Mark Molina v. The State of Texas--Appeal from 187th Judicial District Court of Bexar County

No. 04-00-00338-CR
Mark MOLINA,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 1999-CR-5165
Honorable Raymond Angelini, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Dissenting opinion by: Alma L. L pez, Justice

Sitting: Tom Rickhoff, Justice

Alma L. L pez, Justice

Sarah B. Duncan, Justice

Delivered and Filed: October 10, 2001

AFFIRMED

A jury found Mark Molina guilty of burglary of a habitation and he was sentenced to sixty years in prison. Molina appeals, contending the evidence is factually insufficient to support the jury's verdict; the trial court violated article 38.05, Tex. Code Crim. Proc., and his constitutional right to a fair trial by bolstering tainted eyewitness identification testimony; his trial counsel provided ineffective assistance; and the prosecutor made an improper remark during his closing argument in the punishment phase. We affirm.

Factual and Procedural Background

During the morning of July 21, 1999, three people witnessed a man removing items from Norma Salinas' home and placing them in a turquoise car - Juanita Cardenas, Lupita Reyes, and Gustavo Casas. At first, none of the three thought anything was amiss. Eventually, however, Lupita Reyes decided the man's actions were suspicious and called Salinas at work to ask whether she had authorized the man to enter her home and remove any items. After Salinas assured Reyes she had not, Reyes noted the license plate on the turquoise car and called 911 while Salinas returned home. In the meantime, the man left in the turquoise car. When the police arrived, they questioned the three eyewitnesses and dusted the house for fingerprints. A few weeks after the burglary, Cardenas identified Molina from a photographic lineup; Reyes and Casas identified another man. After identifying a man other than Molina, Reyes asked the detective if she had selected the suspect. He told her that she had not and then identified Molina.

Molina was arrested while driving the turquoise car, although it was registered to someone else. At trial, Cardena, Reyes, and Casas identified Molina as the man they had seen removing items from Salinas' home on July 21. Although none of the fingerprints taken from Salinas' home matched those of Molina, a jury convicted him of burglary of a habitation, and he was sentenced to sixty years in prison.

Sufficiency of the Evidence

Molina first argues the evidence is insufficient to support the jury's verdict. We disagree.

Scope and Standard of Review

In reviewing for factual sufficiency, we "view all the evidence without the prism of 'in the light most favorable to the prosecution,' and ... set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust." Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). "All the evidence" in this context includes evidence that may have been improperly admitted. Evans v. State, 5 S.W.3d 821, 823 (Tex. App.-San Antonio 1999, no pet.). Additionally, our review "should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility given to witness testimony." Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).

Discussion

As Molina argues, while Cardenas identified him as the burglar from a photographic lineup, Reyes and Casas initially identified other men, thus "provid[ing] very significant and highly probative evidence that a person other than [Molina] committed the burglary." We agree. However, this conflict was presented to the jury, and the credibility of the witnesses and any inconsistencies in their testimony is peculiarly within the jury's province. In light of Cardenas' unwavering testimony, we hold there is factually sufficient evidence to support the jury's verdict.

Reyes' In-Court Identification

Molina argues Reyes' in-court identification was tainted and thus should not be considered in our factual sufficiency review; and the trial court bolstered this tainted in-court identification and thus violated article 38.05, Tex. Code Crim. Proc., and his constitutional right to a fair trial in the following exchanges:

Q: Do you think that you would recognize the person that you saw committing the burglary if you saw him again in person?

A: Yes.

Q: Do you see that person here in Court?

A: Yes.

Q: Can you point to him and identify an article of clothing that he's wearing, for the record?

A: White shirt.

Q: Can you point in his direction, please.

The Court: Mr. Molina, would you please rise.

(Defendant complies.)

The Court: Is this who you're talking about? Is that him?

The Witness: It looks like him.

The Court: Have a seat. Record will reflect that she's identified -

Defense Counsel: Did she say it looks like him or not?

The Court: She said it looks like him. Record will reflect that she's identified-talking about the Defendant in this case.

Q: That looks like the person that you saw commit the burglary?

A: Yes.

....

Prosecutor: Judge, and if it doesn't already reflect, I'd like the record to reflect that she's identified the Defendant.

The Court: She did identify him.

Prosecutor: I have nothing further.

As noted above, our factual sufficiency review must consider all evidence, whether or not it was properly admitted. Evans, 5 S.W.3d at 823. We also note that Molina waived his objection to Reyes' in-court identification of him as the burglar. See Paez v. State, 995 S.W.2d 163, 172-73 (Tex. App.-San Antonio 1999, pet. ref'd). For the same reason, we reject Molina's contention that the trial court's conduct violated article 38.05. At no time did Molina object to the trial court's statements. See Becknell v. State, 720 S.W.2d 526, 532 (Tex. Crim. App. 1986), cert. denied, 481 U.S. 1065 (1987). Moreover, to constitute reversible error, "the trial court's comment to the jury must be such that it is reasonably calculated to benefit the State or to prejudice the rights of the defendant." Id., 720 S.W.2d at 531. This standard is not met by the trial court's statements in this case.

We likewise reject Molina's constitutional argument. Molina failed to preserve his constitutional complaint by failing to object. See Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999), cert. denied, 521 U.S. 828 (2000). And the trial court's statements do not rise to the level of reversible error under the federal constitution. See Quercia v. United States, 289 U.S. 466, 469 (1933). We do not address Molina's state constitutional claim because he does not present any argument as to why the Texas Constitution would afford any greater relief. See Dewberry v. State, 4 S.W.3d 735, 743-44 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000).

Ineffective Assistance of Counsel

Molina claims his retained trial counsel was ineffective in many, many respects - from failing to move to suppress the eyewitnesses' testimony to failing to object to two prior convictions that were more than ten years old during the punishment phase. However, the record is completely silent as to the reasons for trial counsel's acts and omissions. Consequently, Molina has failed to overcome the strong presumption that his trial counsel's actions were a part of his trial strategy. See Tong v. State, 25 S.W.3d 707, 712-13 (Tex. Crim. App. 2000), cert. denied, ____ U.S. ____, 121 S. Ct. 2196 (2001).

Prosecutor's Closing Argument

Molina argues the prosecutor injected harmful new facts in his closing argument at the punishment stage of the trial. However, Molina did not object to the prosecutor's remark and thus waived any complaint. See Tex. R. App. P. 33.1(a); Ladd v. State, 3 S.W.3d 547, 569 (Tex. Crim. App.), cert. denied, 529 U.S. 1070 (1999).

The judgment is affirmed.

Sarah B. Duncan, Justice

Do not publish

DISSENTING OPINION
No. 04-00-00338-CR
Mark MOLINA,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 1999-CR-5165
Honorable Raymond Angelini, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Dissenting opinion by: Alma L. L pez, Justice

Sitting: Tom Rickhoff, Justice

Alma L. L pez, Justice

Sarah B. Duncan, Justice

Delivered and Filed: October 10, 2001

I respectfully dissent to the majority's opinion that there is sufficient evidence to support the jury's finding of guilt.

The State called three eye witnesses to identify the appellant as the person who had committed the burglary, Cardenas, Reyes, and Casas. Cardenas provided the State with what appears to be the only "uncorrected" positive identification, stating that she did not realize when she saw him that a burglary was in progress, and describing the person she saw as "not too tall, not too short. He was a little bit thinner."

When Reyes and Casas were initially shown a photo lineup of suspects by the investigating detective, they had each identified someone other than the appellant as the perpetrator. After doing so, Reyes inquired whether she had identified the suspect and was informed that she had not done so. Only then did Reyes take a second look at the lineup and identify the appellant. Casas also explained that the detective informed him that he had failed to identify the "right" suspect. Thus, in each photo identification lineup interview, the detective advised the witness that he or she was wrong in the selection of the suspect and told the witness interviewed who the correct suspect was - Mark Molina.

At trial, Reyes took the stand and was asked to make an in-court identification of the burglar. Reyes stated that the appellant "looks like him" - after the trial court asked Molina to stand and be identified. Casas testified that Molina "resembles" the burglar. These were not positive identifications, merely tentative ones.

These witnesses were also asked whether the man they observed on the day of the burglary going in and out of the victim's house was wearing gloves. Two witness responded that the man was not wearing gloves, the third witness had not noticed this fact. Perhaps most revealing is the fact that none of the fingerprints taken from the owner's home matched those of Molina. It defies reason that during a burglary entailing at least "6 or 7 trips in and out of the house" to unplug and load a microwave, air conditioner, and other such items that none of Molina's fingerprints were found.

The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App.1991). For these reasons, I would find that the evidence is insufficient to support the jury's verdict and would reverse and render a judgment of acquittal.

Alma L. L pez, Justice

Do Not Publish