Irving Edwin McIntosh v. The State of Texas--Appeal from 25th Judicial District Court of Guadalupe County

No. 04-99-00747-CR

Irving Edwin MCINTOSH,

Appellant

v.

The STATE of Texas,

Appellee

From the 25th Judicial District Court, Guadalupe County, Texas

Trial Court No. 98-0454-CR

Honorable Dwight E. Peschel, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: January 10, 2001

AFFIRMED

A jury convicted Irving McIntosh of burglary of a building. McIntosh raises four complaints on appeal. In points of error one and two, McIntosh challenges the factual sufficiency of the evidence to support a guilty verdict. In points three and four, McIntosh alleges trial court error in the admission of evidence. We affirm the trial court's judgment.

Background

On January 24, 1998, Wayne Wootan (Wootan) reported his residence had been burglarized. Wootan testified a saddle, bridle, breast strap, air compressor, chainsaw, battery drill, and other items had been stolen. Wootan's father, Louis Wootan, testified to seeing a white mini-van, similar to one owned by McIntosh, in Wootan's driveway on the date the offense may have occurred. Wootan's neighbor, Irmgard McLain, also testified to seeing the same white van on the road.

Following a tip from an investigation of area pawnshops, on February 20, 1998, officers went to McIntosh's residence, in part to question McIntosh's son-in-law, Chance Ring. McIntosh agreed to a partial search of his property. While inside the house, law enforcement officers photographed a saddle matching the description of the one taken from Wootan. Officers also recovered a television reported stolen in Medina County. (1)

A weedeater, pawned by Chance Ring, was recovered from Action Pawn No. 12 in San Antonio. Both Ring and the pawn shop manager testified McIntosh was present when the item was pawned. The manager also testified McIntosh was "in charge." Wootan identified the weedeater as the one stolen from his residence.

Investigators subsequently obtained a search warrant and returned to McIntosh's residence on May 29, 1998. They recovered the saddle, bridle, and breast strap. They also

made a videotape of the search lasting approximately 10 minutes. Wootan identified the saddle, bridle, and breast strap as items stolen from his residence.

Ring testified he and McIntosh went to Wootan's residence, and he watched while McIntosh committed the burglary. He testified he was with McIntosh when McIntosh committed a separate Medina County burglary. Ring stated they were in McIntosh's white van both times. The jury convicted McIntosh of burglary of a building, and McIntosh appeals to this court.

Discussion

I. Factual Insufficiency

McIntosh complains the testimony of the accomplice witness, Chance Ring, was not sufficiently corroborated by other evidence. Without the accomplice testimony, McIntosh claims the evidence is insufficient to uphold the guilty verdict.

a) Standard of Review

In reviewing factual sufficiency, we "view[] all the evidence without the prism of 'in the light most favorable to the prosecution.'" Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996) (citing Stone v. State, 823 S.W.2d 375, 381 (Tex. App.-Austin 1992, pet. ref'd)). For the verdict to be set aside, it must be so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust, so a finding of guilty could not have been found beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000). We must avoid substituting our judgment for that of the jury. See id. However, if we conclude the evidence is factually insufficient, the verdict must be reversed and the case remanded for a new trial. See Clewis, 922 S.W.2d at 135.

b) Accomplice Testimony

A conviction cannot be based on accomplice testimony unless that testimony is corroborated by other evidence tending to connect the defendant with the commission of the crime. Tex. Crim. Proc. Code Ann. art. 38.14 (Vernon Supp. 2000). To determine whether accomplice testimony is sufficiently corroborated, we eliminate all the accomplice evidence and ascertain whether the remaining evidence "tends to connect" the defendant to the offense. Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993). The "tends to connect" review does not have to directly link the defendant to the offense or establish guilt. Id; Mitchell v. State, 650 S.W.2d 801, 807 (Tex. Crim. App. 1983). "Suspicious circumstances" coupled with the "presence of the accused with the accomplice witness" is sufficient to meet this standard. Dowthitt v State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996). If the non-accomplice evidence does not support the verdict, an acquittal is required. See Munoz, 853 S.W.2d at 564.

When the testimony of Chance Ring is excluded, we are left with the testimony of the officers, the victim, two witnesses, and the pawn shop manager to "tend to connect" McIntosh to the offense. See id. at 559. The officers testified they recovered several items from McIntosh's home which were later identified as stolen from Wootan. Two witnesses testified to the presence of a van similar to McIntosh's vehicle in the area at the approximate time of the burglary. The pawn shop manager testified McIntosh was present and appeared to be in charge when Wootan's weedeater was pawned. The pawn shop manager also testified McIntosh took him out to a white van to view a saddle, which the manager declined to pawn.

This non-accomplice evidence is sufficient to meet the low "tending to connect" standard; therefore, we overrule point of error number two. See id. (even "apparently insignificant incriminating circumstances" provide adequate corroboration).

c) Factual Sufficiency

Having determined the accomplice testimony was sufficiently corroborated, we turn to the overall sufficiency of the evidence in support of the guilty verdict.

To set aside the jury verdict, McIntosh must show the verdict was "so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." See Clewis, 922 S.W.2d at 134. The accomplice testified McIntosh committed the burglary. This was corroborated by testimony that a van similar to McIntosh's was seen the day of the offense, the victim's saddle was found in McIntosh's home, and McIntosh was present and "in charge" when the accomplice pawned the victim's weedeater. This evidence is sufficient to support the jury's guilty verdict. We overrule McIntosh's first point of error.

II. Extraneous Evidence Admitted in Error

In his third point of error, McIntosh argues three pieces of extraneous evidence should not have been admitted: 1) the Medina County burglary and television, 2) items similar to those Wootan listed as stolen, and 3) a copy of a pawn ticket on which the prosecutor's office had made written notations of prior unadjudicated offenses.

a) Medina County burglary and television

McIntosh says he preserved error in the admission of evidence on the Medina County burglary and television set by a running objection based on a pre-trial motion in limine. The State argues error was waived because McIntosh did not object at the time the evidence was offered at trial.

In general, a running objection to evidence is sufficient to preserve error. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). A running objection requested during trial must be specific and unambiguous. Id at 859. A pre-trial motion in limine does not qualify as a running objection. See Gilchrest v. State, 904 S.W.2d 935, 938 (Tex. App.- Amarillo 1995, no pet.). Rather, it is absolutely necessary for counsel to object when the subject matter of the motion in limine is subsequently raised at trial. Soto v. State, 736 S.W.2d 823, 827-28 (Tex. App.-San Antonio 1987, pet. ref'd).

McIntosh's motion in limine was not sufficient to preserve error as a running objection. McIntosh should have specifically objected at trial that the extraneous evidence was not admissible under Rule 404(b). West v. State, 790 S.W.2d 3, 4 (Tex. App.-San Antonio 1989, pet. ref'd). Therefore, McIntosh waived any error with reference to the admissibility of testimony about the television set and the Medina County burglary. We overrule this point of error.

b) Similar Items

Next, McIntosh complains the trial court improperly admitted evidence of items similar to those reported stolen in the burglary, leading the jury to believe all the items were stolen. The items in question were recovered or videotaped during the searches of McIntosh's residence. McIntosh says the items were improperly admitted because they were never shown to be the actual items stolen. (2) However, McIntosh does not provide any argument for his contention.

A brief must contain a clear and concise argument for the contention made, including appropriate citations to authorities. Tex. R. App. P. 38.1(h). Failure to adequately brief an argument waives the issue on appeal. Alvarado v. State, 912 S.W.2d 199, 210 (Tex. Crim. App. 1995) (explaining it is not the task of an appellate court to speculate as to an appellant's legal theory); Vasquez v. State, 22 S.W.3d 28, 31 (Tex. App.-Amarillo 2000, no pet. h.).Therefore, McIntosh's argument as to the items similar to those reported stolen is waived.

c) Pawn Tickets

During the investigation, the State obtained copies of several pawn tickets showing items pawned by McIntosh before and after the Wootan burglary. On the copy of one ticket, someone typed extraneous information about three unadjudicated offenses, including two prior theft charges which had been dismissed and one charge for which McIntosh received deferred adjudication.

At trial, McIntosh's counsel offered several tickets to show McIntosh had pawned items prior to 1998. The State offered additional tickets showing McIntosh pawned items in 1998 to rebut defense counsel's inference that all of McIntosh's pawn activity occurred prior to the burglary. One of the tickets offered by the State was the copy with extraneous offense evidence written on it.

When this pawn ticket was admitted into evidence, McIntosh objected that the items listed on the pawn ticket were unrelated to the burglary at issue, and therefore, subject to a motion in limine. On appeal, McIntosh asserts the admission of the pawn ticket was in error due to extraneous conduct information on the document.

In order for an objection to preserve error for appellate review, it must be timely and specific. Tex. R Evid. 103(a)(1); see Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990). McIntosh did not specifically object at trial to the prejudicial nature of the extraneous conduct evidence. Rather, he objected to the items listed on the pawn ticket because they were not items listed as stolen in the Wootan burglary. McIntosh's objection to the extraneous conduct information in a later motion for mistrial did not satisfy the timeliness requirement for appellate review. See Moody v. State, 827 S.W.2d 875, 890 (Tex. Crim. App. 1992) (preservation of error requires timely objection, ruling on objection, followed by motion for mistrial); Soto, 736 S.W.2d at 827-28 (objection must be made on proper grounds at the very time evidence is offered). Therefore, McIntosh waived error as to the extraneous conduct information printed on the pawn ticket.

We overrule McIntosh's third point of error.

IV. Error In Admitting Videotape

The videotape in question was taken during a search of McIntosh's home pursuant to a search warrant by Kevin Jordan and Ted Crow. (3) Crow testified that he videotaped items he believed to be stolen. McIntosh asserts the trial court erred in admitting the videotape for two reasons: first, because the video did not contain items from the burglary at issue, and second, the video was more prejudicial than probative under Tex. R. Evid. 403 due to the condition of the home.

In deciding whether to admit such evidence, the trial court must determine if the "probative value is substantially outweighed by the danger of unfair prejudice." Tex. R. Evid. 403. We will not disturb the trial court's ruling absent a clear abuse of discretion. Montgomery, 810 S.W.2d at 379; Lam v. State, 25 S.W.3d 233, 236 (Tex. App.-San Antonio 2000, no pet. h.).

McIntosh's first objection is that the videotape showed his home in disarray. In denying the objection, the trial court recognized several other people had already testified to the condition of the property. One witness described it as "ransacked;" one said there was a lot of junk lying around. The jury had already heard fairly extensive testimony about the condition of the home, some of it elicited by McIntosh's counsel.

The second objection was that some items shown were not stolen in the Wootan burglary. The testimony of the officer made clear that he taped the progress of the search and items he thought might be related to the Wootan burglary and other burglaries. At no time did the officer suggest that all the items on the tape were stolen. Again, the jury had already heard testimony that officers were investigating other offenses, including burglaries involving Chance Ring, who also lived at the house from time to time.

The value of the tape lies in its depiction of officers removing items stolen in the Wootan burglary from positions in the McIntosh residence. We assume the trial judge balanced this probative value against possible prejudice induced in the jury by seeing the condition of the residence and knowing that officers were on the lookout for items linked to other burglaries. Because the prejudice to the jury, if any, could just as easily have been triggered by other testimony subject to the same objections, it was not an abuse of discretion for the trial court to admit the videotape. Additionally, given the totality of the evidence before the jury, we believe it unlikely the admission of the video had a substantial effect on the jury's verdict. See Ladd v. State, 3 S.W.3d 547, 568 (Tex. Crim. App. 1999) (reversible error must impact the appellant's substantial rights). Therefore, we overrule point of error number four.

Conclusion

Because we overrule all four of McIntosh's points of error, we affirm the judgment of the trial court.

PAUL W. GREEN

JUSTICE

DO NOT PUBLISH

1. McIntosh was arrested for theft of the television at the time, but the charges were later dismissed.

2. At least one of the items, the chainsaw, was positively identified by Wootan's father as belonging to Wootan.

3. Kevin Jordan was an investigator for the Guadalupe County Sheriff's Department and Ted Crow was an investigator for the Guadalupe County District Attorney's Office.