity from law enforcement officials. Felder v. State, 848 S.W.2d 85, 98 (Tex.Crim.App. 1992), cert. denied, 510 U.S. 829, 114 S. Ct. 95, 126 L. Ed. 2d 62 (1993).

In the present case, defense counsel argued outside the presence of the jury that Appellant gave a false date of birth to the detectives because Appellant knew he had outstanding traffic warrants.[1] Detective Hernandez subsequently testified at trial that Appellant was arrested for the outstanding traffic warrants as well as for failure to identify. Appellant argues on appeal that allowing Detective Hernandez to testify to the false identification misled the jury as it may have considered the possibility that Appellant lied because he knew he was a suspect in the Ortiz burglary, rather than for the traffic warrants.

It was within the trial court=s discretion to determine that the evidence of false identification was relevant to show Appellant=s knowledge that a crime had been committed and that he was a likely suspect. See Felder, 848 S.W.2d at 98; Tex.R.Evid. 401. There is a presumption that relevant evidence is more probative than prejudicial. See Montgomery, 810 S.W.2d at 389. Factors employed in balancing the prejudicial and probative value of an extraneous offense under Rule 403 are:

(1) how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable--a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense;

(2) the potential the other offense evidence has to impress the jury >in some irrational but nevertheless indelible way=;

(3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense;

(4) the force of the proponent=s need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute.

Santellan v. State, 939 S.W.2d 155, 169 (Tex.Crim.App. 1997); Montgomery, 810 S.W.2d at 389-90.

In the present case, the State introduced undisputed evidence the Appellant committed the extraneous offense. Proof of Appellant=s false identification tended to make more probable Appellant=s knowledge and his consciousness of guilt as to the alleged burglary offense. Compared to the primary offense, the character of the extraneous offense was not such that it would sway the jury in some irrational, but nevertheless indelible way. In comparison to the remainder of the case, the State took a minimal amount of time in developing and presenting evidence of the extraneous offense. Given the circumstantial nature of the evidence in this case, the State had a compelling need to present the extraneous offense evidence. Moreover, Detective Hernandez=s testimony may well have supported the inference Appellant asserts, i.e. he concealed his identity to order to avoid his subsequent arrest for outstanding traffic warrants. In light of the factors set out above, we find that the trial court did not abuse its discretion in concluding that the probative value of the evidence was not substantially outweighed by any prejudicial effect. We overrule Issue Three.

Sufficiency of the Evidence

In Issues One and Two, Appellant contends that the evidence adduced at trial was legally and factually insufficient to sustain his conviction for the offense of burglary of a habitation.

Standard of Review

In reviewing the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the judgment to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Geesa v. State, 820 S.W.2d 154, 156-57 (Tex.Crim.App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000). The test is the same for both direct and circumstantial evidence cases. Geesa, 820 S.W.2d at 161. We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Rather, our duty is to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. Adelman, 828 S.W.2d at 421-22. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843, quoting Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988).

In reviewing a factual sufficiency of the evidence challenge, this Court considers all of the evidence, but does not view it in the light most favorable to the verdict. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Rather, the reviewing court views the evidence in a neutral light and sets aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. In conducting a factual sufficiency review, the reviewing court cannot substitute its conclusions for those of the jury. Davila v. State, 930 S.W.2d 641, 647 (Tex.App.--El Paso 1996, pet. ref=d). It is not within the province of this Court to interfere with the jury=s resolution of conflicting evidence or to pass on the weight or credibility of the witness=s testimony. Id. Where there is conflicting evidence, the jury=s verdict on such matters is generally regarded as conclusive. Id. The correct standard a reviewing court must follow to conduct a Clewis factual sufficiency review of the elements of a criminal offense asks whether a neutral review of all 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. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000).

Burglary of Habitation

At trial, the State was required to prove that Appellant (1) entered a habitation (2) without the effective consent of the owner Jose Ortiz, and (3) attempted to commit or committed theft. See Tex.Pen.Code Ann. ' 30.02(a)(3)(Vernon 2003). Appellant concedes that the State established that a burglary was committed, however he asserts that the State failed to prove beyond a reasonable doubt that Appellant was the burglar. Appellant argues that the only evidence presented by the State connecting Appellant to the burglary is the security camera videotape. Appellant asserts that this evidence, without any additional evidence linking Appellant to the burglary, is not sufficient to support a conviction.

In a prosecution for burglary of a habitation, an essential element of the offense is that the accused entered the habitation, absent an issue involving parties. Rogers v. State, 929 S.W.2d 103, 107 (Tex.App.--Beaumont 1996, no pet.). Burglarious entry can be proven through circumstantial evidence. Gilbertson v. State, 563 S.W.2d 606, 608 (Tex.Crim.App. [Panel Op.] 1978); Garza v. State, 841 S.W.2d 19, 21-2 (Tex.App.--Dallas 1992, no pet.). While mere presence of an accused at the crime scene will not support a conviction, it is a circumstance tending to prove guilt which, when combined with other facts, may suffice. Thomas v. State, 645 S.W.2d 798, 800 (Tex.Crim.App. 1983); Mabra v. State, 997 S.W.2d 770, 774 (Tex.App.--Amarillo 1999, pet. ref=d).

Here, there was no direct evidence that Appellant entered the Ortizes= house nor any conclusive fingerprint evidence connecting Appellant to the burglarious entry. Furthermore, there is no evidence in the record that missing property belonging to the Ortizes= was ever found in Appellant=s possession. Evidence from the security videotape evidence, however, showed that an individual, who Mr. Ortiz later identified as the Appellant, approached the front of the Ortiz house and went to the side of the property twice and that Appellant did not exit from the front of the property. The videotape shows that no one else approached the Ortiz house during the seventy minutes in which the burglary allegedly occurred. The jury could have reasonably inferred from this evidence that Appellant was the intruder and that he exited the Ortiz house through the back of the property. Viewing the evidence most favorably to the verdict, we conclude that a rational jury could have found the essential elements of the offense beyond a reasonable doubt. As such, the evidence was legally sufficient to support Appellant=s conviction.

In support of his factually sufficiency argument, Appellant relies on his assertion that the videotape evidence was not sufficient to sustain the conviction. At trial, Appellant presented no evidence to contradict the State=s evidence or to explain his presence at the scene of the crime. We have examined all the evidence impartially, and giving due deference to the jury=s verdict, we find that the proof of guilt is not so obviously weak as to undermine the confidence in the jury=s determination. See Jones v. State, 944 S.W.2d 642, 648-49 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 832, 118 S. Ct. 100, 139 L. Ed. 2d 54 (1997). Accordingly, we find no manifest injustice has occurred and conclude that the evidence is factually sufficient. We have carefully reviewed the record in the instant case, and in applying the established standards of review, we find that the evidence is both legally and factually sufficient to support the conviction. Issues One and Two are overruled.

Having overruled all of the issues on appeal, we affirm the trial court=s judgment.

March 27, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

[1] We note that defense counsel=s argument to the trial judge as to Appellant=s reason for providing false identification is not independently corroborated by evidence in the record of the guilt-innocence phase of the trial now before us.