Sir Joshton Sta Vohn Martin v. State ( 2011 )

Affirmed and Memorandum Opinion filed December 29, 2011.
In The
Fourteenth Court of Appeals
NO. 14-10-00440-CR
NO. 14-10-00441-CR
SIR JOSHTON STA VOHN MARTIN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause Nos. 1212862 & 1212863
MEMORANDUM OPINION
Appellant, Sir Joshton Sta Vohn Martin, appeals his convictions for aggravated
robbery with a deadly weapon and burglary of a habitation, contending (1) the evidence
is legally insufficient to support both convictions and the deadly-weapon finding relative
to the aggravated-robbery conviction, and (2) the trial court erred by admitting certain
evidence during the punishment phase for both convictions. We affirm.
I. BACKGROUND
A consolidated trial was conducted on both charges. According to the State‘s
evidence, the home of Mario and Marilyn Porras was burglarized on the afternoon of
April 16, 2009. Their daughter, Jessa, who lived in the home, had previously dated
appellant, and he visited the home during the relationship. At the time of the burglary,
Jessa and appellant no longer maintained any relationship except that they have a child
together. When Jessa returned home at about 4:00 p.m., she discovered her parents‘
bedroom was ―cluttered,‖ which she considered unusual. Further, a photograph admitted
at trial showed pry marks on a window. The stolen property included some jewelry and a
.45 caliber pistol, which belonged to Mario and were kept in his bedroom, and a laptop
computer, an ―X space,‖ a PlayStation, and a camera. Neither Mario nor Jessa gave
appellant permission to enter their home that day, and Marilyn was working overseas at
the time. Appellant did not have a key to the home.
That evening, appellant drove his girlfriend, Shanteria Galvan, and his friends,
Johnny Roberts and Eddie Johnson, in appellant‘s car to a gas station, which was located
near the Porras home. Appellant made a purchase in the store on the premises and
returned to the car. Galvan and Johnson then both entered the store. The complainant,
Isaac Segura, also entered the store while Galvan and Johnson were inside.
Johnson noticed Segura when he entered and watched him walk down a
merchandise aisle. Johnson then immediately made a statement to Galvan as she exited
the store. According to Houston Police Sergeant Mark Reynolds, Galvan reported that
Johnson said something to the effect of ―tell Boochy I need . . . something‖ or ―tell
Boochy . . . to get . . . something‖; ―Boochy‖ is appellant‘s nickname. However, at trial,
Galvan equivocated regarding the statement and testified she did not exactly understand
Johnson‘s words or pay much attention, but he said something to the effect of ―get Duty.‖
In any event, Segura and all persons in appellant‘s group returned to their
respective vehicles. Galvan sat in the front passenger seat of appellant‘s car, and Johnson
and Roberts were passengers in the back seat. Johnson and Roberts then exited the car.
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Johnson ran toward Segura‘s vehicle while Roberts followed. Johnson immediately shot
Segura in the jaw, and the men took Segura‘s watch and necklace. In the meantime,
appellant drove around to the back of the station. Johnson and Roberts ran toward
appellant‘s car. After they entered the car, appellant sped away. The store‘s surveillance
videotape, which the jury viewed, showed the actions of the relevant persons inside the
store, Johnson running from appellant‘s car while holding a gun with Roberts following,
the shooting, appellant driving to the back of the station, and Johnson and Roberts
running toward the back of the station.
While officers were investigating the scene, Mario Porras‘s nephew approached
and asked if a .45 caliber gun was used in the offense, stating that his relative‘s home was
burglarized earlier that day, a .45 caliber gun was stolen, and the family suspected
appellant committed the burglary. Officers eventually determined a .45 caliber semi-
automatic gun was used in the shooting. However, they were unable to locate a gun that
matched the bullet fragments removed from Segura‘s body or fragments and casings
found at the scene, much less trace a gun used in the shooting to the one stolen from the
Porras home.
Sergeant Reynolds interviewed Mario and his nephew to determine why they
suspected appellant of the burglary, although, at trial, Sergeant Reynolds did not relay the
contents of their statements. Sergeant Reynolds also viewed the surveillance tape,
obtained still photographs from the tape, and spoke with various individuals in an attempt
to ascertain the identity of the persons depicted therein. After discovering appellant was
the driver, Sergeant Reynolds contacted him. On the night of April 17, 2009, appellant
voluntarily appeared at the police station for an interview, but he did not drive his own
car. Sergeant Reynolds did not testify regarding appellant‘s statement at the station.
Sergeant Reynolds drove appellant home after the interview.
The next day, officers located appellant‘s car, in which they found a pawn ticket
containing his name and some of Mario‘s rings which were stolen during the burglary.
Sergeant Reynolds then discovered that, on the afternoon of April 17, 2009, appellant
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pawned another ring and a necklace, which were stolen from Mario during the burglary.
Officers also found Segura‘s blood on the floorboard of a rear passenger seat of
appellant‘s car and a particle of gunshot residue on the driver‘s seat. Stephen Houck, an
employee of the Harris County Institute of Forensic Science who analyzed the particle,
characterized the results as ―inconclusive,‖ meaning he could not opine whether the
residue resulted from a weapon fired in the area of the residue or ―incidental transfer.‖
Appellant was arrested for aggravated robbery and burglary of a habitation a week after
these offenses when he went to the police station to retrieve his car.
Segura was not expected to live but did survive. Sergeant Reynolds showed
photograph arrays to Segura when he regained consciousness about forty-eight hours
after the incident. Segura immediately identified Johnson as the shooter but could not
identify Roberts. Sergeant Reynolds did not show Segura an array containing appellant‘s
photograph because Sergeant Reynolds already knew that Segura had not personally
encountered appellant. At trial, Segura was unable to identify appellant as a perpetrator.
In general, appellant does not dispute the above-cited facts regarding the offenses.
Rather, at trial, appellant maintained that he did not commit the burglary or participate in
the robbery. Three witnesses provided direct testimony pertinent to whether appellant
was involved in committing one or both of these offenses: (1) Galvan, whom the State
presented during its case-in-chief; (2) appellant, who testified on his own behalf; and (3)
Roberts, whom the State then presented as a rebuttal witness.
Galvan did not provide any relevant testimony regarding the burglary. With
respect to the robbery, Galvan did not expressly deny that appellant was a participant but
suggested he was not involved other than being forced to drive Johnson and Roberts from
the scene. In particular, Galvan testified that, when all members of the group had
returned to the car, Johnson was ―like, on a mission‖ and ―talking crazy‖ that he planned
to ―get someone or something.‖ Roberts then exited the car and followed Johnson, who
was already out of the car. Galvan told appellant to leave because she did not want to be
involved. Appellant appeared ―scared‖ and ―nervous‖ and began driving out of the
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station toward his mother‘s house, but Galvan insisted they go to her home, so appellant
abruptly turned around. He then stopped the car, Roberts and Johnson entered, and
Johnson ordered appellant to drive. Appellant left Galvan near her home.
At trial, appellant denied committing the burglary. Rather, appellant testified that
he spent three or four hours during the afternoon of April 16, 2009 at his grandmother‘s
house.
Appellant also denied participating in the robbery and testified as follows
regarding the incident. After the group returned to the car, appellant heard a disturbing
discussion between Roberts and Johnson, although appellant did not relay the contents at
trial. Appellant told them he ―wasn‘t down with it‖ and would leave if they exited the
car. After Roberts and Johnson exited the car, appellant began driving out of the station
toward his mother‘s house, hoping such action would thwart their plans because he was
their only ride home. Galvan insisted appellant take her home, so he turned around and
began traveling another direction which necessitated driving by the side of the station.
Roberts and Johnson ran toward the car with Johnson holding a gun. Appellant stopped
and allowed Roberts and Johnson to enter the car because appellant feared he would be
shot. Appellant said he would drive to any location they chose if he were allowed to first
take Galvan home. Appellant left Galvan near her home. He then drove a few more
minutes with directions dictated by Johnson, who finally told him to stop, and Johnson
and Roberts exited the car. The next day, appellant discovered jewelry that had been left
by Johnson and Roberts in appellant‘s car, but he did not know it belonged to Mario
Porras. At first, appellant suggested that he felt entitled to pawn some of the jewelry
because Roberts and Johnson had involved him in these incidents. On cross-examination,
appellant admitted that obtaining money was the reason he pawned some of the jewelry.
At trial, Roberts denied participating in the burglary although he had previously
visited the Porras home, and the State did not allege Roberts committed the burglary.
Rather, Roberts testified that, on the afternoon of the burglary, appellant appeared at
Roberts‘s house before appellant went to his grandmother‘s house. Appellant showed
Roberts some rings (which Mario identified at trial as his stolen property), a .45 caliber
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pistol, and a laptop computer, which Roberts had previously seen at the Porras home.
Appellant did not reveal the source of the property but said ―everything wasn‘t for
[Roberts] to know.‖ Roberts assumed appellant had burglarized a random home.
However, later that day, Jessa Porras phoned Roberts, stating her home had been
burglarized and she suspected appellant. Roberts ―covered‖ for appellant, claiming he
was at Roberts‘s home that day. When Roberts asked appellant about Porras‘s
accusations, appellant replied, ―just keep it on the low.‖
At the time of trial, Roberts had already been sentenced for commission of the
robbery and provided the following testimony regarding that offense. After all four
members of the group returned to appellant‘s car, Johnson stated that a man inside the
store had a ―clean chain,‖ which Johnson liked. Johnson said to appellant, ―let me see the
thing,‖ referring to the pistol that appellant earlier indicated he had taken from the Porras
home. Appellant ―reached down in the seat‖ and handed Johnson a pistol. Johnson then
ran toward Segura‘s vehicle while Roberts followed. Johnson shot Segura and took his
―belongings.‖ Meanwhile, appellant drove to the back of the station and ―waited on the
cue.‖ Johnson and Roberts ran to the car and ―jump[ed] in.‖ Appellant drove away but
demanded return of the gun, and Johnson complied. Johnson also placed a necklace
which was ―dripping‖ in blood on a rear floorboard. At some point, appellant ordered
Johnson to clean the blood on the floorboard. They took Galvan home and then went to
Roberts‘s house. Roberts disputed appellant‘s suggestion that he was attempting to drive
away from the station and Johnson waved the gun to force appellant to stop.
In the jury charge for the aggravated-robbery allegation, the trial court submitted
an accomplice-witness instruction relative to Roberts‘s testimony and an instruction
regarding the law of parties. A jury found appellant guilty of both offenses and assessed
punishment of fifteen years‘ confinement for the aggravated-robbery conviction and four
years‘ confinement for the burglary conviction.
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II. SUFFICIENCY OF THE EVIDENCE
Appellant has filed a separate appellate brief to challenge each conviction. In each
brief, he presents legal-sufficiency challenges relative to the particular conviction. When
reviewing sufficiency of the evidence, we view all of the evidence in the light most
favorable to the verdict and determine, based on that evidence and any reasonable
inferences from it, whether any rational fact finder could have found the elements of the
offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim.
App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). We do not sit as
thirteenth juror and may not substitute our judgment for that of the fact finder by re-
evaluating the weight and credibility of the evidence. Isassi v. State, 330 S.W.3d 633,
638 (Tex. Crim. App. 2010). Rather, we defer to the responsibility of the fact finder to
fairly resolve conflicts in testimony, weigh the evidence, and draw reasonable inferences
from basic facts to ultimate facts. Id. This standard applies equally to both circumstantial
and direct evidence. Id. Our duty as reviewing court is to ensure the evidence presented
actually supports a conclusion that the defendant committed the crime. Williams v. State,
235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We will consider separately appellant‘s
legal-sufficiency challenge relative to each offense.
A. Aggravated Robbery
A person commits aggravated robbery ―if, in the course of committing theft . . .
and with intent to obtain or maintain control of the property, he . . . intentionally or
knowingly threatens or places another in fear of imminent bodily injury or death‖ and
―uses or exhibits a deadly weapon.‖ Tex. Penal Code Ann. §§ 29.02(a)(2); 29.03(a)(2)
(West 2011). In the first and second issues of his brief challenging the aggravated-
robbery conviction, appellant contends the evidence is legally insufficient to support (1)
the jury‘s finding that he committed the offense and (2) the jury‘s finding that he used or
exhibited a deadly weapon during commission of the offense.
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1. Conviction as a Party to the Offense
Appellant does not dispute that Roberts and Johnson committed aggravated
robbery of Segura; instead, appellant essentially challenges sufficiency of the evidence to
support the finding that he was a party. In particular, appellant contends (1) Roberts‘s
accomplice-witness testimony was not sufficiently corroborated by other evidence
tending to connect appellant with commission of the offense, (2) the evidence established
at most appellant‘s ―mere presence‖ at the scene of the offense, and (3) there was no
evidence appellant acted as a party to the offense.
―A conviction cannot be had upon the testimony of an accomplice unless
corroborated by other evidence tending to connect the defendant with the offense
committed; and the corroboration is not sufficient if it merely shows the commission of
the offense.‖ Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005). When evaluating
sufficiency of corroboration evidence under the accomplice-witness rule, we eliminate
the accomplice testimony from consideration and then examine the remaining portions of
the record to determine if there is any evidence that ―tends to connect‖ the defendant with
commission of the crime. Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008).
The corroborating evidence need not, by itself, prove the defendant‘s guilt beyond a
reasonable doubt. Id. Rather, the evidence must simply link the defendant ―in some
way‖ to commission of the crime and show that rational jurors could conclude that this
evidence sufficiently ―tended to connect‖ the defendant to the offense. Id.
Under the law of parties, ―[a] person is criminally responsible for an offense
committed by the conduct of another if . . . acting with intent to promote or assist the
commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the
other person to commit the offense.‖ See Tex. Penal Code Ann. § 7.02(a)(2) (West
2011). In reviewing the evidence regarding an appellant‘s culpability under the law of
parties, we may consider events occurring before, during, and after commission of the
offense, and may rely on the defendant‘s actions that show an understanding and
common design to perform the prohibited act. Ransom v. State, 920 S.W.2d 288, 302
(Tex. Crim. App. 1994) (op. on rehearing). Party status may be proved by circumstantial
8
evidence. Id. Mere presence at the scene of the offense is not sufficient alone to
establish guilt as a party; however, presence at the scene is a circumstance tending to
prove guilt which, when combined with other facts, may suffice to show that the
defendant was a participant. Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App.
1981) (op. on rehearing).
Our analysis of appellant‘s three sub-issues is interrelated. Specifically, we
conclude Roberts‘s accomplice-witness testimony supported the jury‘s implicit finding
that appellant intentionally aided Roberts and Johnson in commission of the aggravated
robbery and was not merely present at the scene. According to Roberts, Johnson
indicated that he wanted Segura‘s jewelry and requested the gun from appellant;
appellant handed Johnson the gun and willingly drove the getaway vehicle. See
Thompson v. State, 697 S.W.2d 413, 417 (Tex. Crim. App. 1985) (recognizing that
defendant‘s actions after commission of crime, including driving getaway vehicle,
although alone insufficient to prove guilt at as a party, may be sufficient to sustain
conviction when combined with incriminating evidence of actions before commission of
offense); Valdez, 623 S.W.2d at 321 (stating that, although flight from scene of offense
alone will not support ―guilty‖ verdict, flight is circumstance from which inference of
guilt may be drawn). Additionally, the jury could have rationally inferred appellant‘s
consciousness of guilt based on Roberts‘s testimony that appellant ordered Johnson to
clean the blood on the floorboard and demanded return of the gun. See Wells v. State,
578 S.W.2d 118, 119 (Tex. Crim. App. 1979) (recognizing attempt to conceal
incriminating evidence is indicative of guilt). The jury could have also reasonably
concluded appellant concealed or disposed of the gun, considering Roberts‘s testimony
that Johnson returned the gun to appellant in conjunction with evidence the police never
located it.
We further conclude a rational jury could have determined that Roberts‘s
testimony was corroborated by non-accomplice evidence ―tending to connect‖ appellant
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to commission of the robbery as a party.1 Specifically, the surveillance tape, Sergeant
Reynolds‘s testimony, Galvan‘s testimony, appellant‘s own testimony, and physical
evidence including Segura‘s blood and gunshot residue found in appellant‘s car,
demonstrated the following: once Johnson noticed Segura inside the store, Johnson
instructed Galvan to tell appellant (who had already returned to the car) that Johnson
―need[ed] . . . something‖ or ―to get . . . something,‖ although Galvan apparently did not
comply; appellant was present in the car when Roberts and Johnson subsequently exited
to commit the robbery; and appellant then drove to the back of the station where he
retrieved Roberts and Johnson. See Malone, 253 S.W.3d at 257 (stating that proof
defendant was at or near scene of crime at or about the time of its commission, when
coupled with other suspicious circumstances, may tend to connect him to crime, thus
furnishing sufficient corroboration to support conviction).
The jury was free to disbelieve the portions of both appellant‘s and Galvan‘s
accounts suggesting that appellant was attempting to leave the scene for his mother‘s
house but, after turning around to take Galvan home, felt forced to stop because Johnson
wielded a gun. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986)
(expressing that jury may choose to believe or disbelieve any portion of a witness‘s
testimony). In fact, the surveillance video shows Johnson and Roberts immediately
running directly to the back of the station after the shooting, as opposed to looking
around for appellant‘s car. Thus, the jury could have rationally inferred that Johnson and
Roberts knew where appellant would be waiting as part of the plan and did not simply
force appellant to stop as he drove by the station.
Moreover, some of appellant‘s actions and statements after the offense indicated
consciousness of guilt and thus corroborated Roberts‘s testimony. In particular, appellant
1
We do not necessarily agree with appellant‘s suggestion that his conviction was ―had upon the
testimony of‖ Roberts. See Tex. Code Crim. Proc. Ann. art. 38.14. Arguably, the non-accomplice
evidence was alone legally sufficient to support the conviction. In fact, the State presented Roberts as a
rebuttal witnesses after appellant testified. Nonetheless, we need not decide whether conviction was ―had
upon the testimony of‖ Roberts because the non-accomplice evidence at least ―tends to connect‖ appellant
to commission of the offense, and Roberts‘s testimony and the non-accomplice evidence together are
legally sufficient to support the conviction.
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claimed he voluntarily appeared for his interview with Sergeant Reynolds to aid in the
investigation. Nevertheless, the jury could have rationally inferred that appellant
attempted to hide his participation in the offense, considering he did not drive his own car
to the police station admittedly because it had transported persons involved in the offense
and he was reluctant to inform Sergeant Reynolds regarding the identities and
whereabouts of Johnson and Roberts. Further, at trial, appellant acknowledged that,
while incarcerated following his arrest for the offense, he told his grandmother by
telephone, ―They don‘t have the gun; so, they don‘t have a case on me.‖ The jury could
have reasonably considered this statement as an admission that appellant had some role in
providing the gun for the robbery and later concealed or disposed of it.
In sum, the evidence is legally sufficient to support the jury‘s finding that
appellant was a party to the aggravated robbery. We overrule his first issue relative to the
aggravated-robbery conviction.
2. Deadly-Weapon Finding
Appellant also contends that the evidence is legally insufficient to support the
jury‘s finding that he used or exhibited a deadly weapon. Appellant requests a judgment
of acquittal on the ground that the State failed to prove use or exhibition of a deadly
weapon as an element of the offense or, alternatively, that we order the trial court‘s
deadly-weapon finding stricken from the judgment.
When, as in this case, use or exhibition of a deadly weapon is an element of the
offense and the State alleges the defendant‘s guilt under the law of parties, the State must
prove the defendant knew a weapon would be used or exhibited in commission of the
offense. Sarmiento v. State, 93 S.W.3d 566, 570 (Tex. App.—Houston [14th Dist.] 2002,
pet. ref‘d) (en banc). The jury‘s verdict of guilt necessarily constitutes an affirmative
finding that the defendant was a party to the offense and knew a deadly weapon would be
used or exhibited in commission of the offense, thus authorizing the trial court to enter a
deadly weapon finding in the judgment. See id.; see also Tex. Code Crim. Proc. Ann. art.
42.12, § 3g(a)(2) (West Supp. 2011) (requiring trial court to enter deadly weapon finding
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in judgment if jury affirmatively finds defendant was a party to the offense and knew
deadly weapon would be used or exhibited during commission of that offense).
Appellant argues the only evidence he knew a deadly weapon would be used or
exhibited in commission of the robbery was Roberts‘s accomplice-witness testimony that
Johnson requested the gun and appellant handed it to him. However, the requirement of
accomplice-witness corroboration does not apply to testimony of an accomplice witness
regarding use or exhibition of a deadly weapon. Vasquez v. State, 56 S.W.3d 46, 48
(Tex. Crim. App. 2001). Specifically, it is not necessary for non-accomplice evidence to
connect the defendant with every element of the crime. Id. Nevertheless, as mentioned
above, the jury could have rationally inferred from appellant‘s statement to his
grandmother that appellant provided the gun used in commission of the robbery.
Therefore, the evidence is legally sufficient to support the jury‘s finding that appellant
knew a deadly weapon would be used or exhibited in commission of the offense.
Accordingly, the trial court did not err by entering a deadly-weapon finding in the
judgment. We overrule appellant‘s second issue relative to the aggravated-robbery
conviction.
B. Burglary of a Habitation
A person commits burglary of a habitation ―if, without the effective consent of the
owner, the person . . . enters a habitation . . . with intent to commit . . . theft.‖ Tex. Penal
Code Ann. § 30.02(a)(1) (West 2011). In the first issue of his brief challenging the
burglary conviction, appellant contends the evidence is legally insufficient because the
State relied on appellant‘s possession of the stolen property to prove the offense without
establishing appellant‘s explanation for possession was false or unreasonable.
Appellant refers to the principle that Texas law ―has long permitted the conviction
of a person for theft if the evidence shows him to have been found in possession of
recently stolen property without offering an explanation inconsistent with guilt when first
called upon directly or circumstantially to do so.‖ Chavez v. State, 843 S.W.2d 586, 587
(Tex. Crim. App. 1992) (citing Sutherlin v. State, 682 S.W.2d 546, 549 (Tex. Crim. App.
1984)); James v. State, 48 S.W.3d 482, 485 (Tex. App.—Houston [14th Dist.] 2001, no
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pet.); see Poncio v. State, 185 S.W.3d 904, 904–05 (Tex. Crim. App. 2006) (expressing
that this rule is applicable to charge for burglary of a habitation). This unexplained
possession of recently stolen property permits an inference of guilt for the offense of
theft. See Sutherlin, 682 S.W.2d at 549; James, 48 S.W.3d at 485; see also Chavez, 843
S.W.2d at 587–88. However, before the inference may be invoked, the State must
establish that the possession was personal, recent, unexplained, and involved a distinct
and conscious assertion of a right to the property by the defendant. Sutherlin, 682
S.W.2d at 549; see James, 48 S.W.3d at 485. If a defendant explains his possession of
stolen property when first called upon to do so, generally at the time of his arrest, the
State must demonstrate the explanation is false or unreasonable. See Adams v. State, 552
S.W.2d 812, 815 (Tex. Crim. App. 1977); James, 48 S.W.3d at 485.
Appellant suggests that the State could not rely on this inference in the present
case because appellant offered a reasonable explanation for possessing some of Mario
Porras‘s stolen property: Roberts and Johnson committed the burglary and left the
property in appellant‘s car after the robbery later that evening.
We disagree that the State ―relied‖ on the unexplained-possession rule to prove
appellant committed the burglary. Although the State presented evidence that, after the
later robbery, appellant pawned some of Mario‘s stolen property and the police found
other stolen items in appellant‘s vehicle, the State did not rely solely on this possession to
prove appellant committed the burglary. Instead, Roberts testified that appellant
appeared at Roberts‘s home after the burglary with some of Mario‘s stolen property.
When Roberts inquired whether appellant burglarized the Porras home, appellant replied,
―just keep it on the low.‖ The jury could have reasonably construed this statement as an
admission of guilt for the burglary. The trial court did not submit an accomplice-witness
instruction in the jury charge for the burglary allegation. Consequently, there was no
requirement for corroboration of Roberts‘s testimony relative to the burglary conviction.
Further actions by appellant also indicated consciousness of guilt with respect to
the burglary. Again, the jury could have rationally inferred that, during his interview
with Officer Reynolds, appellant also attempted to hide his involvement in the burglary
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because he (1) did not drive his own car, which contained some of Mario‘s stolen
property and the pawn ticket, to the police station, (2) failed to mention his claim that
Roberts and Johnson left some stolen property in appellant‘s car, and (3) failed to
mention he had already pawned some of the items.
Therefore, the fact that appellant was found in possession of some of Mario‘s
property after the robbery was merely an additional circumstance the jury could have
considered along with the other evidence outlined above when determining he committed
the burglary. Consequently, the State was not required to prove appellant‘s explanation
for possessing some of Mario‘s property after the robbery was unreasonable to support
his conviction for burglary.
Regardless, contrary to appellant‘s suggestion, the State is required to refute only
the explanation made when the defendant is first found in possession of recently stolen
property—not an explanation made for the first time at trial. See Barnes v. State, 520
S.W.2d 401, 403 (Tex. Crim. App. 1975); Simmons v. State, 493 S.W.2d 937, 939 (Tex.
Crim. App. 1973). Appellant does not suggest, and there is no indication in the record,
that he presented his explanation when he was first found in possession of Mario‘s
property.
Nonetheless, the jury could have determined that appellant‘s explanation at trial
was unreasonable. Whether an explanation for possession of stolen property is
reasonable is a question of fact, the fact-finder is not required to accept the defendant‘s
explanation, and falsity may be shown by circumstantial evidence. Prodan v. State, 574
S.W.2d 100, 103 (Tex. Crim. App. 1978); Adams, 552 S.W.2d at 815; James, 48 S.W.3d
at 486. In particular, the jury could have rationally rejected appellant‘s suggestion that
(1) Roberts and Johnson coincidently burglarized the home of appellant‘s former
girlfriend and left the stolen property in his car, and (2) Roberts and Johnson would take
the risk and effort to commit a burglary yet simply abandon some of the stolen property
for the benefit of a non-participant.
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In sum, we conclude the evidence is legally sufficient to support the jury‘s finding
that appellant committed burglary of a habitation. Accordingly, we overrule appellant‘s
first issue relative to the burglary conviction.
III. ADMISSION OF EVIDENCE DURING PUNISHMENT PHASE
In his second issue pertaining to the burglary conviction and third issue pertaining
to the aggravated-robbery conviction, appellant contends the trial court erred during the
punishment phase by admitting appellant‘s jail disciplinary records.
During the punishment phase, the State presented testimony from Deputy
Kathleen Torres, who is employed in the Disciplinary and Grievance Office of the Harris
County Sheriff‘s Department. Deputy Torres explained the disciplinary procedure
applicable when an inmate in the Harris County jail is accused of violating a rule
contained in the handbook provided to all inmates: Deputy Torres is presented with a
report to review; the inmate enters a plea; a disciplinary committee conducts a hearing
and renders a finding; and a finding of guilt results in probation or revocation of
privileges.
The State also presented the office‘s written ―disciplinary history‖ for appellant,
which reflected that he was found guilty of the following violations over a ten-month
period during his pre-trial detention for the present case: refusing to obey an order;
presence in an unauthorized location; two separate occurrences of assault on another
inmate; threatening staff; tattooing or possessing tattoo paraphernalia; failure to properly
dress; extortion; disruptive conduct; simple assault; and threatening another inmate.2
During her testimony, Deputy Torres relied on this document when reciting the violations
listed therein.
Before Deputy Torres testified, appellant objected outside the jury‘s presence that
evidence of his disciplinary history was ―more prejudicial than probative under 403.‖
The trial court overruled his objection. When the State offered the written history during
2
Pursuant to the trial court‘s instruction, the State redacted the document before it was admitted
to remove a record of offenses for which appellant was charged but found not guilty.
15
Deputy Torres‘s testimony, appellant renewed his objection, but the trial court admitted
the document.
On appeal, appellant suggests the trial court erred by admitting evidence of his
disciplinary history for three reasons: (1) the court failed to conduct the requisite
balancing test relative to Texas Rule of Evidence 403; (2) the evidence was inadmissible
under Rule 403; and (3) the evidence did not satisfy Texas Code of Criminal Procedure
article 37.07(3)(a)(1) because the disciplinary violations could not be proved beyond a
reasonable doubt.
During the punishment phase of a non-capital offense, the State may offer
evidence pertaining to ―any matter the court deems relevant to sentencing, including . . .
evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by
evidence to have been committed by the defendant or for which he could be held
criminally responsible, regardless of whether he has previously been charged with or
finally convicted of the crime or act.‖ Tex. Code Crim. Proc. Ann. art. 37.07, § (3)(a)(1)
(West Supp. 2011). ―‗Evidence is ‗relevant to sentencing,‘ within the meaning of the
statute, if the evidence is ‗helpful to the jury in determining the appropriate sentence for a
particular defendant in a particular case.‘‖ McGee v. State, 233 S.W.3d 315, 318 (Tex.
Crim. App. 2007) (quoting Rodriguez v. State, 203 S.W.3d 837, 842 (Tex. Crim. App.
2006)).
Admissibility of punishment-phase evidence that the trial court deems relevant is
nonetheless subject to a Rule 403 analysis. See Rodriguez, 203 S.W.3d at 843; Reese v.
State, 33 S.W.3d 238, 240 (Tex. Crim. App. 2000). Under Rule 403, even relevant
evidence may be excluded ―if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, or needless presentation of cumulative evidence.‖ Tex.
R. Evid. 403.
A proper Rule 403 analysis includes, but is not limited to, the following factors:
(1) probative value of the evidence; (2) potential to impress the jury ―in some irrational,
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but nevertheless indelible way‖; (3) time needed to develop the evidence; and (4) the
proponent‘s need for the evidence. Rodriguez, 203 S.W.3d at 843 (citing Reese, 33
S.W.3d at 240–41). We review the trial court‘s ruling on a Rule 403 objection for abuse
of discretion. Id. at 841. We will uphold the ruling if it lies within the zone of reasonable
disagreement. Id. at 841, 843.
With respect to appellant‘s initial complaint, once a Rule 403 objection is asserted,
the trial court must engage in the balancing test required under that rule. Williams v.
State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997); see Caballero v. State, 919 S.W.2d
919, 922 (Tex. App.—Houston [14th Dist.] 1996, pet. ref‘d). In this case, the trial court
remarked that it found ―the probative value‖ of the evidence outweighed ―the prejudicial
value,‖ although it did not recite specific findings relative to the above-listed factors.
However, a trial court is not required to sua sponte place on the record its findings or
conclusions relative to the balancing test. Williams, 958 S.W.2d at 195. Rather, we
presume the trial court engaged in the required balancing test once Rule 403 is invoked,
and silence of the record does not imply otherwise. Id. at 195–96.
Relative to the substance of his Rule 403 complaint, appellant generally contends
on appeal that his disciplinary history was inadmissible under Rule 403 but does not
specifically advance any reason its probative value was substantially outweighed by the
danger of unfair prejudice. Regardless, when objecting at trial, appellant argued that the
history was more prejudicial than probative because of its ―repetitive nature.‖ However,
to the extent appellant engaged in a pattern of prohibited conduct, the number of
violations simply enhanced their probative value relative to demonstrating appellant‘s
character for sentencing purposes. Accordingly, the trial court did not abuse its
discretion by determining that the probative value of appellant‘s disciplinary history was
not substantially outweighed by the danger of unfair prejudice.
Finally, appellant contends that the evidence of his disciplinary history did not
satisfy Code of Criminal Procedure article 37.07(3)(a)(1) because the State could not
prove the violations beyond a reasonable doubt. However, appellant failed to preserve
error on this complaint. See Tex. R. App. P. 33.1(a) (providing that, to preserve issue for
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appellate review, party must make timely objection or request to the trial court,
sufficiently stating specific grounds for the requested ruling, unless apparent from the
context, and obtain adverse ruling). Appellant‘s objection at trial was based solely on
Rule 403; he advanced no objection that the evidence was inadmissible under article
37.07(3)(a)(1). See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (stating
that, to preserve error for appellate review, objection at trial must comport with the
appellate complaint).
On cross-examination of Deputy Torres, appellant attempted to establish that the
violations could not be proved beyond a reasonable doubt; Deputy Torres acknowledged
that she had no personal knowledge of the violations shown on the document, the
disciplinary committee is an administrative court, violations are not necessarily criminal
offenses, and guilt is determined under a preponderance-of-the-evidence, rather than
beyond-a-reasonable-doubt, standard. Further, in each jury charge pertaining to
punishment, the trial court instructed the jury that it was permitted to consider an
extraneous crime or bad act only if the State proved beyond a reasonable doubt appellant
committed, or could be held criminally responsible for, such crime or act. However,
appellant never raised the State‘s alleged inability to prove beyond a reasonable doubt
that appellant committed the violations as a challenge to admissibility of the evidence in
the first place. See Mitchell v. State, 931 S.W.2d 950, 954 (Tex. Crim. App. 1996)
(recognizing that trial court makes threshold determination for purposes of admissibility
whether jury could rationally find beyond a reasonable doubt that defendant committed
extraneous offense or bad act, but jury actually decides if State met burden of proof).
It is unclear whether appellant is suggesting on appeal that the State‘s alleged
inability to prove the violations beyond a reasonable doubt constituted a reason their
probative value was substantially outweighed by the danger of unfair prejudice. To the
extent appellant presents his Article 37.07(3)(a)(1) complaint as a sub-issue of his Rule
403 contention, he nevertheless failed to preserve error. When objecting at trial based on
Rule 403, appellant mentioned only the ―repetitive nature‖ of the violations and did not
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raise the State‘s alleged inability to prove the violations beyond a reasonable doubt as a
reason they were inadmissible under Rule 403.
In sum, we overrule appellant‘s second issue pertaining to the burglary conviction
and third issue pertaining to the aggravated-robbery conviction.
We affirm both of the trial court‘s judgments.
/s/ Charles W. Seymore
Justice
Panel consists of Justices Frost, Seymore, and Jamison.
Do Not Publish — Tex. R. App. P. 47.2(b).
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