Cleo Chester McGrew, Jr. v. State

NUMBER 13-00-536-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

CLEO CHESTER MCGREW, JR. , Appellant,

v.

THE STATE OF TEXAS , Appellee.

___________________________________________________________________

On appeal from the 377th District Court

of Victoria County, Texas.

__________________________________________________________________

O P I N I O N

Before Justices Dorsey, Hinojosa, and Rodriguez

Opinion by Justice Rodriguez

A jury found Cleo Chester McGrew, Jr., appellant, guilty of the offense of burglary of a habitation and assessed punishment at twenty-five years confinement after finding an enhancement paragraph true. SeeTex. Pen. Code Ann. §§12.32, 12.42 (b), 30.02 (Vernon Supp. 2001). By two points of error, appellant contends the evidence is legally and factually insufficient to support the jury's verdict, and that he received ineffective assistance of counsel. We affirm.

According to evidence produced by the State, on January 18, 1999, Adrian Navarro heard noises in the attached garage of his home. Navarro investigated the noise and found a man attempting to drag a lawn mower out of the garage. The man told Navarro that he wanted to borrow the lawn mower, but Navarro refused him permission to use it. Navarro ran inside the house and his sister called 911. When Navarro returned to the garage, the man had left and the lawn mower was missing. The first officer on the scene obtained a physical description of the man Navarro saw in the garage, and a physical description of the missing lawn mower. Thereafter, the officer came into contact with a man who fit Navarro's description. Navarro was subsequently taken to 1103 Loma Vista, where appellant was temporarily residing and had been detained by the police. Navarro identified appellant as the person he saw in his garage. Two additional witnesses identified appellant as the person they saw pushing a lawn mower fitting the description of the mower taken from Navarro's garage, just after it was reported missing. The lawn mower was never recovered.

At trial, Navarro identified appellant as the person in his garage. The other two witnesses identified appellant as the person they saw pushing a mower. That person matched the physical descriptions given to the police by Navarro. Appellant testified that he did not take the lawn mower.

By his first point of error, appellant claims there is legally and factually insufficient evidence to establish he was the perpetrator of the burglary.

When reviewing the legal sufficiency of the evidence, we consider 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 offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319(1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Skinner v. State, 956 S.W.2d 532, 536 (Tex. Crim. App. 1997). We review the factual sufficiency of the evidence by looking at all of the evidence without the prism of "in the light most favorable to the prosecution" and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson, 23 S.W.3d at 11; Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996).

The essential elements of burglary are 1) a person 2) without effective consent of the owner 3) enters a habitation, or building not open to the public 4) with intent to commit a felony, theft, or assault. Tex. Pen. Code Ann. § 30.02(a) (Vernon Supp. 2001); Mathew v. State, 839 S.W.2d 110, 111 (Tex. App.--Corpus Christi 1992, no pet.).

Navarro, who was fifteen years old, testified that around 8:00 p.m. he was at his house and heard something in his garage. The garage door had been left open. He opened the door from his house to the garage and saw a black male inside the garage. The man was wearing a long-sleeved blue jean shirt, a cowboy belt, a "big old buckle," and some cowboy boots. He was not sure what color the pants were. When asked to describe the man's facial features, Navarro stated he had a beard with "a bunch of gray in his hair and his beard." Navarro had never seen the person before, and asked him what he was doing there. The man asked if he could use his lawn mower to mow a lady's yard. Navarro told him to leave and that he could not use the mower. The man was heading out of the garage as Navarro went back inside to tell his sister what had transpired. Navarro saw the man dragging the lawn mower towards the outside of the garage. When Navarro came back to the garage, the man and the mower were gone. Navarro did not see anybody with the man. Navarro's sister called the police, who later arrived at the house. Navarro gave the police a description of the man, and described the lawn mower as having two big wheels in the back and smaller ones in the front.

The police took Navarro to a location where he identified appellant as the same man who had been in his garage. He did not have the shirt on, but Navarro recognized the belt buckle. He also recognized the gray in his beard. When the officers asked Navarro if the man was the person who took the lawn mower, there was only one person to choose from. At trial, Navarro identified appellant as the man who was in his garage, and who he subsequently identified on the night of the burglary. Navarro also gave a statement to the police in which he said the suspect was about forty years old, and was wearing blue jeans and cowboy boots. The statement did not include that the man had a large belt buckle. Nonetheless, Navarro testified that the man was wearing a noticeable belt buckle.

Milton Nerio, Jr., who was seventeen years old, lived on Loma Vista. He saw a man running with a lawn mower on the night in question. That night and at trial, he identified appellant as the man with the lawn mower. The mower had two big wheels on the back and two little wheels in the front. Nerio remembered that the man was just wearing blue jeans. It was dark when he saw the man.

Timetria Barfield, who was twelve years old at the time of appellant's trial, testified she lived on Loma Vista and saw appellant with a lawn mower from her front porch. The mower had small front wheels, and larger back wheels. Appellant came out from between two homes or apartments on Loma Vista. It was dark, but she knew it was appellant because she briefly spoke with him. She said, "Hi, Cleo," and he replied, "Hi, little momma." He was pushing the lawn mower toward Laurent Street and then a pickup truck stopped, appellant put the mower in the bed of the truck, got in the truck, and the truck left. Barfield gave a statement in which she claimed she saw appellant with the lawn mower around 7:00 p.m., but testified at trial that it was around 10:00 p.m.

Officer Julian Huerta of the Victoria Police Department testified that he spoke with Navarro, who gave him the details of what happened. According to Officer Huerta, the physical and the clothing description given by Navarro matched that of the suspect, who Officer Huerta identified as appellant. Navarro told Officer Huerta that the man he observed was about 140 pounds. Navarro described him as a forty year old man.

When the officer observed appellant, he did not have a shirt on and was not wearing boots, as Navarro had described, but was wearing jeans and a western belt. He was an adult black male, with a beard, with some gray in it. He was approximately five foot eleven, and 190 pounds. Officer Huerta estimated his height from a distance. The facial features matched Navarro's description exactly. When asked if appellant appeared to be forty years old, Officer Huerta replied, "Probably not."

Officer Huerta took Navarro to the location where appellant was temporarily residing, and Navarro identified appellant as the person he observed entering his garage and taking his lawn mower. Navarro made the identification from a distance of fifteen to twenty feet at around 8:30 p.m. The area was well lit by street lights. According to Officer Huerta, there was adequate lighting for someone to see a person from that distance. There were no other black individuals standing nearby when Navarro identified appellant.

Officer Huerta opined that it would take about ten to twelve minutes to run from from Navarro's house to appellant's temporary residence on Loma Vista. There was sufficient time for an individual to have traveled by foot from Navarro's house to appellant's temporary residence. Officer Huerta never came across the lawn mower.

A document prepared when appellant was booked at the police station indicated he weighed 175 pounds, and was five foot five inches tall.

Sergeant William Dubose of the Victoria Police Department testified he heard a radio dispatch that a suspect was running with a lawn mower towards Loma Vista Street, so he headed to the area. Upon arriving, Sergeant Dubose saw an individual, Milton Nerio, Jr., in front of a residence. Nerio related information he observed pertaining to the burglary. Sergeant Dubose subsequently came into contact with an individual who matched the description given to him by Nerio. Information came over the radio from a witness that the suspect's first name was possibly Cleo, and then a lieutenant came over the radio and asked the dispatcher to check Cleo McGrew, who lived in the area. Thereafter, Sergeant Dubose got an address of 1103 Loma Vista, proceeded to the address, and came into contact with appellant at that address. Sergeant Dubose testified that when he first saw the suspect, he appeared to be about five foot six, one hundred and forty pounds, and had a beard with lots of gray in it. He was wearing blue jeans, a cowboy belt, no shoes, and no shirt. On cross-examination, however, Sergeant Dubose testified as follows:

Q. He didn't weigh 140 pounds?

A. I don't recall him weighing that much.

Q. He wasn't 40 years old; was he?

A. Apparently not.

Sergeant Dubose never located the lawn mower. He testified it is not unusual for the police not to recover property in a burglary. He looked around the area near appellant's temporary residence and found tracks through pea gravel, "coming from where Mr. Nerio said he saw the individual with the lawn mower." He followed the tracks through the gravel, and they led almost to 1103 East Loma Vista, where appellant was residing.

Sergeant Dubose testified it would take ten to fifteen minutes to walk from Navarro's house to appellant's temporary residence. The burglary occurred at about 8:15 p.m. and Sergeant Dubose arrived at appellant's temporary residence at about 8:30 p.m. Appellant did not appear to be winded or sweaty. Sergeant Dubose opined that there was adequate time for appellant to have left the Navarro residence, pushed the mower to his temporary residence, dispose of the lawn mower, and then have time to remove his shirt and boots.

Appellant testified that he did not steal the lawn mower.

As appellant notes, there were conflicting testimony regarding the description of the perpetrator. The description of the suspect's weight varied from less than 140 pounds to 190 pounds. Officer Huerta described the suspect, who he identified as appellant, as 5' 11" and 190 pounds, but explained his estimation was made from a distance. Navarro described the suspect as 5' 4" and weighing 140 pounds. Appellant's height according to the booking information was 5' 5," only one inch taller than Navarro's description of the suspect. The booking information listed appellant as weighing 175 pounds, falling in the middle of the various descriptions given as to the suspect's weight. Navarro testified that he primarily based his identification on the cowboy belt buckle and the suspect's gray beard. Officer Huerta testified appellant matched Navarro's description and that he had a beard with some gray in it. Sergeant Dubose testified appellant was wearing a cowboy belt and that he had a beard with lots of gray in it. Contrary to Navarro's description, Nerio, Officer Huerta, and Sergeant Dubose testified appellant was not wearing a shirt or cowboy boots. Nerio testified the man he saw pushing the mower was just wearing jeans. Sergeant Dubose testified appellant was wearing jeans without a shirt or shoes. Navarro also described the suspect as being around forty years old, and Sergeant Dubose testified appellant did not look like he was forty years old. Navarro, Nerio, and Barfield all described the lawn mower as having small front wheels, with large wheels in the back. The jury is the sole trier of fact and may judge the credibility of witnesses, reconcile conflicts in testimony, and accept or reject any evidence presented by either side to the case. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991); Bath v. State, 951 S.W.2d 11, 14 (Tex. App.--Corpus Christi 1997, pet. ref'd). Should inconsistent or contradictory testimony exist, we assume that the discrepancies were resolved in favor of the verdict. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). The State provided evidence that appellant was the man in appellant's garage and dragged the lawn mower out of the garage. The State also provided evidence showing that appellant pushed the mower near his temporary residence on Loma Vista. The jury was entitled to resolve the conflicts in the testimony regarding the description of the suspect in favor of the State.

Appellant notes that there was no testimony that anyone witnessed him take the lawn mower, and no lawn mower was found at appellant's temporary residence where he was arrested. In fact, Navarro testified he observed appellant dragging the lawn mower towards the outside of his garage. As to appellant's complaint that the lawn mower was not found in his possession and that it was never recovered, the State offered evidence, through Barfield's testimony, that appellant disposed of the lawn mower before his arrest. Furthermore, proof of burglary may be established by circumstantial evidence. Nelson v. State, 905 S.W.2d 63, 64 (Tex. App.-Amarillo 1995, no pet.) (citing Garza v. State, 841 S.W.2d 19, 21-23 (Tex. App.-Dallas 1992, no pet.)). There is no requirement that the State prove the defendant was in possession of the stolen property at the time of his arrest or that the stolen property was ultimately recovered by authorities. See 20 Tex. Jur. § 923, p. 90-91 (1982) ("it is not essential to a conviction to prove that the defendant was in possession of the stolen property; his participation in the crime may be established by other circumstances"); cf. Mabra v. State, 997 S.W.2d 770, 775-76 (Tex. App.-Amarillo 1999, no pet.) (appellant's presence at the scene, and identification of appellant by witness as fleeing house after alarm went off was sufficient evidence of guilt of burglary).

Appellant contends that Nerio testified to appellant pushing a lawn mower in a different location than towards his residence, which conflicted with a written statement he gave to police wherein he stated he "saw a black man pushing a lawn mower real fast on Loma Vista, going toward Laurent Street." At trial, Nerio indicated appellant was coming up a street called Nimitz and hit a curb with the mower on Loma Vista. Trial counsel for appellant apparently drew a map and used it while eliciting this testimony. Nowhere in the record does Nerio state that appellant was not heading towards appellant's residence. Because the map was not introduced into evidence and is not in the record before us, we have no way of determining in which direction Nerio testified appellant was heading. Nerio testified he forgot to include in his report that appellant hit the curb with the mower and that he saw appellant on Nimitz Street.

Finally, appellant observes that he was the only individual, and the only black individual, shown to Navarro when he made the identification. In addition, the identification was made after dark, from fifteen to twenty feet away.

We note that appellant did not object to the admissibility of Navarro's identification of appellant, and he does not challenge its admissibility on appeal. Rather, he contends that because appellant was the only suspect at the scene, and he was the only black individual at the scene, the identification will not support his conviction for burglary.

An identification that occurs when police present the victim with a single suspect, inferring that he is the culprit, and then asking the victim to identify the criminal, is dubious because of its suggestiveness. Navarette v. State, 875 S.W.2d 452, 454 (Tex. App.--Corpus Christi 1994, no pet.). Under certain circumstances, however, such an identification, termed a "one man show up," is permissible. Garza v. State, 633 S.W.2d 508, 512 (Tex. Crim. App. 1982) (op. on reh'g). We consider the totality of the circumstances, including the following factors: 1) the opportunity of the witness initially to see the criminal in the commission of the crime; 2) the amount of attention the witness devoted to observing the criminal; 3) the accuracy of the description; 4) the witness's level of certainty; 5) the time between the crime and the confrontation of the suspect in police custody. Manson v. Brathwaite, 432 U.S. 98, 114 (1977); Delk v. State, 855 S.W.2d 700, 705-08 (Tex. Crim. App. 1993). "These and other pertinent factors are weighed against the 'corrupting effect of the suggestive identification itself.' " Cantu v. State, 738 S.W.2d 249, 252 (Tex. Crim. App. 1987) (quoting Manson, 432 U.S. at 114).

In this case, Navarro testified he saw appellant in his garage and spoke to him. He identified numerous descriptive features of appellant and his clothing, some of which were corroborated by other witnesses. Navarro never deviated from his identification of appellant as the person who was in his garage and who took his lawn mower. Navarro identified appellant as the suspect on the night the incident transpired. Though it was dark when he made the identification, there was testimony that there was adequate lighting. That appellant was the only person presented to Navarro, and that he was the only black individual present, were issues of credibility for the jury to resolve.

Appellant further notes that three of the witnesses who identified him were under the age of eighteen. There is no minimum age at which a child is considered a competent witness. Upton v. State, 894 S.W.2d 426, 429 (Tex. App.--Amarillo 1995, pet. ref'd); Berotte v. State, 992 S.W.2d 13, 17-18 (Tex. App.--Houston [1st Dist.] 1997, no pet.). The witnesses respective ages may or may not have affected their credibility before the jury. We will not, however, second-guess the fact-finder's resolution of issues of credibility. Navarro identified appellant as the man who was in his garage and took his lawn mower. Nerio and Barfield identified appellant as the man pushing a lawn mower, only blocks from Navarro's home, with large wheels in the back and small ones in the front, as Navarro described the stolen lawn mower. Sergeant Dubose observed wheel tracks leading almost to appellant's temporary residence.

Considering the evidence in the light most favorable to the verdict, a rational trier of fact could have found appellant was the perpetrator of the offense beyond a reasonable doubt. Furthermore, we cannot say the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Appellant's first point of error is overruled.

By his second point of error, appellant contends his trial counsel was ineffective in failing to preserve error on the trial court's failure to include a charge on the lesser included offenses of criminal trespass ⁽¹⁾ and theft. ⁽²⁾ Appellant contends he was entitled to a charge on these offenses because there was evidence that Navarro's garage had been left open.

To prevail on a claim for ineffective assistance of counsel, the defendant must show counsel's performance fell below an objective standard of reasonableness, by identifying acts or omissions showing that counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984); Vasquez v. State, 830 S.W.2d 948, 949 (Tex. Crim. App. 1992). In addition, the defendant must show there is a reasonable probability that, but for counsel's errors, the outcome of the proceeding would have been different. Strickland, 466 U.S. at 687; Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). Our review of trial counsel's performance is highly deferential and we employ a strong presumption that counsel's conduct constitutes sound trial strategy. Strickland, 466 U.S. at 689; Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992). A claim of ineffective assistance of counsel will only be upheld if counsel's ineffectiveness is affirmatively demonstrated in the record. Ex parte McWilliams, 634 S.W.2d 815, 819 (Tex. Crim. App. 1980).

We are unable to conclude trial counsel's performance fell below an objective standard of reasonableness in this case because appellant was not entitled to a lesser included offense instruction on theft or criminal trespass on the basis that the garage had been left open and was not an enclosed structure. ⁽³⁾ To be entitled to a charge on a lesser included offense, the lesser included offense must be included within the proof necessary to establish the offense charged, and there must be some evidence that would permit a rational jury to find that if the defendant is guilty, he is guilty only of the lesser offense. Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993); Brown v. State, 960 S.W.2d 265, 267 (Tex. App.-Corpus Christi 1997, no pet.). Here, evidence that the Navarro garage had been left open provides no evidence that would allow a jury to find appellant guilty only of one of the lesser offenses.

The precise language of the burglary statute imposes no requirement that a habitation not be open to the public. Rather, this limitation is expressly limited to a building. See Tex. Pen. Code Ann. § 30.02 (a)(1) (Vernon Supp. 2001) (person commits burglary if he "enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony or theft"). A "habitation" is a structure that is adapted for the overnight accommodation of people and includes "(A) each separately secured or occupied portion of the structure. . .; and (B) each structure appurtenant to or connected with the structure. . . ." Tex. Pen. Code Ann. § 30.01 (Vernon 1994). Unlike a "building," a "habitation" need not be en enclosed structure. See id. § 30.01 (1), (2). It is well established that a garage that is attached to a house, and which shares a common wall, is a "habitation" as defined by the penal code. Johnson v. State, 844 S.W.2d 872, 874 (Tex. App.--Amarillo 1992, no pet.); White v. State, 630 S.W.2d 340, 342 (Tex. App.--Houston [1st Dist.] 1982, no pet.). Texas courts have even held that an unattached garage falls within the statutory definition of a "habitation," as it is a "structure appurtenant to" a residence. See Darby v. State, 960 S.W.2d 370, 371 (Tex. App.--Houston [1st Dist.] 1998, pet. ref'd); Jones v. State, 690 S.W.2d 318, 319 (Tex. App.--Dallas 1985, pet. ref'd).

In this case, it is undisputed that Navarro's garage was a "habitation" as defined in the penal code. It was attached to a structure adapted for the overnight accommodation of people. Because the garage was a "habitation," evidence that it was left open could not serve as evidence that appellant did not commit the offense of burglary. Accordingly, evidence that the garage was open does not provide any evidence that if appellant was guilty, he was guilty only of theft or criminal trespass, and not burglary. Appellant was not entitled to a charge on theft or criminal trespass on the basis that there was testimony that the garage had been left open, and trial counsel was not deficient in failing to preserve this issue. ⁽⁴⁾ Appellant's second point of error is overruled.

The judgment of the trial court is AFFIRMED.

NELDA V. RODRIGUEZ

Justice

Do not publish .

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 23rd day of August, 2001.

1. Criminal trespass is a lesser included offense of burglary. See Day v. State, 532 S.W.2d 302, 306 (Tex. Crim. App. 1975); White v. State, 698 S.W.2d 494, 495 (Tex. App.-Corpus Christi 1985, no pet.).

2. Theft by possession of stolen property may be a lesser included offense of burglary of a habitation when the State alleges that the defendant committed theft. Garcia v. State, 571 S.W.2d 896, 898 (Tex. Crim. App. [Panel Op.] 1978); Dixon v. State, 43 S.W.3d 548, 551 (Tex. App.--Texarkana 2001, no pet.).

3. Though not raised by trial counsel or appellate counsel, a lesser included offense instruction for criminal trespass may have been proper on the ground that appellant lacked the intent to commit a felony or theft when he entered the garage. To be entitled to a criminal trespass charge in a burglary case, there must be some evidence that the defendant entered the premises unlawfully, but without the intent to commit a felony or theft. White v. State, 698 S.W.2d 494, 496 (Tex. App.-Corpus Christi 1985, no pet.). As noted, when Navarro asked appellant what he was doing, appellant asked if he could borrow the lawn mower.

4. We do not reach the issue of whether trial counsel did not, in fact, preserve any error.