Robert Ruiz v. State ( 1992 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-92-067-CR





ROBERT RUIZ,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE COUNTY COURT AT LAW NO. 5 OF TRAVIS COUNTY

NO. 352,971, HONORABLE WILFRED AGUILAR, JUDGE

PER CURIAM

The trial court found appellant guilty of criminal trespass and assessed punishment at incarceration for thirty days and a $500 fine, probated. Tex. Penal Code Ann. § 30.05 (West 1989 & Supp. 1992).

At approximately 4:45 a.m. on March 18, 1991, Austin police officer Duane McNeil responded to a call reporting a suspicious person with a gun at the Marshall Apartments, 1404 East 12th Street. A resident of one of the apartments in the complex told the officer that someone had just broken into the apartment next door. Hearing the sounds of persons inside this apartment, Walsh opened the door and found appellant and two juveniles. McNeil observed what appeared to be fresh graffiti on the walls of the apartment, which was vacant. From the presence of spray paint cans in the apartment and paint on their hands, McNeil concluded that appellant and his companions had been painting the graffiti when interrupted by the officer. Thomas Walsh, a second officer who arrived at the apartment shortly after McNeil, gave similar testimony concerning the appearance of the apartment.

The manager of the Marshall Apartments, Mario Vasquez, testified that he learned of the break-in from a conversation with the next-door neighbor and a call from the police. Vasquez testified that he had been in the apartment the day before and that the graffiti had not been present. Vasquez also discovered that a bedroom window had been broken since his inspection of the apartment. Vasquez identified four photographs he took inside the apartment showing the graffiti painted on the walls. Vasquez testified that, as agent for the owners, he did not give appellant permission to enter the apartment.

In his first point of error, appellant contends the evidence is insufficient to sustain the conviction. This contention is based primarily on discrepancies in the testimony concerning the apartment number and the date of the break-in. The officers testified that appellant was found and arrested inside apartment 102 on March 18. Vasquez testified that "on March 19th, the next day, in the morning" he learned that apartment 101 had been entered and vandalized. The precise date is significant because Vasquez testified that he had inspected the apartment on the afternoon before he learned of the break-in and it was undamaged at that time. If Vasquez learned of the break-in on March 19, that would mean that the apartment to which he referred in his testimony could not be the apartment in which the officers discovered appellant on the morning of March 18.

It is apparent from a reading of their testimony as a whole that McNeil, Walsh, and Vasquez were describing the same incident. There is no evidence that Vasquez knew the exact time of the break-in, or whether it had occurred before or after midnight. Asked by the prosecutor when he first learned that persons had been in the apartment without his permission on March 18, and knowing that he had learned of the incident "the next day, in the morning," it is understandable that Vasquez would assume that "the next day" was March 19. The court could reasonably conclude from the evidence as a whole that Vasquez learned of the break-in on the same morning it occurred, March 18. The court also could reasonably conclude that the apartment in which Vasquez took photographs of spray-painted graffiti and into which appellant did not have permission to enter was the same apartment in which McNeil discovered appellant, with paint on his hands and spray paint in his possession, standing near freshly-painted graffiti. In determining the legal sufficiency of the evidence to support a criminal conviction, the question is whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981). The elements of the offense of criminal trespass are: (1) a person; (2) without effective consent; (3) enters or remains on the property or in a building of another; (4) knowingly or intentionally or recklessly; (5) when he had notice that entry was forbidden or received notice to depart but failed to do so. Day v. State, 532 S.W.2d 302, 306 (Tex. Crim. App. 1976). There is no dispute that appellant is a person or that he entered a building belonging to another. Vasquez testified that this entry was without his consent. Vasquez also testified that the apartment had been locked, and the evidence supports the inference that entry was gained through the broken window. From this, the court could reasonably conclude that appellant knew that entry was forbidden and that he had entered intentionally, knowingly, or recklessly. Point of error one is overruled.

In his second and last point of error, appellant complains that the court abused its discretion by granting the State's oral request for a continuance. Trial began on November 5, 1991. After Walsh and Vasquez testified, the prosecutor asked for a continuance for the purpose of calling McNeil to testify. The court granted this request, recessing the trial to resume the following day. Appellant contends this was error, as none of the requisites for a statutory continuance were met. Tex. Code Crim. Proc. Ann. art. 29.13 (West 1989); Gentry v. State, 770 S.W.2d 780, 786-88 (Tex. Crim. App. 1988).

Trial courts possess an equitable power to grant a continuance of trial that is independent of the statutes governing continuances. Darty v. State, 193 S.W.2d 195 (Tex. Crim. App. 1946); O'Rarden v. State, 777 S.W.2d 455, 459 (Tex. App.--Dallas 1989, pet. ref'd). Moreover, Gentry and the other cases cited by appellant involve appeals from denials of oral motions for continuance. While it might not have been an abuse of discretion for the court to deny the State's request, it does not follow that it was an abuse of discretion to grant it. We hold that the court did not abuse its discretion by concluding proceedings early one day and resuming the next simply because this was done at the State's request.

The judgment of conviction is affirmed.

[Before Justices Powers, Aboussie and B. A. Smith]

Affirmed

Filed: September 16, 1992

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