Opinion
No. 05-16-01187-CR
06-27-2017
JOSE JUAN MIRANDA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 282nd Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1652486-S
MEMORANDUM OPINION
Before Justices Fillmore, Whitehill, and Boatright
Opinion by Justice Whitehill
The primary dispute in this case is whether the evidence is sufficient to support appellant's conviction for burglary of a vehicle when he was found sitting in the truck's passenger seat without the owner's consent immediately after the break in. Appellant also argues that there is a common law right to allocution that the trial court violated.
We conclude that (i) the evidence is sufficient to support the conviction and (ii) appellant forfeited the common law allocution argument because he did not raise the issue in the court below. We thus affirm the trial court's judgement.
I. Background
Appellant was found inside a truck that did not belong to him after a security guard saw someone break the truck's window with a backpack. He was subsequently charged with burglary of a motor vehicle, enhanced by two prior convictions for the same offense. Although appellant pled not guilty to the charged offense, he stipulated to the prior offenses used for enhancement. The jury found him guilty, and the trial court assessed punishment at two years' imprisonment in the state jail. This appeal followed.
II. Analysis
A. First Issue: Is there sufficient evidence to support the conviction?
Appellant's first issue argues that the evidence is insufficient to support his conviction. Although he does not dispute that the security guard found him in the truck with a broken window, he argues that the evidence does not establish that he was the person the security guard saw break the window, there was no blood in the vehicle as would be expected if appellant broke the window, and there was no fingerprint evidence connecting appellant to the vehicle. We are not persuaded by this argument.
1. Standard of Review and Applicable Law
We review the sufficiency of the evidence to support a conviction by viewing 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 (1979). This standard gives full play to the fact finder's responsibility to resolve testimonial conflicts, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts. Id. at 319; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). The fact finder is the sole judge of the evidence's weight and credibility. See TEX. CODE CRIM. PROC. art. 38.04; Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014).
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's. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we determine whether the necessary inferences are reasonable based upon the cumulative force of the evidence when viewed in the light most favorable to the verdict. Murray, 457 S.W.3d at 448. We must presume that the factfinder resolved any conflicting inferences in the verdict's favor and defer to that resolution. Id. at 448-49. The standard of review is the same for direct and circumstantial evidence cases; circumstantial evidence is as probative as direct evidence in establishing guilt. Dobbs, 434 S.W.3d at 170; Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014).
A person commits the offense of burglary of a motor vehicle if that person, without the effective consent of the owner, breaks into or enters a vehicle or any part of a vehicle with the intent to commit any felony or theft. TEX. PENAL CODE §30.04(a).
2. The Evidence
On the day in question, Sheri Hemric parked her truck in an employee parking lot across the street from her workplace. Security guard Thakir Abdulameer was sitting at the lobby security desk when Hemric entered the building.
Later that morning, Abdulameer received a report concerning a suspicious person in the parking lot, so he scanned the parking lot with the building's security cameras. After twenty to thirty minutes, he noticed a man walking towards Hemric's truck with a back pack. When the man reached the truck, he leaned forward to tie his shoes. He then slammed the back pack into the truck's passenger side window and broke it. Abdulameer ran out to the parking lot and asked someone along the way to call the police. Abdulameer's view of the parking lot, however, was obstructed as he ran out of the building.
When Abdulameer reached the truck, appellant was sitting inside, in the front passenger seat. He yelled at appellant and asked what he was doing, but appellant did not respond.
Abdulameer yelled at appellant again. Appellant seemed to be doing something in the truck's glove box area. Appellant looked at Abdulameer and appeared to reach for something. So Abdulameer drew his gun.
Appellant exited the vehicle empty handed. Abdulameer ordered him to raise his hands and turn around, but appellant did not comply. A struggle ensued, and though Abdulameer eventually managed to get appellant on the ground, appellant struck him twice in the chest. After appellant was on the ground, a maintenance worker arrived. Abdulameer did not have his handcuffs, so they tied appellant's hands with the maintenance worker's shoelaces.
Officer Jose Bernal and his partner arrived on the scene about two minutes after they were called, and they found Abdulameer holding appellant face down on the ground. Officer Bernal called for medical assistance because appellant was walking with a slight limp and the back of his head was bleeding. Appellant was treated and then arrested.
At some point, Hemric heard an announcement asking the truck's owner to come to the parking lot. When she arrived, the police were driving away with appellant in the back of the squad car. Although nothing was missing from the truck, the window was broken and the dashboard near the stereo was scratched. The truck was not in that condition when she last saw it, and she had not given anyone permission to enter the truck or damage it.
Officer Christopher Martin from the police department's crime scene unit testified that there was broken glass on the passenger's side window where someone entered the truck, and the console was damaged. He found a screwdriver inside the truck and a beanie hat and broken umbrella outside the truck. According to Martin, screwdrivers are frequently used for break-ins and are commonly found at burglary scenes. Moreover, something like a beanie hat would be worn by a person who did not want to be exposed on a surveillance video, and a broken umbrella might be used to remove a radio or "pop the glass." Martin obtained a fingerprint from some of the broken window glass, but it was not of sufficient value for a fingerprint comparison.
The lead detective, Tami Cleary, said that appellant had his back pack with him when the arresting officers brought him to the station. She watched the surveillance video of the burglary at the building management office while Abdulameer worked on his written statement. The video showed a man use a back pack to break the truck's window and then showed Abdulameer confront the man and subdue him. But Cleary was unable to identify any faces on the video. The video had been erased by the time of trial, so the jury was unable to view it.
Appellant argues that because Detective Cleary admitted that the video surveillance images were not sufficiently clear to identify faces, Abdulameer's belief that appellant was the person he saw breaking into the truck was "mere speculation." He further posits that Abdulameer's identification of appellant is undermined because (i) Abdulameer could not see the parking lot during the time he was running towards it, (ii) appellant could not have broken the window because there was blood on his head but not in the truck; and (iii) there were no usable fingerprints in the truck.
The jury, however, may infer an intent to commit theft from the circumstances. Simmons v. State, 590 S.W.2d 137, 138 (Tex. Crim. App. [Panel Op.] 1979). Proof of entry may also be shown by circumstantial evidence. Clark v. State, 543 S.W.2d 125, 127 (Tex. Crim. App. 1976). And it is not necessary to show "breaking into" a vehicle or use of force; it is sufficient to show that a defendant entered the vehicle without the owner's consent with the intent to commit theft. Smith v. State, 781 S.W.2d 675, 677 (Tex. App.—Dallas 1989, pet ref'd). Even if the jury did not believe that appellant broke the window, it was undisputed that he was inside the truck without Hemric's consent. Thus, the jury could reasonably infer from his presence, along with the screwdriver, the beanie, and the broken umbrella, that he was there because he intended to commit theft.
Therefore, we conclude that the logical force of the circumstantial evidence, when viewed in combination with the reasonable inferences from that evidence and in a light most favorable to the verdict, was sufficient for a rational jury to determine that the essential elements of burglary of a motor vehicle were met beyond a reasonable doubt. We resolve appellant's first issue against him.
B. Second Issue: Was appellant's common law right to allocution violated?
Appellant acknowledges that the court complied with the statutory allocution requirements. But he insists that there is also a common law right to allocution and argues that common law right was violated.
"Allocution" refers to a trial judge asking a criminal defendant to "speak in mitigation of the sentence to be imposed." Smith v. State, No. 05-15-01191-CR 2017, WL 462345, at *4 (Tex. App.—Dallas Jan. 31, 2017, no pet.) (mem. op., not designated for publication). Article 42.07 states the procedural rule implementing statutory allocution in Texas. See TEX. CODE CRIM. PROC. art. 42.07. It requires that the defendant be asked, before sentence is pronounced, "whether he has anything to say why the sentence should not be imposed against him." Id. The circumstances where sentence cannot be pronounced are limited to when a defendant (i) has been pardoned, (ii) is incompetent to stand trial, or (iii) when a defendant escapes and another person is brought to sentencing who is not the defendant. See id.
When the evidence concluded in the punishment phase, the trial court pronounced punishment as two years' imprisonment in the state jail, and asked if there was any legal reason why the sentence should not be imposed. Appellant's counsel replied, "There is none."
Appellant argues there is also a common law right to allocution that is broader than the statutory right. He further notes that such a right has been recognized by the United States Supreme Court and some of our sister courts, and maintains that their decisions should persuade us to also recognize that right. Appellant, however, did not assert a common law allocution right in the court below.
The denial of the right of allocution must be preserved. See Grahm v. State, 498 S.W.2d 197, 198 (Tex. Crim. App. 1973); Wilson v. State, No. 05-13-00831-CR, 2013 WL 4399193, at *7 (Tex. App.—Dallas Aug. 15, 2013, no pet.) (mem. op., not designated for publication). And appellant provides no authority for the proposition that a common law right to allocution, if any, would be subject to any different preservation rules than the statutory right. Because the record demonstrates that appellant's common law allocution argument was not preserved, we resolve appellant's second issue against him without deciding whether Texas currently recognizes a common law allocution right. See TEX. R. APP. P. 33.1.
III. Conclusion
Having resolved both of appellant's issues against him, we affirm the trial court's judgment.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE Do Not Publish
TEX. R. APP. P. 47
161187F.U05
JUDGMENT
On Appeal from the 282nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1652486-S.
Opinion delivered by Justice Whitehill. Justices Fillmore and Boatright participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered June 27, 2017.