PABLO BUSTAMANTE, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed October 27 , 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00765-CR
No. 05-07-00766-CR
............................
 
PABLO BUSTAMANTE, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 
.............................................................
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F06-01287-R & F05-55805-R
.............................................................
 
MEMORANDUM OPINION
 
Before Justices Wright, Lang-Miers, and Mazzant
Opinion By Justice Lang-Miers
 
 
        In a consolidated trial, a jury convicted Pablo Bustamante of aggravated assault and burglary of a habitation and assessed his sentence, enhanced by two prior felony convictions, at confinement for life in both cases. In seven issues, appellant argues that the evidence is legally and factually insufficient to support the conviction for burglary; he was denied due process when the State gave untimely notice of intent to enhance punishment and the trial court charged the jury on the enhanced punishment range; and he was punished twice for the same conduct in violation of the Double Jeopardy Clause of the U.S. Constitution. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm.
Background
 
        On the morning of August 9, 2005, Maria Guevara awoke, drank some coffee, and went outside. She saw a man, appellant, clad only in underwear, standing next to an electric pole. He pointed at her, then he quickly approached her and headed inside her house. He had a gun. Guevara told appellant he could not go inside, but he did anyway. Guevara followed him and found him sitting on the corner of her bed, where her daughter was sleeping. Guevara told appellant to get out of her house, but he refused. Guevara testified that appellant tried to fire the gun, but the magazine fell out. He put it back in. All the while Guevara was yelling at appellant to get out of the house. About this time, Guevara's teenage son, Jose Jr., awoke and saw his mom and appellant arguing. Appellant “charge[d]” into Jose Jr.'s room. When Guevara yelled at him, appellant turned around to face her. Guevara's nine-year-old daughter, who was awake by this time, stood near her mother, screaming in fear. Appellant faced Guevara, who was pregnant, in an apparent “standoff.” Guevara tried to take the gun away from appellant, but as she reached for the gun, appellant shot her. The bullet hit her finger, struck her in the abdomen, and went through the bedroom door and into the wall. Jose Jr. tried to stop appellant. He grabbed appellant from behind and threw him toward the wall of his bedroom and started “banging up against him.” Appellant struggled with Jose Jr. and kept trying to fire the gun again. Jose Jr.'s hand was injured during the struggle over the gun. The magazine fell out of the gun again and appellant dropped the gun. Guevara kicked it away. Eventually, Jose Jr. overpowered appellant, kicked him out of the house, and appellant ran off down the street. Jose Jr. called 9-1-1.
        Dallas Police Officers Ramone Martinez and Sergio Perez were dispatched to Guevara's home. As they were approaching, they saw nearby construction workers pointing in a certain direction. Martinez let his partner out at the Guevara house and followed in the direction the men were pointing. He saw a man clad only in underwear running down the street. He activated his air horn, and appellant turned around and began running toward the police car. Appellant told the officer that he was being chased by someone who wanted to kill him. When Martinez attempted to put appellant in custody, appellant tried to crawl under the police car. Martinez had to use his Taser on appellant twice to get him under control.
        In the meantime, Officer Perez determined that Guevara had been shot and Jose Jr. had been injured during the struggle with appellant. He found a magazine from a gun in a bedroom of the house and a gun in the hallway. Guevara was taken to a hospital where she prematurely delivered Angel, a 24-week-old baby boy weighing two pounds. Guevara was in the hospital or under nursing care for three months. Angel died thirty-seven days after delivery. Guevara learned of Angel's death while she was in a nursing home. The medical examiner classified Angel's death as a homicide.
        Officer Martinez accompanied appellant to the hospital. While there, appellant told Martinez that people with guns were trying to kill him so he ran out of his apartment and tried to get help from a lady but she refused to call the police for him. When she tried to grab his gun, it went off and he shot her. Appellant's medical records from that hospital examination show that he was diagnosed with severe cocaine intoxication.
        At trial, appellant testified that he used cocaine the morning of the incident and had imagined people with guns were chasing him. Before he ran from his apartment to flee the imagined killers, he checked the gun to see that it was loaded. He said that he was just looking for someone to let him use the telephone, but he admitted that he passed some convenience stores on the way to Guevara's house and did not try to use the telephone at any of those stores. Appellant also admitted that his finger was on the trigger of the gun as he and Guevara were arguing, but he said the gun accidentally fired when Guevara grabbed it. He denied that when he was in the hospital he told Officer Martinez that he shot Guevara. He said he told the officer that he went into Guevara's house because he was afraid someone was following him. He also denied that the magazine fell out of the gun. He said he did not enter the house with the intent to commit an offense, and he did not know Guevara was pregnant.
 
Sufficiency of the Evidence
 
        In his first two issues, appellant argues that the evidence is legally and factually insufficient to support the conviction for burglary because the State did not prove that appellant formed the requisite mens rea to be convicted of burglary. He contends that he “was so high on cocaine and as a result, was paranoid and imagined someone was chasing him, that he only entered the house in order to call the police.” He further contends that Guevara's description of his actions that morning show he did not form the requisite mens rea necessary to commit burglary.
        We apply well-known standards when reviewing challenges to the legal sufficiency of the evidence. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). We view all of the evidence in the light most favorable to the verdict and determine whether, based on the evidence and reasonable inferences, any rational trier of fact could have found the defendant guilty of the offense beyond a reasonable doubt. Lane, 151 S.W.3d at 191-92 (citing Jackson, 443 U.S. at 319).
        In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). Evidence is factually insufficient when the evidence supporting the conviction is so weak that the verdict seems clearly wrong and manifestly unjust, or when the evidence supporting the conviction is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Roberts, 220 S.W.3d at 524.
        Under either review, we measure the elements of the offense as defined in a hypothetically correct jury charge for the case. Grotti v. State, No. PD-134-07, 2008 WL 2512832, at *5 (Tex. Crim App. June 25, 2008). A hypothetically correct jury charge “promulgates the law, is authorized by the indictment, does not unnecessarily increase the state's burden of proof or restrict the state's theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id.
        A person commits burglary if the person unlawfully, intentionally and knowingly enters a habitation without the effective consent of the owner and with the intent to commit a felony, theft, or assault; or commits or attempts to commit a felony, theft, or assault once inside. Tex. Penal Code Ann. § 30.02(a)(1), (3) (Vernon 2003). The gravamen of a burglary offense is the entry of the habitation without the effective consent of the owner and with the requisite mental state. Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006). The harm from a burglary results from the entry itself, and the offense is complete once the unlawful entry is made without regard to whether the intended theft or felony is also completed. Id.
        The burglary indictment in this case alleged that on or about August 9, 2005, appellant did
 
        unlawfully, intentionally and knowingly enter a habitation without the effective consent of MARIA GUEVARA, the owner thereof, with the intent to commit a felony other than theft, namely, AGGRAVATED ASSAULT, and the defendant did then and there use and exhibit a deadly weapon, to wit: a firearm,
 
 
 
        And further, said Defendant did unlawfully, intentionally and knowingly enter a habitation without the effective consent of MARIA GUEVARA, the owner thereof, and did then and there commit and attempt to commit a felony other than theft, namely, AGGRAVATED ASSAULT, and the defendant did then and there use and exhibit a deadly weapon, to wit: a firearm.
 
As applicable to this case, a person commits aggravated assault when the person (1) intentionally or knowingly threatens another with imminent bodily injury and uses or exhibits a deadly weapon, or (2) intentionally or recklessly causes bodily injury and uses or exhibits a deadly weapon. See Tex. Penal Code Ann. §§ 22.01(a)(1)-(2), 22.02(a)(2) (Vernon Supp. 2008). Voluntary intoxication is not a defense to the commission of a crime and does not negate the elements of intent or knowledge. Tex. Penal Code Ann. § 8.04(a) (Vernon 2003); Hawkins v. State, 605 S.W.2d 586, 589 (Tex. Crim. App. 1980).
        The evidence showed that after appellant entered the house without Guevara's consent, Guevara asked appellant to leave and he refused. She testified that they argued, during which the gun's magazine fell out, and that appellant placed the magazine back in the gun. After appellant went into Jose Jr.'s bedroom, Guevara yelled at appellant and tried to reach for the gun, but appellant shot her. Jose Jr. testified that he saw appellant point the gun at his mother and shoot her from a distance of about three feet. That is when Jose Jr. grabbed appellant and threw him against the bedroom wall. As Jose Jr. banged appellant against the wall, appellant tried to fire the gun again, but the magazine fell out a second time and appellant dropped the gun. Guevara kicked the gun away and Jose Jr. was able to kick appellant out of the house.
        Appellant contends that he did not form the requisite intent to commit aggravated assault because he was in a cocaine-induced paranoia. He testified that he was looking for a telephone in Guevara's house when she stepped in front of him and grabbed the gun. He said the gun fired accidentally. Appellant denied that he told the police officer that he shot Guevara because she would not let him use the telephone. However, Guevara and Jose Jr. testified that appellant never asked to use a telephone and that appellant shot her intentionally.
        We conclude the evidence is legally and factually sufficient to support a finding that appellant entered Guevara's house without permission, shot her, and used or exhibited a deadly weapon.
        We resolve appellant's first and second issues against him.
 
Punishment Enhancement
 
        In issues three through six, appellant argues that the State did not provide timely notice of its intent to enhance his punishment with two prior felony convictions, thereby violating his due process rights under the U.S. Constitution. He also argues that because the notice was untimely, the trial court erred by including the enhanced punishment range in the jury charge.
        The State must provide the defendant notice of its intent to enhance punishment with prior convictions. Brooks v. State, 957 S.W.2d 30, 33-34 (Tex. Crim. App. 1997). However, there is no set time period by which this notice must be given. Villescas v. State, 189 S.W.3d 290, 294 (Tex. Crim. App. 2006). When a defendant has no defense to the enhancement allegation and has not suggested the need for a continuance to prepare a defense, notice given at the beginning of the punishment phase satisfies the requirements of the federal constitution. Id.
        The jury in this case was selected on May 29, 2007, and the first witness was called on May 30, 2007. It is undisputed that the State did not file its formal notice of intent to enhance punishment until May 29, 2007. The record shows that appellant pleaded true to the prior convictions, signed a stipulation that he committed the prior offenses alleged for enhancement, did not ask for a continuance to prepare to defend against those allegations, and did not object when the State offered evidence of the prior convictions.
        Under these circumstances, we conclude that the State's notice of intent to enhance was timely and the trial court did not err by instructing the jury concerning the enhanced range of punishment. See Tex. R. App. P. 44.2(a); Villescas, 189 S.W.3d at 294; Ketchum v. State, 199 S.W.3d 581, 592-93 (Tex. App.-Corpus Christi 2006, pet. ref'd).
        We resolve issues three, four, five, and six against appellant.
 
Double Jeopardy
 
        In his next issue, appellant contends that he suffered multiple punishments in violation of the Double Jeopardy Clause when he was convicted of both aggravated assault and burglary with aggravated assault as the underlying felony. See Lopez v. State, 108 S.W.3d 293, 295-96 (Tex. Crim. App. 2003). He argues that the conduct that formed the basis for the underlying aggravated assault in the burglary conviction is the same conduct that formed the basis for the aggravated assault conviction. He also contends that we “should determine which conviction meets the test of Ex parte Cavagos [sic], 203 S.W.3d 333 (Tex. Crim. App. 2006),” but he does not explain what that test is or how it applies to the facts of this case.
        The Double Jeopardy Clause protects a person against multiple punishments for the same offense. U.S. Const. amend. V; Cavazos, 203 S.W.3d at 336; Saenz v. State, 166 S.W.3d 270, 272 (Tex. Crim. App. 2005). In Texas, a defendant may not be punished for both burglary and the underlying felony unless the burglary conviction rests solely on entering with intent to commit the felony, as opposed to entering and then forming the requisite intent once inside. Langs v. State, 183 S.W.3d 680, 685-86 (Tex. Crim. App. 2006). However, if a person assaults multiple victims in a single episode, each victim may serve as the basis for an indictment, prosecution, and conviction. See Cavazos, 203 S.W.3d at 337; Ex parte Hawkins, 6 S.W.3d 554, 560 (Tex. Crim. App. 1999). Therefore, if the record in this case shows that the victim of the aggravated assault in the burglary case is different from the victim in the aggravated assault case, then no double jeopardy violation has occurred. See Cavazos, 203 S.W.3d at 337; Miles v. State, 259 S.W.3d 240, 248-49 (Tex. App.-Texarkana, pet. filed).
        Initially, we note that appellant did not claim a double jeopardy violation below. However, a double jeopardy claim may be raised for the first time on appeal if the undisputed facts show the violation is clearly apparent on the face of the record and enforcement of the usual rules of procedural default serves no legitimate state interests. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000). In deciding whether appellant may raise his double jeopardy claim for the first time on appeal, we first determine whether it is clearly apparent from the record that appellant suffered multiple punishments for the same conduct. In our review, we look not only at the charges as indicted but also at the evidence upon which the convictions are based. See Langs, 183 S.W.3d at 688-89 (reviewing facts of case in determining double jeopardy claim).         As we previously noted, the burglary indictment alleged that on or about August 9, 2005, appellant (1) entered Guevara's house with intent to commit aggravated assault and used or exhibited a deadly weapon, and (2) entered Guevara's house and committed and attempted to commit aggravated assault and used or exhibited a deadly weapon. The jury charge tracked the language of the indictment.
        The aggravated assault indictment charged that on or about September 15, 2005, appellant did
 
        unlawfully then and there intentionally, knowingly and recklessly cause serious bodily injury to another, namely, ANGEL GUEVARA, hereinafter called complainant, by SHOOTING ANOTHER, NAMELY MARIA GUEVARA, WITH A FIREARM, A DEADLY WEAPON, WHILE SAID COMPLAINANT WAS IN GESTATION OF SAID MARIA GUEVARA.
 
See Tex. Penal Code Ann. §§ 22.01(a)(1), 22.02(a)(1) (Vernon Supp. 2008). The jury charge in the aggravated assault case tracked the indictment.
        The indictment charging burglary alleges the burglary offense occurred on or about August 9, 2005, that Guevara was the victim of the burglary, and it does not allege the name of the victim of the underlying aggravated assault. The State argued, and the evidence supports a finding, that appellant assaulted Guevara during the burglary and that appellant used or exhibited a firearm. Accordingly, the jury could have convicted appellant of assaulting Guevara during the burglary. See Langs, 183 S.W.3d at 688. Conversely, the indictment charging aggravated assault alleged that the offense occurred on or about September 15, 2005, the day that Guevara's prematurely-born child, Angel, died and that Angel was the victim in that case. It also charged that appellant committed aggravated assault by causing serious bodily injury to Angel. The State argued, and the evidence supports a finding, that Angel was the victim in the aggravated assault case and that Angel suffered serious bodily injury.
        The indictments do not indicate that the victims are the same, and the evidence shows that the victims are different. As a result, we conclude that it is not clearly apparent on the face of the record that appellant has suffered multiple punishments for the same conduct in violation of the Double Jeopardy Clause. Consequently, we may not consider appellant's double jeopardy claim for the first time on appeal.
        We resolve appellant's seventh issue against him.
 
Conclusion
 
        We affirm the trial court's judgments.
 
                                                          
                                                          ELIZABETH LANG-MIERS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
070765F.U05