Rideaux, Marc Anthony v. State ( 2003 )

Opinion issued April 17, 2003

In The

Court of Appeals

For The

First District of Texas

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NO. 01-01-00332-CR

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MARC ANTHONY RIDEAUX, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 212th District Court

Galveston County, Texas

Trial Court Cause No. 00CR1004

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MEMORANDUM OPINION

          Marc Anthony Rideaux, appellant, was charged with burglary of a building, enhanced by two prior felony convictions. The jury found appellant guilty. Appellant pleaded true to the two enhancement paragraphs. The trial court assessed punishment at 15 years’ confinement. In two points of error, appellant argues that (1) the evidence was factually insufficient to support his conviction and (2) the trial court committed reversible error by allowing the jury to hear identification testimony concerning appellant. We affirm.

Facts

          On June 5, 2000, the Galveston Police Department called Tammy Babcock at work regarding a burglary at her house. Babcock arrived at her house to find police officers in her backyard around her detached garage. Babcock checked the contents of the garage and noticed that a chain saw, two cordless power drills, a jigsaw, a circular saw, a framing nailer, and a weed trimmer were missing. Nothing from her house was missing.

          The detached garage is completely enclosed by a privacy fence that is seven feet tall. There are three ways to get to the detached garage: through the house, through a back gate, and through two swinging gates that are chained together. Both the back gate and the swinging gates are locked from the inside and cannot be opened from outside the fence. The gates were locked and the chainsaw was in the detached garage when Babcock was last at her house on June 3, 2000. The detached garage windows are covered. The inside of the detached garage is accessible only through a sliding garage door. The garage is bisected by an internal wall that has a door. The chainsaw was inside the separate portion of the garage that is accessible only through the door in the internal wall.

          Matthew Fondren, Babcock’s next door neighbor, was home from work on June 5, 2000. From his window he saw a red car with the license plate PYY40N parked in the alleyway between his house and Babcock’s house. This alerted him that a burglary might be in progress. He saw appellant sitting in the passenger side of the car. He looked through his front bedroom window and saw appellant get out of the car and walk toward Babcock’s fence. Fondren went to the front of the house to another window to get a better view and saw appellant standing in Babcock’s backyard. Fondren called 911 and told the operator that a burglary was in progress. He provided the operator with a description of the car and the license plate number.

          Officer William Scott received a call over his radio about a car leaving the scene of a burglary. Scott stopped the car within a few blocks of Babcock’s house and waited for backup. When Officer David Thomas arrived, Scott and Thomas took appellant and the driver out of the car. Appellant was in the passenger seat, and Babcock’s chainsaw was in the backseat of the car, behind appellant. Thomas took appellant to Babcock’s house, about 30 to 45 minutes after Fondren called 911; and Fondren identified appellant as the man he saw in the passenger seat of the car and in Babcock’s backyard. Babcock was able to match the serial number on the chainsaw to the serial number that was on the owner’s manual.Factual Sufficiency

          In his first point of error, appellant argues that the evidence was factually insufficient to support his conviction. Specifically, appellant argues that there was insufficient evidence to prove he entered Babcock’s garage.   

          In reviewing factual sufficiency, we examine all the evidence neutrally and ask whether proof of guilt is so obviously weak as to undermine confidence in the jury’s determination or so greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000); Valencia v. State, 51 S.W.3d 418, 423 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d). While conducting our analysis, if there is probative evidence supporting the verdict, we must avoid substituting our judgment for that of the trier-of-fact, even when we disagree with the determination. King, 29 S.W.3d at 563. The trier-of-fact is the sole judge of the weight and credibility of the witness testimony. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).

          A person commits burglary of a building if, without the effective consent of the owner, the person enters a building and commits or attempts to commit a felony, theft, or assault. Tex. Pen. Code Ann. § 30.02(a)(3) (Vernon 2003).

          Babcock testified that her gates were closed and locked and could not be opened from the outside. She testified that she did not know appellant, nor did she give him permission to enter the detached garage. She further testified that her chainsaw and other tools were missing from her garage.

          Scott testified that he stopped a car that matched the description of that described by Fondren and that had the license plate number Fondren gave the 911 operator. The chainsaw recovered from the car was Babcock’s chainsaw. Scott testified that no fingerprints were taken from the chain saw and that the driver of the car could have taken the chain saw. Scott testified that Fondren never told him that anyone other than appellant was in Babcock’s yard.

          Fondren identified appellant as the man he saw in the passenger side of the car and as the man he saw inside Babcock’s fence. He testified that he did not see appellant in the garage, only in the backyard, and he did not see appellant leave the backyard or get back into the car. Fondren further testified that he never saw the driver take anything out of Babcock’s house or yard; that the driver of the red car drove off without appellant; that he saw appellant, but not the driver, get out of the car; and that he did not see anyone other than appellant in Babcock’s backyard.

          Viewing the evidence neutrally, we observe that the jury decided, in this case, to believe Babcock, Fondren, and Scott. Because the jury, as trier-of-fact, is the sole judge of the weight and credibility of the witness testimony, and because the proof of guilt was not so obviously weak as to undermine confidence in the jury’s determination, or so greatly outweighed by contrary proof as to indicate that a manifest injustice occurred, we find that the evidence was factually sufficient to support the verdict.

          We overrule appellant’s first point of error.

Preservation of Error

          In his second point of error, appellant argues that the trial court committed reversible error by allowing the jury to hear identification testimony concerning appellant.

          Appellant did not object when Fondren, Scott, or Thomas testified on direct examination; and appellant further developed Fondren’s, Scott’s, and Thomas’s testimony during cross-examination. Appellant’s second point of error was not preserved for our review. See Tex. R. App. P. 33.1. To preserve error as to the admission of testimony, a party must present a timely specific objection and secure an adverse ruling. Tex. R. App. P. 33.1; Tex. R. Evid. 103(a)(1); Camarillo v. State, 82 S.W.3d 529, 534 (Tex. App.—Austin 2002, no pet.). Preservation of error for appellate review generally requires a timely objection. Camarillo, 82 S.W.3d at 534 (citing Robinson v. State, 16 S.W.3d 808, 809 (Tex. Crim. App. 2000)). Furthermore, a party must object every time allegedly inadmissible testimony is offered. Johnson v. State, 84 S.W.3d 726, 729 (Tex. App.—Houston [1st Dist.] 2002, pet. filed). Any error in the admission of evidence is cured when the same evidence comes in elsewhere without objection. Id. Therefore, appellant has waived his second point of error.

          We overrule appellant’s second point of error.  

Conclusion

          We affirm the judgment of the trial court.

                                                             Evelyn V. Keyes

                                                             Justice

Panel consists of Justices Taft, Keyes, and Higley.

Do not publish. Tex. R. App. P. 47.2(b).