Opinion
No. 05-08-00252-CR
Opinion issued August 6, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F07-00286-PRL.
Before Justices WRIGHT, BRIDGES, and FRANCIS.
MEMORANDUM OPINION
Mayolo Ramirez Verde appeals his conviction for burglary of a habitation. After finding appellant guilty, the jury assessed punishment at seventeen years' confinement. In five points of error, appellant contends the evidence is factually insufficient to support his conviction, and that the trial court erred by (1) denying his motion for mistrial after certain jury argument; (2) allowing certain jury argument; and (3) submitting an erroneous charge to the jury. We overrule appellant's points of error and affirm the trial court's judgment. In his first and second points of error, appellant contends the evidence is factually insufficient to support his conviction because the State failed to prove appellant unlawfully entered Norma Padilla's apartment or that he intended to commit or committed sexual assault. When reviewing a factual sufficiency challenge, we view all the evidence from a neutral perspective. Watson v. State, 204 S.W.3d 404, 415 (Tex. 2006). The evidence, though legally sufficient, is factually insufficient if it is so weak that the jury's verdict seems clearly wrong and manifestly unjust, or if, considering conflicting evidence, the jury's verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Berry v. State, 233 S.W.3d 847, 854 (Tex.Crim.App. 2007). A clearly wrong and unjust verdict occurs where the jury's findings are manifestly unjust, shock the conscience, or clearly demonstrate bias. Id. The difference between a legal sufficiency review and a factual sufficiency review is that the former requires the reviewing court to defer to the jury's credibility and weight determinations while the latter permits the reviewing court to substitute its judgment for the jury on these questions but only "to a very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S. Ct. 87 (2007) (explaining that factual sufficiency jurisprudence still requires appellate court to afford "due deference" to jury's determination). A factual sufficiency review is "barely distinguishable" from a legal sufficiency review. Id. To support appellant's conviction, the State was required to prove (1) appellant intentionally and knowingly entered Padilla's apartment without her consent with the intent to commit sexual assault, or (2) appellant intentionally and knowingly entered Norma Padilla's apartment without her consent and committed or attempted to commit sexual assault. See Tex. Penal Code Ann. § 30.02 (Vernon 2003). The intent of the accused is not ordinarily determined by direct proof, but is inferred from circumstantial evidence. Dillon v. State, 574 S.W.2d 92, 94 (Tex.Crim.App. 1978); Salisbury v. State, 867 S.W.2d 894, 896-97 (Tex.App.-Houston [14th Dist.] 1993, no pet.). "[I]ntent may be inferred from the acts, words, or conduct of an accused, including the circumstances surrounding the acts in which the accused engages." See Maudlin v. State, 628 S.W.2d 793, 795 (Tex.Crim.App. 1982); Salisbury, 867 S.W.2d at 897. Appellant complains certain inconsistencies render the evidence against him so weak as to undermine confidence in the jury's determination that he was guilty of the charged offense. Specifically, he claims the evidence is "overwhelming" that Padilla invited him into her apartment to have sex with him and he was forced to exit out Padilla's daughter's bedroom window when Padilla's boyfriend came into the apartment. In support of this argument, appellant claims the jury should have believed his version of the incident because there were no fingerprints where appellant entered the apartment; Padilla denied knowing appellant; and Abel; Padilla's boyfriend, did not testify at trial. Appellant, however, fails to acknowledge Padilla's testimony that although she knew appellant's brother who lived next door, she did not know appellant and had not invited him into her apartment. According to Padilla, she was sleeping on the couch when Abel came home about 4:00 a.m. They had sex and were on the floor "talking and playing" when she heard her nine-year-old daughter, E.O., begin screaming. She heard E.O.'s bed "moving very strong." Padilla ran into her daughter's room. The bedroom window was open and E.O. told Padilla, "There is a man, there is a man." E.O. explained that she awoke with a man on top of her, covering her mouth. She scratched him and began screaming. After she screamed, the man fled through the open window. Padilla called the police and Abel put on a pair of pants and went outside to see if he could find the intruder. When Abel came back inside he told Padilla the pants were not his. The pants had a wallet and knife in the pocket. In addition to the pants, she found a t-shirt and sandals that did not belong to her, anyone in her family, or Abel. The clothes were near the couch, as if the man had undressed near her. The wallet contained appellant's identification. It was the jury's function to resolve any conflicts in the evidence. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App. 2000). The jury was entitled to accept Padilla's testimony denying she invited appellant into her apartment and disregard appellant's self-serving statement to the contrary. We will not substitute our own determination for that of the jury. See Marshall, 210 S.W.3d at 625. After reviewing the record under the appropriate standard, we conclude a rational jury could infer appellant's intent to commit sexual assault from his nighttime entry into Padilla's apartment and undressing near her, climbing into bed on top of E.O., and fleeing through the bedroom window when E.O. began to scream. See Ramer v. State, 714 S.W.2d 44, 47 (Tex.App.-Dallas 1986, pet. ref'd) (jury could infer intent to commit sexual assault from appellant's actions in nighttime breaking into complainant's apartment, jumping onto complainant with his zipper open, threatening to kill her and fleeing only after she began screaming). Viewing all of the evidence in a neutral light, we conclude the evidence is factually sufficient to support appellant's conviction for burglary of a habitation. See Watson, 204 S.W.3d at 415. We overrule appellant's first and second points of error. In his third point of error, appellant contends the trial court abused its discretion by denying his motion for mistrial during the punishment phase of his trial. Specifically, appellant complains of the State's statement "don't you dare put this man back on the streets of Dallas County." When, as here, the trial court sustains an objection and instructs the jury to disregard but denies a defendant's motion for a mistrial, the issue is whether the trial court abused its discretion in denying the mistrial. Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004). Only in extreme circumstances, when the prejudice caused by the improper argument is incurable, i.e., "so prejudicial that expenditure of further time and expense would be wasteful and futile," will a mistrial be required. Id.; see also Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003). Assuming the complained-of comment was improper, we cannot conclude it was a willful, calculated effort on the part of the State to deprive appellant of a fair trial. Nor did it inject new, harmful facts into the proceeding. The complained-of comment was neither so offensive nor so flagrant that the trial court's immediate instruction to the jury to disregard could not have cured the error. Viewed in context, the State's comment was a strong statement to the jury not to grant probation in this case. Further, the trial court promptly sustained the objection and instructed the jury to disregard the question. Finally, in light of the other testimony in the case, the State's comment was unlikely to have had an effect on the jury's verdict. Therefore, we conclude that, in sustaining appellant's objection and instructing the jury as it did, the trial court sufficiently ameliorated any potential harm. We overrule appellant's third point of error. In his fourth point of error, appellant contends the trial court erred by denying his objection to the State's characterization of him as a "monster" during its argument on punishment. Again, we disagree. Permissible jury argument must encompass one of the following areas: summation of the evidence; reasonable deduction from the evidence; answers to opposing counsel's argument; or a plea for law enforcement. See Gaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App. 1988). To determine whether a party's argument falls within one of these categories, we must consider the argument in light of the entire record and consider the remarks within the context in which they appear. Id.; Sandavol v. State, 52 S.W.3d 851, 857 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd). The court in Barnard v. State, 730 S.W.2d 703 (Tex.Crim.App. 1987), held that the prosecutor's characterization of the defendant as a "mean person" was a reasonable deduction from the evidence. Id. at 718. It was not found to be error under the evidence in Burns v. State, 556 S.W.2d 270 (Tex.Crim.App.), to refer to the defendant as an "animal." Id. at 285. In McKay v. State, 707 S.W.2d 23 (Tex.Crim.App. 1985), the court found no error where the defendant was twice described as a "wolf." Id. at 37; see also Belton v. State, 900 S.W.2d 886, 898 (Tex.App.-El Paso 1995, pet. ref'd) (prosecutor's reference to defendant as an "animal" was a reasonable deduction from the evidence); Garza v. State, 783 S.W.2d 796, 800 (Tex.App.-San Antonio 1990, no pet.) (prosecutor's references to defendant as a "wild dog" and an "animal" were reasonable deductions from the evidence). Here, the evidence shows that appellant broke into Padilla's apartment in the middle of the night, undressed, and climbed into bed with a nine-year-old girl. She was awakened when he covered her mouth so that she could not scream. After scratching him, she was able to scream for her mother and he fled the apartment. She explained to the jury that she was afraid appellant was going "to take her." The jury also heard testimony from E.S. that appellant attempted to rape and rob her at knife point in 2002. We conclude the facts in this case justified the prosecutor's characterization of appellant as a monster, and was a reasonable deduction from the evidence. We overrule appellant's fourth point of error. In his fifth point of error, appellant contends the trial court improperly instructed the jury. Relying on Grissam v. State, 267 S.W.3d 39 (Tex.Crim.App. 2008), appellant complains the trial court's charge violated due process because it instructed the jury to assume his conduct satisfied one of two related manner and means. We disagree. As the court explained in Grissam, when an indictment accuses a defendant of committing burglary by one of two means, the trial court's charge should explain both kinds of burglary and authorize the jury to convict on either. Id. at 40. Here, as in Grissam, the indictment alleged appellant committed burglary of a habitation by two means. Unlike Grissam, the jury charge authorized the jury to convict on either means. See id. at 40 (although indicted with two means, jury charge only explained and authorized conviction on one means). After reviewing the law, the indictment and the charge, we conclude the charge was not improper and that appellant's reliance on Grissam is misplaced. Although the introductory paragraph states appellant was charged with the offense of burglary of a habitation with intent to commit sexual assault, it goes on to fully explain both theories of burglary. The charge also contains an application paragraph for each theory, authorizing the jury to convict if it found appellant had committed burglary by either of the two means. The charge does not, as appellant suggests, focus "the jury's attention on deciding whether appellant committed burglary of a habitation with intent to commit sexual assault" nor does it imply it was unnecessary for the jury to decide whether appellant committed or attempted to commit sexual assault after entering the habitation. As such, we conclude appellant's argument that the charge violates due process because it did not require the jury to find all of the elements beyond a reasonable doubt lacks merit. We overrule appellant's fifth point of error. Accordingly, we affirm the trial court's judgment.
The record does not contain Abel's surname.