Enriquez, Fernando v. State ( 2014 )

Affirmed as Modified; Opinion Filed March 13, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-01037-CR
FERNANDO ENRIQUEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F11-70238
MEMORANDUM OPINION
Before Justices Moseley, Lang, and Brown
Opinion by Justice Lang
This is an appeal from a jury conviction for robbery. In two issues, Fernando Enriquez
complains of the exclusion of evidence of a witness’s prior theft convictions and the sufficiency
of the evidence to support the trial court’s assessment of $239 in court costs. As modified, we
affirm the trial court’s judgment.
I. BACKGROUND
The robbery occurred on November 17, 2010 at around 10:15 p.m. in the parking lot of
an apartment complex. Bernardo Badillo was in his car closing the door when he was robbed by
two Hispanic men. One took Badillo’s wallet and a “torn and taped” five dollar bill; the other
took Badillo’s car keys. The two men then fled in a “sporty” white SUV with “bumpers low to
the ground.” Enriquez, his girlfriend Julia Arce, and his cousin Jay Jay Vialobos were arrested
later that evening after patrolling officers spotted them in the SUV.
At trial, Badillo described the robber who took the keys as “a little heavy and short.”
Badillo described the robber who took his wallet and five-dollar bill as “tall, slim” and Spanish-
speaking. This robber had a bandana covering his face, was wearing a hooded sweatshirt with
the hood over his head, and pointed what appeared to be a gun at Badillo. According to Badillo,
the gun was hidden under a blanket. Badillo provided descriptions of the robbers and their car to
the responding officer, but was unable to identify either robber from a photographic line-up he
was subsequently shown at the police station. At “another [court] hearing,” however, he
identified Vialobos as the robber who took the keys.
Dallas police officer John Barton testified he was on patrol with officer Jason Amaro
when he saw Enriquez driving an SUV that matched the description provided by Badillo. Barton
began following Enriquez and stopped Enriquez after Enriquez turned without signaling. Amaro
approached Enriquez, and Barton approached Arce and Vialobos. As he was walking toward the
front of the SUV, Barton noticed what “appeared to be” a revolver, but was actually a BB gun,
“laying on a blanket” in the “cargo area” of the SUV. Upon opening the passenger door, Barton
also saw a black bandana beside Vialobos. A search by Barton of Arce’s purse revealed
Badillo’s check-cashing card and a further search of the SUV revealed three “hoodies” and a
stocking cap. A search of Enriquez by Amaro revealed a “torn $5 dollar bill taped with . . .
Scotch tape” in Enriquez’s left front pocket.
Testifying without any agreement from the State, Vialobos admitted he had a 1997
conviction for robbery and was on probation for forgery of a check, a state jail felony. He denied
the robbery was planned and denied knowing Enriquez had a gun. Further, he admitted that he
and Enriquez robbed Badillo, and he corroborated Badillo’s account that Vialobos took the keys
and Enriquez took the wallet and money. According to Vialobos, Enriquez wanted him to “take
the blame” and asked him not to testify.
–2–
Testifying in his defense, Enriquez denied any involvement in the robbery. Enriquez
explained he and Arce spent the evening together and were on their way to his father’s house just
before 10:00 p.m. when Vialobos called offering to pay for gas and “buy some beer” if Enriquez
picked him up from a nearby tire shop “right now.” Sensing some urgency in Vialobos’s voice,
Enriquez agreed. Vialobos was not at the tire shop when Enriquez arrived, but was spotted by
Arce at “some apartments across the street.” Enriquez drove to the apartments and noticed, as
Vialobos got into the SUV, that Vialobos was wearing a “hoodie,” had a bandana wrapped
around his hand, and “was in a rush.” Enriquez asked if Vialobos “ha[d] the gas money,” and
Vialobos replied that he did and displayed a bank card. Enriquez drove to two gas stations where
Arce tried to pay with the card, but the card was declined both times. After the card was declined
the second time, Vialobos gave Enriquez a five dollar bill. Moments later, Enriquez was stopped
by the police. Enriquez testified that he was questioned about the robbery, but was not charged
with the offense until the following February. Enriquez maintained his innocence and denied
speaking any Spanish. He admitted, however, having a 2000 conviction for aggravated robbery
and two prior convictions for domestic violence assault.
Enriquez’s testimony about the occurrences the night of the robbery was generally
corroborated by Arce, and his testimony that he did not speak Spanish was corroborated by three
of his family members.
Instructed on the law of parties and that Vialobos was an accomplice and his testimony
alone could not support a conviction, the jury returned a general verdict of guilty. Following
Enriquez’s plea of true to an enhancement paragraph alleging the prior aggravated robbery
conviction and additional punishment evidence, the trial court sentenced Enriquez to forty years’
imprisonment.
–3–
II. EXCLUSION OF IMPEACHMENT EVIDENCE
In his first issue, Enriquez contends the trial court erred in refusing to allow him to
impeach Vialobos’s credibility with evidence of a 1991 felony theft conviction and evidence of a
1993 misdemeanor theft conviction. Enriquez asserts the exclusion was error because the
probative value of the evidence outweighed its prejudicial effect.
A. Standard of Review
A trial court’s ruling on the admissibility of evidence is reviewed for abuse of discretion.
Page v. State, 213 S.W.3d 332, 337 (Tex. Crim. App. 2006). No abuse will be found if the
ruling is reasonably supported by the record and it is correct under any theory of law applicable
to the case. Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005).
B. Applicable Law
Rule 609 of the Texas Rules of Evidence allows a witness’s credibility to be impeached
by evidence of a felony conviction or conviction for a crime of moral turpitude, such as theft.
See TEX. R. EVID. 609(a); Rodriguez v. State, 129 S.W.3d 551, 559 (Tex. App.-–Houston [1st
Dist.] 2003, pet. ref’d). Where more than ten years have elapsed since the date of the conviction,
evidence of the conviction is admissible only if the trial court determines, in the interest of
justice, that the probative value of the conviction supported by specific facts and circumstances
substantially outweighs its prejudicial effect. Id. 609(b). The burden of demonstrating the
admissibility of the evidence rests on the proponent. Theus v. State, 845 S.W.2d 874, 880 (Tex.
1992)
In conducting a rule 609(b) analysis and balancing the probative value against the
prejudicial effect of a prior conviction of a witness other than a defendant, the court considers the
following factors:
(1) the impeachment value of the prior offense;
–4–
(2) the passage of time between the prior conviction and the date the witness
testifies;
(3) the similarity between the prior conviction and any conduct of the witness at
issue in the present trial;
(4) the importance of the witness’s testimony; and
(5) the importance of the credibility issue.
See Moore v. State, 143 S.W.3d 305, 312-13 (Tex. App.---Waco 2004, pet. ref’d) (citing Daniels
v. Loizzo, 986 F. Supp. 245, 252 (S.D. N.Y. 1997); THK Am., Inc. v. NSK, Ltd., 917 F. Supp. 563,
570 (N.D. Ill. 1996); Theus, 845 S.W.2d at 880; Jack B. Weinstein & Margaret A Berger,
Weinstein's Federal Evidence vol. 4, ¶ 609.05[2], 609–33 (Joseph M. McLaughlin, ed., 2d ed.,
LEXIS 2001)); Woodall v. State, 77 S.W.3d 388, 396 (Tex. App.—Fort Worth 2002, pet. ref’d).
The first factor attaches higher impeachment value to a crime that involves deception or
moral turpitude and, therefore, favors admission of evidence of a crime that “relates more to
deception than not.” Theus, 845 S.W.2d at 881. The second factor favors admission of evidence
of a past crime if the past crime is recent and the witness has demonstrated a propensity for
running afoul of the law. Id. If, however, the prior conviction and the conduct at issue are
similar, the third factor will weigh against admission of the evidence to avoid the risk of the jury
convicting based on a past pattern of conduct as opposed to the facts of the present case. Id. The
fourth and fifth factors, which are considered together because they both depend on the nature of
the defense and the means available to the defendant of proving that defense, also weigh against
admission if other evidence or testimony corroborates the witness’s testimony. Theus, 845
S.W.2d at 880-81; Woodall, 77 S.W.3d at 396.
C. Application of Law to Facts
Enriquez’s sole argument to the trial court that Vialobos’s theft convictions were
admissible rested on the second factor - Vialobos’ propensity for running afoul of the law. We
–5–
question whether this was sufficient to preserve the issue for review. Although no question exists
theft is a crime of moral turpitude, see Rodriguez, 129 S.W.3d at 559, other than the date and
type of crime and Vialobos’s propensity to run afoul of the law, Enriquez offered no specific
facts or circumstances to justify the admission of evidence of the convictions. See TEX. R. APP.
P. 33.2; Tristan v. State, 393 S.W.3d 806, 810 (Tex. App.-–Houston [1st Dist.] 2012, no pet.) (“A
complaint that the trial court erred in excluding impeachment evidence may not be pursued on
appeal unless the proponent perfected an offer of proof or a bill of exception.”). Assuming,
however, that Enriquez preserved this issue for our review, we conclude the trial court did not
abuse its discretion in excluding evidence of the theft convictions.
Looking first at the second factor upon which Enriquez relied exclusively at trial, we note
that not only is a showing of a tendency to commit crimes required, but temporal proximity must
also be shown. See Theus, 845 S.W.2d at 881. Although Vialobos’s convictions show a
tendency to commit crimes, the convictions are remote. Enriquez’s trial was had in May 2012.
The convictions occurred in 1991 and 1993, twenty-one and nineteen years prior to trial.
Relying on case law that predates the 1986 adoption of rules of evidence in criminal cases,
Enriquez argues now on appeal that, although remote, the convictions prove lack of reformation
and were therefore admissible. See Milligan v. State, 554 S.W.2d 192, 196 (Tex. Crim. App.
1977) (citing McClendon v. State, 509 S.W.2d 851, 855 (Tex. Crim. App. 1974) (op. on reh’g)).
Neither rule 609 nor Theus, however, contemplate such a factor. See Leyba v. State, 416 S.W.3d
563, 567-68 (Tex. App.-–Houston [14th Dist.] 2013, pet. filed). Contrary to Enriquez’s
argument, we conclude this factor does not weigh in favor of admission of the convictions.
We also conclude that the fourth and fifth factors, the importance of Vialobos’s testimony
and his credibility, weigh against the admission of the complained-of evidence. Enriquez argues
in his brief that Vialobos’s testimony was “vital” to the State’s case since Badillo could not
–6–
identify the robber who stole his wallet and money. And, since Vialobos was the only witness
who identified Enriquez as the other robber, his credibility was a “key issue.” However,
Vialobos’s testimony was not the only testimony linking Enriquez to the robbery. Badillo
testified that he identified Vialobos as the robber who took the car keys. Although he was unable
to identify Enriquez as the other robber, he described what the other robber was wearing and
how the other robber concealed the gun. The arresting officer testified the items of clothing
Badillo described and what “appeared to be” a gun “laying on a blanket” were found in an SUV
that matched Badillo’s description of the get-a-way car and that Enriquez was driving. Further, a
search of Enriquez’s pockets revealed a “torn and taped” five dollar bill similar to the one
Badillo stated the other robber took from him. Vialobos’s credibility, therefore, was not critical.
Moreover, even if his credibility was as critical as Enriquez maintains, it was impeached by the
admission of evidence of his 1997 robbery conviction and his probation for forgery of a check.
We cannot agree with Enriquez’s argument on appeal that evidence of the theft convictions
should have been admitted based on the fourth and fifth factors.
Finally, we consider the third factor, the similarity between the prior convictions and
Vialobos’s role in the robbery of Badillo. Although theft is an element of robbery and theft is a
crime of deception, robbery also involves bodily injury or the threat or use of violence. See TEX.
PENAL CODE ANN. § 29.02(a) (West 2011); Rodriguez, 129 S.W.3d at 559. Enriquez argues in
his brief that this additional element renders the two crimes dissimilar for purposes of a rule
609(b) analysis and, thus, evidence of the convictions should have been admitted. The State, on
the other hand, argues that because the prior convictions and the robbery at hand all involved
stealing, they are similar and evidence of the convictions was properly excluded. Whether theft
and robbery are similar for purposes of a rule 609(b) analysis is a question on which courts of
appeals have expressed differing positions and the court of criminal appeals has not answered.
–7–
See Huerta v. State, 359 S.W.3d 887, 894 n.1 (Tex. App.-–Houston [14th Dist.] 2012, no pet.).
However, that in light of our conclusion that the second, fourth, and fifth factors weigh against
the admissibility of evidence of Vialobos’s theft convictions, any similarity between the two
crimes would not persuade us to conclude the trial court erred in excluding the complained-of
evidence. We resolve Enriquez’s first issue against him.
III. COURT COSTS
Enriquez’s second issue respecting the assessment of costs stems from the lack of a bill
of costs in the original clerk’s record. Enriquez asserts that without a bill of costs the evidence is
insufficient to support the costs assessed against him. The clerk’s record, however, was
supplemented after Enriquez filed his brief, and the supplemental record contains a bill of costs.
Enriquez’s complaint is now moot. See Johnson v. State, No. PD-0193-13, 2014 WL 714736, at
*2 (Tex. Crim. App. Feb. 26, 2014); Colonel v. State, 416 S.W.3d 550, 555 (Tex. App.-–Dallas
2013, pet. ref’d). We resolve Enriquez’s second issue against him.
IV. MODIFICATION OF JUDGMENT
Although Enriquez pleaded true to the enhancement paragraph alleging the prior
aggravated robbery conviction, the trial court entered “N/A” in the sections in which it should
have indicated Enriquez’s plea and the court’s finding. Robbery is a second degree felony
punishable by imprisonment for a term of not more than twenty years or less than two years and
a fine not to exceed $10,000. TEX. PENAL CODE ANN. §§ 12.33 (West 2011), 29.02(b). Because
Enriquez pleaded true to the enhancement paragraph, and aggravated robbery is a felony,
punishment was enhanced to that of a first degree felony---imprisonment for life or any term of
not more than ninety-nine years or less than five years and a fine not to exceed $10,000. Id. §§
12.32, 12.42(b), 29.03(b). The forty-year sentence Enriquez was assessed was outside the
punishment range for a second degree felony, but within the punishment range for a first degree
–8–
felony. Accordingly, we conclude the trial court implied a finding of true to the enhancement
paragraph. See Torres v. State, 391 S.W.3d 179, 184 (Tex. App.---Houston [1st Dist.] 2012, pet.
ref’d). Further, because we have the necessary information to correct the judgment, we modify
the judgment to reflect Enriquez’s plea, and the trial court’s implied finding, of true. See id.; see
also TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993);
Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.---Dallas 1991, pet. ref’d).
V. CONCLUSION
Having resolved Enriquez’s complaints against him, we affirm the trial court’s judgment
as modified.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
121037F.U05
–9–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
FERNANDO ENRIQUEZ, Appellant On Appeal from the 283rd Judicial District
Court, Dallas County, Texas
No. 05-12-01037-CR V. Trial Court Cause No. F11-70238.
Opinion delivered by Justice Lang. Justices
THE STATE OF TEXAS, Appellee Moseley and Brown participating.
Based on the Court’s opinion of this date, we MODIFY the judgment to reflect a “Plea to
1st Enhancement Paragraph” of “TRUE” and a “Finding[] on 1st Enhancement Paragraph” of
“TRUE.” As modified, we AFFIRM the trial court’s judgment.
Judgment entered this 13th day of March, 2014.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE
–10–