Sammie Roberson a/k/a Sammie Robinson v. The State of Texas--Appeal from 114th District Court of Smith County

NO. 12-03-00110-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

SAMMIE ROBERSON a/k/a APPEAL FROM THE 114TH

SAMMIE ROBINSON,

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Sammie Roberson aka Sammie Robinson ( Appellant ) appeals his conviction for burglary of a habitation. In three issues, Appellant asserts that the evidence is not legally or factually sufficient to support his conviction and that the trial court erred by failing to grant a mistrial based on the State s improper jury argument. We affirm.

Background

Appellant was charged by indictment with burglary of a habitation. Tex. Pen. Code Ann. 30.02 (Vernon 2003). The indictment alleged that, on October 24, 2002, Appellant, with the intent to commit theft, intentionally or knowingly entered a habitation without the effective consent of the owner, Nancy Alonso, or attempted to commit or committed theft of property owned by Nancy, to-wit, a gold bracelet, two cellular phones, two VCRs, an Apex DVD player, and a gold wedding band with a round diamond. The State also alleged, in its notice of intent to seek enhanced punishment, that Appellant had previously been convicted of two felonies. Appellant pleaded not guilty and elected a trial by jury.

At trial, Nancy and her husband Edward testified that they own a house located in Tyler, Smith County, Texas. Nancy testified that, when she returned home for lunch on October 24, 2002, she observed a bucket beneath the window of her daughter s room. Medium-sized shearing scissors were located next to the bucket. Upon entering her bedroom, she noticed the room had been ransacked. A tin can used to hold Nancy s birthday and anniversary cards was open on the bottom mattress, and the cards were scattered. Nancy testified that she had owned this tin can about five years and that it was always kept on the top shelf of her closet. Nancy then checked the other rooms in the house. The double-paned window in her daughter s room was pulled down and the inner pane was broken. The front pane of the window, a screen, was missing and later found in the carport. The glass on the broken window pane was jagged and sharp-edged and appeared to be punched out. Both Nancy and Edward testified that property belonging to both of them was missing from their house, including two VCRs, a DVD player, two cellular phones, Nancy s wedding ring with a round diamond, and a gold bracelet. Neither Nancy nor Edward had ever seen Appellant nor had they given him consent to enter their house or take their property.

Officer Royce Jordan has been with the Tyler Police Department for eighteen years and is cross-trained to dust for fingerprints at a crime scene. On October 24, 2002, Jordan responded to a call at the Alonsos house. Jordan dusted around the edge of a tin can located in the Alonsos bedroom for fingerprints and, ultimately, processed five fingerprint cards from outside and inside the can. Jordan attempted to fingerprint other items in the Alonsos house, but was unable to locate any other usable fingerprints.

Investigator Jeffrey S. Rackliff, an officer with the Tyler Police Department, has been with the department almost twelve years. Currently, he is a crime scene investigator and his duties include, among others, the collection of fingerprints. In comparing fingerprints, the Tyler Police Department standard demands a minimum of seven points identical in both type and geographic location within the fingerprint pattern. According to Rackliff, if a competent, trained latent fingerprint examiner follows the model for comparing fingerprints correctly, the margin of error is zero.

In his opinion, only one fingerprint recovered from the crime scene was of sufficient quality or ridge detail for comparison. After submitting the one quality fingerprint to a fingerprint identification database, one fingerprint was received that Rackliff believed was a viable candidate Appellant s. Based on this belief, Rackliff obtained Appellant s 1986 fingerprint card. The recovered fingerprint from the tin can had at least seven points of comparison with the left thumb print on Appellant s fingerprint card. On March 3, 2003, Rackliff fingerprinted Appellant and compared his fingerprints with the recovered fingerprint from the tin can. There were also seven points of identical comparison between the fingerprints. In his opinion, the fingerprint from the tin can belonged to Appellant. Further, Rackliff took one of Appellant s fingerprints from March 3 and compared it to Appellant s 1986 fingerprint card. In Rackliff s opinion, the 1986 fingerprint card also belonged to Appellant. Rackliff admitted that he had no information concerning how the fingerprint ended up on the tin can or how long it may have been in that location.

Sergeant Connie Castle has been a police officer with the Tyler Police Department for approximately eighteen years and is currently with the Crime Scene Unit. In verifying fingerprint findings, Castle begins the comparison anew in a separate, independent evaluation. In this case, Castle compared fingerprints that were lifted from the crime scene with rolled impressions. Castle verified Rackliff s findings in 2002 and in March of 2003. She found at least seven points of comparison between the 1986 fingerprint card and the fingerprint from the crime scene. She concluded that the fingerprint from the crime scene belonged to Appellant.

At the conclusion of the trial, the jury found Appellant guilty of burglary of a habitation as charged in the indictment. Having found both enhancement paragraphs true, the jury assessed punishment at life imprisonment. This appeal followed.

Evidentiary Sufficiency

In his first and second issues on appeal, Appellant argues that the evidence is legally and factually insufficient to support his conviction. More specifically, Appellant contends that there is no evidence of any kind that Appellant committed theft, attempted to commit theft, or intended to commit theft of property belonging to the Alonsos. Further, Appellant argues that the record is bereft of any testimony or evidence linking Appellant to the property alleged to have been taken. Alternatively, Appellant argues that the jury s finding that he stole, attempted to steal, or intended to steal the Alonsos property is not supported by more than a mere modicum of the credible evidence. The State disagrees and contends that evidence of Appellant s fingerprint at the scene is sufficient, both legally and factually, to support Appellant s conviction.

Standard of Review

Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App. San Antonio 1999, no pet.) (citing Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-88, 61 L. Ed. 2d 560 (1979)). The standard of review is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; LaCour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000). The evidence is viewed in the light most favorable to the verdict. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; LaCour, 8 S.W.3d at 671. The conviction will be sustained unless it is found to be irrational or unsupported by more than a mere modicum of the evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). The jury is the sole judge of the credibility of witnesses and of the weight to be given their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994). Any reconciliation of conflicts and contradictions in the evidence is entirely within the jury s domain. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). If a reviewing court finds the evidence legally insufficient to support a conviction, the result is an acquittal. Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-18, 72 L. Ed. 2d 652 (1982).

When reviewing the factual sufficiency of the evidence, we review all of the evidence, but not in the light most favorable to the prosecution. Cain v. State, 958 S.W.3d 404, 407 (Tex. Crim. App. 1997). We must determine whether a neutral review of the evidence, both for and against the finding, demonstrates that a rational jury could find guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also factually insufficient when contrary evidence is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Id. at 484-85. Our evaluation should not substantially intrude upon the jury s role as the sole judge of the weight and credibility of witness testimony. Wesbrook v. State, 29, S.W.3d 103, 112 (Tex. Crim. App. 2000).

When reviewing a case comprised wholly of circumstantial evidence, the standard of review is the same as it is for reviewing cases in which direct evidence exists. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999). Circumstantial evidence, by itself, may be enough to support the jury s verdict. Id.

Elements of the Offense

A person commits the offense of burglary of a habitation if, without the owner s consent, he enters a habitation with the intent to commit a theft or enters a habitation and commits or attempts to commit a theft. Tex. Pen. Code Ann. 30.02(a)(1), (3) (Vernon 2003). Generally, fingerprint evidence alone will be sufficient to sustain a conviction if the evidence shows that the prints were necessarily made at the time of the burglary. Villarreal v. State, 79 S.W.3d 806, 811 (Tex. App. Corpus Christi 2002, pet. ref d). One of the most important factors to be considered in evaluating the sufficiency of fingerprint evidence is the extent to which the fingerprinted object was accessible to the defendant. Id.

Analysis

At trial, Nancy and Edward testified that they had not given Appellant permission to be inside their house, nor had either of them ever seen Appellant. It is undisputed that the burglar entered the Alonsos house through their daughter s bedroom window by removing the outside pane and breaking the inside pane of the window. Both Nancy and Edward stated that many of their possessions had been stolen by the burglar. Further, Appellant s fingerprint was found on a tin can in the Alonsos bedroom. The can was usually kept on the top shelf of Nancy s closet, but had been thrown on her mattress and the contents scattered. Viewing the evidence in the light most favorable to the jury s verdict, we conclude that a rational trier of fact could have found the elements of burglary of a habitation with the intent to commit theft beyond a reasonable doubt.

Having determined that the evidence is legally sufficient to support the verdict, we next address factual sufficiency and consider all the evidence adduced at trial in a neutral light. See Zuniga, 144 S.W.3d at 484. The evidence in support of the conviction includes Appellant s fingerprint found on the tin can inside the Alonsos house after someone entered their house without their consent and stole many of their possessions. Contrary evidence includes the fact that neither Nancy nor Edward saw the person who burgled their house. Rackliff did not know when the fingerprint was left on the tin can or how long it had been there. Further, there was no testimony that Appellant had been seen with or in possession of the stolen property. However, the evidence established that the tin can was inaccessible to Appellant before the burglary. See Villarreal, 79 S.W.3d at 811. Therefore, taken as a whole, the evidence tends to show that the fingerprint on the tin can was made at the time of the burglary. See id. If the fingerprint was necessarily made at the time of the burglary, such fingerprint evidence alone is sufficient to sustain a conviction. See id.

The jury determined the credibility of the witnesses and resolved the evidentiary inconsistencies in the State s favor, which is its prerogative as fact finder. Consequently, in making our determination of the evidence, both for and against the verdict, we cannot say that the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Nor can we conclude that the contrary evidence is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Therefore, we conclude that the evidence is factually sufficient for the jury to find Appellant guilty as charged in the indictment. Accordingly, Appellant s first and second issues are overruled.

Mistrial

In his third issue on appeal, Appellant complains of improper jury argument. Appellant contends that, during closing argument in the guilt-innocence phase of the trial, the State s counsel challenged Appellant to explain why his fingerprints were in the Alonso home. Appellant timely objected to the State s improper jury argument and argues that the trial court erred by refusing to grant him a mistrial. Further, Appellant contends that the trial court s instructions to the jury to disregard the argument did not cure its prejudicial effect. The State argues that Appellant waived this issue on appeal because he never asked for a mistrial. In the alternative, the State contends that counsel s argument was not a direct comment on Appellant s failure to testify.

Applicable Law

The general rule is that a complaining party must first object, and if the objection is sustained, must then ask for an instruction to disregard. Barletta v. State, 994 S.W.2d 708, 714 (Tex. App. Texarkana 1999, pet. ref d). If the instruction is given, counsel must then move for a mistrial. Id. If the complaining party s objection is sustained and the jury is instructed to disregard the objected-to statement, but counsel does not move for a mistrial, the complaining party has received all the relief requested and nothing is preserved for review. See Adams v. State, 685 S.W.2d 661, 670 (Tex. Crim. App. 1985). In other words, Appellant must obtain an adverse ruling in order to preserve a matter for review. Nethery v. State, 692 S.W.2d 686, 701 (Tex. Crim. App. 1985). Further, a defendant s right not to be subjected to incurable erroneous jury arguments is one of those rights that is forfeited by a failure to insist upon it. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). Therefore, a defendant s failure to pursue to an adverse ruling his objection to a jury argument forfeits his right to complain about the argument on appeal. Id.

Analysis

In the State s closing argument in the guilt-innocence phase of the trial, the prosecutor made the following statement:

Knowing all of that, my question is this: What is his fingerprint doing in the Alonsoes [sic] house on that tin can that came out of the closet that had been opened up and poured on a bed in a house that had been rummaged through? I want the Defense to explain to me Mr. Thompson to explain to me and to you what his prints are doing on that can in that house.

As the argument continued, the trial court interrupted the State s counsel and asked counsel for both parties to approach the bench. Appellant s counsel objected to the last line of the State s closing argument and the trial court sustained his objection. Further, the trial court sua sponte instructed the jury to disregard the last portion of the State s closing argument. However, Appellant s counsel failed to ask for a mistrial. Appellant must ask for a mistrial and obtain an adverse ruling in order to preserve this issue for review. See Nethery, 692 S.W.2d at 701. Because Appellant s objection was sustained by the trial court and he did not move for a mistrial, Appellant received all the relief he requested and nothing is preserved for our review. See Adams, 685 S.W.2d at 670. Accordingly, Appellant s third issue is overruled.

Disposition

The judgment of the trial court is affirmed.

SAM GRIFFITH

Justice

Opinion delivered March 31, 2005.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)