Marcos Antonio Mejia-Caceres v. State ( 2014 )

Opinion issued October 30, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00643-CR
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MARCOS ANTONIO MEJIA-CACERES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Case No. 1393062
MEMORANDUM OPINION
Marcos Antonio Mejia-Caceres appeals a judgment convicting him of
burglary of a habitation and committing or attempting to commit the felony of
impersonating a public servant. See TEX. PENAL CODE ANN. § 30.02(d)(2) (West
2011); § 37.11(a) (West 2011). After a jury found him guilty, the trial court
sentenced him to 25 years in prison. In his sole issue on appeal, Mejia-Caceres
contends that the trial court erred by admitting during the guilt-innocence phase of
the trial evidence of a second burglary he committed immediately after the charged
offense. We affirm.
Background
At trial, Tamiko Haywood, one of the complainants, testified that she and
her husband, son, and brother-in-law were staying together in a room at the Palace
Inn hotel because they were in the process of moving from one apartment to
another, and their new apartment was not ready yet. Around 2:00 a.m., Tamiko
awoke to loud banging on the door and someone saying loudly, “Police, open up.”
Her brother-in-law, Troy, opened the door with Tamiko’s husband Michael behind
him, and two men pushed open the door and pepper sprayed, then handcuffed,
Troy and Michael, and made them lie down on the floor. When Tamiko’s 16-year-
old son started to get out of bed, the intruders pepper sprayed him also.
Both men were wearing what appeared to Tamiko to be police uniforms, and
Tamiko believed that they were police. The men demanded identification, drugs,
and money, and claimed that the hotel front office had called them to report that
someone in the room was “smoking [] dope.” Tamiko gave them her
identification, but told them that no one in the room had any drugs. The intruders
stole Tamiko’s phone and $1,100 that she had for moving expenses. They left
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after about 15 minutes, with one of them saying “When the police get here, tell
them Sergeant . . . said it’s the wrong room.”
Tamiko and her family watched the men drive away in an old red Jeep and
realized that they were not truly police, so they went to the front office to report the
burglary. Tamiko later called her stolen cell phone, which was answered by real
police officers, who came to the hotel and brought the family to a gas station where
Tamiko identified Mejia-Caceres as one of the two burglars.
Tamiko’s husband, Michael, testified similarly that the two men knocked
loudly on the door and said, “Open the door, police.” He believed that the men
were police officers when they first entered the room because they were wearing
police uniforms and told him and Troy, “Get down. Police,” before handcuffing
them. Michael testified that Mejia-Caceres was screaming and kept demanding to
know where the drugs and money were. Michael told the men that they did not
have anything and begged them to leave. The other man removed Troy’s and
Michael’s handcuffs before they left the room. When the family watched the men
get into the red Jeep, Michael realized they were not police. Michael identified
Mejia-Caceres as one of the intruders.
Houston Police Department Officer C. Calabro, with the police
impersonation squad, testified that she investigated the case. She testified that
surveillance cameras showed the two men knocking on multiple doors at the
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Palace Inn until they found the room occupied by Tamiko’s family. She testified
that the uniforms the two men were wearing when they were apprehended had
many similarities to police uniforms. On cross-examination, she admitted that
many security companies have uniforms that are similar to police uniforms and
that merely wearing a security company uniform does not mean that a person is
impersonating a police officer.
Two witnesses at trial testified about a different burglary committed by the
intruders the same evening. Abraham Proo testified that later the same night, he
and his girlfriend were in the living room of his apartment when someone loudly
banged on the door and screamed something about “either open up the doors . . .
police officers or something like that.” He looked through the peephole and saw
two men in uniform. Believing the men were police and assuming they had the
wrong apartment, Proo cracked the door and the men pushed it open. One of the
men told Proo to get on the floor, that they had received a complaint about a lot of
traffic at the apartment, and demanded drugs and money.
Mejia-Caceres locked the front door behind them, and Proo became
suspicious and called for his brother-in-law, who was asleep in a bedroom with
Proo’s sister. Proo told the men they did not have any drugs and asked to see their
badges, but they refused, at which point Proo realized that they were probably not
officers. Proo told his sister to call the police, and she did. When Mejia-Caceres
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saw Proo’s sister on the phone with the police, he opened the apartment door,
looked at the apartment number, and said they had made a mistake and gone to the
wrong apartment. The two men then left, and Proo followed them. He was able to
flag down an officer, who detained the two men at a gas station.
Nelson Lomas, Proo’s brother-in-law, also testified about the Proo burglary,
and his testimony was consistent with Proo’s. Lomas testified that he believed the
men were police officers because he heard them say, “HPD . . . get on the the
ground,” and that they got a call that drugs were being sold out of the apartment.
Discussion
In his sole point of error, Mejia-Caceres contends that the trial court erred in
admitting evidence of the Proo burglary.
A. Standard of Review
We review a trial court’s ruling on admissibility of extraneous offenses
under an abuse of discretion standard. De La Paz v. State, 279 S.W.3d 336, 343
(Tex. Crim. App. 2009). We will not reverse a trial court’s ruling on evidentiary
matters unless the decision was outside the zone of reasonable disagreement.
Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). If the trial
court’s ruling can be justified on any theory of law applicable to that ruling, the
ruling will not be disturbed. De La Paz, 279 S.W.3d at 344 (citing Sewell v. State,
629 S.W.2d 42, 45 (Tex. Crim. App. 1982) (“When a trial court’s ruling on the
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admission of evidence is correct, although giving a wrong or insufficient reason,
this Court will not reverse if the evidence is admissible for any reason.”)).
B. Applicable Law
Under Texas Rule of Evidence 404(b), evidence of extraneous crimes,
wrongs, or acts are not admissible at the guilt-innocence phase “to prove the
character of a person in order to show action in conformity therewith” but are
admissible to prove other matters, such as “motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident” if the
accused is given reasonable notice of the State’s intent to introduce the evidence.
TEX. R. EVID. 404(b). Rebuttal of a defensive theory is “one of the permissible
purposes for which relevant evidence may be admitted under Rule 404(b).” Moses
v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003).
C. Analysis
Mejia-Caceres contends that the trial court erred in admitting evidence of the
Proo burglary because it was not same transaction contextual evidence and was not
admissible for any purpose under Rule 404(b).
We need not consider whether the Proo burglary constituted same
transaction contextual evidence, because evidence of the Proo burglary was
admissible to rebut Mejia-Caceres’s defensive theory, which was that he did not
intend to impersonate a police officer. Mejia-Caceres’s counsel elicited an
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admission from Officer Calabro that wearing a security officer’s uniform does not
in itself constitute an attempt to impersonate a police officer. He elicited a similar
admission from Tamiko. In closing, defense counsel argued that, although Mejia-
Caceres and his partner were wearing security guard uniforms, it was merely to
gain admittance to the apartment, and it “wasn’t about being or pretending to be a
peace officer.”
Extraneous offense evidence is admissible under Rule 404(b) to show intent.
See TEX. R. EVID. 404(b); Rubio v. State, 607 S.W.2d 498, 500–01 (Tex. Crim.
App. 1980) (“This Court has consistently held that when a defendant raises a
defensive theory of lack of intent to wrongfully engage in criminal conduct, an
extraneous offense is admissible by way of rebuttal on the issue of intent.”). Here
the State offered evidence of the Proo burglary to rebut the defensive theory that
Mejia-Caceres did not intend to impersonate a police officer. See Moses, 105
S.W.3d at 626. Specifically, the testimony of Proo and Lomas to the effect that the
intruders (1) announced that they were police and (2) claimed to have received a
tip regarding drug activity in the apartment, as they had during the commission of
the charged offense, was probative because it tended to show that Mejia-Caceres’s
impersonation of a police officer during the commission of the charged offense
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was intentional. 1 See TEX. R. EVID. 404(b); Moses, 105 S.W.3d at 626. We hold
that evidence of the Proo burglary was admissible for this purpose, and,
accordingly, the trial court did not abuse its discretion in admitting it. See Moses,
105 S.W.3d at 627 (trial court does not abuse discretion in admitting extraneous
offense evidence that rebuts defensive theory); see also Johnson v. State, 932
S.W.2d 296, 302 (Tex. App.—Austin 1996, pet. ref’d) (when defendant raises
defensive theory that charged offense was not intentional, intent is put at issue).
Modification of Judgment
A first-degree burglary offense as defined by Section 30.02(d)(2) of the
Penal Code can be committed in one of two ways. Either a person can commit
burglary “with intent to commit” a felony other than felony theft, or a person can
commit burglary having “committed or attempted to commit” a felony other than
felony theft. TEX. PENAL CODE ANN. § 30.02(d)(2). Mejia-Caceres was convicted
of burglary of a habitation and committing or attempting to commit impersonation
of a public servant. However, the judgment reflects that Mejia-Caceres was
1
The jury was correctly instructed that it could consider evidence relating to the
Proo burglary only if it found beyond a reasonable doubt that Mejia-Caceres
committed the Proo burglary, and even then, only for purposes of determining
“motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident . . . .” See TEX. R. EVID. 105(a) (when evidence is
admissible for limited purpose, trial court, upon request, shall restrict evidence “to
its proper scope and instruct the jury accordingly”).
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convicted of the other variety of Section 30.02(d)(2) burglary, affirmatively stating
that it was “burglary with intent to commit other felony.”
“An appellate court has the power to correct and reform a trial court
judgment ‘to make the record speak the truth when it has the necessary data and
information to do so.’” Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston
[1st Dist.] 2001, no pet.) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex.
App.—Dallas 1991, pet. ref’d)); see also TEX. R. APP. P. 43.2(b) (court of appeals
may “modify the trial court’s judgment and affirm it as modified”). Here, the
indictment and the guilt-innocence jury charge reflect that Mejia-Caceres was
charged with and convicted of burglary of a habitation and committing or
attempting to commit the felony of impersonating a public servant. We modify the
trial court’s judgment to reflect that Mejia-Caceres was convicted of burglary of a
habitation and committing or attempting to commit impersonation of a public
servant. See Jackson v. State, 288 S.W.3d 60, 64 (Tex. App.—Houston [1st Dist.]
2009, pet. ref’d) (reforming trial court’s erroneous judgment stating appellant was
convicted of aggravated assault against public servant to reflect appellant was
convicted of aggravated assault where record showed jury found appellant guilty of
only latter offense).
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Conclusion
We modify the trial court’s judgment to reflect that Mejia-Caceres was
convicted of burglary of a habitation and committing or attempting to commit
impersonation of a public servant, and as modified, affirm the judgment.
Rebeca Huddle
Justice
Panel consists of Justices Massengale, Brown, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
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