Paul Lee Navarro v. State ( 2018 )

NUMBER 13-17-00197-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
PAUL LEE NAVARRO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 357th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Chief Justice Valdez
Appellant Paul Lee Navarro appeals his convictions of theft of a firearm, a state jail
felony, TEX. PENAL CODE ANN. § 31.03 (West, Westlaw through 2017 1st C.S.), burglary
of a habitation, a second-degree felony, id. § 30.02 (West, Westlaw through 2017 1st
C.S.), and unlawful possession of a firearm by a felon, a third-degree felony. Id. § 46.04
(West, Westlaw through 2017 1st C.S.). The trial court sentenced appellant to concurrent
sentences of two years’ confinement for the theft of a firearm charge and ten years’
confinement for each of the other two convictions. By six issues, appellant contends that
the evidence is insufficient to support each of his three convictions, the trial court
improperly commented on the weight of the evidence during his closing argument and in
the jury charge, and there is cumulative error. 1 We affirm.
I. SUFFICIENCY OF THE EVIDENCE
By his first, second, and third issues, appellant contends that the evidence is
insufficient to support his convictions of burglary of a habitation, unlawful possession of a
firearm by a felon, and theft of a firearm.
A. Standard of Review
To determine whether the evidence is sufficient, we consider all the evidence in
the light most favorable to the verdict and determine whether a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt based on the
evidence and reasonable inferences from that evidence. Whatley v. State, 445 S.W.3d
159, 166 (Tex. Crim. App. 2014); Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim.
App. 2010). The fact finder is the exclusive judge of the facts, the credibility of witnesses,
and the weight to be given their testimony. Brooks, 323 S.W.3d at 899. We resolve any
evidentiary inconsistencies in favor of the judgment. Id.
In our sufficiency review, “direct evidence of the elements of the offense is not
required.” Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007). It is not dispositive
of the issue of the defendant’s guilt if direct evidence is lacking. Guevara v. State, 152
1 We have renumbered appellant’s issues and will address them as renumbered.
2
S.W.3d 45, 49 (Tex. Crim. App. 2004). Circumstantial evidence is as probative as direct
evidence, and juries are permitted to make reasonable inferences from the evidence
presented at trial and in establishing the defendant’s guilt. Hooper, 214 S.W.3d at 15.
The defendant’s guilt may be established sufficiently by circumstantial evidence alone.
Guevara, 152 S.W.3d at 49. “Each fact need not point directly and independently to the
guilt of the appellant, as long as the cumulative force of all the incriminating circumstances
is sufficient to support the conviction.” Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App.
2014); Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013).
One of the strongest kinds of evidence of guilt is a “consciousness of guilt.” Torres
v. State, 794 S.W.2d 596, 598 (Tex. App. 1990) (citing and quoting Ray, Texas Practice
Vol. 2, Law of Evidence, § 1538, at 242 (1980)). Thus, “any conduct on the part of a
person accused of a crime subsequent to its commission, which indicates a
‘consciousness of guilt’ may be received as a circumstance tending to prove that he
committed the act with which he is charged.” Id. Providing false statements is indicative
of a consciousness of guilt and an attempt to cover up a crime. See King v. State, 29
S.W.3d 556, 565 (Tex. Crim. App. 2000) (considering the appellant’s untruthful letters to
the media concerning the events occurring during the evening of the crime in its
sufficiency analysis); Couchman v. State, 3 S.W.3d 155, 163–64 (Tex. Crim. App. 1999)
(stating that the fact that the appellant initially changed his story is evidence of his
consciousness of guilt and that the jury could have reasonably concluded that the
appellant lied because he had something to hide); see also Richmond v. State, No. 13-
10-00349-CR, 2012 WL 3265088, at *6 (Tex. App.—Corpus Christi Aug. 9, 2012, pet.
ref’d) (mem. op., not designated for publication) (concluding that the “fact-finder could
3
infer from appellant’s changing story that he was trying to cover up that [a witness] had
seen him hauling items that he had stolen from Bruns’s property”).
B. The Evidence
1. Nelson Snavely’s Testimony
At appellant’s trial, Nelson Snavely, testified that on February 12, 2016, a burglary
occurred at his residence in Harlingen, Texas while he was on vacation in Las Vegas,
Nevada. According to Snavely, on the day of the burglary, Snavely’s mother, who was at
his home with his children, took the children to school, and she did not return to the home
all day. Snavely stated that, while he was in Vegas, his mom, who was hysterical, called
to tell him that someone had “broken into . . . the house.” Snavely and his wife were
unable to return home that day, and they had to return on the originally planned departure
date. Snavely testified that when he arrived, the house “was a disaster” with drawers left
open and items taken out and thrown around. Snavely clarified that the mess occurred
mainly in the master bedroom which contained a vault. Snavely, a gun collector,
explained that the vault containing several weapons had been stolen. Snavely clarified
that there were twenty-two weapons, a lot of ammunition, and “a lot of different items in
[it] that were valuable to [him].” Snavely described the vault as “a 700-pound safe” that
was “six feet tall, four feet wide, four feet deep, so a very big safe.” Snavely stated that
other items stolen included televisions, jewelry, his wife’s purses, credit cards, “and things
like that.” Snavely testified that he had also hidden $30,000 within the walls of the safe.
Snavely, appellant’s boss, stated that he invited appellant into his home and that
appellant had a question about his security system. Snavely testified that he informed
appellant that the security system was not working, and the conversation ended. Snavely
4
stated that although appellant had never been in his bedroom, appellant had seen
Snavely’s safe when Snavely sent appellant “a Snapchat, which is a social media thing.”
Snavely further explained that although appellant had not actually seen his gun collection,
appellant was aware of it and appellant was aware that Snavely was going to Las Vegas.
Snavely also testified that he saw his guns once more after the burglary when the
police showed him a video of his guns. Snavely elaborated, “There was a video of the
gentleman showing—or a video recording every single weapon and saying things in the
background about the weapons.” According to Snavely, the voice on the video was not
appellant’s voice.
Snavely stated that he had recovered a nine-millimeter gun after the burglary,
which the Harlingen Police Department located at a residence where codefendant
Pasqual Fernandez (Pasqual) was found.
Snavely testified that he suspected that appellant was responsible for the burglary,
and he attempted to get information regarding the burglary by asking appellant if he had
committed the offense. According to Snavely, appellant denied any involvement in the
crime. Snavely stated that in the past appellant had asked him for loans for $8,000 and
$7,000. Snavely said that eventually he loaned appellant $800, which appellant paid
back. According to Snavely, “a little less than a month” prior to the burglary, appellant
was involved in an automobile accident, his car was impounded, and he asked Snavely
for another loan. Snavely stated that he refused to give appellant the loan.
During cross-examination, Snavely testified that his mother, wife, and children
knew about the safe in his bedroom. Snavely agreed that during his Las Vegas trip, he
sent private messages on Snapchat to his mother, his sister, Blanca Moreno, Francis
5
Moreno, his employee Guadalupe Elizondo, and appellant. Snavely denied that he sent
other friends messages. Appellant’s trial counsel asked, “So there’s potentially three or
four people other than yourself that know you’re in Vegas, and three or four other people
that potentially know you have a safe in your closet, correct?” Snavely said, “Correct.”
On redirect examination by the State, Snavely denied ever posting messages on
social media that he was going to Las Vegas or that he was away from his home. Snavely
clarified that only his mother, his office staff, and Guadalupe Elizondo knew of his trip.
After the burglary, Snavely fired appellant and Elizondo.
2. Manuel Trevino’s Testimony
The chief of police for the city of Primera, Texas, Manuel Trevino, testified that he
was familiar with this case and that a tipster made a call to a Crime Stoppers Officer about
a video showing some weapons that were allegedly taken during a burglary. According
to Chief Trevino, the Crime Stopper caller indicated that he had received the video from
Pasqual so that the Crime Stopper caller could find a buyer for the weapons.
Chief Trevino testified that the Harlingen Police Department conducted a search of
Pasqual’s residence and they located one of Snavely’s guns, which had been entered
into “the National Crime Stolen Property data base.” Chief Trevino stated that after
showing Pasqual the video, he proceeded to a storage facility in Harlingen where
appellant and a codefendant Juan Jaquez rented a storage unit. Chief Trevino acquired
the surveillance video and entrance code records to the storage facility. The earliest date
of the surveillance video is February 12, the same day that the burglary occurred.
The State published the surveillance video to the jury with Chief Trevino describing
what had occurred in the video. Chief Trevino stated that the video first showed two vans
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entering the storage facility, one van driven by Jaquez and the other van driven by
appellant. According to Chief Trevino, the video shows appellant and Jaquez enter the
storage facility’s office and make the contract to rent the storage unit. Chief Trevino
testified that there was not a video camera pointed in the direction of the storage unit
rented by appellant, that key pad records show that appellant entered the storage facility
approximately eleven times, and that when the police officers searched the unit
approximately one month after the burglary there was nothing but some old tire rims in it.
Chief Trevino testified that the video of the guns was filmed “[i]nside the storage unit.”
On cross-examination, Chief Trevino clarified that he knew that the video of the
guns sent to the police by the Crime Stopper caller had been made in the storage unit
rented by appellant because Pasqual told him so. When appellant’s trial counsel asked
if Pasqual told Chief Trevino that he made the video, Chief Trevino responded that
Pasqual said that he and appellant made the video together.
3. Joe Aldape’s Testimony
Joe Aldape, a sergeant with the Primera Police Department, testified that he
interviewed appellant. Appellant denied involvement in the burglary and told Sergeant
Aldape that “he was asleep all day” on February 12 and that he had to pick up his daughter
at school at approximately three o’clock p.m. Sergeant Aldape stated that appellant said
his wife had already picked up his child from school, so appellant stayed home. When
asked by the State based on the surveillance video of the storage unit, “Is what [appellant]
said correct,” Sergeant Aldape replied, “No, it is not correct.” Sergeant Aldape explained
that the videos from the storage facility showed appellant entering the premises at the
time appellant stated he was home. Sergeant Aldape continued that about one hour later,
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appellant returned to the storage facility and signed the contract to rent a storage unit.
When asked by the State if appellant “ever correct[ed] that fact,” Sergeant Aldape said,
“No, he didn’t.” Sergeant Aldape testified that he observed on the video that appellant
entered the storage facility “approximately, maybe seven to eight times. . . .” Sergeant
Aldape stated that on one occasion appellant entered the storage facility in a Chrysler
300 belonging to Pasqual. When the State asked, what he learned or determined during
his investigation about the weapons. Sergeant Aldape replied, that appellant “was
attempting to find some buyers for those weapons.” Sergeant Aldape testified that the
video from the storage facility shows that when appellant and Jaquez rented the unit on
February 12, Jaquez signed the paperwork under his name, and appellant gave money
to Jaquez who then paid the employee of the storage facility for the unit. Sergeant Aldape
clarified that appellant’s name is not on the contract.
The State showed Sergeant Aldape the video of the guns sent by the Crime
Stopper caller and asked him to identify rust marks on the walls of the storage unit. The
State then showed Sergeant Aldape the video made by police officers of the unit rented
by appellant and Jaquez and asked him to compare the rust marks on the wall. Sergeant
Aldape stated the rust stains on the wall in the unit appearing in the video of the guns
matched the rust stains on the wall in the video of the unit rented by appellant and
Jaquez. 2 Sergeant Aldape also identified a water stain that appears on a cinder block
wall in the video made by police officers that he stated matched a stain on the same level
of the cinder block wall in the video of the guns allegedly made by appellant.
2 State’s exhibit 3 includes a picture of the unit rented by appellant and Jaquez showing that the
two side walls are made of tin and the back wall is made of cinder blocks with a cement floor.
8
On cross-examination, Sergeant Aldape testified that he was also involved in a
consensual search of Guadalupe Elizondo’s storage unit at the same storage facility
where appellant and Jaquez rented their unit. Sergeant Aldape stated that no video
existed of the search of Elizondo’s storage unit but that the walls in Elizondo’s unit were
all made of tin.
B. Discussion
1. Burglary
By his first issue, appellant contends that the evidence is insufficient because “the
proof fails on identity of [appellant] as the actor” who committed the burglary, which we
construe as an argument that the evidence failed to sufficiently identify appellant as the
person who committed the burglary. 3 Appellant does not challenge any other element of
that crime. Specifically, appellant argues that there is no direct evidence that he was the
person who committed the burglary. However, direct evidence is not required. Hooper,
214 S.W.3d at 15. Evidence that appellant knew that Snavely was out of town, had an
inoperable security system, owned guns, and had a vault, combined with evidence that
appellant made the video of Snavely’s guns to sell to the Crime Stoppers caller leads to
a reasonable inference that appellant participated in the burglary. Moreover, by lying to
police about his whereabouts on the date of the burglary, appellant showed a
consciousness of guilt, which is one of the strongest kinds of evidence of guilt. Torres,
794 S.W.2d at 598; see also King, 29 S.W.3d at 565. Viewing the evidence in the light
most favorable to the to the verdict, we conclude that a rational fact finder could have
3 An authorized by the indictment, appellant committed the offense of burglary of a habitation “if,
without the effective consent of the owner,” he entered a habitation and committed a theft. See id. § 30.02
(West, Westlaw through 2017 1st C.S.).
9
found beyond a reasonable doubt that appellant was the person who committed the
burglary. See Whatley, 445 S.W.3d at 166; Brooks, 323 S.W.3d at 898–99. Accordingly,
the evidence is sufficient to support appellant’s conviction of burglary. We overrule
appellant’s first issue.
2. Possession of a Firearm by a Felon
By his second issue, appellant argues that the evidence is insufficient to support
his conviction of possession of a firearm by a felon because there is no evidence that he
personally possessed a firearm. 4 Appellant does not challenge the other elements of this
offense. Specifically, appellant points out that Chief Trevino, “had no evidence that
[appellant] had possession of any stolen gun” and Sergeant Aldape “said that Navarro’s
fingerprints did not match those Sergeant Aldape found.” As previously explained there
is sufficient evidence that appellant participated in the burglary of home wherein a vault
with several guns was stolen. In addition, there is evidence that appellant made the video
of the guns with the intent to sell those guns, which leads to a rational finding that he
possessed those guns. Viewing the evidence in the light most favorable to the verdict,
we conclude that a rational fact finder could have found beyond a reasonable doubt that
appellant possessed a gun. See Whatley, 445 S.W.3d at 166; Brooks, 323 S.W.3d at
898–99. We overrule appellant’s second issue.
3. Theft of a Firearm
4A person commits the offense of unlawful possession of a firearm if that person has previously
been convicted of a felony and possesses a firearm either “after conviction and before the fifth anniversary
of the person’s release from confinement of the felony or the person’s release from supervision under
community supervision parole, or mandatory supervision, whichever date is later.” TEX. PENAL CODE ANN.
§ 46.04 (West, Westlaw through 2017 1st C.S.).
10
By his third issue, appellant contends that the evidence is insufficient to prove that
he committed the offense of theft of a firearm because there is no evidence that he
appropriated [a gun] knowing it was stolen by another or that he “acquire[d] or otherwise
exercise[d] control over property . . . .” As authorized by the indictment, appellant
committed the offense of theft of a firearm, if he unlawfully appropriated a firearm with the
intent to deprive the owner of the property. Id. § 31.03(a), (e)(4) (West, Westlaw through
2017 1st C.S.). We construe appellant’s issue as challenging that he unlawfully
appropriated a firearm. 5
As previously set out above, the evidence is sufficient to support a finding that
appellant participated in the burglary of Snavely’s home wherein a vault was stolen
containing many guns and that appellant made a video of those guns to sell them.
Snavely testified the items were taken from his house while he was out of town and no
one was home. The evidence showed that the door to Snavely’s home had been pulled
off, that his vault containing many guns had been taken, and that Snavely described the
event as a theft of his property. These facts lead to a reasonable inference that appellant
did not have Snavely’s effective consent to appropriate his property. Viewing the
evidence in the light most favorable to the verdict, we conclude that a rational fact finder
could have found beyond a reasonable doubt that appellant appropriated the property
5 There are three ways that appropriation of property is unlawful including the following: (1) the
appropriation “is without the owner’s effective consent”; (2) “the property is stolen and the actor appropriates
the property knowing it was stolen by another”; or (3) if “property in the custody of any law enforcement
agency was explicitly represented by any law enforcement agent to the actor as being stolen and the actor
appropriates the property believing it was stolen by another.” Id. § 31.03(b)(1)–(3) (West, Westlaw through
2017 1st C.S.). Appellant only challenges the second way that appropriation of property is unlawful.
However, the State’s theory at trial was that appellant’s appropriation of the property was unlawful because
it was without the owner’s effective consent. See id. Appellant does not challenge this basis for the jury’s
verdict. Nonetheless, as further explained below, the evidence is sufficient in that respect.
11
without Snavely’s effective consent based on the evidence and reasonable inferences
from that evidence. See Whatley, 445 S.W.3d at 166; Brooks, 323 S.W.3d at 898–99.
Accordingly, the evidence was sufficient to support appellant’s conviction for theft of a
firearm. We overrule appellant’s third issue.
II. COMMENT ON THE WEIGHT OF THE EVIDENCE
By his fourth issue, appellant contends that the trial court violated article 38.05 of
the Texas Code of Criminal Procedure by improperly commenting on the weight of the
evidence concerning his conviction of felon in possession of a firearm. Specifically,
appellant argues that when the judge stated during appellant’s closing argument, that
Chief Trevino is “the chief of police. I don’t know any greater qualification than that,” he
commented on the weight of Chief Trevino’s testimony that appellant had a prior
conviction. See TEX. CODE CRIM. PROC. 38.05 (West, Westlaw through 2017 1st C.S.).
Appellant argues “[t]here was no documentary or other evidence of any prior conviction”
and “[n]o person other than Police Chief Manuel Trevino testified about any prior
conviction defendant had.”
A. Applicable Law and Standard of Review
Article 38.05 of the Texas Code of Criminal Procedure, prohibits a judge from
commenting on the weight of the evidence. Id. It states the following:
In ruling upon the admissibility of evidence, the judge shall not
discuss or comment upon the weight of the same or its bearing in the case,
but shall simply decide whether or not it is admissible, nor shall he, at any
stage of the proceeding previous to the return of the verdict, make any
remark calculated to convey to the jury his opinion of the case.
Id. A trial judge must not comment on the evidence in a manner that conveys his or her
opinion of the case to the jury as “[j]urors are prone to seize with alacrity upon any conduct
12
or language of the trial judge which they may interpret as shedding light upon his view of
the weight of the evidence, or the merits of the issues involved.” Brown v. State, 122
S.W.3d 794, 798 (Tex. Crim. App. 2003). “‘The trial court improperly comments on the
weight of the evidence if it makes a statement that implies approval of the State’s
argument, indicates disbelief in the defense’s position, or diminishes the credibility of the
defense’s approach to the case.’” Proenza v. State, 471 S.W.2d 35, 51 (Tex. App.—
Corpus Christi, 2015) aff’d in part and rev’d and remanded in part, 541 S.W.3d 786 (Tex.
Crim. App. 2017) (quoting and citing Simon v. State, 203 S.W.3d 581, 590 (Tex. App.—
Houston [14th Dist.] 2006, no pet.); Hoang v. State, 997 S.W.2d 678, 681 (Tex. App.—
Texarkana 1999, no pet.)).
We must perform a non-constitutional harm analysis pursuant to rule 44.2(b) of the
Texas Rules of Appellate Procedure to decide if a violation of 38.05 warrants reversal of
the conviction. Id. 471 S.W.2d at 801. Under Rule 44.2(b), any “error, defect, irregularity,
or variance that does not affect substantial rights must be disregarded.” TEX. R. APP. P.
44.2(b). “A substantial right is affected when the error had a substantial and injurious
effect or influence in determining the jury's verdict.” Ellis v. State, 517 S.W.3d 922, 931
(Tex. App.—Fort Worth 2017, no pet.). If we have a “‘fair assurance that the error did not
influence the jury, or had but slight effect,’” the error does not affect a substantial right.
Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001) (quoting Reese v. State,
33 S.W.3d 238, 243 (Tex. Crim. App. 2000)). When determining if the error caused harm
we review the whole record, “including any testimony or physical evidence admitted for
the jury's consideration, the nature of the evidence supporting the verdict, and the
character of the alleged error and how it might be considered in connection with other
13
evidence in the case.” Ellis, 517 S.W.3d at 931–32. We “may also consider the jury
instructions, the State’s theory and any defensive theories, whether the State emphasized
the error, closing arguments, and even voir dire, if applicable.” Id. at 932.
B. Analysis
During closing argument, appellant’s trial counsel stated, “Was it really proven to
us today that he committed any crimes in the past? There’s been testimony from an
officer unqualified to check records, right, but what else did we see?” (Emphasis added).
The State objected, and the prosecutor said, “It’s a misstatement of the facts. He is
qualified to check criminal history. He’s the chief of police.” (Emphasis added). The
judge replied, “He’s the chief of police. I don’t know any greater qualification than that.”
Taken in context, it is apparent that the judge’s comment was meant as a response
to the State’s assertion that a chief of police is qualified to check the criminal history of an
offender. The judge did not state that the chief of police had “great qualifications” to testify
about appellant’s criminal record as appellant claims. This interpretation is further
supported by the fact that during the trial, when the State offered Chief Trevino’s
testimony regarding appellant’s past criminal record, appellant’s trial counsel objected
stating, “I don’t think that he’s qualified to answer any criminal history background. I think
that the Court can take judicial notice since the Court does have access to background
information on everybody in this room.” The judge asked, “What’s your objection,” and
appellant’s trial counsel replied, “Objection is, Judge, he’s not qualified to answer.” The
trial court overruled the objection, and Chief Trevino testified about appellant’s criminal
history. Thus, when the judge made the complained-of comment, he was explaining the
basis for his overruling appellant’s trial counsel’s objection that Chief Trevino is not
14
qualified to check appellant’s criminal background. We disagree with appellant that the
trial court’s comment indicated that he believed the testimony of Chief Trevino. Thus, it
does not appear to us that the judge’s comment implies approval of the State’s argument,
indicates disbelief in the defense’s position, or diminishes the credibility of the defense’s
approach to the case. See Proenza, 471 S.W.2d at 51. Accordingly, we cannot conclude
that the trial court’s comment violated article 38.05. We overrule appellant’s fourth issue. 6
III. JURY CHARGE
Next, by his fifth issue, appellant contends that the trial court commented on the
weight of the evidence by instructing the jury that it should find appellant guilty if he “did
then and there unlawfully, with intent to commit theft, intentionally or . . . knowingly enter
a habitation without the effective consent of Nelson Snavely, who has a greater right of
possession of the habitation than the defendant. . . .” Appellant argues that this
instruction “injected new facts not in evidence.” Appellant takes issue specifically with the
trial court’s instruction that Snavely, had a greater right of possession of the habitation
than appellant. Appellant complains, “So, the Judge’s comment on the occasion specified
in the indictment is even more significant because it tells the jury that the Judge thinks
that the defendant did not have the effective consent of the owner because this owner of
this house ‘has a greater right of possession’ than the defendant.” We will address
appellant’s issue as best as we understand it.
The trial court should not submit a jury charge that comments on the weight of the
evidence. Lacaze v. State, 346 S.W.3d 113, 118 (Tex. App—Houston [14th Dist.] 2011,
6 Although appellant claims that no other evidence regarding his status as a felon had been
presented, appellant’s wife testified that she had discovered that appellant was a convicted felon.
15
pet. ref’d). A charge comments on the weight of the evidence if it assumes the truth of a
controverted issue or directs undue attention to particular evidence. Id.
The complained-of statement constitutes one of the definitions of owner that is also
included in the abstract portion of this jury charge. And after reviewing the entire record,
we find that appellant never claimed to have a greater right of possession of Snavely’s
home. During trial appellant did not contest that the burglary occurred at Snavely’s home,
and his trial counsel argued during opening and closing statements that “Somebody did
break into the Snavely household on February 12, 2016. The only issue in this case is
that it wasn’t [appellant].” Accordingly, we cannot conclude that by including this definition
of owner in the application paragraph, the trial court assumed the truth of a controverted
issue or directed undue attention to particular evidence. See id. And, even assuming
without deciding error, as appellant did not object to the charge, reversal requires a finding
of egregious harm, which has not been shown on this record as it was uncontested that
Snavely had a greater right of possession of the home than appellant, and the language
in the jury charge tracked the applicable statutory definition of owner. See Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (explaining how we review charge
error); see also Casey v. State, 215 S.W.3d 870, 886 (Tex. Crim. App. 2007) (concluding
that jury charge statement that the appellant “did administer or provide a drug, namely:
[GHB] to [K. T.], the victim of the offense,” without the modifier “alleged” before the term
“victim” was not a comment on the weight of the evidence as the charge did not assume
the truth of the controverted issue of consent and the charge tracked the language of the
statute); Itzo v. State, No. 04-17-00036-CR, 2018 WL 1072301, at *3 (Tex. App.—San
Antonio Feb. 28, 2018, pet ref’d) (mem. op., not designated for publication) (explaining
16
that the jury charge that named the person, Kelly, who was shot by the defendant in a
justification instruction was not assuming the truth of a controverted issue because
“Kelly’s identity, or rather the undisputed fact that Kelly is the person shot by [the
appellant], is not controverted. The controverted issue is [the appellant’s] belief he was
shooting at an unknown intruder.”). Accordingly, we overrule appellant’s fifth issue.
III. CUMULATIVE HARM
By his sixth issue, appellant contends that he did not have a fair trial due to
cumulative error.
Presumably to support his argument that he suffered cumulative harm, appellant
cites the record for instances wherein there were no objections, such as when the State
during closing argument stated that (1) “we know for sure . . . that [appellant is] a
convicted felon,” (2) the guns were Snavely’s guns, (3) appellant had been previously
convicted of burglary, and (4) the voice on the video of the guns was the voice of a co-
defendant. However, appellant did not object when the complained-of statements were
made. Thus, appellant’s complaints concerning these statements have not been
preserved and unpreserved error, if any, cannot form the predicate of a cumulative harm
analysis. See McFarland v. State, 989 S.W.2d 749, 751 (Tex. Crim. App. 1999) (holding
that in order to preserve error for review, an appellant must object to improper jury
argument); Gamboa v. State, 296 S.W.3d 574, 585 (Tex. Crim. App. 2009) (“Though it is
possible for a number of errors to cumulatively rise to the point where they become
harmful, we have never found that ‘non-errors may in their cumulative effect cause
error.’”).
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Next, appellant complains that he suffered cumulative harm because the trial court
admitted the video of the guns over his objection that it had not been properly
authenticated. Appellant does not provide a clear and concise argument with citation to
appropriate authority to support a conclusion that the video was inadmissible. See TEX.
R. APP. P. 38.1(i). Nonetheless, even assuming error, there are no other errors for there
to have been cumulative harm. See Gamboa, 296 S.W.3d at 585; see also Priddy v.
State, No. 02-13-00586-CR, 2014 WL 5307180, at *1 (Tex. App. — Fort Worth Oct. 16,
2014, no pet.) (mem. op., not designated for publication) (“The doctrine of cumulative
error provides that the cumulative effect of several errors can, in the aggregate, constitute
reversible error, even though no single instance of error would.”) (citing Chamberlain v.
State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999)).
Appellant makes a multifarious argument regarding the other instances that he
claims constituted cumulative error, and we are not able to address these complaints as
appellant has not provided a clear and concise argument with citation to appropriate
authority. 7 See TEX. R. APP. P. 38.1(i). Accordingly, we overrule appellant’s sixth issue.
IV. CONCLUSION
We affirm the trial court’s judgment.
7 For example, appellant complains that he did not have a fair trial arguing “[e]vidence of
codefendant’s recent possession of stolen property, one of the guns charged to have been stolen, was
admitted into evidence” and “[a] rational jury could not have convicted Navarro of burglary on this evidence.
The proof fails on identity.” However, appellant acknowledges that there was no objection to this evidence,
and he does not explain further how we may reverse for cumulative error when there was no objection, and
he has not argued why this was erroneous. Next, appellant argues that he did not have a fair trial because
“[d]ouble hearsay accusing [him] of having had one of the guns stolen in the burglary and of having handed
it to the declarant was admitted over objection.” Appellant cites the instance wherein he claims error
occurred; however, he provides no citation to any supporting authority or any analysis explaining why the
trial court erred in overruling his objection. The rest of appellant’s complaints are presented as a list of
grievances without citation to appropriate authority or any analysis of his perceived errors. See TEX. R.
APP. P. 38.1(i).
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/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed this
12th day of July, 2018.
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