Randall Ricardo ESPINOZA, Appellant, v. The STATE of Texas, Appellee.
No. 10-96-275-CR.
Court of Appeals of Texas, Waco.
Oct. 1, 1997.
Rehearing Overruled Nov. 5, 1997.
The court of appeals, in my opinion, also failed to give proper deference to the findings of the trial court, which, as we have held, is the sole factfinder at a hearing on a motion to suppress, and whose finding, if supported by the record, will not be disturbed on appeal. Taylor v. State, 604 S.W.2d 175, 177 (Tex.Crim.App.1980). In effect, the court of appeals ignored the trial court‘s findings of fact when it announced what amounts to a new rule of law that an individual is always “seized” or “detained” when an officer requests permission to search. While the court of appeals is certainly entitled to conduct de novo reviews of the trial court‘s rulings on questions of law, Villarreal, supra, and Chapa, supra, we may conduct de novo reviews as to the courts of appeals’ holdings on questions of law. Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App.1997). Indeed, we are often required to do so, for example, when there is a conflict as to a question of law between two courts of appeals.
Accordingly, whether police questioning of an individual constitutes a “seizure” or “detention” is to be determined on a case-by-case basis by examining the facts and circumstances surrounding the encounter. The record in the present case demonstrates the trial court conducted a lengthy hearing and made extensive findings of fact which support its conclusion of law that appellant was not “seized” or “detained” when Officer Rodriguez asked to search his duffel bag.
With these comments, I join the opinion of the Court.
Bill Turner, District Attorney, Glynis McDaniel, Assistant District Attorney, Bryan, for appellee.
Before DAVIS, C.J., and CUMMINGS and VANCE, JJ.
OPINION
CUMMINGS, Justice.
The appellant, Randall Espinoza, was convicted by a jury of burglary of a habitation. See
I. Factual Background
About 2:30 a.m. on October 8, 1995, John Wiley could not sleep because loud music was being played at a party in the home across the street from his house. Wiley told Riley Rector, a young man who was living in his house, to go over to the party and ask that the music be turned down. When Rector did not return, Wiley decided to go across the street himself to ask that the music‘s volume be turned down. As Wiley was going over to the party, he was stopped in the middle of the street by Randall Espinoza, and Wiley asked Espinoza to turn the music down. Espinoza refused, telling Wiley that it was a Latin King neighborhood and he would not turn the music down. Espinoza then pushed Wiley and another man hit Wiley in the back of the head. As Wiley began to return home after repeating his demand that the music be turned down, Wiley testified that ten or twelve other young men appeared. The men, including Espinoza, began fighting with Wiley as he retreated into his home and locked the front door.
However, Espinoza and the other men were not willing to leave after Wiley went inside his home. The group started beating on the door with their fists, a knife, and then with a landscaping timber. The group also broke out the two front windows. As the front door came off its hinges and the young men entered the house, Wiley refused to
II. Points of Error
In his first point of error and as the second sub-point in his second point of error, Espinoza claims that he should not have been convicted of the offense of burglary because legally and factually insufficient evidence exists to show that Espinoza had the intent to commit criminal mischief when he entered Wiley‘s home. Espinoza contends that the reason the men broke into Wiley‘s home was to continue fighting with Wiley, and there was no intent to commit criminal mischief when entry was made into the house.
Espinoza was charged by indictment under
intentionally and knowingly, without the effective consent of JOHN WILEY, the owner thereof, enter a habitation and did attempt to commit and commit criminal mischief ... and did thereby cause pecuniary loss of $1500 or more but less than $20,000 to the said owner.
Thus, because Espinoza was charged under subsection (a)(3) of 30.02 the State was not required to prove Espinoza‘s intent to commit criminal mischief when he entered the home of John Wiley. We need not determine then whether there is legally or factually sufficient evidence of Espinoza‘s intent to commit criminal mischief when he entered Wiley‘s home because this is not an essential element of the crime of burglary under subsection (a)(3). See Rivera, 808 S.W.2d at 92-93. Consequently, we overrule Espinoza‘s first point and the second sub-point of his second point.
In the first sub-point of Espinoza‘s second point of error, he asserts that the evidence is factually insufficient to show that the value of the property damaged in Wiley‘s home was at least $1,500. As discussed above, when a defendant is charged with the offense of burglary under
In reviewing a claim that the evidence is factually insufficient to support a finding of guilt, the appellate court will examine all the evidence in the record, not just the evidence supporting the verdict, and will reverse a conviction if the verdict is “so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App.1996) (quoting Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996)). While conducting this review we do not sit as a “thirteenth juror” to re-weigh the evidence, but instead we give “due deference” to the jury‘s determination of questions on the weight and credibility of evidence. Desselles v. State, 934 S.W.2d 874, 878 (Tex.App.—Waco 1996, no pet.); see also Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App.1997).
The State presented evidence specifying the amount of loss for both the real and personal property damaged or destroyed by the criminal mischief. Wiley testified regarding the value of his personal property. Items which were destroyed include: a lamp worth $20, a small television worth $50, and a kitchen table worth $200. Items which were damaged include: a large television originally costing $479 and a coffee table originally costing $40 to $50. The State had a television repairman testify that the cost to repair the large television would be at least $225, but there was no testimony regarding the cost to repair the damaged coffee table. Thus, the amount of loss caused by the damage or destruction of Wiley‘s personal property is at least $495 if the large television was merely repaired and the cost to repair the coffee table is not included.
Next the State had David Huff, a building contractor, testify about the cost to repair the damage to the home itself. Huff‘s testimony can be summarized as follows: repair of the door $280, repair of the left window $290, repair of the right window $59, two new screens $70, repair of the damage to the sheetrock inside the home $400, new curtain $90, new mini-blind $75, new back door screen $60, and repair of the fence and gate $205. After adding these amounts, the total amount of loss caused by the damage to the
Espinoza first claims that there is insufficient evidence to show that the fence or the mini-blind was damaged on October 8 by the criminal mischief. However, Wiley testified about the damage to the gate and said: “The gate was practically ripped off. Boards were kicked out to the side of it.” Regarding the home‘s window treatments he stated: “The curtains were all tor[n] down and are still pretty much that way. The blinds in my bedroom are all broke[n]. [They are] still broke[n].”
Espinoza‘s principal complaint about the amount of loss is that the testimony of the State‘s expert witness, David Huff, a home building contractor, sets the fair market value of the necessary repairs higher than the property owner‘s testimony about how much he believed it would actually cost him to repair the home. Michael Szabuniewicz, the owner of the home which Wiley rented, testified he had already spent $200 on repairs and he gave an estimate on what it would cost to fix the rest of the damage. The estimate of his cost to repair the home was: $105 for the gate, $180 for the door, $90 for curtains and blinds, $100 for the window, and $165 for damage to the sheetrock. Thus, Szabuniewicz‘s testimony puts the amount of loss at $840. But during his testimony Szabuniewicz also stated that he had done his estimate quickly and it probably only included material costs, but not labor costs. Szabuniewicz said his sheetrock estimate was only for the emergency repairs needed, but he probably would have to repair a larger area. Also, he testified that repainting the walls after the repairs were completed was not included in the estimate, and this would increase the cost of repair.
Consequently, we decide that the jury‘s verdict finding the amount of loss to be $1,500 or more was not so against the evidence as to be clearly wrong and unjust. The State‘s expert, David Huff, is a contractor doing home repair work, and as part of his job he testified that he often gave estimates about the cost to do a repair job. Huff explained that to prepare his estimate he examined the home, called for material prices, and estimated labor charges. Thus, the jury‘s reliance on Huff‘s estimate, not Szabuniewicz‘s estimate, to find that the amount of pecuniary loss was $1,500 or more is not against the great weight of the evidence, as Szabuniewicz‘s estimate was not definite regarding the total cost to repair all the damage to the home. See Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App.1996). Espinoza‘s first sub-point of his second point is overruled.
In his third point of error Espinoza asserts that the court‘s charge to the jury was fundamentally erroneous because it authorized the jury to convict if the jurors believed Espinoza simply attempted to commit criminal mischief causing damage of $1,500 or more. Espinoza argues that the attempt to commit criminal mischief ($1,500 or more but less than $20,000) is not a felony, but a class A misdemeanor, and this offense cannot be used to convict him of burglary under section 30.02(a)(3) of the Penal Code. See
After reviewing Espinoza‘s jury charge, we conclude that it does not contain fundamental error. In determining whether a defendant may be convicted of burglary when the completed offense the defendant attempted to commit is classified as a felony, but the attempt to commit the felony is itself classified as a misdemeanor by the Penal Code, we begin our analysis by looking for the plain, unambiguous meaning of the phrase “attempts to commit a felony” contained in the burglary statute.
Moreover, Espinoza contends the jury charge is fundamentally flawed because it allowed the jury to convict if the jury found Espinoza “attempted or committed” criminal mischief when the indictment alleged that Espinoza had “attempted and committed” this crime. An indictment may plead alternative methods of committing an offense conjunctively, but the charge may properly instruct the jury in the disjunctive to allow a conviction “if the evidence is sufficient to support a finding under any of the theories submitted.” Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991); see Manning v. State, 864 S.W.2d 198, 202 (Tex.App.—Waco 1993, pet. ref‘d). For example, in McDuff v. State, the indictment alleged that the defendant had committed “capital murder via murder in the course of committing and attempting to commit aggravated sexual assault and aggravated kidnaping.” 939 S.W.2d 607, 614 (Tex.Crim.App.1997) (emphasis added). But in McDuff, as in the instant case, while the indictment charged the two methods of committing capital murder conjunctively, the jury charge was phrased in the disjunctive to allow a conviction if the murder occurred “in the course of committing or attempting to commit aggravated sexual assault or aggravated kidnaping.” Id. at 614 & n. 2 (emphasis added). Consequently, we find no fundamental error in Espinoza‘s jury charge because the State may conjunctively plead two methods of committing the offense of burglary in the indictment, i.e. by attempting and committing criminal mischief, but have the jury instructed on these two methods in the disjunctive. See
In his fourth point of error Espinoza claims that Wiley‘s identification of him was tainted by an impermissibly suggestive identification procedure. On October 8, one of the police officers responding to the emergency call found marijuana in Espinoza‘s pocket during a pat-down for weapons. After the drugs were found, Espinoza was arrested, placed in handcuffs, and put in the back of a police car. Later other officers had Wiley come out of his home to identify the persons involved in the break-in at his house, and Wiley identified Espinoza, Galvan, and Prado as being participants.2 During this identification Espinoza was sitting in the police car, but Galvan and Prado were not in police vehicles because they had not been arrested. As the police officers continued to investigate the incident, Prado was determined by police not to have participated in the break-in at Wiley‘s home, and Wiley testified that he apologized to Prado for the mis-identification.
On appeal the State contends that any error in Wiley‘s in-court identification of Espinoza was waived. At trial there was no objection to Wiley‘s in-court identification of Espinoza, nor was there any written pre-trial motion to suppress Wiley‘s in-court identification.3 However, after Wiley testified and identified Espinoza, Officer Ratekin testified about the identification procedure used at the time of the incident. Following the officer‘s testimony, Espinoza‘s lawyer moved for a mistrial claiming that Espinoza‘s due process
In order to preserve error for appeal, an attorney must make a timely, specific objection as soon as the ground for objection becomes apparent. Lagrone v. State, 942 S.W.2d 602, 618 (Tex.Crim.App.1997); Penry v. State, 903 S.W.2d 715, 763 (Tex.Crim.App.1995); Reed v. State, 927 S.W.2d 289, 291 (Tex.App.—Fort Worth 1996, no pet.); Moreno v. State, 821 S.W.2d 344, 353 (Tex.App.—Waco 1991, pet. ref‘d). If an objection is not made until after objectionable testimony has been given, then error is waived unless a “legitimate reason to justify the delay” is shown. Lagrone, 942 S.W.2d at 618; see Crane v. State, 786 S.W.2d 338, 348 (Tex.Crim.App.1990) (holding that the defendant‘s objection to a witness’ in-court identification was timely following the witness’ testimony because the defendant‘s lawyer cross-examined the witness on a pre-trial photo line-up which had not been disclosed to defense counsel).
Even assuming that error has not been waived by the failure to object to Wiley‘s in-court identification of Espinoza, we conclude that the trial court did not abuse its discretion in overruling Espinoza‘s motion for a mistrial because Wiley‘s identification of Espinoza need not be suppressed. In determining if the suggestiveness of an out-of-court identification prohibits a later in-court identification, the court must look at “1) whether the out-of-court identification procedure was impermissibly suggestive; and 2) whether that suggestive procedure gave rise to a very substantial likelihood of irreparable misidentification.” Barley v. State, 906 S.W.2d 27, 33 (Tex.Crim.App.1995) (footnote omitted); Smith v. State, 930 S.W.2d 227, 228 (Tex.App.—Beaumont 1996, pet. ref‘d) (quoting Barley). Factors to consider in deciding whether there is a “very substantial likelihood” a reliable in-court identification cannot be made by the witness include:
- the witness’ opportunity to view the criminal at the time of the crime;
- the witness’ degree of attention;
- the accuracy of the witness’ prior description of the criminal;
- the level of certainty demonstrated at the pre-trial confrontation; and
- the time between the crime and the confrontation.
Woodard v. State, 931 S.W.2d 747, 750 (Tex.App.—Waco 1996, no pet.); see Barley v. State, 906 S.W.2d at 34; Smith, 930 S.W.2d at 228-29.
From Wiley‘s testimony in court, it is apparent that Wiley had a clear, unobstructed view of Espinoza and that Wiley‘s attention was focused on Espinoza throughout the incident, as Espinoza was one of the main participants in the group who instigated the fight and break-in. Espinoza was the first person Wiley spoke to in asking that the loud music be turned down. In response to this request Espinoza refused, saying that the music would not be turned down for anyone, and Espinoza pushed Wiley, thereby starting the fighting. After the fighting began, Wiley stated that Espinoza was one of the first men who entered his home after his front door was broken down, and once inside Espinoza continued fighting with Wiley. Additionally, Wiley‘s identification of Espinoza occurred only fifteen or twenty minutes after the break-in and Wiley testified that the identification was not the result of a suggestion by police officers.
Espinoza‘s brief argues that because Wiley mis-identified Prado as being a participant, all of Wiley‘s identifications should be considered unreliable. Wiley testified at trial that there were a total of ten to twelve men in his home that evening and that he “couldn‘t have recognized all of them.” Thus, Wiley explained that when he saw Prado with two men he did recognize, Espinoza and Galvan, he assumed Prado had been in his home as
After reviewing the evidence in the record, we hold that the trial court did not abuse its discretion in overruling Espinoza‘s motion for a mistrial. While it is true that on-the-scene identification of suspects is somewhat suggestive, this procedure is often beneficial to police as it allows the victim to identify a suspect immediately after a crime has been committed. Garza v. State, 633 S.W.2d 508, 512 (Tex.Crim.App.1981); Powell v. State, 837 S.W.2d 809, 811 (Tex.App.—Houston [1st Dist.] 1992, pet. ref‘d). Wiley‘s testimony demonstrates that he had an excellent opportunity to view Espinoza, who was one of the main participants in the break-in, and consequently Wiley‘s in-court identification of Espinoza was not rendered unreliable by suggestive police procedures. Espinoza‘s fourth point is overruled.
The judgment is affirmed.
VANCE, J., concurring.
VANCE, Justice, concurring.
I write again to urge the Court of Criminal Appeals to reexamine the standard of review adopted in Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996). See Mata v. State, 939 S.W.2d 719, 728 (Tex.App.—Waco 1997, no pet.) (Vance, J., concurring).
A different approach would be taken in the analysis of the factual sufficiency of the evidence to support the jury‘s determination that the value of the property damaged in Wiley‘s home was at least $1,500 if we were asking whether the finding is clearly wrong and unjust given the reasonable doubt standard, rather than the question required by Clewis: does the weight of the evidence actually favor acquittal? See id. at 729. The evidence of the cost of repairs given through the testimony of Szabuniewicz, the owner of the house, might be weighed differently under the analysis I suggested in Mata than under the analysis required by Clewis.
With this observation, I join the court‘s opinion.
CUMMINGS
Justice