Dino Mejia v. State ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 02-10-00060-CR
02-10-00061-CR
02-10-00062-CR
02-10-00063-CR
02-10-00064-CR
02-10-00065-CR
02-10-00066-CR
02-10-00067-CR
DINO MEJIA APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION1
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In six points, pro se appellant Dino Mejia appeals his convictions for eight
burglaries.2 We affirm.
1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. § 30.02(a)(1), (3) (West 2011).
Background Facts
In 2008, through separate indictments, the State charged appellant with
burglarizing eight habitations. The indictments contained enhancement
paragraphs alleging that appellant had been previously convicted of two felonies.
The trial court appointed counsel to represent appellant, and the parties filed
several pretrial documents.
A jury found appellant guilty of all eight burglaries. The trial court found the
indictments‘ enhancement paragraphs to be true and sentenced appellant to
seventy-five years‘ confinement on each offense. The court ordered the
sentences to run concurrently with each other, but it decreed that all of the
sentences could not begin to run until the expiration of a sentence for appellant‘s
burglary conviction from Dallas County.3 Appellant filed a motion for new trial
and brought these appeals.
Evidentiary Sufficiency
In his first two points, appellant challenges the sufficiency of the evidence
to support his convictions. In our due-process review of the sufficiency of the
evidence to support a conviction, we view all of the evidence in the light most
favorable to the verdict to determine whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Isassi v. State, 330
3
See Mejia v. State, No. 05-09-00178-CR, 2010 WL 3212063, at *1 (Tex.
App.—Dallas Aug. 16, 2010, pet. ref‘d) (not designated for publication).
2
S.W.3d 633, 638 (Tex. Crim. App. 2010).4 This standard gives full play to the
responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638.
The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Brown v.
State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075
(2009); see also Bottenfield v. State, 77 S.W.3d 349, 355 (Tex. App.—Fort Worth
2002, pet. ref‘d) (―The jury is free to believe or disbelieve the testimony of any
witness, to reconcile conflicts in the testimony, and to accept or reject any or all
of the evidence of either side.‖), cert. denied, 539 U.S. 916 (2003). Thus, when
performing an evidentiary sufficiency review, we may not re-evaluate the weight
and credibility of the evidence and substitute our judgment for that of the
factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Instead, we Adetermine whether the necessary inferences are reasonable based
upon the combined and cumulative force of all the evidence when viewed in the
4
Appellant purports to challenge the legal and factual sufficiency of the
evidence. But the court of criminal appeals has held that there is no meaningful
distinction between the legal sufficiency standard and the factual sufficiency
standard. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)
(overruling Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996)). Thus, the
Jackson standard is the ―only standard that a reviewing court should apply in
determining whether the evidence is sufficient to support each element of a
criminal offense that the State is required to prove beyond a reasonable doubt.‖
Id. at 912.
3
light most favorable to the verdict.@ Hooper v. State, 214 S.W.3d 9, 16–17 (Tex.
Crim. App. 2007). We must presume that the factfinder resolved any conflicting
inferences in favor of the verdict and defer to that resolution. Jackson, 443 U.S.
at 326, 99 S. Ct. at 2793; Isassi, 330 S.W.3d at 638. The standard of review is
the same for direct and circumstantial evidence cases; circumstantial evidence is
as probative as direct evidence in establishing the guilt of an actor. Isassi, 330
S.W.3d at 638; Hooper, 214 S.W.3d at 13.
A person commits burglary if, without the effective consent of the owner,
the person enters a habitation and intends to commit theft, attempts to commit
theft, or commits theft. Tex. Penal Code Ann. § 30.02(a)(1), (3); see also
Gilbertson v. State, 563 S.W.2d 606, 608 (Tex. Crim. App. [Panel Op.] 1978)
(explaining that a burglarious entry into a habitation may be established by
circumstantial evidence). A person commits theft by unlawfully appropriating
property with intent to deprive the owner of it. Tex. Penal Code Ann. § 31.03(a)
(West Supp. 2011); Liggens v. State, 50 S.W.3d 657, 659 (Tex. App.—Fort
Worth 2001, pet. ref‘d). To ―appropriate‖ personal property is ―to acquire or
otherwise exercise control over‖ it. Tex. Penal Code Ann. § 31.01(4)(B) (West
Supp. 2011). Unexplained or unreasonably explained possession of recently
stolen property by the defendant may raise an inference of guilt. See Rollerson
v. State, 227 S.W.3d 718, 725 (Tex. Crim. App. 2007); Poncio v. State, 185
S.W.3d 904, 905 (Tex. Crim. App. 2006).
4
The State’s evidence
The Mathis burglary
On April 10, 2008, Heather Mathis left her Lewisville home to work at a
private preschool. At the end of the day, she picked up her son, went home, and
noticed that ―[e]verything had been completely destroyed.‖ A window was
busted, picture frames were broken, a back door was open, and Mathis‘s
bedroom had been ransacked. Without permission, someone had entered
Mathis‘s house and had taken a television, VCR, DVD player, video camera,
cash, checks, jewelry, and other items.
The Goetz burglary
Ruth Goetz arrived at her Lewisville home at around 5 p.m. on April 30,
2008. When Goetz drove through a gate to enter her house‘s backyard area,
she noticed that the back door was open, and when she walked in, she ―realized
that [she had] been burglarized.‖ Goetz noticed that her television was gone, her
entertainment center was almost empty, some jewelry and tools had been taken,
and there were ―things just thrown on the floor.‖ Because someone had taken
her property without her permission, Goetz called the police.
The Marshall burglary
The same day that Goetz‘s house was burglarized, Jennifer Marshall
arrived home in Lewisville at approximately 9 p.m. Upon entering the house,
Marshall noticed that lights were on and that a laundry room door was open.
Marshall called the police. After the police arrived, Marshall saw that a window
5
was broken, and she noticed that jewelry, a mandolin, and small electronics had
been stolen. Marshall later recovered some of the stolen property from the
police, but she did not recover the mandolin. She testified that she had not given
anyone permission to be in her home or to take her property.
The Walker burglary
On May 6, 2008, Matthew Walker went to his Lewisville home after eating
lunch with his wife, and when he arrived, he saw muddy footprints on the carpet
that had not previously been there. When he went upstairs, he noticed that items
had been scattered on the floor and that some of his property, including a
television and two laptop computers, had been taken without his permission.
On the day of the robbery, one of Walker‘s neighbors, James Sterett, a
convicted felon, came home from running errands and saw a gray station wagon
parked in his own driveway with duct tape covering the license plate. Sterett
then saw a man coming from Walker‘s house. The man was Hispanic, middle-
aged, had a mustache, and was wearing jeans, a shirt, a light jacket, and a cap.
Sterett approached the man and said, ―Excuse me. Can I help you?‖ The man
responded that he was looking for a friend whom he thought lived at Walker‘s
house. The man then drove down an alley, but after Sterett went inside his
house, the man returned. Sterett went back outside, and the man drove away
from the neighborhood. When Sterett learned that Walker‘s house had been
burglarized, he told the police about what he had seen.
6
Some of Walker‘s other neighbors, the Buffingtons, had security cameras
mounted on their house. Walker viewed the recording from the day of the
robbery, and he brought pictures from the recording to trial.
Max Gehrke, a Lewisville police officer, was assigned to investigate
Walker‘s burglary (along with Mathis‘s burglary). He testified that the police
could not find usable fingerprints at Walker‘s house.5 He viewed the Buffingtons‘
security recording, which showed a gray Dodge Magnum, a station-wagon-like
car, that entered the alley of Walker‘s residence in the time fame of the burglary.
Officer Gehrke put pictures taken from the recording on ListServ, and the
response that Officer Gehrke received caused him to develop appellant as a
suspect for the burglary.6
Weeks after the burglary, Officer Gehrke showed Sterett a black and white
photographic lineup with six similarly looking men, and Sterett chose appellant as
the man he had seen on May 6. Sterett, who testified that he is ―very good at
remembering faces,‖ also identified appellant in court as the man with whom he
5
The absence of fingerprint evidence is not dispositive of whether the
evidence is sufficient to support appellant‘s convictions. See Rascon v. State,
496 S.W.2d 99, 101 (Tex. Crim. App. 1973) (discussing the absence of
fingerprint evidence in circumstantial cases); LaGrone v. State, 757 S.W.2d 893,
898 (Tex. App.—Beaumont 1988, no pet.) (upholding a burglary conviction
despite the absence of fingerprint evidence).
6
ListServ is a computer network that police departments use to share
information with each other.
7
had conversed near Walker‘s house.7 He testified, ―I was trying to look very hard
at [appellant‘s] face . . . because I knew he had to be doing something no-good
with the duct tape on the license plate, . . . and I wanted to remember what he
looked like.‖ On cross-examination by appellant‘s counsel, Sterett conceded that
he had not noticed tattoos on appellant on the date of the offense. Appellant
testified later that he has two tattoos on his face.
The Hernandez burglary
After leaving work, Jaime Hernandez went to his Flower Mound home with
his wife and children on May 13, 2008. When Hernandez entered his house, he
noticed that lights were on, there was a ―mess on the floor,‖ and a computer desk
had been moved. Hernandez called the police, and after they arrived,
Hernandez saw a shattered window and discovered that his computer and some
framed oil paintings were missing. Hernandez had not given anyone permission
to enter his house or to take his property.
The Whipple burglary
On the afternoon of May 14, 2008, the day after the burglary of
Hernandez‘s house, Melody Whipple arrived at her house and noticed that her
front door was unlocked, which was unusual. After opening the door, seeing that
7
To the extent that appellant argues that the trial court should have
excluded evidence of Sterett‘s pretrial identification of appellant on the basis that
the identification was unreliable or coerced, we hold that appellant forfeited the
argument by failing to seek exclusion of the evidence on that ground at trial.
See Tex. R. App. P. 33.1(a)(1); Perry v. State, 703 S.W.2d 668, 671 (Tex. Crim.
App. 1986).
8
the back door was ―wide open,‖ and noticing that a keyboard had been placed
upside down on the top of a couch, Whipple called 911. When the police arrived,
Whipple learned that a burglar had taken cash, a plasma television, a shotgun,
two camcorders, a purse, silverware, and jewelry. The burglar had left a muddy
footprint in the kitchen of Whipple‘s home.
The Stevenson burglary
Chesley Stevenson and his wife, Karen, met his sister-in-law for dinner on
May 31, 2008. After dinner, Stevenson‘s wife spent time with her sister while
Stevenson went back to his Lewisville home. When he arrived there, he saw a
―light blue‖ or ―silverish‖ Dodge Magnum parked in the grass behind his
neighbor‘s house. Stevenson entered his back yard and saw that the door to his
house was open. After Stevenson ran into the house, he noticed that the master
bedroom was in ―disarray.‖ When Stevenson went back outside, the Dodge
Magnum was gone. Stevenson realized that without his permission, someone
had taken an entire jewelry chest, some CDs, power tools, and cash from the
house; he estimated the value of the items taken at $18,000. Karen testified that
the pictures of the car from the Buffingtons‘ surveillance recording matched
Chesley‘s description of the uniquely colored car that he had seen.
The Lawlor burglary
Lynn Lawlor arrived at her two-story Lewisville home after work on June 4,
2008, and she found that a window was open and that there were a ―whole
bunch of papers on the floor.‖ Lawlor deduced that someone had been in her
9
house without her permission, and she called the police. After the police and
Lawlor‘s husband arrived, Lawlor noticed that parts of the house had been
ransacked and that several items were missing, including jewelry. Lawlor and
her husband testified that they did not give anyone permission to enter their
home or to take their property.
The Dallas burglary
On June 10, 2008, Rebecca Cecil returned from work to her duplex in
Dallas. In her neighbor‘s driveway, Cecil saw a car that was ―greenish-gray‖ and
―looked like one of those Dodge station wagons.‖ The car was running with no
one in it. While Cecil was still inside her garage, she ―heard some thumping
upstairs.‖ As Cecil approached the duplex, she saw a Hispanic, middle-aged
man moving around near the back of her fence. Cecil asked him what he was
doing. He replied, ―I‘m looking for somebody,‖ and then he got into the running
car and left. Cecil went into the duplex, and in her bathroom, all of the jewelry
chest drawers were empty and were on the floor. Cecil called the police, and she
eventually retrieved earrings, pins, watches, and other jewelry that had been
taken from her residence. Cecil testified that appellant was the man who had run
near her fence and had left in the Dodge station wagon.8
Portia Cooke, Cecil‘s neighbor in the duplex, saw a gray Dodge Magnum
outside of the duplex on the day that Cecil‘s house was burglarized. Consistent
8
The Dallas Court of Appeals affirmed appellant‘s conviction for
burglarizing Cecil‘s house. See Mejia, 2010 WL 3212063, at *5.
10
with Sterett‘s testimony in connection with the burglary of Walker‘s house, Cooke
testified that the Magnum had ―tape over the plate in the back.‖ Cooke testified
that the car she had seen matched the make and model of the one displayed by
the photographs taken from the Buffingtons‘ surveillance recording.
The police’s investigation of the burglaries
Detectives gathered information by which they believed that the eight
Denton County burglaries were linked together. Specifically, the method of the
burglaries, the types of items that were taken, and the neighborhoods they were
committed in were similar.
On June 10, 2008, the same day as Cecil‘s burglary and appellant‘s arrest,
Dallas Police Department (DPD) Officers Corey Parker and Michael Clifford,
along with Detective Fred Mends, were at Budget Suites on Stemmons Freeway
for several hours to watch room 3073, which they believed to be associated with
appellant. The officers eventually saw Mickie Young leave the room, and they
believed, based on a conversation with Young, that they had consent to search it.
The officers never saw appellant enter or leave room 3073. Upon searching
room 3073, which appeared to be occupied by a man and a woman based on the
types of clothes there, the police found jewelry, fur coats, cologne, perfume, and
paintings; the officers had to call for a truck because there was ―[t]oo much
property to put in [their] cars.‖
After seizing these items, the officers took them to a police station so that
―different complainants all over the Metroplex‖ could identify and retrieve their
11
property. The next morning, the DPD assigned Detective Philip Strodtman to
take over the investigation of the burglaries associated with the property found in
room 3073. Detective Strodtman communicated with officers in other police
agencies and released various items of property to their owners. Stevenson,
Goetz, Mathis, Marshall, Hernandez, Whipple, and Lawlor all identified property
they owned that had been seized from room 3073.
Diane Willis was managing the Budget Suites on Stemmons Freeway in
June 2008. Willis testified that room 3073 was leased to Young and appellant,
although Young paid the rent. Willis had not noticed appellant entering room
3073, but she had seen appellant ―[m]any times‖ in the company of Young. She
confirmed that appellant was ―registered to the room,‖ and she knew that
appellant drove a ―gray-silver‖ Dodge Magnum for eight months to a year
preceding his arrest. According to Willis, appellant had been at Budget Suites on
the night of his arrest, and about a week before that, she had seen him unload
groceries into room 3073.
Lewisville Police Department Detective David Henley investigated the
burglary of the Stevensons‘ house, Goetz‘s house, and Marshall‘s house. After
receiving information from Detective Philip Strodtman on ListServ concerning
appellant, in June 2008, Detective Henley entered appellant‘s name into
LeadsOnline, which led Detective Henley to visit Cash Pawn No. 25, to take
pictures of some of the items held there, and to eventually seize those items.
Joel Mendez, who manages that pawnshop, testified that the pawnshop requires
12
identification from people who sell merchandise to the store. The pawnshop also
classifies all of the items that are pawned or sold to the shop by the people who
sell them. Mendez testified that appellant had sold items to the pawnshop in
2008 on June 1 and June 5. An exhibit shows that appellant received more than
$1,000 for pawning thirty-eight items on those days. Among those items were
diamond rings, birthstone rings, a wedding band, and gold earrings. Some of the
Lawlors‘ property, taken on June 4, 2008, was recovered at the pawn shop.
Detective Henley also visited Detective Strodtman, saw hundreds of items
that the DPD had seized from room 3073, and took photographs of the items.
He contacted the victims of the burglaries that he was investigating to ask them
to look at the photographs and possibly recognize some of the items displayed in
them. Goetz, Marshall, and the Stevensons all recognized items in the
photographs, retrieved the items from Dallas, and then brought the items back to
Detective Henley so that he could photograph them individually.
Flower Mound Police Department Detective John Ryckeley investigated
the Hernandez and Whipple burglaries. Detective Ryckeley noticed muddy
shoeprints in Whipple‘s house and identified pictures of the shoeprints at trial.
Later, through ListServ, the DPD contacted Detective Ryckeley to tell him that
some of the property taken from Hernandez and Whipple may have been
recovered from room 3073, and Hernandez and Whipple identified their property.
After appellant‘s arrest, Detective Ryckeley visited him in jail, seized his Nike
13
shoes through a warrant, and discovered that the size and pattern on the shoes‘
soles matched the size and pattern of the shoeprints at Whipple‘s house.
Appellant’s evidence
Rita Lara, appellant‘s cousin, testified that from November 2007 to April
2008, appellant lived with her at an apartment in Arlington. From November
2007 to January 2008, Lara sometimes drove appellant to Bridgeport, where he
was working three to four days per week for an oil company. In early 2008,
appellant stopped working, and he acquired a gray Dodge Magnum. Lara did not
know where appellant resided when he stopped living with her, and she had ―no
idea‖ what he did to earn money from January until April 2008.
Appellant, who acknowledged that he had previously been convicted of
three burglaries and theft, along with other offenses, testified that he worked for
Express Energy in Bridgeport from August 2007 until November 2007, when he
got laid off. In January 2008, he began working eighty to one hundred hours per
week in Burleson for Frank‘s Casing Crew, and that job ended in April 2008.
Working so many hours enabled him to buy the Dodge Magnum. Appellant said
that in April 2008, he began living in Dallas with three other men, whom he
occasionally let borrow his car.
Appellant testified that on the night of his arrest, June 10, 2008, he
dropped Young off at Budget Suites at around 9 p.m. When he left the parking
lot, the police stopped and arrested him. Appellant confirmed that he knew
Young, and he described her as a friend. He said that he signed the lease for
14
room 3073 because Young wanted to live there but did not have valid
identification, and he testified that he later tried to remove his name from the
lease. Appellant claimed, however, that he never lived or spent the night there,
did not have a key to the room, and did not know of any property located there.9
He testified that Willis‘s testimony that he frequently went there was wrong,
although he conceded that he went there to help Young buy groceries about
once every three weeks.
Appellant agreed that he had sold items to a pawnshop and that those
items had been taken from the burglary victims‘ homes, but he denied knowing or
suspecting that the items had been stolen. When his counsel asked him what
reasonable explanation he could give the jury about why he had possession of
the items that had been stolen, he said, ―The reason I had that jewelry is
because Ms. Young gave it to me. She needed money, and she didn‘t have no
I.D. And I took it over there and sold it for her. That money went directly to her.‖
Appellant admitted that Cecil saw him near her duplex on the day she was
burglarized, and he conceded that he had tape on his license plate, but he
denied committing that burglary. Instead, he said that he had driven near Cecil‘s
duplex because he had gotten lost while looking for Young near a ―big building‖
on Royal Lane. He testified,
9
When officers searched room 3073, they did not find mail addressed to
appellant and did not obtain usable fingerprints.
15
So when I didn‘t see Ms. Young standing anywhere, I just
randomly just parked there and got out and walked and took a -- just
looked around and came right back. And just as I came back to get
in my car and drive off, that‘s when I had my encounter with Ms.
Cecil.
Concerning appellant‘s presence at Cecil‘s duplex, the following exchange
occurred during the State‘s cross-examination:
Q. Now, you understand that Ms. Cecil has testified that her
house was burglarized.
A. Yes, I sure [do].
Q. And you understand that you parked in the driveway right
next door to her house that was burglarized on the day that you
were parked there.
A. Exactly.
Q. And you understand that the property that was stolen from
her house just happened to end up in the Budget Suites room that‘s
rented in your name.
A. Exactly. Yeah, that I understand.
Q. That‘s just circumstance. Right? That‘s just bad luck on
your part, I guess.
A. Exactly.
Appellant admitted that the shoes he wore matched the tread pattern and
size of prints that were found in Whipple‘s house, and he testified that it was also
merely bad luck for that match to be coupled with the fact that the police found
property from Whipple‘s house in room 3073.
16
Appellant denied seeing Sterett and said that Sterett had ―outright lied‖
about his encounter with appellant in connection with the robbery of Walker‘s
house. Appellant also denied committing each burglary described above.
Analysis
Appellant asserts that the State did not prove that he had entered the
victims‘ homes or had possessed their property. But the evidence establishes
that eight similarly executed burglaries, at six homes in Lewisville and two homes
in Flower Mound, all occurred in less than two months. In seven of the eight
burglaries, the victims identified their stolen property as the same property that
the police had seized from room 3073.10 Appellant‘s association with room 3073
was not exclusive, but the association enabled the jury to focus on either
appellant or Young, the only people that the evidence connected to room 3073,
as the burglar. Appellant contends that he did not reside with Young in that
room, did not have personal belongings there, and did not possess the stolen
property that the police found there. But the jury was free to reject those
theories, see Bottenfield, 77 S.W.3d at 355, and it had rational, circumstantial
reasons to do so because appellant‘s name was on the lease for the room, the
police found men‘s clothes in the room upon searching it (and there is no
evidence of any other male associated with that room), Willis testified that she
10
Although the police did not locate any of Walker‘s property in room 3073,
Sterett said that he saw appellant at Walker‘s house on the date of that burglary,
and Sterett also said that he saw a car matching appellant‘s Dodge Magnum on
that day.
17
had seen him at the Budget Suites ―[m]any times‖ and on a ―pretty regular basis‖
until his arrest in June 2008, and the State impeached appellant‘s credibility with
evidence of previous burglary convictions. See Tex. R. Evid. 609(a); Woodall v.
State, 77 S.W.3d 388, 394 (Tex. App.—Fort Worth 2002, pet. ref‘d).
Other facts could have allowed the jury to rationally infer that appellant, not
Young, committed each of the burglaries. First, the size and pattern of
appellant‘s shoeprints matched shoeprints found at Whipple‘s house. Appellant
relies on Casel v. State to argue that the matching shoeprints are not probative,
but in that case, a match between shoeprints at the scene and the shoes the
defendant wore while detained for questioning was the ―only evidence connecting
[the defendant] with the burglary.‖ 605 S.W.2d 609, 610 (Tex. Crim. App. [Panel
Op.] 1980); see also Harris v. State, 163 Tex. Crim. 519, 521, 294 S.W.2d 123,
124 (1956) (―It has long been the established rule of law that, ordinarily, identity
of an accused may not be established by tracks alone.‖). Here, the State does
not rely solely on the shoeprint match to link appellant to the burglaries.
Second, Sterett testified that he had talked to appellant near Walker‘s
residence on the date of the burglary of that house. Appellant denied this fact.
Although Sterett initially told the police that appellant had missing teeth, and
although Sterett had not recalled seeing tattoos on appellant‘s face on the day
the burglary occurred, the jury had rational reasons to accept Sterett‘s testimony
and reject appellant‘s testimony. For example, Sterett remembered that
appellant had covered part of his license plate with duct tape, and appellant
18
conceded that he had covered the license plate in a similar way on another
occasion. Also, when Officer Gehrke showed Sterett the photographic lineup, it
took Sterett less than two seconds to recognize appellant. We must defer to the
jury‘s implicit resolution of conflicts between Sterett‘s testimony about how
appellant looked on the date of Walker‘s burglary and appellant‘s later
appearance at trial. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Isassi, 330
S.W.3d at 638.
Third, appellant‘s Dodge Magnum matched the car associated with
Walker‘s burglary (by Sterett and by the Buffingtons‘ security recording),
Stevenson‘s burglary, and Cecil‘s burglary. Fourth, the police found some of the
Lawlors‘ property at a pawnshop in Dallas; the manager of that pawnshop
testified, and appellant acknowledged, that appellant had sold property to the
pawnshop. Fifth, no similar facts connected Young or anyone else to any of the
burglaries. Cf. Rollerson, 227 S.W.3d at 725–26.
Furthermore, the jury could have rationally rejected the parts of appellant‘s
testimony that, if believed, could have weighed against his involvement in the
burglaries. See Bottenfield, 77 S.W.3d at 355. Although appellant said that at
the time of the burglaries, he was living in Dallas with three men rather than at
room 3073, none of these men corroborated appellant‘s testimony. The jury
could have also rationally disbelieved appellant‘s claims that he took thirty-eight
items of valuable property from Young and sold them to the pawnshop on her
behalf without having any knowledge about the items being stolen and without
19
asking Young about where, when, or how she acquired the property. Finally, the
jury could have rationally rejected appellant‘s claim that it was merely bad luck
that his interaction with Cecil near her duplex coincided with her property being
found in room 3073 on the same day.
Appellant asserts on appeal that the evidence shows that he did not have
a key to room 3073 upon his arrest. Appellant testified that he did not have a key
to room 3073, but based on the evidence described above concerning
appellant‘s recurring presence at Budget Suites, his unloading of groceries there,
and the presence of men‘s clothing in the room when officers searched it, the jury
could have rationally rejected appellant‘s testimony. Also, while the State
stipulated that ―no set of keys was taken into the defendant‘s personal property
when he was arrested,‖ this stipulation does not show that appellant did not have
keys when he was arrested (the evidence shows that he was driving a car).
Furthermore, even if appellant did not have a key to room 3073, he still could
have resided there or stored the items he had stolen there.
Contrary to the arguments in appellant‘s brief, the jury‘s verdicts of
conviction do not necessarily hinge upon appellant‘s recent possession of stolen
property. See, e.g., Rollerson, 227 S.W.3d at 727–28 (citing O’Fallin v. State, 75
Tex. Crim. 47, 50, 169 S.W. 897, 899 (1914) (op. on reh‘g)); Martin v. State, Nos.
14-10-00440-CR, 14-10-00441-CR, 2011 WL 6916759, at *9 (Tex. App.—
Houston [14th Dist.] Dec. 29, 2011, no pet. h.) (mem. op., not designated for
publication) (―[T]he fact that appellant was found in possession of some of
20
Mario‘s property . . . was merely an additional circumstance the jury could have
considered along with the other evidence outlined above when determining he
committed the burglary.‖). Nor do the verdicts require appellant‘s exclusive
possession of room 3073 or rest only upon the law of parties.11
Also, we do not agree with appellant‘s numerous contentions that his
burglary charges rest on Young‘s implication of him as a co-occupant with her in
room 3073. While the record shows that officers believed that they had obtained
consent to search room 3073 from Young, we have not located evidence
indicating that Young said anything about appellant on the night the officers
searched room 3073. Moreover, without any statement by Young, the jury could
have rationally linked appellant to room 3073 through Willis‘s testimony.
Next, appellant contends that the evidence is insufficient because there is
no evidence of appellant‘s flight during his arrest, there were no witnesses to the
entries into the habitations, appellant was not present during the search, there
were no rent receipts from room 3073 with appellant‘s name on them, and the
lease of room 3073 was not introduced as an exhibit. But the jury could have
11
Nonetheless, we note that in an appropriate case, evidentiary sufficiency
may be established by an application of the law of parties under section 7.02 of
the penal code even if the jury charge did not contain an instruction about the law
of parties. See Garza Vega v. State, 267 S.W.3d 912, 915 (Tex. Crim. App.
2008) (―If the hypothetically correct jury charge for the case would authorize the
jury to convict on alternative theories of liability, then the appellate court must
deem the evidence sufficient if it is sufficient under any of the theories of
liability.‖); Howard v. State, 966 S.W.2d 821, 825 (Tex. App.—Austin 1998, pet.
ref‘d).
21
rationally found that the absence of these facts does not outweigh the probative
value of the circumstantial evidence linking appellant to the burglaries. Cf.
Stevenson v. State, 304 S.W.3d 603, 615 (Tex. App.—Fort Worth 2010, no pet.)
(―The absence of the money—the purpose of the robbery—and the absence of
the gun—the instrument of death according to the medical examiner‘s
testimony—make no difference in the analysis when circumstantial evidence, by
itself, can be enough to support the jury‘s verdict.‖).
Viewing all of the evidence in the light most favorable to the jury‘s verdicts,
and deferring to the jury‘s authority to draw reasonable inferences from basic
facts to ultimate facts, we conclude that the evidence was sufficient to enable the
jury to rationally find, beyond a reasonable doubt, that appellant committed each
of eight similar, linked burglaries by entering each victim‘s habitation to commit
theft. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at
638; see also Kuczaj v. State, 848 S.W.2d 284, 287–89 (Tex. App.—Fort Worth
1993, no pet.) (holding that the evidence was sufficient to sustain the defendant‘s
burglary conviction when he had been seen near the place of the burglary on the
date of the burglary and had pawned items taken during the burglary).
We overrule appellant‘s first two points.
Appellant’s Right to Confront Young
In his third point, appellant contends that the trial court abused its
discretion by permitting Detective Mends‘s testimony ―that inferentially or
indirectly presented to the jury Mickie Young‘s out of court testimonial statement
22
. . . that identified appellant as a resident‖ of room 3073. Appellant argues that
the admission of this alleged testimony violated his ―constitutional right to
confrontation and cross-examination‖ under the federal and state constitutions.
See Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004)
(explaining that the Confrontation Clause of the Sixth Amendment requires the
declarant‘s unavailability and a prior opportunity for cross-examination before an
out-of-court testimonial statement may be admitted).
In the part of the record that appellant refers to in his brief, Detective
Mends did not state that Young told officers anything about appellant‘s
connection to room 3073, and we have not located any other place in the record
where Detective Mends or another witness made such a statement. Instead,
Detective Mends testified only that based on officers‘ conversations with Young,
they believed that they had consent to search room 3073. When the prosecutor
asked Detective Mends about the purpose of going to the Budget Suites,
Detective Mends said, ―I understand that the defendant had a room there, and
we wanted to get into the room and figure out what was there.‖ This statement
does not indicate the source of Detective Mends‘s understanding about
appellant‘s connection to the room or necessarily infer that his understanding
came from the officers‘ conversation with Young. Thus, we disagree with
appellant that Detective Mends presented an out-of-court statement by Young
that connected appellant to room 3073. And even if Detective Mends had done
so, appellant did not object to any of Detective Mends‘s testimony, and he
23
therefore forfeited any confrontation-based complaint that he had about it. 12
See Tex. R. App. P. 33.1(a)(1); Paredes v. State, 129 S.W.3d 530, 535 (Tex.
Crim. App. 2004); Davis v. State, 268 S.W.3d 683, 708 (Tex. App.—Fort Worth
2008, pet. ref‘d). Because the record does not support appellant‘s third point and
because he forfeited the complaint related to that point, we overrule it.
Appellant’s Motion to Suppress
In his fourth point, appellant contends that the trial court erred by denying
his motion to suppress, thus ―causing these eight convictions to rest on illegally
obtained evidence.‖ Specifically, appellant argues that the police obtained
evidence from an arrest that was illegal under federal and state law.
We review a trial court‘s ruling on a motion to suppress evidence under a
bifurcated standard. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App.
2007). We give almost total deference to a trial court‘s rulings on questions of
historical fact and application-of-law-to-fact questions that turn on an evaluation
of credibility and demeanor, but we review de novo application-of-law-to-fact
questions that do not turn on credibility and demeanor. Id.
Before trial, appellant filed a pro se motion to suppress all evidence that
was the fruit of his allegedly illegal arrest on June 10, 2008. In the motion,
12
Earlier in the trial, appellant had objected to testimony about the officers‘
consent to search room 3073 because of his desire to confront Young about
whether she had given consent. The trial court granted appellant a running
objection on his confrontation complaint as related to the validity of the search,
but appellant did not secure a running objection concerning any statements that
Young might have made about appellant‘s connection to room 3073.
24
appellant stated that the police had conducted surveillance of Young in room
3073 after he had dropped her off at Budget Suites that night. He conceded that
Young got out of his car before he was arrested, but he nonetheless asserted
that the evidence that the police obtained from room 3073 after obtaining
Young‘s consent to search it was ―fruit of the poisonous tree‖ of his arrest.
During the hearing on appellant‘s motion, Detective Strodtman testified
that there were active warrants for appellant‘s arrest on June 10, 2008, including
a Tarrant County warrant for burglary, and that the arrest report showed that
officers had confirmed the warrants before arresting appellant. Detective
Strodtman did not, however, produce the warrants during the initial suppression
hearing. He explained that officers had been instructed, based on information
conveyed by Cecil and obtained from a burglary of a Dallas business, to look for
appellant to be driving a 2005 Dodge Magnum with a specific license plate
number.
After testimony concluded, appellant argued that his arrest was illegal
because the State had not presented a valid arrest warrant. Relying on a
decision from the Houston (Fourteenth District) Court of Appeals,13 the trial court
initially granted appellant‘s motion to suppress to the extent that the court
excluded any evidence that the police obtained as a result of appellant‘s arrest
(although the court noted that it had not seen any such evidence), but the court
13
See Weems v. State, 167 S.W.3d 350, 358 (Tex. App.—Houston [14th
Dist.] 2005, pet. ref‘d), cert. denied, 547 U.S. 1135 (2006).
25
denied the motion regarding the search of room 3073 because appellant had not
connected any illegality in his arrest to that search. Later on the same day as the
trial court‘s initial suppression ruling, the State presented a certified copy of the
warrant leading to appellant‘s arrest, which showed that the warrant was
executed on June 10, 2008. Appellant objected to reopening the suppression
issue on the ground that doing so would be ―unfairly prejudicial.‖ The trial court
overruled appellant‘s objection, admitted the certified copy of the warrant into
evidence, reconsidered its initial suppression ruling, and wholly denied
appellant‘s motion to suppress.
Even if we were to hold that the trial court incorrectly reopened the
suppression motion and wrongly reversed its initial decision to suppress
evidence that the police obtained as a result of appellant‘s arrest, we would be
required to determine whether the trial court‘s error caused harm under the
standard of Texas Rule of Appellate Procedure 44.2(a). See Tex. R. App. P.
44.2(a); Hernandez v. State, 60 S.W.3d 106, 108 (Tex. Crim. App. 2001). Under
that rule, the question is whether the trial court=s ultimate denial of appellant‘s
motion to suppress was harmless beyond a reasonable doubt. See Williams v.
State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997). In applying the Aharmless
error@ test, our primary question is whether there is a Areasonable possibility@ that
the error might have contributed to the conviction. Mosley v. State, 983 S.W.2d
249, 259 (Tex. Crim. App. 1998) (op. on reh‘g), cert. denied, 526 U.S. 1070
(1999).
26
If an arrest is illegal, a trial court must suppress evidence that arises from
the exploitation of that illegality. State v. Iduarte, 268 S.W.3d 544, 551 (Tex.
Crim. App. 2008). In other words, the acquisition of the evidence sought to be
suppressed must be causally connected to the police‘s illegal act. See id.; State
v. Purdy, 244 S.W.3d 591, 595 (Tex. App.—Dallas 2008, pet. ref‘d).
At trial, appellant failed to establish a causal connection between his
allegedly illegal arrest and the evidence that he sought to suppress through his
motion. On the first full day of the trial, in a hearing outside of the jury‘s
presence, the judge said,
[Appellant‘s counsel], talk about your concern about an illegal
arrest. If the arrest was illegal, what evidence did the State obtain
from an illegal arrest? Because that‘s what I‘m looking for. If there‘s
something to suppress, any statements or any evidence from the
illegal arrest, then we need to discuss that now.
Counsel responded by asserting that appellant‘s arrest was connected to the
property found in room 3073 and by stating, ―Anything found after that illegal
arrest we believe should be suppressed as the fruits of an illegal arrest . . . .‖
The trial court again pressed counsel by asking, ―What did they gain from that
arrest?‖ Counsel mentioned the police‘s allegedly improper surveillance of
Young14 and referred again to the search of room 3073. Appellant‘s counsel later
represented that no evidence was found on appellant when he was arrested, that
14
Neither probable cause nor reasonable suspicion are generally
necessary to authorize surveillance. Metoyer v. State, 860 S.W.2d 673, 678
(Tex. App.—Fort Worth 1993, pet. ref‘d).
27
appellant had not made statements upon the arrest, and that he was moving to
suppress the property found in room 3073.
The next day, at another hearing outside of the jury‘s presence, appellant‘s
counsel contended that appellant had been arrested illegally and urged that ―any
witnesses or information or property found after that arrest be suppressed and
excluded from [the] trial.‖ He particularly asserted that items found upon the
search of room 3073 should be suppressed because the police did not have
probable cause to search the room and because Young, who had given consent
for officers to search the room, did not appear at the trial and could not be
confronted about whether the consent was voluntary.
Counsel argued that Young was a ―witness that came about from the
arrest of [appellant].‖ But counsel admitted that appellant had not given
information about Young to the police, that appellant had dropped off Young at
the motel prior to his arrest, and that the police had begun surveillance on the
motel room and on Young before the arrest. The trial court asked counsel, ―What
did [appellant] give [the police] after the arrest that leads them to her that you say
is fruit of the poisonous tree?‖ Counsel responded that appellant ―didn‘t give
them any information . . . other than he dropped her off. And I guess she
became a suspect at that point by the police.‖ On appeal, appellant concedes
that he and Young were detected by officers ―in the vehicle prior to the detention
and arrest upon arriving at Budget Suites to leave Ms. Young there.‖ [Emphasis
added.]
28
Because the record shows that the police began surveillance of Young
before appellant‘s arrest and obtained her consent to search room 3073
independent of the arrest, we hold that appellant failed to establish a causal
connection between his arrest and the property found in room 3073. Thus, we
hold that any possible error of the trial court in deciding that the arrest was legal
is harmless beyond a reasonable doubt. See Tex. R. App. P. 44.2(a).
On appeal, appellant claims that the officers‘ discovery of his driver‘s
license (which he says was used for the photographic lineups shown to Cecil and
Sterett) and the police‘s discovery of his shoeprints were products of his arrest.
But at trial, on the basis of his allegedly illegal arrest, appellant did not
specifically seek to exclude anything other than the police‘s interaction with
Young and their search of room 3073. Thus, we hold that appellant forfeited his
complaint that other evidence should have been excluded. See Tex. R. App. P.
33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (―[T]he point
of error on appeal must comport with the objection made at trial.‖); Aguilar v.
State, 26 S.W.3d 901, 905–06 (Tex. Crim. App. 2000) (explaining that rule 33.1
requires specificity for evidentiary objections).
Finally, to the extent that appellant attempts on appeal to challenge the
police‘s warrantless but consensual search of room 3073 on a basis that is
independent of the legality of his arrest, we note that at the hearing on
appellant‘s motion to suppress, appellant‘s counsel said that appellant was ―not
claiming standing in [the] motel room‖ and had no expectation of privacy in the
29
room. Appellant repeated in his testimony before the jury that he did not have an
expectation of privacy in the room. Thus, appellant‘s challenge to the search of
the room, if any, fails on the ground that he lacks standing. See Kothe v. State,
152 S.W.3d 54, 60 (Tex. Crim. App. 2004).
For all of these reasons, we overrule appellant‘s fourth point.
The Admission of an Extraneous Offense
In his fifth point, appellant asserts that the trial court abused its discretion
by admitting evidence of Cecil‘s burglary, which was an extraneous offense.
We review the trial court‘s admission of evidence under an abuse of discretion
standard. Price v. State, 351 S.W.3d 148, 150 (Tex. App.—Fort Worth 2011, pet.
ref‘d); see Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)
(op. on reh‘g). Under this standard, the trial court‘s ruling will be upheld as long
as it falls within the ―zone of reasonable disagreement.‖ Karnes v. State, 127
S.W.3d 184, 189 (Tex. App.—Fort Worth 2003, pet. ref‘d), cert. denied, 129 S.
Ct. 2391 (2009).
―Evidence of other crimes, wrongs or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or
accident . . . .‖ Tex. R. Evid. 404(b); see Montgomery, 810 S.W.2d at 387–88;
see also Segundo v. State, 270 S.W.3d 79, 87 (Tex. Crim. App. 2008)
(explaining that the defendant is generally to be tried only for the offense
30
charged, not for any other crimes), cert. denied, 130 S. Ct. 53 (2009). The State,
as the proponent of extraneous offense evidence, bears the burden of showing
admissibility. Russell v. State, 113 S.W.3d 530, 535 (Tex. App.—Fort Worth
2003, pet. ref‘d). ―Whether extraneous offense evidence has relevance apart
from character conformity, as required by Rule 404(b), is a question for the trial
court.‖ Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).
Appellant contends on appeal that Cecil‘s burglary ―had no connection to
this offense . . . nor presented evidence of motive, intent, plan and identity.‖
Before Cecil testified, appellant objected to the proposed testimony on the
grounds that her testimony was unfairly prejudicial and was irrelevant.15
The State responded by arguing that Cecil‘s testimony would be relevant to the
issues of appellant‘s identity and motive. The trial court overruled appellant‘s
objection but gave the jury a limiting instruction.
―Identity is an ‗elemental fact‘ with relevance apart from character
conformity.‖ Booker v. State, 103 S.W.3d 521, 530 (Tex. App.—Fort Worth 2003,
pet. ref‘d) (op. on reh‘g).16 For an extraneous offense to be admissible to show
15
We will broadly construe appellant‘s relevance objection as an argument
that the extraneous offense was not admissible under rule 404(b).
16
In his brief, appellant relies on a court of criminal appeals opinion that
concerned using extraneous offenses to show a common plan or scheme but did
not discuss using them to prove a defendant‘s identity as the perpetrator of a
charged offense. See Daggett v. State, 187 S.W.3d 444, 451–52 (Tex. Crim.
App. 2005). Because we hold that Cecil‘s burglary was admissible to prove
identity, we need not discuss how Daggett would have affected the admissibility
of Cecil‘s burglary to prove a common plan.
31
identity, identity must be raised as an issue in the case. Lane v. State, 933
S.W.2d 504, 519 (Tex. Crim. App. 1996). A defendant may raise the issue of
identity during cross-examination of the State‘s witnesses. Id.; see Page v.
State, 137 S.W.3d 75, 78 (Tex. Crim. App. 2004) (―Identity can be raised by
defense cross-examination, such as when the identifying witness is impeached
on a material detail of the identification.‖). In Page, the court of criminal appeals
determined that the defendant raised the issue of identity because questioning of
the State‘s witness called into doubt either ―her capacity to observe (i.e., she was
mistaken) or her truthfulness (i.e., she was lying), or both, [and] the questions
implied that the identification of appellant was not trustworthy.‖ 137 S.W.3d at
78.
Appellant‘s trial counsel asked questions during his cross-examination of
Sterett that emphasized the issue of appellant‘s identity as the person who had
committed the Walker burglary and who therefore could be linked to the other
burglaries. Specifically, counsel questioned Sterett about his statement to police
that appellant had missing teeth and about Sterett‘s failure notice appellant‘s
tattoos. See id. at 78 (―We have held that the existence of a mustache can
qualify as a material detail of identification.‖). Counsel also questioned Sterett
extensively about the reliability of Sterett‘s choice of appellant on a photographic
lineup as the man Sterett had seen near Walker‘s house at the time of the
burglary. See Burton v. State, 230 S.W.3d 846, 849–50 (Tex. App.—Houston
[14th Dist.] 2007, no pet.) (holding that the defendant raised identity as an issue
32
by questioning the certainty of the victim‘s identification of him through a
photographic lineup). Thus, we conclude that appellant raised the issue of his
identity as the perpetrator of the eight linked burglaries. See Segundo, 270
S.W.3d at 86 (―The trial judge has considerable latitude in determining that
identity is, in fact, disputed.‖).
Even when identity is raised as an issue, an extraneous offense is usually
admissible only if the offense is so similar to a charged offense as to illustrate the
defendant‘s distinctive and idiosyncratic manner of committing criminal acts.
See Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006); see also
Segundo, 270 S.W.3d at 88 (explaining that the common characteristics to show
a link between the extraneous and charged offenses may be proximity in time
and place, mode of commission of the crimes, the person‘s dress, or any other
elements that mark both crimes as having been committed by the same person).
Cecil‘s burglary occurred within a month of Lawlor‘s, Stevenson‘s,
Whipple‘s, and Hernandez‘s burglaries and within two months of all eight of the
burglaries at issue. See Walker v. State, 588 S.W.2d 920, 924 (Tex. Crim. App.
[Panel Op.] 1979) (holding that several extraneous offenses committed within
one month of the charged offense were sufficiently similar to the charged offense
so as to be admissible to prove identity). The burglary of Cecil‘s duplex occurred
while Cecil was at work, just as had occurred in Mathis‘s, Goetz‘s, Marshall‘s,
Hernandez‘s, and Lawlor‘s burglaries. Cecil noticed a Dodge station-wagon-like
car at her house near the time of the burglary, like Sterett had seen and the
33
Buffingtons‘ security recording had displayed in connection with Walker‘s
burglary, and like Stevenson had seen near his neighbor‘s house. When Cecil
entered the duplex, she noticed that the drawers of her jewelry chest had been
emptied out. Similarly, Lawlor‘s and Mathis‘s jewelry armoires, Goetz‘s jewelry
box, and Stevenson‘s jewelry chest had been misplaced, and Marshall‘s and
Whipple‘s jewelry had been taken. Also, Cecil‘s neighbor, Cooke, saw tape over
a gray Dodge Magnum‘s license plate, just as Sterett had seen. Finally, and
perhaps most importantly, property taken during Cecil‘s burglary, like property
taken from seven of the eight burglaries at issue, was found in room 3073, which
the evidence linked to appellant.
We conclude that these similarities are sufficient to sustain the trial court‘s
decision to admit the extraneous offense of Cecil‘s burglary for the purpose of
proving identity. See Ransom v. State, 503 S.W.2d 810, 813–14 (Tex. Crim.
App. 1974); Pena v. State, 867 S.W.2d 97, 99 (Tex. App.—Corpus Christi 1993,
pet. ref‘d) (holding that the use of the same vehicle in the charged and
extraneous burglaries was a sufficient ―signature‖ characteristic to justify the
admission of the extraneous burglary); see also Posey v. State, No. 05-02-
00092-CR, 2003 WL 22383703, at *2 (Tex. App.—Dallas Oct. 20, 2003, no pet.)
(mem. op., not designated for publication) (holding that evidence of two
extraneous burglaries was admissible to show identity because, like the charged
burglary, the extraneous burglaries occurred during the day, the burglar
34
ransacked the houses he had burglarized, and the burglar pawned the items he
had stolen).
Appellant contends that even if evidence concerning Cecil‘s burglary was
admissible under rule 404(b), the trial court should have excluded the evidence
under rule 403. See Tex. R. Evid. 403 (stating that relevant evidence may be
excluded ―if its probative value is substantially outweighed by the danger of unfair
prejudice‖). If a trial court determines that evidence of an extraneous offense has
relevance aside from character conformity, and a timely, proper rule 403
objection is made, the trial court must make a balancing determination under rule
403. Karnes, 127 S.W.3d at 191. As we explained in Karnes,
Only ―unfair‖ prejudice provides the basis for exclusion of relevant
evidence. Unfair prejudice arises from evidence that has an undue
tendency to suggest that a decision be made on an improper basis,
commonly an emotional one. Rule 403 favors admissibility and a
presumption exists that relevant evidence will be more probative
than prejudicial. In evaluating the trial court‘s determination under
rule 403, a reviewing court is to reverse the trial court‘s judgment
―rarely and only after a clear abuse of discretion,‖ recognizing that
the trial court is in a superior position to gauge the impact of the
relevant evidence.
The trial court‘s balancing determination must be measured
against the relevant criteria by which a rule 403 decision is made.
The relevant criteria in determining whether the prejudice of an
extraneous offense substantially outweighs its probative value
include: (1) how compellingly the extraneous offense evidence
serves to make a fact of consequence more or less probable—a
factor which is related to the strength of the evidence presented by
the proponent to show the defendant in fact committed the
extraneous offense; (2) the potential the other offense evidence has
to impress the jury ―in some irrational but nevertheless indelible
way‖; (3) the time the proponent will need to develop the evidence,
during which the jury will be distracted from consideration of the
35
indicted offense; and (4) the force of the proponent‘s need for this
evidence to prove a fact of consequence, that is, does the proponent
have other probative evidence available to him to help establish this
fact, and is this fact related to an issue in dispute. When the
relevant criteria are viewed objectively and lead to the conclusion
that the danger of unfair prejudice substantially outweighs the
probative value of the proffered evidence, the appellate court should
declare that the trial court erred in failing to exclude it.
Id. at 191–92 (citations omitted).
The admission of evidence of Cecil‘s burglary, through Cecil‘s and Cooke‘s
testimony, made appellant‘s identity as the burglar of the eight homes at issue
significantly more probable. Cecil testified that after leaving her job in the
afternoon and arriving home, she saw a running but parked Dodge station
wagon. After hearing ―some thumping upstairs‖ and ―rustling in [her] backyard,‖
she saw appellant, who eventually got into the car and left. When she entered
the house, Cecil realized that it had been burglarized. Just a few hours later, the
police found Cecil‘s property in room 3073.
Cecil‘s testimony provided unique evidence of a close-in-time relationship
between appellant‘s presence at the site of a burglary and the discovery of
property, in room 3073, that was taken during the burglary. The testimony
therefore significantly lessened the possibility that someone else committed
Cecil‘s burglary and, by implication, the other burglaries associated with the
items found in room 3073. For the same reason, Cecil‘s testimony also
significantly undermined the credibility of appellant‘s later testimony, in which he
minimized his connection with room 3073, stated that he had not been inside
36
room 3073 on the day of Cecil‘s burglary, claimed ignorance of the stolen nature
of the property he had sold to the pawn shop, and asserted that it was merely
back luck that property stolen from Cecil‘s house had arrived at room 3073.
Cecil‘s and Cooke‘s testimony also strengthened the credibility of Sterett‘s
testimony. Cecil and Sterett were the only witnesses who claimed to have seen
appellant at a burglary scene, and they both described his car as a gray station
wagon. Cooke testified that she had noticed tape over a license plate on
appellant‘s car, and Sterett had recalled seeing the same thing while testifying
that he saw appellant and the car near the scene of Walker‘s burglary on the day
that it occurred. As we mentioned above, appellant attacked Sterett‘s
identification through cross-examination, and later, during appellant‘s own
testimony, he claimed that Sterett had lied. Of the eight charged burglaries,
Sterett was the only witness who claimed to have seen appellant near the crime
scene, so the need for Cecil‘s and Cooke‘s testimony to support Sterett‘s
testimony was significant.
Cooke‘s and Cecil‘s testimony comprises approximately twenty pages of
the record that includes hundreds of pages of testimony from other witnesses, so
it is not likely that the extraneous offense evidence distracted the jury from
consideration of the indicted offenses. Finally, although we recognize that the
evidence about Cecil‘s burglary had the potential to make an impression upon
the jury of appellant‘s guilt for the charged burglaries, in light of our analysis
37
above, we conclude that the trial court could have reasonably determined that
this impression was not irrational.
We conclude that the trial court did not abuse its discretion by siding with
the presumption of admissibility under rule 403 and by implicitly determining that
the evidence about Cecil‘s burglary was not substantially more prejudicial than
probative. See id. Because we hold that the trial court did not err by admitting
the evidence under rules 403 and 404(b), we overrule appellant‘s fifth point.
The Cumulation of Appellant’s Sentences
In his sixth point, appellant challenges the trial court‘s decision to order
that appellant‘s eight sentences subject to this appeal will begin to run after the
expiration of his burglary sentence from Dallas County. In the first part of his
sixth point, appellant argues that the evidence is ―insufficient to prove the prior
offense alleged in the State‘s motion to cumulate.‖ Specifically, he contends that
the State did not present a certified copy of his previous conviction or expert
testimony to identify him as the same person convicted in Dallas County.
Under article 42.08 of the code of criminal procedure,
When the same defendant has been convicted in two or more cases,
judgment and sentence shall be pronounced in each case in the
same manner as if there had been but one conviction. . . . [I]n the
discretion of the court, the judgment in the second and subsequent
convictions may either be that the sentence imposed . . . shall begin
when the judgment and the sentence imposed . . . in the preceding
conviction has ceased to operate, or that the sentence imposed . . .
shall run concurrently with the other case or cases . . . .
Tex. Code Crim. Proc. Ann. art. 42.08(a) (West Supp. 2011).
38
―The Legislature has assigned the task of cumulating sentences
exclusively to the trial judge. . . . [W]hen a trial judge lawfully exercises the
option to cumulate, that decision is unassailable on appeal.‖ Beedy v. State, 250
S.W.3d 107, 110 (Tex. Crim. App. 2008) (citations and footnotes omitted).
For an order cumulating sentences to be valid, however, the record must
sufficiently link the defendant to the prior conviction. See Miller v. State, 33
S.W.3d 257, 259–61 (Tex. Crim. App. 2000). ―[A]n admission by a defendant [is]
sufficient evidence to link the defendant to his prior convictions.‖ Id. at 262.
Before trial, the State filed a ―Motion for Cumulative Sentences,‖ stating
that appellant had been previously convicted of burglary in cause number F-
0856627 in the ―7th Criminal District Court‖ in Dallas County in February 2009.
During the middle of the trial, while making an objection to Cecil‘s testimony,
appellant‘s counsel said,
Your Honor, we‘d object on this witness being called. She was the
homeowner, complaining witness, in a case Mr. Mejia went to trial on
February 16th, 2009, in Dallas on Cause No. F0856627-Y in the
Criminal District Court No. 7. He was convicted and given a 50-year
sentence.
The trial court‘s judgments state that the eight sentences at issue shall
commence ―when the sentence imposed in Cause No. F-0856627, in Dallas
County, Texas, ceases to operate.‖
We conclude that appellant‘s counsel‘s admission sufficiently linked him to
the conviction for which the State sought cumulation, and we overrule that part of
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his sixth point. Id. at 262; see also Mungaray v. State, 188 S.W.3d 178, 183–84
(Tex. Crim. App. 2006).
Next, appellant contends that cumulation was improper because the eight
burglaries at issue occurred in the same criminal episode as the Dallas County
burglary. Section 3.03 of the penal code limits the trial court‘s discretion to
cumulate sentences. See Tex. Penal Code Ann. § 3.03 (West Supp. 2011).
Under that section, sentences must generally run concurrently when ―the
accused is found guilty of more than one offense arising out of the same criminal
episode prosecuted in a single criminal action.‖ Tex. Penal Code Ann. § 3.03(a)
(emphasis added); see Reese v. State, 305 S.W.3d 882, 885 (Tex. App.—
Texarkana 2010, no pet.) (explaining that ―single criminal action‖ refers to a
single trial or plea proceeding and that proper cumulation of sentences may
occur for offenses that are not tried in a single criminal action); see also Martin v.
State, No. 02-08-00128-CR, 2009 WL 2414294, at *8 (Tex. App.—Fort Worth
Aug. 6, 2009, no pet.) (mem. op., not designated for publication) (―[T]he trial court
did not err by failing to have the sentence from Martin‘s DWI-misdemeanor
repetition conviction run concurrently with his conviction for failure to stop and
render aid because the two convictions were tried in separate criminal actions.‖).
Even if we were to hold that the eight burglaries at issue occurred in the
same criminal episode as the Dallas County burglary, because they were not
tried in the same criminal action as the Dallas County burglary, we conclude that
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section 3.03(a) did not restrict the trial court‘s discretion to cumulate. See Tex.
Penal Code Ann. § 3.03(a); Reese, 305 S.W.3d at 885.
For these reasons, we overrule appellant‘s sixth point.
Conclusion
Having overruled each of appellant‘s points, we affirm the trial court‘s
judgments.
PER CURIAM
PANEL: LIVINGSTON, C.J.; WALKER and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: February 23, 2012
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