No. 08-05-00231-CR
March 22, 2007. DO NOT PUBLISH.
Appeal from 409th District Court of El Paso County, Texas, (TC # 20040D00432).
Before CHEW, C.J., McCLURE, and CARR, JJ.
ANN CRAWFORD McCLURE, Justice.
Arturo Tarango appeals his conviction of burglary of a habitation. A jury found Appellant guilty and assessed punishment at imprisonment for a term of seventy-five years. We affirm.
FACTUAL SUMMARY
On December 7, 2003, the complainant, Maria Ruiz, returned to her apartment at approximately 9:00 in the evening. She had been gone most of the day visiting her mother. Ruiz lived in the apartment with her son, who was about one year old at the time. Although she had locked the door when she left, it was unlocked and pushed open when she placed her key in the door. Ruiz walked cautiously into the apartment and turned on the light in her bedroom. Having left the room tidy, she noticed immediately that her bedroom was a mess. A piggy bank had been broken open and the cash inside had been taken. Her jewelry box had been opened and earrings were strewn all over her dresser. She found her necklaces on the floor by the bedroom window. Ruiz went into the living room and saw that her VCR and some tapes were missing. A tote bag was missing but the clothes that had been inside the bag were thrown on the floor. Ruiz then called the police. Officer Mark Fernandez was dispatched to the scene and fingerprinted various areas and items in the apartment. He lifted only one print from the exterior kitchen window where it appeared entry had been made. He also lifted a shoe print on the tile kitchen floor. Fernandez removed the piggy bank and jewelry box for additional fingerprint processing. He found prints on both items and turned them over to the fingerprint specialist for comparison. Bruce Orndorf is the El Paso Police Department's senior fingerprint examiner. He compared the latent prints received from Fernandez to the known prints of Appellant, who was a suspect in the case, and determined that Appellant's fingerprints matched one latent print found on the piggy bank and one latent print found on the jewelry box. Ruiz did not know Appellant and did not give him consent to be in her apartment. Appellant testified at trial that he had been in the apartment on several occasions because he was having an affair with Ruiz. A friend introduced the couple when she purchased cocaine from Ruiz at the apartment. The relationship ended when Ruiz saw him with another woman. He had hidden some cocaine in the piggy bank and removed it before leaving the apartment. When asked on cross-examination to explain how his fingerprint was found on the jewelry box, Appellant claimed that they knocked over some things while having sex and he might have picked it up and put it back on the dresser. Appellant admitted that he never told the police about his relationship with the complainant or that he had been in the apartment with her consent even though the officer interrogating him confronted him with the evidence that his fingerprints had been found in the apartment. Appellant also admitted that he had been convicted of attempted burglary of a habitation in 1992; he had been arrested for burglary of a habitation in 2000, but it was reduced to theft; and he was arrested for burglary of a habitation in 2003, but it was reduced to criminal trespass. During rebuttal, Ruiz testified that she had never seen Appellant before that day in court and she expressly denied having an affair with him or using cocaine with him. Ruiz also denied being a drug dealer. Ruiz's landlord, Gwen Hopkins, testified that she knew Ruiz personally and none of her tenants ever complained that suspicious persons were seen going to Ruiz's apartment or that Ruiz was dealing drugs out of the apartment. Hopkins never saw Appellant visiting Ruiz at the apartment. She recalled that she had allowed Appellant to live in the apartment for about two weeks when his mother had "put him out" but this occurred before Ruiz lived there. Hopkins, who knew Appellant well and was familiar with his reputation for truthfulness, testified she would not believe anything he said. The jury rejected Appellant's defense and found him guilty of burglary of a habitation and assessed his punishment at imprisonment for a term of seventy-five years. VOIR DIRE COMMENT ON FAILURE TO TESTIFY
In his first point of error, Appellant contends that during voir dire the prosecutor impermissibly commented on his failure to testify in violation of the Fifth Amendment. Appellant complains about the highlighted portion: The Defense has no burden to prove him or herself innocent. Again, the idea, the concept is based on fairness. If I were to say that Ms. Stevens keyed my car, and I drag her in a courtroom, I'd better be able to prove it, okay, with substantial evidence, and she doesn't have to get on the stand or do anything at her trial to prove that she did not do it. It's an idea based on fairness. One of the principles behind that is called the 5th Amendment right. Basically that's a constitutional right that every single one of us is afforded that says that we do not have to do that. We do not have to speak at our trial or provide any evidence against ourselves. We can choose to remain silent. Every single one of us has that constitutional right. All right? Let's talk about this concept for a second. Outside these courtroom doors in the real world, it works differently, right? Especially when you as a juror — you're going to be asked to be the fact finder. Human nature says that we always want to hear both sides of the story. We always do. If I were to go home one day and my — I get home and my five-year-old and my six-year-old are at home, let's say with a babysitter, and I get home and I say — I see that a lamp has been broken on the floor of the living room. So I call the kids in and I ask them, Who broke the lamp, what happened while I was gone? In the real world, my five-year-old is not going to be able to say, Mommy, I'm going to choose to invoke my 5th Amendment right at this point. It doesn't work that way out there, but you can bet it works that way here, because we're dealing with very serious issues. We're dealing with somebody's liberty and we are veiled and protected by constitutional rights. Every single one of us have these rights. So one of them is, you do not have to testify if you're on trial. You can choose to remain silent and make the State prove their case without your help. I cannot, as a prosecutor, call a criminal defendant to the stand and ask him or her questions. Appellant's counsel then requested a bench conference and the following discussion occurred: [Defense counsel]: We move for a mistrial. They keep referring to the Defendant as a criminal. They keep referring to the right to — the 5th Amendment right as a cover screen. They are impugning a cover-up by the Defendant by the use of the language. It's gone beyond the discussion of the 5th Amendment to a direct attack on the Defendant using such words as 'criminal' and I move for a mistrial. . . .
[Prosecutor]: Your Honor, I'm talking about any criminal defendant. I'm not using any terms specifically to the Defendant. I'm solely talking to the 5th Amendment right. [Defense counsel]: I'd like the record to reflect that when she said 'criminal,' she turned around and slightly leaned to Defense counsel's table and moved her right arm slightly to Defense counsel's table. I saw it personally. [The Court]: Your objection is overruled. On appeal, Appellant argues that the prosecutor gave the jury panel the impression that even a child does not have a right to claim this right and that the Constitution is valid only in a court of law. The State responds that the argument made on appeal is waived because it does not comport with the objection raised and ruled on at trial. We agree. To preserve error for review on appeal, a defendant's complaint on appeal must comport with the objection raised at trial. Santellan v. State, 939 S.W.2d 155, 171 (Tex.Crim.App. 1997). Appellant did not raise any objection in the trial court sufficient to preserve the issue raised on appeal. Consequently, it is waived. We overrule Point of Error One. SUFFICIENCY OF THE EVIDENCE
In Point of Error Two, Appellant challenges the legal and factual sufficiency of the evidence supporting his conviction. More specifically, he argues that the evidence is insufficient to prove beyond a reasonable doubt that he is the person who committed the offense. Legal Sufficiency
In reviewing the legal sufficiency of the evidence to support a criminal conviction, we must review all the evidence, both State and defense, 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, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App. 1991). We consider all of the evidence, whether admissible or inadmissible. Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999); Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim.App. 1998). We do not resolve any conflict of fact or assign credibility to the witnesses, as it was the function of the trier of fact to do so. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our duty is only to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843. Further, the standard of review is the same for both direct evidence and circumstantial evidence cases. Geesa, 820 S.W.2d at 158. The essential elements of burglary of a habitation are: (1) a person; (2) without effective consent of the owner; (3) enters a habitation; (4) with intent to commit theft. Tex.Penal Code Ann. § 30.02(a) (Vernon 2003). Appellant argues generally that no witness or evidence placed him in the apartment on the day of the burglary. Generally, fingerprint evidence alone will be sufficient to sustain a conviction if the evidence shows that the prints were necessarily made at the time of the burglary. Mathew v. State, 839 S.W.2d 110, 112-13 (Tex.App.-Corpus Christi 1992, no pet.), citing Bowen v. State, 460 S.W.2d 421, 423 (Tex.Crim.App. 1970) and Nieto v. State, 767 S.W.2d 905, 908 (Tex.App.-Corpus Christi 1989, no pet.). Here, the evidence showed that when Ruiz left the apartment, it was tidy and her belongings were undisturbed. When she returned, she discovered that someone had entered the apartment without her consent and had gone through her belongings, including the piggy bank and her jewelry contained in the jewelry box. Appellant's fingerprints were found on both the piggy bank and jewelry box. The person who entered the apartment broke into the piggy bank and removed the cash and took other items from the apartment including a video cassette recorder. He also took a ring from the jewelry box. Other evidence revealed that Appellant was often seen in the area because he lived nearby. Although Appellant claimed he had a relationship with Ruiz and had been in the apartment by invitation, Ruiz expressly denied knowing Appellant or ever consenting for him to be in her apartment. The jury resolved this conflict in the evidence in favor of the State and found Appellant guilty. When taken in the light most favorable to the verdict, the foregoing evidence is legally sufficient to permit a rational trier of fact to find beyond a reasonable doubt that Appellant entered Ruiz's apartment without her consent with the intent to commit theft. Factual Sufficiency
In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In performing our review, we are to give due deference to the fact finder's determinations. See id. at 8-9; Clewis, 922 S.W.2d at 136. The fact finder is the judge of the credibility of the witnesses and may "believe all, some, or none of the testimony." Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). Evidence is factually insufficient if it is so weak that it would be clearly wrong and manifestly unjust to allow the verdict to stand, or the finding of guilt is against the great weight and preponderance of the available evidence. Johnson, 23 S.W.3d at 11. Therefore, the question we must consider in conducting a factual sufficiency review is whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See id. Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. Appellant argues that the State failed to overcome his testimony that he had been invited to the apartment by Ruiz for social purposes. The State is not required to "overcome" or rebut Appellant's testimony. The jury had before it competing evidence and it was required to weigh that evidence and judge the credibility of the witnesses. It was the jury's task to determine whether it believed the State's witnesses or Appellant. The evidence is not factually insufficient simply because the jury resolved the conflicting views of the evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997). Having given appropriate deference to the jury's assessment of the evidence and its resolution of the evidentiary conflicts, and after considering all of the evidence in a neutral light, we conclude the evidence is factually sufficient to support Appellant's conviction. We overrule Point of Error Two. INEFFECTIVE ASSISTANCE
In Point of Error Three, Appellant asserts that he was denied the effective assistance of counsel at trial because he did not ask proper questions of individual venirepersons during voir dire; he did not object to photos of the crime scene; he did not object when the State called a witness who was not on the witness list; he did not prepare Appellant to testify; he failed to investigate the crime scene; he did not request an instruction on the lesser-included offense of theft; he waived an opening statement during the punishment phase; he did not present any punishment or mitigation evidence; and counsel's punishment argument was too brief. The State initially responds that Appellant's ineffective assistance of counsel claim is inadequately briefed because the argument consists primarily of a laundry list of claimed deficiencies. The State is correct that Appellant has failed to provide adequate argument or citation to authority for several of his complaints about trial counsel, and we have, where appropriate refused to address the arguments. Rather than refusing to review the entire point of error, however, we will review as much of it as is permitted by the state of the record and the briefing. Standard of Review
The proper standard for determining claims of ineffective assistance under the Sixth Amendment is the two-step analysis adopted by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Hernandez v. State, 988 S.W.2d 770, 771-72 (Tex.Crim.App. 1999). Under the first prong, the defendant must show that counsel's performance was deficient, to the extent that counsel failed to function as the "counsel" guaranteed by the Sixth Amendment. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Under the second prong, the defendant must establish that counsel's deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; Jackson, 877 S.W.2d at 771. Prejudice is established by a showing that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698; Jackson, 877 S.W.2d at 771. Failure to make the required showing of deficient performance defeats the ineffectiveness claim. Jackson, 877 S.W.2d at 771. When we review a claim of ineffective assistance, we must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable, professional assistance, and the appellant must overcome the presumption that the challenged conduct can be considered sound trial strategy. Jackson, 877 S.W .2d at 771. Allegations of ineffectiveness of counsel must be firmly founded in the record. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). The record on direct appeal will generally be insufficient to show that counsel's representation was so deficient as to meet the first prong of the Strickland standard because the reasonableness of counsel's choices often involve facts that do not appear in the appellate record. Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App. 2003); Mallett, 65 S.W.3d at 63. An appellant challenging trial counsel's performance therefore faces a difficult burden and a substantial risk of failure. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Voir Dire
Appellant argues that counsel failed to engage in individual voir dire of potential jurors. He does not identify the jurors but simply cites to one page in the record where counsel said he did not need to individually question a woman who was married to a U.S. Customs agent. Appellant later utilized a peremptory strike against this potential juror. Appellant makes only conclusory assertions in his brief and does not establish why trial counsel's decision to not question this potential juror could not be considered reasonable trial strategy, how it constituted deficient performance or how it prejudiced him. Appellant's argument is inadequately briefed and we decline to make his argument for him. See Tex.R.App.P. 38.1(h). Furthermore, Appellant did not file a motion for new trial. In the absence of a record indicating trial counsel's strategy, we are left to speculate about the reasons for counsel's actions. Under these circumstances, we conclude that Appellant has failed to rebut the presumption that his attorney's conduct falls within the wide range of reasonable, professional assistance and can be considered sound trial strategy. Crime Scene Photos
Appellant next complains that counsel failed to object to photographs of the crime scene. He argues in conclusory fashion that the State failed to lay a proper foundation for their introduction, failed to establish a chain of custody, and failed to authenticate them. He does not provide any additional argument or cite any authority indicating that these objections, if made by counsel, should have been sustained by the trial court. In order to show ineffectiveness in failing to object, Appellant must demonstrate that if counsel had objected on the indicated grounds, the trial court would have erred in overruling the objection. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex.Crim.App. 1996). A photograph may be authenticated by the testimony of any witness who has personal knowledge that the particular item accurately represents the scene or event it purports to portray. Tex.R.Evid. 901(a). Ruiz testified that the each of the three photographs in question accurately represented the scene it was intended to portray. Thus, Appellant's complaint that the photographs were not authenticated is entirely without merit. Because Appellant has not established that the judge would have erred by overruling the other objections he claims should have been made, he has not shown ineffective assistance of counsel. Witness List
Appellant also contends that trial counsel erred by failing to object when the State called Gwen Hopkins to testify because she was not included on the witness list. Contrary to Appellant's assertions, Gwen Hopkins was included on the State's witness list filed on June 18, 2004. Appellant generally suggests that Hopkins' testimony was objectionable but he does not identify what portions of her testimony should have been objected to or the grounds of the objection. This portion of Appellant's argument is inadequately briefed and presents nothing for our review. See Tex.R.App.P. 38.1(h). Appellant's Testimony
Appellant also accuses his attorney of failing to prepare him to testify. As evidence of this lack of preparation, he points to his testimony that he had not gone over his drawing of Ruiz's apartment with any of his attorneys and that he committed an extraneous offense, possession of cocaine. The record reflects that counsel discussed with Appellant prior to trial his decision to testify and the consequences of waiving his right to remain silent. There is no affirmative evidence in the record that counsel did not prepare Appellant to testify and we are unable to conclude from the substance of Appellant's testimony that trial counsel failed to do so. We will not assume from a silent record that trial counsel did not discuss Appellant's testimony with him, including the testimony about the extraneous offense. See Hubbard v. State, 770 S.W.2d 31, 43 (Tex.App.-Dallas 1989, pet. ref'd) (where record was silent as to whether defendant's attorney explicitly told him that denying the delivery offenses would preclude him from raising an entrapment defense as to those offenses, court refused to assume that counsel did not discuss this aspect of defendant's testimony with him). Appellant has failed to rebut the presumption that his attorney's conduct falls within the wide range of reasonable, professional assistance. Failure to Investigate
Appellant alleges that trial counsel failed to investigate the case. To support a claim of ineffective assistance for failure to investigate, an appellant must show that he had a viable defense that his attorney failed to discover. Butler v. State, 716 S.W.2d 48, 55 (Tex.Crim.App. 1986); King v. State, 649 S.W.2d 42, 43 (Tex.Crim.App. 1983). Because Appellant did not file a motion for new trial on this issue, there is no evidence in the appellate record regarding the steps counsel took to investigate. Further, Appellant does not indicate what viable defense trial counsel failed to discover. Appellant has failed to establish ineffective assistance of counsel. Lesser-Included Offense
Appellant next argues that counsel failed to request an instruction on the lesser-included offense of theft. His argument in this regard does not include any citations to authority or discussions of relevant case law and how it applies to this case. A defense attorney's failure to request a jury instruction can render his assistance ineffective only if the trial judge would have erred in refusing the instruction had counsel requested it. See Wood v. State, 4 S.W.3d 85, 87 (Tex.App.-Fort Worth 1999, pet. ref'd). It may be reasonable trial strategy not to request a charge on a lesser-included offense. See Lynn v. State, 860 S.W.2d 599, 603 (Tex.App.-Corpus Christi 1993, pet. ref'd). Appellant does not point to any evidence in the record establishing that if he is guilty, he is guilty only of the lesser offense. See Arevalo v. State, 943 S.W.2d 887, 889 (Tex.Crim.App. 1997). Appellant denied entering the apartment without Ruiz's consent and denied taking any of her property. He testified that fingerprints were on the piggy bank and the jewelry box because he had been in the apartment by invitation. Because there was no evidence showing that if Appellant was guilty, he was guilty only of theft, he was not entitled to an instruction on the lesser-included offense. See McKinney v. State, 627 S.W.2d 731, 732 (Tex.Crim.App. 1982) (where defendant denied committing the offense, there was no evidence that he was guilty only of lesser-offense). Counsel did not render ineffective assistance by failing to request an instruction to which Appellant was not entitled. See Wood, 4 S.W.3d at 87. Punishment Phase
Appellant offers three allegations related to counsel's conduct at the punishment phase: counsel did not make an opening statement; he did not present any punishment or mitigation evidence; and his final argument was too brief. There is no evidence in the record that any admissible punishment evidence existed. Further, as we have noted in discussing the other allegations of deficient performance, the record is silent regarding counsel's trial strategy. Under these circumstances, Appellant has not rebutted the presumption that counsel's performance at the punishment phase falls within the range of reasonable, professional assistance or that the challenged conduct is sound trial strategy. See Bone v. State, 77 S.W.3d 828, 834-35 (Tex.Crim.App. 2002); Thompson, 9 S.W.3d at 813-14. Because Appellant has failed to carry his burden under Strickland, we overrule Point of Error Three. The judgment of the trial court is affirmed.