Little Abe Hill v. The State of Texas--Appeal from County Court at Law No. 5 of Travis County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00144-CR
Little Abe Hill, Appellant
v.
The State of Texas, Appellee
FROM THE COUNTY COURT AT LAW NO. 5 OF TRAVIS COUNTY

NO. 463130, HONORABLE WILFRED AGUILAR, JUDGE PRESIDING
PER CURIAM

A jury found appellant Little Abe Hill guilty of burglary of a coin-operated machine. See Tex. Penal Code Ann. 30.03 (West 1994). The trial court assessed appellant's punishment at 180 days in jail. By three points of error, appellant complains that (1) the trial court abused its discretion by limiting jury voir dire and (2) the evidence is legally and factually insufficient to support his conviction. We will affirm the trial-court judgment.

 
Facts

Due to several nighttime break-ins that were occurring in a pattern at the Crystal Clean Car Wash in Austin, the owners decided to hide in an equipment room at the car wash and watch their property through a multi-camera "split-view" video monitor in hopes of catching the burglars. On August 12, 1996, just before 4:00 a.m., the owners observed a brown Oldsmobile Cutlass enter the car wash bay adjacent to the equipment room and several coin-operated machines. The driver maneuvered the car into a position so that an open driver's side door would shield a crouched individual from the view of anyone driving down the street.

Appellant emerged from the passenger side of the car and the driver got out leaving the driver's side door open and blocking the view from the street. One of the two men removed a crow bar from the car and pried open the coin-operated towel machine. The coin tray fell out and dropped to the ground. The owners came out of the equipment room, one carrying a gun and the other a baseball bat. The owners had the two men lie face down on the ground and had a female who was sitting in the back seat of the car get out and lie face down on the ground as well. One of the owners called the police who arrived and arrested appellant and his two companions. At the time of appellant's arrest, he had over nine dollars in quarters in his pockets. One coin machine was damaged and there were quarters on the ground around the machine.

 
Voir Dire

By point of error one, appellant contends that the trial court abused its discretion by terminating voir dire and refusing to permit his attorney to question venire members about their understanding of "attempt."

The trial court excused several venire members for cause after which only eleven venire members remained for voir dire. The trial court directed the parties to proceed on the chance of either a duplicate peremptory strike or the willingness of one of the parties to give up a peremptory strike. In her voir dire, defense counsel addressed the differences between the offenses of attempted burglary and burglary. She individually questioned ten of the eleven remaining venire members on the issue of attempt. After questioning the venire on the defendant's right to remain silent, she announced to the trial court that she had completed voir dire for the defense. The following then occurred at the bench outside of the jury's hearing.

 

The Court: Do you have anybody [else] you want to bring up [to challenge for cause]?

 

[Prosecutor]: No, sir.

 

The Court: Do you have anybody [else] you want to bring up [to challenge for cause]?

. . . . .

 

[Defense Counsel]: Ms. Granja, No. 3.

(Juror No. 3 approached the bench.)

 

[Defense Counsel]: Ms. Granja, are you comfortable now with the difference between attempt and actual burglary?

 

Ms. Granja: Yes, I think so.

 

[Defense Counsel]: And if you found that -- if the evidence showed that only an attempt was made, would you be satisfied with finding that crime?

 

Ms. Granja: Depending on the charge, if it's attempt or broken into, yes, I would.

 

[Defense Attorney]: And you don't have any problem with the distinctions that were made?

 

Ms. Granja: Yes.

. . .

 

The Court: Okay. Thank you. You can sit down.

. . .

 

Following this exchange, the attorneys and the trial judge held a discussion at the bench about whether attempt was a lesser included offense of burglary. The following occurred:

 

The Court: My first thought is [attempt] might be a lesser included offense, but I don't think it is so, you know -- in other words, my feeling is you might should have left it alone because if they don't prove the actual offense, your guy is not guilty. Do you see what I mean? I don't think you can charge unless it is a lesser included offense. Now, maybe I'm wrong.

 

[Defense Counsel]: I think [attempt] is a lesser included offense.

 

The Court: Maybe I'm wrong.

. . .

 

The Court: We'll need to decide that later so I know what to put in the charge.

 

[Defense Counsel]: If you are not going to consider putting it in the charge --

. . . Well, I think I need to do additional voir dire if the evidence shows an attempt and you are not going to put that in the charge.

 

The Court: I am not going to give you any more voir dire.

 

[Defense Counsel]: May I have a running objection to that, Your Honor?

 

The Court: To what?

 

[Defense Counsel]: To my --

 

The Court: What did you request of me? What did [I] say I was going to do?

 

[Defense Counsel]: I understood you to say that whether the evidence showed an attempt --

 

The Court: I said I'm not sure if I can charge on attempt, and we'll have to decide that later. I did not say that we wouldn't charge on attempt. If I can and the evidence is there, I will; but, if I can't and the law says I can't --

 

[Defense Counsel]: I will have to include that in my argument, won't I ?

. . .

 

The Court: All right. We're going to stop for about five minutes, and each side is going to have an opportunity to make their strikes. . . .

 

(Emphasis added.) Both sides executed their peremptory strikes with no double strikes. The State gave up one of its peremptory strikes thereby seating six jurors in order to avoid a mistrial. Defense counsel declared she had no objection to the jury as seated. Defense counsel did not mention attempt again until the charge conference when she objected to the trial court's refusal to include an attempt instruction in the charge. Her objection was overruled and an attempt instruction was not included in the jury charge.

When an appellant challenges a trial judge's limitation on the voir dire process, the reviewing court must analyze the claim under an abuse of discretion standard, the focus of which is whether appellant proffered a proper question concerning a proper area of inquiry. Howard v. State, 941 S.W.2d 102, 108 (Tex. Crim. App. 1996) (citing Caldwell v. State, 818 S.W.2d 790, 793-94 (Tex. Crim. App. 1991), cert. denied, 503 U.S. 990 (1992)). A proper question is one that seeks to discover a venire member's views on an issue applicable to the case. Id. If a proper question is disallowed, harm to appellant is presumed because he has been denied the ability to intelligently exercise his peremptory strikes. Id. However, a trial court is given broad discretionary authority to impose reasonable restrictions on the voir dire process. Id.

In this case, defense counsel announced that she had completed her collective questioning of the venire. She then called one venire member to the bench for further questioning about her understanding of the meaning of attempt. After questioning this venire member and having a conversation with the trial court about whether attempt would be included in the jury charge as a lesser included offense of burglary, defense counsel asked for more voir dire regarding attempt. The trial court denied her request.

It appears that defense counsel may have misunderstood the trial court's comments that he was undecided about whether attempt would be included in the jury charge. We note that during defense counsel's collective voir dire, she discussed extensively the distinctions between the offenses of attempted burglary and burglary. Additionally, she questioned all but one of the venire members individually about their understanding of attempt. The trial court did not limit her questioning during the main portion of voir dire. While defense counsel did not individually voir dire one venire member, she did address the venire about attempt. We hold that the trial court acted within its broad discretionary authority to impose reasonable restrictions on the voir dire process by not allowing defense counsel to reopen voir dire. We overrule appellant's first point of error.

 
Sufficiency of the Evidence

By points of error two and three, appellant contends that the evidence is legally and factually insufficient to prove that appellant committed burglary of a coin-operated machine. In determining the legal sufficiency of the evidence to support a criminal conviction, the question is whether, after viewing all the evidence in the light most favorable to the verdict, 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 (1979); Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981). When conducting a factual sufficiency review, we do not view the evidence in the light most favorable to the verdict. Instead, we consider all the evidence equally, including the testimony of defense witnesses and the existence of alternative hypotheses. Orona v. State, 836 S.W.2d 319 (Tex. App.--Austin 1992, no pet.). We will set aside a verdict for factual insufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd as untimely filed).

Paul Denucci and William Neils, the car wash owners, testified about the identity of the people who broke into the coin-operated machines on August 12, 1996. The jury viewed the video tape made by the owners the morning of August 12. Appellant alleges that the poor quality of the video reflects that the owners could not have accurately perceived the events that occurred the night of the incident. Denucci and Neils testified that, by way of a video monitor in their equipment room, they watched a car pull into one of the car-washing bays. Denucci and Neils identified appellant as one of the two men they saw at the coin-operated machine during the early morning of August 12. The two owners explained how they watched the video monitor as appellant got out of the passenger side of the car. They both heard the coin box drop to the ground. When the owners confronted appellant and the driver they saw quarters on the ground. The arresting officer found over nine dollars in quarters in appellant's pockets. Denucci testified that there was no doubt in his mind that appellant was the person he saw breaking into one of the coin-operated vending machines that morning. Although the video shown to the jury did not have a clear picture of appellant's face, it showed other identifying aspects of appellant about which the owners testified including what appellant was wearing that morning and that appellant was six to eight inches shorter than his companion.

The jury is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony, and the jury may accept or reject all or any part of the evidence. Miller v. State, 909 S.W.2d 586, 593 (Tex. App.--Austin 1995, no pet.). Reconciliation of evidentiary conflicts is solely a function of the trier of fact. Bowden v. State, 628 S.W.2d 782, 787 (Tex. Crim. App. 1982). The jury may draw reasonable inferences and make reasonable deductions from the evidence. Benavides v. State, 763 S.W.2d 587, 588-89 (Tex. App.--Corpus Christi 1988, pet. ref'd). Under Jackson, we view the evidence in the light most favorable to the verdict and must assume that the jury believed the owners' testimony. Their testimony was sufficient to prove beyond a reasonable doubt that appellant committed burglary. Additionally, when viewing all of the evidence equally, we conclude that the verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust. Points of error two and three are overruled.

 
Conclusion

We affirm the judgment of conviction.

 

Before Chief Justice Carroll, Justices Jones and Kidd

Affirmed

Filed: September 11, 1997

Do Not Publish

ot allowing defense counsel to reopen voir dire. We overrule appellant's first point of error.
Sufficiency of the Evidence

By points of error two and three, appellant contends that the evidence is legally and factually insufficient to prove that appellant committed burglary of a coin-operated machine. In determining the legal sufficiency of the evidence to support a criminal conviction, the question is whether, after viewing all the evidence in the light most favorable to the verdict, 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 (1979); Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981). When conducting a factual sufficiency review, we do not view the evidence in the light most favorable to the verdict. Instead, we consider all the evidence equally, including the testimony of defense witnesses and the existence of alternative hypotheses. Orona v. State, 836 S.W.2d 319 (Tex. App.--Austin 1992, no pet.). We will set aside a verdict for factua