Juan Gamez v. State ( 1998 )

No. 04-97-01058-CR

Juan GAMEZ, Appellant

v.

The STATE of Texas, Appellee

From the 229th Judicial District Court, Duval County, Texas Trial Court No. 5889 Honorable Ricardo H. Garcia, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Phil Hardberger, Chief Justice

Alma L. López, Justice

Karen Angelini, Justice

Delivered and Filed: October 28, 1998

AFFIRMED

Nature of the case

A jury found Juan Gamez guilty of the second degree felony offense of arson. Due to a prior felony conviction, Gamez's punishment was enhanced to that of a first degree felony and the court assessed punishment at twenty years confinement. In his appeal, Gamez raises ten issues. In his first issue, Gamez contends that the court erred in not granting his oral motion for continuance made prior to trial. In his second issue, Gamez alleges that the evidence does not prove beyond a reasonable doubt that Leandro Rea was the owner of the trailer as set out in the indictment. Gamez argues in his third issue that the evidence does not prove beyond a reasonable doubt that the object that burned was a habitation as set out in the indictment. In his fourth issue, Gamez alleges that the evidence does not prove beyond a reasonable doubt that the fire was incendiary in nature. Gamez argues in his fifth issue that the court erred in admitting expert testimony concerning causation from an expert not qualified in the field of causation. In his sixth issue, Gamez alleges that the State suborned perjury and tainted the evidence so as to cause the jury to render an unfair verdict. In his seventh and eighth issues, Gamez argues that the court erred by allowing a surprise witness, a jailer, to testify at trial about an alleged oral statement made by Gamez while in custody. In his ninth and tenth issues, Gamez alleges that prosecutorial misconduct caused an unfair trial and his due process rights were violated.

Factual background

Gamez was found guilty of intentionally and knowingly starting a fire with the intent to destroy or damage a habitation belonging to Leandro Rea and without the consent of Rea. The evidence showed that the habitation in question was a trailer which had been given to Rea by his son. Rea testified that Gamez owned the land the trailer was on and he paid Gamez $100 a month for the use of the land. Michelle Rodriguez, a neighbor, was an alleged eyewitness to the crime. Rodriguez testified that shortly before the fire, she saw Gamez taking things out of the trailer and putting them in his truck. According to Rodriguez, she then saw Gamez pour some gasoline and light a match. Dean Shirley, a deputy state fire marshall, testified that the fire was not accidental and that the burn patterns indicated the possibility of a flammable liquid. Michelle Rodriguez was the only witness who testified that she saw Gamez start the fire; however Anita Rodriguez, Gamez's girlfriend, also testified that she saw Gamez taking things out of the trailer and putting them in his truck.

First Issue

In his first issue, Gamez argues that the court erred in not granting his oral motion for continuance. We review a trial court's decision to deny a motion for continuance under an abuse of discretion standard. See Matamoros v. State, 901 S.W.2d 470, 478 (Tex. Crim. App. 1995). On the day of trial just before beginning voir dire, the State told the court that an investigation was ongoing concerning an allegation that Gamez had approached Jonas Rodriguez, a witness, and told him to change his story.⁽¹⁾ Defense counsel withdrew his announcement of ready and asked for a continuance claiming surprise because the State failed to provide him with a copy of Jonas's statement that Gamez had told Jonas to change his story. We note that the State did not act in bad faith for two reasons. First, Jonas was not a surprise witness as he had already been listed as a witness for the State. Secondly, the State did not receive information about Gamez approaching Jonas until the day of trial. Thus, the allegations were a surprise to the State and to the defense. The court denied the motion stating that a continuance would not be granted because Gamez had allegedly caused the problem and thus could not take advantage of his own wrongdoing. The court did not allow the State to mention the incident during voir dire. The State began its case the following day.

Defense counsel contends, without citation to authority, that it is the attorney's surprise and not the defendant's that is at issue because defense counsel must prepare a defense. Although the statement might have been a surprise to defense counsel, we cannot overlook the fact that Gamez created the problem by telling Jonas to change his story. Thus, there was no surprise to Gamez. We also note that defense counsel had access to his client to question him about the alleged wrongdoing and to prepare a defense. Based on these facts, we cannot say that the court abused its discretion by denying Gamez's oral motion for continuance. We overrule Gamez's first issue.

Second Issue

In his second issue, Gamez alleges that the State failed to prove beyond a reasonable doubt that the trailer was owned by Leandro Rea and thus a variance existed between an element in the indictment and the evidence introduced at trial. Rea testified that his son, Jose Luis Rea, had given him the trailer. Gamez points out that during cross-examination, Rea testified that he had told others that the trailer belonged to Jose Luis. The Penal Code defines owner as a "person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor." Tex. Pen. Code Ann. § 1.07(35)(A) (Vernon 1994). While the State presented no evidence of legal title, the State proved that Rea possessed the trailer. Rea testified that he spent the night in the trailer and had personal items there. Neighbors testified that Rea lived in the trailer. In reviewing the evidence in the light most favorable to the verdict, we find that a rational trier of fact could have found that Rea owned the trailer beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). We overrule the second issue.

Third Issue

In his third issue, Gamez alleges that the State failed to prove beyond a reasonable doubt that the trailer was a habitation as set out in the indictment. Habitation means "a structure or vehicle that is adapted for the overnight accommodation of persons." Tex. Pen. Code Ann. § 28.01(1) (Vernon 1994). The determination of the suitability of a structure for habitation is a fact question for the jury. See Blankenship v. State, 780 S.W.2d 198, 209 (Tex. Crim. App. 1988). Factors to consider include whether the structure contained bedding, furniture, utilities or other belongings common to a residential structure, and whether the structure is of such a character that it was probably intended to accommodate persons overnight such as a trailer. Id. Rea testified that he sometimes slept in the trailer and that he had clothes, food, tools, and plates inside the trailer. Gamez points to testimony which showed that the trailer had no connections for electricity, water, sewer, or other utilities to support his assertion that the trailer was not a habitation. However, viewing the evidence in the light most favorable to the verdict, we find that a rational jury could have found, beyond a reasonable doubt, that the trailer was a habitation. See Jackson, 443 U. S. at 318-19.⁽²⁾ We overrule Gamez's third issue.

Fourth and Fifth Issues

In his fourth point of error, Gamez contends that the evidence failed to prove beyond a reasonable doubt that the fire was incendiary in nature. Gamez argues in his fifth point of error that the court erred in admitting testimony concerning causation from a person not qualified as an expert in the field of causation. Gamez alleges that the State failed to meet the requirements of Rule 702 of the Texas Rules of Criminal Evidence. Rule 702 states: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Tex. R. Crim. Evid. 702. Gamez argues that Dean Shirley was not qualified to testify to causation and thus the State failed to provide reliable scientific evidence that the fire was incendiary in nature.

The State offered the testimony of Dean Shirley, a deputy state fire marshall with the State Fire Marshall's Office, who conducted an investigation of the fire that damaged the trailer. Shirley testified that he had been involved in fire fighting since 1975 and had been a firefighter in the U.S. Air Force and then a firefighter at an airport. Shirley testified that he had been certified as a fire and arson investigator for two years and had completed a 98 hour course in detection and cause and origin of fires to receive his certification from the Texas Commission on Fire Protection.

Shirley testified about the origin of the fire and the burn patterns. Shirley also testified that he determined that the fire was not accidental. After the State asked Shirley about whether any accelerants were used, defense counsel asked to take the witness on voir dire outside the presence of the jury. On voir dire, Shirley testified that he did not have a college degree in chemistry or physics. Shirley testified that he had not performed any laboratory tests to determine the chemical make-up of accelerants. However, Shirley testified that he was trained in the observations of burn patterns in a fire scene that indicate the presence of a flammable liquid. Defense counsel objected to Shirley's qualifications to testify about the type of accelerant used in the fire. However, Shirley did not testify about the type of accelerant used in the fire but testified that the burn patterns on the floor indicated the possibility that a flammable liquid had been used.

We find that Shirley, based on his experience and training, was qualified to testify that the fire was not accidental and that the burn patterns indicated the possibility that a flammable liquid had been used. We acknowledge that Shirley had no experience in determining the chemical make-up of accelerants that might have been used to accelerate the fire. However, he did not testify about the type of accelerant, such as gasoline or kerosene, used to set the fire. Thus, the court did not err in admitting Shirley's testimony.

Gamez further contends that the mere fact that a building is destroyed by fire does not show that a fire was incendiary in nature unless credible and reliable evidence of incendiary origin is shown. See Faulk v. State, 608 S.W.2d 625, 627 (Tex. Crim. App. 1980). In this case, Shirley does much more than merely state that the fire was incendiary. Shirley testified that, based on his observation of the fire travel paths and burn patterns inside the trailer, the fire was an intentional act and that there was a possibility that a flammable liquid was used to accelerate the fire. Shirley further testified that he found no evidence to contradict his opinion that an accelerant was used in the fire. Viewing the evidence in the light most favorable to the verdict, we find that the State proved beyond a reasonable doubt that the fire was incendiary in nature. We overrule Gamez's fourth and fifth issues.

Sixth Issue

In his sixth issue, Gamez alleges that the State suborned perjury and thus the evidence was tainted and caused the jury to render an unfair verdict. Gamez points to the testimony of the State's eyewitness, Michelle Rodriguez, as support for his allegations of perjury. Gamez alleges that Rodriguez testified falsely when she stated that she saw Gamez start the fire outside the trailer because Shirley testified that the origin of the fire was inside the trailer. Gamez contends that other witnesses refuted Rodriguez's testimony that she was at the scene of the fire when it started. Rodriguez testified that her brother-in-law, Jonas, saw the fire start as he was walking home from the park, but Jonas testified that he had been at the park that night but had not seen the fire start. None of the other witnesses testified that they were outside at the time the fire started. Velma Soliz, a neighbor, testified that when she went outside after the trailer was on fire, she saw Michelle Rodriguez coming from her house which was behind her mother-in law's house. Gamez contends that this testimony shows that Rodriguez was not outside when the fire started. Rodriguez testified that after the fire started, she went back to her house to get her shoes. Gamez also points to inconsistencies in Rodriguez's statements to the fire marshall and police and her testimony at trial. The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). The jury could choose to believe or not believe the witnesses, or any portion of their testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (citing Esquivel v. State, 506 S.W.2d 613, 615 (Tex. Crim. App. 1974)). Further, a witness may be believed even though some of his testimony may be contradicted. See id. (citing Jackson v. State, 505 S.W.2d 916, 918 (Tex. Crim. App. 1974)). Having reviewed the record, we do not come to the conclusion that any inconsistencies in Rodriguez's testimony constituted perjury that tainted the jury's verdict.

Further, Gamez alleges that the State told Rodriguez to change her sworn testimony. On the first day of trial, Rodriguez testified that she was not afraid of Gamez. While testifying on the second day of trial, Rodriguez testified that she was afraid of Gamez and upon cross-examination stated that the district attorney had told her to testify that she was scared. At this point, the court held a hearing inside chambers. At the hearing, the district attorney stated that he did not tell Rodriguez what to say on the stand. According to the district attorney, Rodriguez told him that she was scared after seeing Gamez and his girlfriend, Anita, in the hallway. The district attorney told her that if she was scared, she should testify that she was scared. Rodriguez testified in the hearing that she told the district attorney that she was scared and he then told her that she should testify that she was scared. Based on the testimony at the hearing, we do not find that the State suborned perjury. We overrule Gamez's sixth issue.

Seventh Issue

In his seventh issue, Gamez contends that the court erred in allowing Deputy Sheriff Larry Dubose to testify at trial in violation of the pre-trial orders and the Code of Criminal Procedure. Dubose testified that he overheard Gamez telling other inmates that it "was his place and he could burn it if he wanted to and no one could do anything about it in Duval County." Dubose also testified that Gamez told him that maybe he should plead out because he wanted to get out of jail.

Prior to Dubose's testimony, defense counsel objected based on surprise and also on the basis that Dubose was not listed on the State's witness list. The State countered that Dubose only informed the district attorney of Gamez's statement the day before and because Dubose was a rebuttal witness there was no requirement that he be included on the witness list. The State further argued that Dubose's testimony was offered to rebut the testimony of Anita and Jonas Rodriguez who testified that Gamez was not outside when the fire began.

We review a court's decision to allow a witness, who is not on the witness list, to testify under an abuse of discretion standard. Stoker v. State, 788 S.W.2d 1, 15 (Tex. Crim. App. 1989). Factors to consider include whether the prosecutor acted in bad faith in failing to disclose the witness and whether the defendant can reasonably anticipate that a witness will testify even though the name is not on the list. Id. Gamez has not shown bad faith on the part of the prosecutor because the prosecutor testified that he only learned of the testimony on the day of trial. See Doherty v. State, 892 S.W.2d 13, 18 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd) (finding that bad faith not shown where prosecutor did not know existence of witness until the night before). According to the prosecutor, Dubose reported to his office to testify in another trial. While in the prosecutor's office, Dubose asked the prosecutor which case was being tried and when the prosecutor said "Juan Gamez," Dubose relayed the statements that he had heard. Dubose was a surprise witness for both sides. Further, the ability of a defendant to reasonably anticipate that a witness will testify is merely a factor to consider and not determinative. Id. We find that the court did not abuse its discretion in allowing Deputy Dubose to testify as a rebuttal witness. We overrule Gamez's seventh issue.

Eighth Issue

In his eighth issue, Gamez alleges that the court erred in allowing Dubose to testify about an alleged oral statement made by Gamez while he was in custody. Gamez argues that his statements are inadmissible under article 38.22 of the Code of Criminal Procedure. Article 38.22 applies to written or oral statements made by an accused as the result of custodial interrogation. Custodial interrogation is defined as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, 384 U.S. 436, 444 (1966). At the time Gamez made his statements, he was not being questioned by law enforcement; thus, the statements were not a result of custodial interrogation.

Gamez further contends that Dubose's testimony was improper impeachment. The State called Dubose as a rebuttal witness. On rebuttal, the State can offer any evidence that tends to rebut the defensive theory and evidence introduced to support that theory. See Yohey v. State, 801 S.W.2d 232, 236 (Tex. App.--San Antonio 1990, pet. ref'd). Gamez argues that he did not testify and thus Dubose's testimony does not rebut any evidence. In fact, the only defense witness was Ruth Ann Rodriguez, Anita's twelve year-old daughter. Gamez's defensive theory was to impeach the testimony of the State's eyewitness, Michelle Rodriguez. Ruth Ann's testimony contradicted Michelle's testimony that she had been at Anita's house earlier in the evening on the night of the fire. However, Ruth Ann testified that she was asleep when the fire started and did not know whether Michelle was outside to see Gamez start the fire. Defense counsel also cross-examined Michelle about other persons in the neighborhood who had set houses on fire thereby trying to imply that someone other than Gamez had started the fire. The State argues that Dubose's testimony was offered to rebut the testimony of Anita and Jonas Rodriguez. Jonas testified that right before the fire he saw Gamez at his uncle's house. Thus, the testimony of Deputy Dubose tends to rebut the defense's theory that Michelle was lying and that someone else started the fire.

Gamez further contends that the testimony of Dubose was unreliable and should not have been admitted into evidence. Defense counsel points to the following cross-examination testimony concerning the time of year Gamez made the statements:

[Defense counsel]: All right. And uh, did you hear this back in uh, in November of last year?

[Dubose]: I can't recall what month or day it was, but it was back some time then.

[Defense counsel]: Well, did you -- well, it's important because we need to know exactly when you discovered that, you found this out. Did you find this out in November?

[Dubose]: It's hard to say because it's been a while back.

[Defense counsel]: Did you find out in December?

[Dubose]: It was around [the] latter part of the year I know that. I just --

Defense counsel then offered into evidence jail records showing the names of the inmates incarcerated during the months of November and December and Gamez's name did not appear in the records. Defense counsel then showed Dubose a document that showed that Gamez was brought to the jail on February 24, 1997. Dubose then testified that he might be mistaken about the date but not about what Gamez said. Defense counsel properly impeached Dubose about the time of year the alleged statements were made. However, we do not find that Dubose's testimony was completely unreliable. Further, the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Santellan, 939 S.W.2d at 164. The court did not err in allowing Dubose to testify about statements made by Gamez while in custody. We overrule his eighth issue.

Ninth and Tenth Issues

In his ninth and tenth issue, Gamez alleges that prosecutorial misconduct caused an unfair trial and violated his right to due process. Gamez reasserts his argument that the State engaged in misconduct by putting witnesses on the stand who committed perjury. However, we have rejected these contentions and therefore we do not find that prosecutorial misconduct caused an unfair trial or that Gamez's due process rights were violated. We overrule his ninth and tenth issues.

We affirm the judgment.

Karen Angelini, Justice

DO NOT PUBLISH

1. Jonas Rodriguez was the son of Gamez's girlfriend. Jonas had made a statement to police that after the fire he saw Gamez at his uncle's house and that Gamez had put a red container which looked like a gasoline container in the back of his truck. At trial, the State's allegation that Gamez had told Jonas not to tell about the gasoline and the truck was proven as Jonas testified to that effect.

2. We note that the second degree felony offense of arson does not differentiate between a habitation or a building as in the offense of burglary. It is arson if a person starts a fire with intent to destroy or damage any building, habitation, or vehicle. Tex. Pen. Code Ann. § 28.02(a)(2) (Vernon 1994).

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