Ernest Guerra v. State ( 2007 )

MEMORANDUM OPINION

No. 04-06-00245-CR

Ernest GUERRA, Appellant

v.

The STATE of Texas, Appellee

From the 218th Judicial District Court, Atascosa County, Texas Trial Court No. 05-05-0136-CRA Honorable Donna S. Rayes, Judge Presiding

Opinion by: Alma L. López, Chief Justice

Sitting: Alma L. López, Chief Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

Delivered and Filed: March 14, 2007

AFFIRMED

A jury convicted Ernest Guerra of six counts of burglary of a habitation, and the trial court assessed punishment at sixty years imprisonment. On appeal, Guerra contends that he was denied effective assistance of counsel and that the evidence is legally insufficient to support: (1) his conviction; and (2) the trial court's finding of true to the four enhancement allegations in his indictment. We affirm the trial court's judgment.

Background

In the fall of 2004, several burglaries occurred in the rural areas of Atascosa County. All of the burglaries were committed during daylight hours when the owners were not at home. In November, one of the homeowners, Daniel Delafuente, returned home with his brother and noticed an unfamiliar car parked outside his gate. Delafuente saw a man inside the car and noticed two men walking from his house toward his gate. When he asked the men why they were there, one of them told him that they were looking for a jack for a friend whose car had broken down. Delafuente told them he did not have a jack and asked them to leave his property. After they left, he returned to his home to find that it had been burglarized. His brother gave police the license plate number of the men's car. Police discovered that the car was registered to Guerra and another person. Delafuente later identified Guerra in a photo lineup and at trial as the man he spoke to in his driveway, and Delafuente's brother identified Guerra's car in photos shown to him by police. Guerra's car also matched the description of a car seen near two of the other burglaries. Police later discovered several pawn tickets with Guerra's name listing some of the items stolen in the burglaries. Officers recovered some of the stolen property from pawn shops, from Guerra's car, and from the residence where Guerra lived with his girlfriend.

Ineffective Assistance of Counsel

In his first point of error, Guerra contends that trial counsel was ineffective in failing to object to a wide range of allegedly inadmissible evidence. To reverse a criminal defendant's conviction on ineffective assistance grounds, the defendant must demonstrate by a preponderance of the evidence that: (1) counsel's performance was so deficient as to fall below an objective standard of reasonableness; and (2) there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812, 813 (Tex. Crim. App. 1999); Hernandez v. State, 198 S.W.3d 257, 269 (Tex. App.-San Antonio 2006, pet. ref'd). We look to the totality of the representation at trial, not isolated acts or omissions of counsel in hindsight. Thompson, 9 S.W.3d at 813; Hernandez, 198 S.W.3d at 269. To show deficient performance, the first prong of the Strickland standard, Guerra must prove that his counsel's performance fell below an objective standard of reasonableness and must rebut the presumption that counsel's trial decisions were based on sound trial strategy. Thompson, 9 S.W.3d at 812, 814. To satisfy this prong, any allegations of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. at 814. In most cases, a silent record that provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Thompson, 9 S.W.3d at 813-14.

Guerra contends that his trial counsel failed to object to: (1) prejudicial evidence; (2) evidence obtained in the search of the home where Guerra lived with his girlfriend; (3) evidence obtained in the search of Guerra's car; and (4) hearsay evidence. However, Guerra did not raise his ineffective assistance claims in his motion for new trial. Thus, the record is silent as to defense counsel's reasons for his decisions. Absent record evidence to the contrary, we must presume that counsel's conduct fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813-14. To conclude that the representation by Guerra's counsel was deficient without a proper record exploring counsel's trial strategy would require this court to speculate as to counsel's motivation and reasoning, which we may not do. See Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). Because the record is silent, Guerra cannot overcome the presumption that his trial counsel's decisions fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 814. Accordingly, we overrule Guerra's first point of error.

Legal SufficiencyA. Conviction

In his second point of error, Guerra contends that the evidence is legally insufficient to support his conviction under any of the six counts of burglary of a habitation. In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Margraves v. State, 34 S.W.3d 912, 917 (Tex. Crim. App. 2000). This standard of review applies to cases involving both direct and circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). Although we consider all of the evidence presented at trial, we may not substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The trier of fact is the sole judge of the weight and credibility of the evidence. Margraves, 34 S.W.3d at 919.

A person commits the offense of burglary of a habitation if he enters a habitation not then open to the public without the effective consent of the owner and with intent to commit a felony, theft, or an assault or if he commits or attempts to commit a felony, theft, or an assault. See Tex. Penal Code Ann. § 30.02(a) (Vernon 2003). Here, the indictment alleged that Guerra intentionally and knowingly entered six habitations without the consent of the owners and attempted to commit and did commit theft of property. On appeal, Guerra contends that the evidence is legally insufficient to support a finding that he was the person who committed the six burglaries. We consider each of the burglaries in turn.

Danny Delafuente

Delafuente returned home to find two men on his property coming from the direction of his house and another man in a car outside his gate. Delafuente's brother also arrived at his house at this time. Neither Delafuente nor his brother knew the three men. Delafuente spoke with one of the men, who told him they were looking for a jack for a friend whose car had broken down. Delafuente later identified the man he spoke to as Guerra in a photo line-up and at trial. Just minutes after the men left his property, Delafuente returned to his house to find it burglarized. Delafuente's brother gave police the license plate number of the car being used by the men, who drove away. Police discovered that the car was registered to Guerra and another person. Delafuente's brother also identified Guerra's car - a green, four-door Ford Escort - in photos shown to him by police.

Roland Martinez

Roland Martinez's neighbor, Jason Woodley, and Woodley's former girlfriend, Rebecca Yates, testified that they were leaving Woodley's house when they saw a man close Martinez's gate and then jump into the passenger seat of a green, four-door car as the car sped out of Martinez's driveway. Woodley and Yates later learned that Martinez's home had been burglarized on that day. They testified that they saw three people: a driver, a person in the back seat of the car, and the man who shut the gate and entered the front passenger seat of the car. Yates testified that the driver of the car was male. Another neighbor, James Kruse, testified that he saw a small, green Escort coming from the direction of Martinez's home at a high rate of speed on the day of the burglary. Police later discovered a saddle stolen from Martinez's home in the home where Guerra lived with his girlfriend.

Patrick McGill

David Soward, chief deputy sheriff for the Atascosa County Sheriff's Office, testified that Patrick McGill's neighbor observed a green car at McGill's home during the time that the burglary occurred. The neighbor told the police that he saw two or three Hispanic males in the car. A pellet rifle stolen from McGill's home was later discovered in the home where Guerra lived with his girlfriend.

Tommy Hickok and Ricky Schultz

Police discovered pawn receipts identifying Guerra as the person who pawned a drill stolen from Tommy Hickok's home and jewelry stolen from the home of Ricky Schultz. Police recovered the property at two pawn shops. Guerra pawned Hickok's drill six days after the burglary at Hickok's home and Schultz's jewelry five days after the burglary at Schultz's home.

Rafael Resendez

The burglary of Resendez's home occurred on the same day as that of Schultz's home. The two homes are approximately nine miles apart. When Schultz returned home after the burglary occurred, he saw a television and some other items lying in his yard that had not been there when he left his home forty minutes earlier. Police later determined that the items lying in Schultz's yard were stolen from Resendez's home.

Discussion

Viewing all the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found the essential elements of each count of burglary of a habitation. Guerra was directly linked to the burglary at Delafuente's home by Delafuente's identification of Guerra as the man he spoke to in his driveway and Delafuente's brother's identification of Guerra's car and license-plate number. Guerra was linked to the burglaries at Martinez's and McGill's homes by the discovery of stolen property from both burglaries at the home where he lived with his girlfriend and by witness testimony placing a green car matching the description of Guerra's car at or near the scene of both burglaries. Evidence linking Guerra to the burglaries of the homes of Hickok and Schultz consisted of pawn receipts showing that Guerra pawned items stolen in both burglaries. ⁽¹⁾ Finally, because Guerra can be directly linked to the burglary at Schultz's home, he is also indirectly linked to the burglary of the Resendez home because both burglaries occurred on the same day, the homes were only nine miles apart, and items stolen from Resendez's home were found in Schultz's yard.

In addition to the evidence connecting Guerra to each burglary, the record shows that all six burglaries also had three similarities: (1) each of the homes was slightly isolated and in a rural area of Atascosa County; (2) all the burglaries occurred within less than two months; and (3) all the burglaries occurred during the daylight hours when the residents were away from home. Also, witnesses saw a green car at or near the scene of three of the burglaries. Based on the evidence connecting Guerra to each burglary and the evidence of similarities among the burglaries, we conclude that a rational trier of fact could have found the essential elements of each count of burglary of a habitation. Accordingly, we hold that the evidence is legally sufficient to support Guerra's conviction on all six counts of burglary of a habitation.

B. Enhancement

In his third point of error, Guerra contends that the evidence is legally insufficient to sustain the trial court's finding of true to the four enhancement allegations in the indictment. Guerra argues that the evidence is legally insufficient as a result of: (1) defects in the enhancement allegations of the indictment; and (2) variances between the convictions charged in the enhancement allegations and the proof presented at the punishment phase of trial. The first defect alleged by Guerra is that the indictment states an incorrect cause number and offense for his second conviction. The second alleged defect is that the indictment lists Guerra's third and fourth convictions as taking place in an incorrect court. A defendant must object before trial to a defect in the form or substance of an indictment, including a defect in the enhancement allegations, or he waives the right to raise the objection on appeal. See Tex. Code. Crim. Proc. Ann. art. 1.14(b) (Vernon 2005); Ex parte Patterson, 969 S.W.2d 16, 19-20 (Tex. Crim. App. 1998) (holding that defect in enhancement portion of indictment required objection before trial to preserve error). Here, Guerra did not object to the indictment before trial. Because he did not properly object, he failed to preserve error for our review.

Guerra also points out variances between the cause numbers in the enhancement allegations and the proof presented at trial. Specifically, when the State's attorney read the enhancement allegations during the punishment phase, he added a zero before each of the first two numbers in each cause number. Thus, the indictment lists the cause numbers as 87-CR-4087-A; 87-CR-43335; 92-CR-3728A; and 92-CR-3558B, but the State's attorney read the numbers as 08-07-CR-4087-A; 08-07-CR-43335; 09-02-CR-3728A; and 09-02-CR-3558B. It is not necessary to allege prior convictions for enhancement purposes with the same particularity that must be used in charging the primary offense. Freda v. State, 704 S.W.2d 41, 42 (Tex. Crim. App. 1986); Cole v. State, 611 S.W.2d 79, 80 (Tex. Crim. App. [Panel Op.] 1981). The purpose of the enhancement allegation is to provide the accused with notice of the prior conviction relied upon by the State. Cole, 611 S.W.2d at 82. Absent proof of prejudicial surprise, a variance between the allegations in an indictment and the proof presented at trial is not material and does not require reversal. See Freda, 704 S.W.2d at 42; Cole, 611 S.W.2d at 82. Here, the penitentiary packets with the correct cause numbers were admitted into evidence during the punishment phase. Because Guerra does not allege that the variances between the cause numbers in the enhancement allegations and those read at the punishment phase surprised him to his prejudice, the variances are not material and do not require reversal. See Cole, 611 S.W.2d at 80, 82 (holding that variance between cause number alleged, 87954, and cause number proved, 87594, not material because no evidence of prejudicial surprise). We therefore overrule Guerra's third point of error.

Conclusion

We affirm the trial court's judgment.

Alma L. López, Chief Justice

Do Not Publish

1. A defendant's unexplained possession of recently stolen property permits an inference that the defendant is the person who committed the burglary. Poncio v. State, 185 S.W.3d 904, 905 (Tex. Crim. App. 2006). To warrant an inference of guilt based solely on the possession of stolen property, the possession must be personal, recent, unexplained, and involve a distinct and conscious assertion of right to the property by the defendant. Sutherlin v. State, 682 S.W.2d 546, 549 (Tex. Crim. App. 1984). Ordinarily, whether property is "recently" stolen is a question of fact. Id. We conclude that the evidence is sufficient to support the jury's implicit finding that the stolen property pawned by Guerra within one week of each of the burglaries was recently stolen. See Crain v. State, 529 S.W.2d 774, 775 (Tex. Crim. App. 1975) (finding that car recovered thirty days after theft was recently stolen). Further, the record shows that Guerra did not provide an explanation for why he possessed the property. Also, by pawning the stolen property, Guerra established that his possession of the property was personal and involved a distinct and conscious assertion of right to the property. See Taylor v. State, 921 S.W.2d 740, 745 (Tex. App.-El Paso 1996, no pet.) (holding sale of stolen property to pawn shop sufficient to establish both personal possession and assertion of conscious and distinct right to property). Accordingly, we conclude that Guerra's possession of the stolen items is sufficient to raise an inference that he committed the burglaries of Hickok's and Schultz's homes.