Arturo Chavez v. The State of Texas--Appeal from 168th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ARTURO CHAVEZ,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-04-00319-CR

Appeal from the

168th District Court

of El Paso County, Texas

(TC# 20040D01342)

O P I N I O N

This is an appeal from jury convictions for the offense of evading arrest or detention with a vehicle as well as for the offense of burglary of a habitation. On the first conviction, the jury assessed punishment at two years imprisonment in a state jail facility and a $3,000 fine. On the second conviction, the jury assessed punishment at forty years imprisonment in the Institutional Division of the Texas Department of Criminal Justice and a $5,000 fine. I. SUMMARY OF THE EVIDENCE

The evidence adduced at trial revealed that in the evening of August 26, 2003, in El Paso County, Texas, Roman Cruz was viewing a movie with his girlfriend at his mother s residence. The mother s name was Griselda Trevizo. Appellant knocked on the door. Appellant had been dating Cruz s mother and the two had a child together. Cruz and Appellant were not particularly friendly with each other, but there had never been a physical altercation between them. Appellant knocked on the door and he asked to use the restroom. Appellant was allowed in the residence and he began searching the house for Griselda Trevizo. Cruz told Appellant that she was not home and Appellant became angered and asked her whereabouts. Appellant looked around the house for several more minutes then as he left the house, he told Cruz to follow him outside because he had a message for Griselda Trevizo.

When the two got outside, Cruz noticed an individual later identified as Gerardo De Anda sitting inside a red car. Appellant turned toward Cruz and punched him. Appellant then attempted to grab Cruz and punch him again. Cruz tried to strike Appellant, but Appellant got him in a headlock. Cruz tried again to hit Appellant and he was able to get released from Appellant s hold. He saw Gerardo De Anda get out of the car and grab a crowbar from the trunk. De Anda yelled, Kick his ass, and Appellant responded, No, you kick his ass. While this was occurring, Appellant was behind Cruz, holding on to him. Cruz pushed back against Appellant towards the door of the residence, and they both moved inside the house. Cruz did not grant permission for Appellant to enter the house the second time. As Appellant restrained Cruz, De Anda came into the house and swung the crowbar. He hit Cruz in the face. // Cruz began to bleed and Appellant threw him aside and went outside with De Anda. Cruz locked all the doors.

Appellant and De Anda tried to reenter the residence. When they were unable to enter, they banged on the door and windows and screamed threats. Appellant threatened, Your house is going to go down. De Anda yelled, I m going to get you. You re going to pay for this. My dad is a captain of [the] Aztecas. // Cruz heard a loud crash, and he heard a car speed off. Cruz saw that they had left, and several minutes later, Griselda Trevizo returned. She called the police. Cruz testified that as result of being hit with the crowbar, he had a bump on his forehead. His eyes water on occasion, and he gets migraine headaches.

Officer Miguel Lucero of the El Paso Police Department testified that at approximately 3:30 a.m. on August 26, 2003, he and Officer Andrea Morales were advised by radio to look for a small, red vehicle occupied by two males. They saw such a vehicle driving at high speed with its lights off. They activated their overhead lights and attempted the stop the vehicle. After a chase, the vehicle entered into an apartment complex and the two individuals inside exited the vehicle while it was still moving. They fled on foot. Officer Morales attempted to stop the vehicle while Officer Lucero chased the suspects. He lost them and a search commenced with the help of other police units.

Eventually, one suspect, De Anda, was found near a tire shop. Appellant was found hiding in some weeds. He fled, but was apprehended by Officer Morales. A search of the trunk of the vehicle revealed a crowbar.

II. DISCUSSION

In Issue No. One, Appellant asserts that the evidence was legally and factually insufficient to support the conviction for burglary of a habitation. In reviewing the legal sufficiency of the evidence, we are constrained to view the evidence in the light most favorable to the judgment to determine whether any rational trier of fact could find the essential elements of the offense, as alleged in the application paragraph of the charge to the jury, beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989); Humason v. State, 728 S.W.2d 363, 366 (Tex. Crim. App. 1987). More particularly, sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 239-40 (Tex. Crim. App. 1997).

Our role is not to ascertain whether the evidence establishes guilt beyond a reasonable doubt. Stoker v. State, 788 S.W.2d 1, 6 (Tex. Crim. App. 1989), cert. denied, 498 U.S. 951, 111 S. Ct. 371, 112 L. Ed. 2d 333 (1990); Dwyer v. State, 836 S.W.2d 700, 702 (Tex. App.--El Paso 1992, pet. ref d). We do not resolve any conflict in fact, weigh any evidence or evaluate the credibility of any witnesses, and thus, the fact-finding results of a criminal jury trial are given great deference. Menchaca v. State, 901 S.W.2d 640, 650-52 (Tex. App.--El Paso 1995, pet. ref d); 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); Leyva v. State, 840 S.W.2d 757, 759 (Tex. App.--El Paso 1992, pet. ref d); Bennett v. State, 831 S.W.2d 20, 22 (Tex. App.--El Paso 1992, no pet.). Instead, our only 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, we resolve any inconsistencies in the evidence 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)). The trier of fact, not the appellate court, is free to accept or reject all or any portion of any witness s testimony. Belton v. State, 900 S.W.2d 886, 897 (Tex. App.--El Paso 1995, pet. ref d).

Under the law of parties, a person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person s commission of the offense. Tex. Penal Code Ann. 7.02(a)(2) (Vernon 2003). In determining whether the accused participated as a party, the court may look to events occurring before, during, and after the commission of the offense, and may rely on the actions of the defendant which show an understanding and common design to do the prohibited act. Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985). While the presence of an accused at the scene of an offense is not alone sufficient to support a conviction, it is a circumstance tending to prove guilt, which, when combined with other facts, may suffice to show that the accused was a participant. Beardsley v. State, 738 S.W.2d 681, 685 (Tex. Crim. App. 1987).

In the present case, the application paragraph in the court s charge to the jury read:

Now if you find from the evidence beyond a reasonable doubt that on or about the 26th day of August, 2003, in El Paso County, Texas, the Defendant, ARTURO CHAVEZ, either acting alone or with others, as a party as that term has been defined, did then and there intentionally or knowingly, without the effective consent of ROMAN CRUZ, the owner, enter a habitation and did then and there commit or attempt to commit a felony, to-wit: Aggravated Assault, then you will find the Defendant, ARTURO CHAVEZ, guilty of burglary of habitation while committing or attempting to commit a felony, as alleged in Count II of the indictment.

Appellant contends that the assault took place outside the residence so there was no entry without consent. He also maintains that the evidence failed to demonstrate that Appellant entered the home with the intent to commit aggravated assault. Lastly, Appellant argues that the evidence fails to show that a deadly weapon was used in the commission of the offense.

Regarding the question of the entry without consent, entry means to intrude any part of the body. Tex. Penal Code Ann. 30.02(b)(1) (Vernon 2003). Lack of consent may be conferred from circumstantial evidence. Schenck v. State, 652 S.W.2d 509, 511 (Tex. App.--Houston [1st Dist.] 1983, pet. ref d); In re J.L.H., 58 S.W.3d 242, 249 (Tex. App.--El Paso 2001, no pet.). It is clear that the attack with the crowbar took place inside the residence. Furthermore, it is reasonable to infer that the jury determined that Cruz did not give De Anda permission to enter the residence and strike him with a crowbar.

Regarding the issue of intent, we note that Appellant was charged with burglary of a habitation under Penal Code section 30.02(a)(3). Under this section, the State is not required to prove that the accused intended to commit the felony prior to entry; rather, the State has to prove that the accused, without effective consent, entered a habitation and subsequently formed the intent to commit a felony and then committed or attempted to commit the felony. In re J.L.H., 58 S.W.3d at 249. Appellant s contention is not meritorious because the intent need not have been formed prior to entry into the residence. It was adequately demonstrated that the requisite intent was formed inside the residence.

Appellant s attack on Cruz was initiated outside the residence. De Anda told Appellant to Kick [Cruz s] ass. Appellant responded, You kick his ass. De Anda got the crowbar while the altercation between Cruz and Appellant moved inside the house. Appellant continued to hold Cruz while De Anda struck Cruz with the crowbar. Under the law of parties, it was rational for the jury to determine Appellant s guilt by his aiding and encouraging the attack upon Cruz. The evidence is legally sufficient to support the conviction.

Regarding the use of a deadly weapon, a deadly weapon can be anything that in the manner of its use is capable of causing death or serious bodily injury. Tex. Penal Code Ann. 1.07(a)(17)(B) (Vernon 2003). Serious bodily injury is bodily injury that causes serious permanent disfigurement or protracted loss of impairment of the function of any bodily member or organ. Tex. Penal Code Ann. 1.07(a)(46) (Vernon 2003). It is not necessary to show that the crowbar was actually used in a deadly manner or that its use caused serious injury. It is only necessary to show that Appellant acting alone or as a party, used or intended to use the crowbar in a manner that caused or had the potential to cause death or serious injury. See Hill v. State, 913 S.W.2d 581, 591 (Tex. Crim. App. 1996).

In the present case, the evidence substantiates the use of a deadly weapon. Because of De Anda s attack, Appellant had a permanent scar and various other health problems. An expert testified that a crowbar as used in this instance was capable of causing serious bodily injury or death. Accordingly, the evidence was legally sufficient to support the conviction.

In conducting a factual sufficiency review, we view the evidence in a neutral light to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. We set aside the fact finder s verdict only if (1) the evidence supporting the verdict, when considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004). However, our factual sufficiency review must be appropriately deferential so as to avoid substituting our judgment for that of the fact finder. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). Accordingly, we are authorized to set aside the jury s finding of fact only in instances where it is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Id. at 135. If the evidence is factually insufficient, we remand to the trial court for a new trial. Id. at 133-35.

In the present case, Appellant s sole witness was Sergeant David Ransom. His testimony revolved around the adequacy of the complaining witness s police report. The State s case could not be characterized as a weak case. Ransom s testimony did little to diminish Cruz s testimony. We find that the evidence is factually sufficient to support the conviction. Issue No. One is overruled.

In Issue No. Two, Appellant contends that the court abused its discretion by allowing the crowbar into evidence at the guilt-innocence stage of trial. He also asserts that the court erred in allowing a prior conviction into evidence at the punishment stage of trial. At the guilt-innocence stage, the complaining witness identified the crowbar, State s Exhibit One, as the crowbar used in the incident. Appellant objected that the State failed to establish a chain of evidence. The court overruled the objection. Officer Lucero testified that State s Exhibit One was the crowbar he found in the trunk of Appellant s vehicle.

An objection to chain of custody is similar to an objection to inadequate authentication; both objections complain of the lack of proper predicate to admitting the complained-of item. Davis v. State, 992 S.W.2d 8, 10 (Tex. App.--Houston [1st Dist.] 1996, no pet.). Although the Texas Rules of Evidence do not specifically address chain of custody, they provide that the authentication requirement as a condition precedent to admissibility is satisfied by evidence that supports a finding that the matter in question is what its proponent claims. Tex. R. Evid. 901(a). This may be accomplished by testimony from a witness with knowledge that the item is what it is claimed to be. Tex. R. Evid. 901(b)(1). If the proponent is not able to identify the evidence through distinctive marking or the like, or if the evidence is fungible, proof of chain of custody is required to authenticate the evidence. Davis, 992 S.W.2d at 10-11.

An item like a crowbar is easily identifiable and resistant to change. Therefore, the State satisfies the threshold requirement of Rule 901(a) by presenting testimony that the evidence is what the State says it is. See id. at 11. In this case, both the complainant and an investigating officer identified the crowbar, thereby satisfying the requirement of Rule 901(a). The trial court did not abuse its discretion in admitting the crowbar.

Next, Appellant contends that the court erred in admitting a prior conviction at the punishment stage of trial. During the punishment stage of trial, the State moved to admit Appellant s prior convictions. Appellant objected that State s Exhibit Nine, an order on a guilty plea to the possession of prohibited weapons, was inadmissible because the conviction was older than ten years. The court overruled the objection and admitted the conviction into evidence.

On appeal, Appellant contends that the conviction was inadmissible for impeachment purposes because it was more than ten years old. However, Appellant did not testify during the punishment phase of trial. An accused must testify in order to raise and preserve a claim of improper impeachment through improper convictions. Morgan v. State, 891 S.W.2d 733, 735 (Tex. App.--Houston [1st Dist.] 1994, pet. ref d).

Appellant also maintains the court erred in failing to conduct a Rule 403 balancing test regarding the complained-of prior conviction. This rule provides that before admitting relevant evidence, the trial court should determine if the probative value of the evidence outweighs its prejudicial effect. Tex. R. Evid. 403. We note that Appellant did not raise a Rule 403 objection at trial. Accordingly, he has waived this contention on appeal. Tex. R. App. P. 33.1(a); Rankin v. State, 974 S.W.2d 707, 710-11 (Tex. Crim. App. 1996).

More importantly, during the punishment phase of trial, any party may present evidence the court deems relevant to sentencing, including the prior criminal record of the accused. Tex. Code Crim. Proc. Ann. art. 37.07, 3(a)(1) (Vernon Supp. 2006). Prior convictions are relevant to tailor the sentence to a particular defendant. Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999). The Appellant s prior conviction for possession of prohibited weapons was relevant to aid the jury in assessing punishment. Issue No. Two is overruled.

In Issue No. Three, Appellant contends that the court abused its discretion by allowing the introduction of prejudicial evidence without conducting a balancing test under the Texas Rules of Evidence. Roman Cruz testified that Appellant was a member of the Azteca gang and he had a tattoo of the number 21 on his body. Further, Officer Jeffrey Gibson testified as a gang expert regarding the tactics and tattoos used by the Azteca gang. The officer stated that he was familiar with Appellant s record and he testified that Appellant had a tattoo with 21 on his person.

With regard to Officer Gibson s testimony, Appellant asserts that he lacked the requisite knowledge to testify to gang activity, and his testimony should have been excluded under Rule 403 of the Texas Rules of Evidence. The State maintains that Appellant has not preserved these complaints for appellate review. We agree.

The record must demonstrate that Appellant lodged a timely objection stating the specific grounds for the ruling desired unless the grounds are apparent from the context of the objection. See Tex. R. App. P. 33.1(a). In this instance, when the State offered Officer Gibson as an expert, the Appellant stated that he had no objection. By telling the court that he has no objection to the evidence, the complainant waives any error in the admission of that evidence. Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986); Flores v. State, 129 S.W.3d 169, 171-72 (Tex. App.--Corpus Christi 2004, no pet.).

Appellant has also waived his Rule 403 objection for appellate review. At no time did Appellant object on that ground. Accordingly, we cannot address Appellant s complaints concerning the testimony of Officer Gibson.

We reach the same result with regard to the testimony of Roman Cruz concerning Appellant s Rule 403 objection on appeal. An out-of-the-hearing-of-the-jury discussion occurred regarding the anticipated testimony of Cruz that Appellant and his co-defendant were outside the residence screaming about Azteca gang membership and pounding on the windows. Appellant objected on grounds of hearsay and prejudice. However, when Cruz testified about Appellant s gang membership in light of the 21 tattoo, Appellant made no objection. To preserve error for appellate review, the complaining party must continue to object as the complained-of testimony is stated. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). Appellant has waived this issue on appeal. Issue No. Three is overruled.

In Issue No. Four, Appellant argues that the prosecutor committed prosecutorial misconduct during argument at the guilt-innocence stage of trial. Specifically, Appellant contends that remarks during examination of the State s witnesses and during closing argument constituted prosecutorial misconduct. Appellant made no objection stating prosecutorial misconduct as a ground. Appellant has waived this contention. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (holding that a defendant s failure to object to a jury argument forfeits his right to complain about the argument on appeal); Penry v. State, 903 S.W.2d 715, 764 (Tex. Crim. App. 1995) (stating that to preserve an objection for prosecutorial misconduct one must not only object but also request an instruction to disregard and move for a mistrial). // Appellant s Issue No. Four is overruled.

Having overruled each of Appellant s issues on review, we affirm the judgment of the trial court.

RICHARD BARAJAS, Chief Justice

August 31, 2006

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)