ACCEPTED 03-14-00676-CR 7998978 THIRD COURT OF APPEALS AUSTIN, TEXAS 11/25/2015 11:26:18 PM JEFFREY D. KYLE CAUSE NO. 03-14-00676-CR CLERK ________________________________________________________________________
IN THE COURT OF APPEALS FOR THE FILED IN THIRD DISTRICT OF TEXAS 3rd COURT OF APPEALS AUSTIN AUSTIN, TEXAS 11/25/2015 11:26:18 PM ________________________________________________________________________ JEFFREY D. KYLE Clerk ANGELITA RODRIGUEZ PACHECO, Appellant
V.
THE STATE OF TEXAS, Appellee ________________________________________________________________________
ON APPEAL FROM CAUSE NO. 41988 th ________________________________________________________________________
BRIEF FOR APPELLEE ______________________________
OFFICE OF THE DISTRICT ATTORNEY 33RD AND 424TH JUDICIAL DISTRICTS Wiley B. McAfee, District Attorney P.O. Box 725 Llano, TX 78643 Telephone: 325-247-5755 Facsimile: 325-247-5274
By: R. Blake Ewing Assistant District Attorney State Bar No. 24076376 asstda2@burnetcountytexas.org
Gary W. Bunyard Assistant District Attorney State Bar No. 03353500 g.bunyard@co.llano.tx.us ATTORNEYS FOR APPELLEE
November 25, 2015
ORAL ARGUMENT REQUESTED IDENTITY OF THE PARTIES AND COUNSEL
Trial Court Honorable Dan H. Mills (FORMER) 424th Judicial District Burnet County Courthouse Annex (North) 1701 E. Polk St., Suite 74 Burnet, TX 78611
Trial Counsel for State/Appellee R. Blake Ewing Richard Crowther State Bar No. 24076376 State Bar No. 05174200 Assistant District Attorneys P.O. Box 725 Llano, TX 78643 325-247-5755
Appellate Counsel for State/Appellee R. Blake Ewing Gary W. Bunyard State Bar No. 24076376 State Bar No. 03353500 Assistant District Attorneys P.O. Box 725 Llano, TX 78643 325-247-5755
Trial Counsel for Appellant Michael Watson Michelle Moore State Bar No. 24060804 State Bar No. 00798294 Burnet County Public Defender’s Office 1008 N. Water St. Burnet, TX 78611
Appellate Counsel for Appellant Gary E. Prust State Bar No. 24056166 Law Offices of Gary E. Prust 1607 Nueces St. Austin, TX 78701
- ii - Appellant Angelita Rodriguez Pacheco TDCJ# 01962601 SID# 06465028 TDCJ, Hilltop Unit 1500 State School Road Gatesville, TX 76598-2996
- iii - TABLE OF CONTENTS
IDENTITY OF THE PARTIES ................................................................................................... ii
TABLE OF AUTHORITIES........................................................................................................ v
STATEMENT OF THE CASE .................................................................................................... 2
STATEMENT ON ORAL ARGUMENT .................................................................................... 2
EXPLANATION OF CITATION OF RECORDS..................................................................... 2
REPLY TO ISSUES PRESENTED ............................................................................................. 3
STATEMENT OF FACTS ........................................................................................................... 3
SUMMARY OF THE ARGUMENTS ......................................................................................... 4
ARGUMENT ON REPLY TO ISSUE NO. 1 ............................................................................. 7
The evidence of the lack of effective consent to enter the victims’ hotel rooms was sufficient to sustain the jury’s guilty verdict for burglary of a habitation.
ARGUMENT ON REPLY TO ISSUE NO. 2 ........................................................................... 15
The jury was properly charged on the meaning of “effective consent,” and any error contained in the jury charge did not cause Appellant egregious harm.
ARGUMENT ON REPLY TO ISSUE NO. 3 ........................................................................... 22
The trial court did not abuse its discretion by refusing to permit the testimony of Raul Munoz on the issue of Appellant’s eligibility for jury recommended community supervision.
ARGUMENT ON REPLY TO ISSUE NO. 4 ........................................................................... 28
Appellant’s Fifth Amendment right against self-incrimination was not violated when she chose to testify in order to establish her eligibility for jury recommended community supervision.
- iv - PRAYER FOR RELIEF ............................................................................................................. 31
CERTIFICATE OF WORD COUNT ....................................................................................... 32
CERTIFICATE OF SERVICE .................................................................................................. 32
-v- TABLE OF AUTHORITIES
Cases Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985)………..…..…….16, 17, 20, 22
Birdsong v. State, 82 S.W.3d 538 (Tex. Crim. App. 2002)…………………………...….30
Brumfield v. State, 445 S.W. 2d 732 (Tex. Crim. App. 1969)…………………………....28
Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007) ………..……..…………….....7
Fletcher v. State, 396 S.W.2d 393 (Tex. Crim. App. 1965)……………..………………..10
Fuller v. State, 73 S.W.3d 250 (Tex. Crim. App. 2002)………………………………….11
Gordon v. State, 633 S.W.2d 872 (Tex. Crim. App. 1982)………………………,,….14, 22
Holder v. State, 140 Tex. Crim. 55, 143 S.W.2d 613 (Tex. Crim. App. 1940)…….…….28
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007)………..……..…………….…..7, 8
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).......................7
Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997)…………………………………..8
Middleton v. State, 125 S.W.3d 450 (Tex. Crim. App. 2003)………………...…………..16
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990)…….................................22
Mills v. State, 722 S.W.2d 411 (Tex. Crim. App. 1986)……………………………….....10
Nava v. State, 415 S.W.3d 289 (Tex. Crim. App. 2013)……..……………………….16, 17
Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005)……………….………………….16
Osbourn v. State, 92 S.W.3d 531 (Tex. Crim. App. 2002)…………………………...…..26
Potier v. State, 68 S.W.3d 657 (Tex. Crim. App. 2002)……………………………….…27
Prescott v. State, 610 S.W.2d 760 (Tex. Crim. App. 1981)……………...……………….13
Sherlock v. State, 632 S.W.2d 604 (Tex. Crim. App. 1982)………………………..…….29
- vi - Skaggs v. State, 56 Tex. Crim. 79, 119 S.W. 106 (Tex. Crim. App. 1909)………...…….10
Sweeten vs. State, 693 S.W.2d 454 (Tex. Crim. App. 1985)…………..………………….29
Taylor v. State, 508 S.W.2d 393 (Tex. Crim. App. 1974)………………………………..13
Trevino v. State, 577 S.W.2d 242 (Tex. Crim. App. 1979)………………...…..……..26, 27
Willover v. State, 70 S.W.3d 841 (Tex. Crim. App. 2002)………………………….........23
Winegarner v. State, 235 S.W.3d 787 (Tex. Crim. App. 2007)……………......................23
Statutes Tex. Code Crim. Proc. Art. 44.12 § 4(e)………………………………………………….23
Tex. Penal Code Ann. § 1.07(a)(11)……………………….…………………………..9, 20
Tex. Penal Code Ann. § 1.07(a)(19)………………...…………………..…………9, 12, 17
Tex. Penal Code Ann. § 1.07(a)(35)(A)..…………………………………………………..9
Tex. Penal Code Ann. § 30.02(a)(3)…………………………….........................................8
Tex. R. Evid. 602………………………………………………...…………………...23, 25
Tex. R. Evid. 701………………………………………………...………..………….23, 25
- vii - CAUSE NO. 03-14-00676-CR
________________________
IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AUSTIN
________________________
ANGELITA RODRIGUEZ PACHECO, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________
ON APPEAL FROM CAUSE NO. 41988 424th JUDICIAL DISTRICT COURT OF BURNET COUNTY, TEXAS
________________________
BRIEF FOR APPELLEE
________________________
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
COMES NOW the Appellee, the State of Texas, and files this brief pursuant to the provisions of the Texas Rules of Appellate Procedure in reply to the brief by the Appellant, and in support thereof would show the Court as follows:
-1- STATEMENT OF THE CASE
The Appellant’s statement of the case is accurate.
STATEMENT ON ORAL ARGUMENT
The undersigned requests oral argument. While the undersigned
believes that the issues raised by Appellant and addressed herein are
straightforward and do not present any novel or complex questions on which
oral argument would be beneficial to the Court, Appellant has requested oral
argument and the undersigned will participate if the Court believes that oral
argument will assist the Court in any way.
EXPLANATION OF CITATION OF RECORDS
The Clerk’s Record will be cited by page number as “C.R. _____ [page
number].” The Court Reporter’s Record will be cited by volume and page
number as “R.R. Vol. _____ [volume number], p. ______ [page number]”
and, where necessary, “l. _____ [line number].”
-2- REPLY TO ISSUES PRESENTED
I. The evidence presented at trial was sufficient to sustain the jury’s
guilty verdicts on the charges of burglary of a habitation.
II. There was no error in the trial court’s jury charge, and any error now
asserted by Appellant would not have resulted in egregious harm.
III. The trial court did not err when it determined that one of Appellant’s
witnesses was incompetent to offer testimony on the question of
Appellant’s eligibility for community supervision and excluded the
proffered testimony.
IV. Appellant was not compelled to testify in violation of her Fifth
Amendment right when she chose to testify following the trial court’s
exclusion of another witness’s incompetent testimony.
STATEMENT OF FACTS
The Appellant’s representation of the facts is acceptable.
-3- SUMMARY OF THE ARGUMENTS
REPLY TO ISSUE NO. 1
When viewed in the light most favorable to the verdict, the evidence is
sufficient to sustain Appellant’s convictions for burglary of a habitation
because appellant lacked effective consent to enter the hotel rooms in
question. The named owners of the rooms gave no express consent for
Appellant to enter their rooms for any reason, and any apparent consent to
enter was ineffective since it was induced by fraud. Likewise, any consent to
enter given by Appellant’s coworker Melina Escobar, either as an owner of
the rooms for the purposes of the burglary statute or as a person legally
authorized to act for the owners, was also ineffective as induced by fraud. A
rational juror could have concluded from the evidence that Appellant worked
at the hotel with the aim of gaining access to the rooms in order to commit
theft, and that she induced Escobar to grant entry to the rooms by fraud, thus
rendering any consent to enter ineffective.
REPLY TO ISSUE NO. 2
Even if it was error to fail to include in the jury charge an instruction that
effective consent includes consent by a person legally authorized to act for
the owner, Appellant was not harmed since consent induced by fraud is
equally ineffective whether granted by an owner or by a person legally
-4- authorized to act for the owner. Furthermore, the evidence and arguments
offered by Appellant at trial were not weakened by the omission of the full
statutory definition of effective consent. Appellant did not object to the
charge, and she cannot demonstrate the actual egregious harm, rather than
merely theoretical harm, necessary to require reversal.
Additionally, it was not error to include an instruction that “entry is
without the owner’s effective consent if it is without the owner’s assent in
fact.” The instruction is an accurate and logical restatement of the law and
does not instruct the jury to find an essential element of the offense.
REPLY TO ISSUE NO. 3
The court did not abuse its discretion in excluding the testimony of
Raul Munoz proffered at the punishment phase of trial to attempt to establish
Appellant’s eligibility for community supervision. Munoz lacked sufficient
personal knowledge of Appellant’s life and criminal history to rationally
support his opinion or inference that Appellant had never been convicted of
a felony in any state.
REPLY TO ISSUE NO. 4
Appellant’s Fifth Amendment right against self-incrimination was not
violated when she elected to testify at the punishment phase of trial, claiming
that she felt impelled to do so by the court’s exclusion of Raul Munoz’s
-5- testimony relating to Appellant’s eligibility for community supervision. The
court properly excluded Munoz’s testimony, the State has not created any
improper or illegal impetus for Appellant to testify, and Appellant did not
establish that her eligibility for probation could not have been shown by
other competent evidence.
-6- ARGUMENT ON REPLY TO ISSUE NO. 1
The evidence of the lack of effective consent to enter the victims’ hotel
rooms was sufficient to sustain the jury’s guilty verdict for burglary of a
habitation.
Standard of Review
In assessing the legal sufficiency of the evidence to support a criminal
conviction, a reviewing court considers all the evidence in the light most
favorable to the verdict and determines whether, based on that evidence and
reasonable inferences therefrom, any rational juror could have found the
essential elements of the crime beyond a reasonable doubt. Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Clayton v. State, 235 S.W.3d 772
(Tex. Crim. App. 2007) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19,
99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). The reviewing court gives
deference to the responsibility of the trier of fact to fairly resolve conflicts in
testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts. Hooper, 214 S.W.3d at 13. When the record
supports conflicting inferences, a reviewing court presumes that the
factfinder resolved the conflicts in favor of the prosecution and therefore
defers to that determination. Clayton, 235 S.W.3d at 778.
-7- In reviewing the sufficiency of the evidence, a court should look at
events occurring before, during and after the commission of the offense and
may rely on actions of the defendant which show an understanding and
common design to do the prohibited act. Hooper, 214 S.W.3d at 13. Each
fact need not point directly and independently to the guilt of the appellant, as
long as the cumulative force of all the incriminating circumstances is
sufficient to support the conviction. Id. Circumstantial evidence is as
probative as direct evidence in establishing guilt of an actor, and
circumstantial evidence alone can be sufficient to establish guilt. Id. On
appeal, the same standard of review is used for both circumstantial and direct
evidence cases. Id.
In a sufficiency review, the essential elements of the offense are those
of a hypothetically correct jury charge for the case; one that accurately sets
out the law and adequately describes the offense for which the defendant was
tried without increasing the State’s burden of proof or restricting the State’s
theories of liability. Id. at 14 (citing Malik v. State, 953 S.W.2d 234 (Tex.
Crim. App. 1997)).
A person commits the offense of burglary of a habitation if, without
the effective consent of the owner, the person enters a habitation and
commits theft. Tex. Penal Code Ann. § 30.02(a)(3). Consent means assent
-8- in fact, whether express or apparent. Tex. Penal Code Ann. § 1.07(a)(11).
Effective consent includes consent by a person legally authorized to act for
the owner; consent is not effective if induced by force, threat, or fraud. Tex.
Penal Code Ann. § 1.07(a)(19). An owner means a person who has title to
the property, possession of the property, or a greater right to possession of
the property than the actor. Tex. Penal Code Ann. § 1.07(a)(35)(A).
Analysis
Appellant claims that the evidence was insufficient to prove that she
entered the hotel rooms in question without the effective consent of the
owners. The indictment alleged the owner of the habitation in each count to
be Frank Alderete and Luis Arguello, respectively. Mr. Alderete testified
that he had not given Appellant consent to enter his room for any purpose, he
did not wish for any member of the hotel staff to enter his room, he would
not have consented to Appellant’s entry for the purposes of cleaning his
room had he been asked, and he would not have consented to entry if he had
known that Appellant would take his property from his room. R.R. Vol. 3,
pp. 27-29. Mr. Arguello similarly testified that he had not given Appellant
consent to enter his room for any purpose and he likewise would not have
consented to her entry if he had known that Appellant would take his
property from his room. R.R. Vol. 4, pp. 19-21.
-9- While this testimony makes clear that Appellant had no express
consent to enter the rooms in question, Appellant’s trial counsel argued that
Appellant had apparent consent to enter by virtue of her position as an
employee of the hotel. But, as discussed infra, any apparent consent to enter
by virtue of Appellant’s position was rendered ineffective since it was
acquired by fraud. See Mills v. State, 722 S.W.2d 411, 415 (Tex. Crim. App.
1986) (“[D]eception operates to render otherwise apparent consent
‘ineffective.’ That the accused consciously acted to perpetrate the deception
in order to obtain that consent only serves to prove his knowledge that it
was, in fact, ineffective.”) (internal citation omitted).
Having proved that Appellant entered the rooms without the effective
consent of the owners and occupants named in the indictment (i.e. Alderete
and Arguello), the State was not required to allege or prove lack of consent
of any other person claimed to have authority to give consent to enter.
Fletcher v. State, 396 S.W.2d 393, 395-396 (Tex. Crim. App. 1965). It is
incumbent on the defendant to raise, as a matter of defense, the issue of
consent of any other party claimed to have authority to consent to the entry.
See id. (citing Skaggs v. State, 56 Tex. Crim. 79, 119 S.W. 106 (Tex. Crim.
App. 1909).
- 10 - Appellant now argues that Melina Escobar, Appellant’s coworker and
trainer, was an owner for the purposes of the burglary statute and that the
State’s case must fail without evidence of the lack of effective consent from
Escobar. Appellant’s trial counsel advanced no such argument, instead
choosing to argue that Appellant had apparent consent from Mr. Alderete
and Mr. Arguello to enter their rooms for the purpose of cleaning and that
Melina Escobar was more likely than Appellant to have been the person
stealing property from the rooms. See R.R. Vol. 4, pp. 63-69. Neither did
Appellant’s trial counsel object to the court’s jury charge identifying Mr.
Alderete and Mr. Arguello as the “owners” of the rooms for the purposes of
determining whether Appellant had effective consent to enter. R.R. Vol. 4,
pp. 40-53. Nevertheless, since the actual name of the owner is not a
statutory element of the offense of burglary and is not included in the
hypothetically correct jury charge, we will address Appellant’s sufficiency
argument as it relates to Ms. Escobar’s consent for Appellant to enter the
rooms in question. See Fuller v. State, 73 S.W.3d 250, 253 (Tex. Crim. App.
2002).
Melina Escobar did testify that, in her role as Appellant’s coworker
and trainer (though not her supervisor), she had opened the doors to the hotel
rooms and allowed Appellant to enter for the purpose of cleaning the rooms
- 11 - on July 31, 2013. R.R. Vol. 3, p. 40. Assuming, arguendo, that Ms. Escobar
is an owner of the hotel rooms in question for the purposes of the burglary
statute by virtue of the fact that she was entrusted by her employer with a
master key and was given authority to enter and clean rooms, her testimony,
along with reasonable inferences therefrom, provides sufficient evidence to
support the conclusion that any consent to enter granted by Escobar was not
effective since it was induced by Appellant’s fraud. See Tex. Penal Code
Ann. § 1.07(a)(19).
Escobar testified that the owner of the hotel had asked her to train
appellant to clean the hotel rooms. R.R. Vol. 3, p. 38-39. Escobar had never
spoken with Appellant before they began working together at the hotel, and
they were not personally close while working together. R.R. Vol. 3, p. 39.
Appellant, who lived at the hotel with her boyfriend, often took breaks and
was not a hard worker. Id. at 39, 41, 53. Escobar testified that people who
lived at the hotel sometimes worked as housekeepers when they could not
afford to pay for their own rooms. Id. at 39-40. Before cleaning each room,
Escobar used a master key to open each door for Appellant. Id. at 40. For
the first two days that they worked together, Escobar never left Appellant
alone in a room; Escobar would stay in each room while she and Appellant
cleaned together. Id. at 41, 57. Nothing was reported stolen from any rooms
- 12 - during these first two days. Id. at 59. On the third day that Escobar was
training Appellant they did not clean rooms together; instead, Escobar would
open each door for Appellant and then go clean a different room. Id. at 40-
41, 54, 58. It was on this day that property was reported missing from the
victims’ rooms. Id. at 41.
While Escobar did not directly testify that Appellant had fraudulently
induced her to grant access to the hotel rooms, no such testimony is required.
Lack of effective consent in a prosecution for burglary may be proved by
circumstantial evidence, just as any other issue in a criminal case may be
proved by circumstantial evidence. Taylor v. State, 508 S.W.2d 393, 397
(Tex. Crim. App. 1974). No “magic words” are necessary from a testifying
witness to prove that consent was not given or that an accused did not have
effective consent to enter the premises. Prescott v. State, 610 S.W.2d 760,
763 (Tex. Crim. App. 1981).
Considering the events occurring before, during, and after the
commission of the offense, the cumulative force of all the incriminating
circumstances could have lead a rational juror to conclude that Appellant
began working at the Hill Country Inn with a design to gain access to the
rooms and steal from the occupants. Thus a rational juror could have found
that any consent, whether express or apparent, given by Escobar for
- 13 - Appellant to enter the rooms was not effective since it was induced by
Appellant’s fraud.
This is precisely what the State argued in closing:
[Appellant] wasn’t going in to clean rooms. She was going in to steal things. And we know she was going in to steal things. She wasn’t a housekeeper who went into a room and made a really bad decision….We know that’s not what she was doing because she did it more than once. She did it multiple times. She [had] a plan, a scheme, a design. She wasn’t using a crowbar or a lock-picking tool to open up these rooms. She was using her uniform, a little push card, and she was using her coworker to get her in that room. Those were her burglary tools. That’s how she got in. That’s how she planned to get in. She worked this job for three days. Two of those days her coworker was standing right beside her and during that time she didn’t take anything. As soon […] as she had an opportunity to be on her own in that room she began going from room to room grabbing up property that didn’t belong to her. Those are the actions of a burglar. That’s someone who has a plan to use a tool to get into a room without people’s consent and steal from them. That describes a burglar. […] Consent is not effective if it’s obtained by fraud. She was being fraudulent. She was holding herself out as something that she wasn’t. The defendant is not a housekeeper who committed a theft. She’s a burglar, a thief, who used her position to commit her crimes.
R.R. Vol. 4, pp. 60-61.
The facts in this case are analogous to the facts in Gordon v. State,
633 S.W.2d 872 (Tex. Crim. App. 1982). In Gordon, the defendant gained
entry to the victim’s home by asking permission to use her telephone. The
victim granted consent and the defendant entered the victim’s residence and
- 14 - went through the motions of placing a telephone call before stealing an item
on his way out. The State argued that the defendant had gained entry to the
house “under pretense,” and the Court was satisfied that any rational trier of
fact could have found the essential element of entry without the owner’s
effective consent beyond a reasonable doubt.
In the same way, any rational juror in the case at bar could have found
from Escobar’s testimony that she granted Appellant access to Alderete’s
and Arguello’s rooms because Appellant had misrepresented her motive for
entering those rooms. The State argued precisely this theory and cited
evidence to support it. In reaching their verdict, the jury implicitly found
that any consent given to enter the rooms, whether express or apparent, was
not effective. Giving deference to the jury’s responsibility to weigh the
evidence and to draw reasonable inferences from basic facts to ultimate facts,
the evidence is sufficient to support that verdict.
ARGUMENT ON REPLY TO ISSUE NO. 2
A. The jury was properly charged on the meaning of “effective
consent,” and any error contained in the jury charge did not cause
Appellant egregious harm.
Standard of Review
- 15 - When analyzing any jury charge issue, the reviewing court first
determines whether error exists. Middleton v. State, 125 S.W.3d 450, 453
(Tex. Crim. App. 2003). Then, if error is found, the appellate court should
analyze that error for harm. Id. Error preservation does not become an issue
until harm is assessed because the degree of harm necessary for reversal
depends upon whether the error was preserved. Id.
Jury charge error requires reversal when a defendant has properly
objected to the charge and the court finds some harm to his rights. Ngo v.
State, 175 S.W.3d 738, 742 (Tex. Crim. App. 2005). If a defendant did not
object to the instructions at issue, they are not entitled to reversal unless the
record shows that they suffered “egregious harm.” Nava v. State, 415
S.W.3d 289, 298 (Tex. Crim. App. 2013) (citing Almanza v. State, 686
S.W.2d 157, 171 (Tex. Crim. App. 1985)). The “egregious harm” standard is
a difficult one to meet and requires a showing that the defendant was
deprived of a fair and impartial trial. Nava v. State, 415 S.W.3d at 298. The
record must disclose “actual rather than theoretical harm,” and the error must
have affected the very basis of the case, deprived the defendant of a valuable
right, or vitally affected a defensive theory. Id. In determining whether
egregious harm is shown, a reviewing court looks at the entire jury charge,
the state of the evidence (including contested issues and the weight of
- 16 - probative evidence), the arguments of counsel, and any other relevant
information revealed by the record of the trial as a whole. Id.
Analysis
Appellant’s counsel affirmatively stated that she had no objection to
the court’s charge in this cause. R.R. Vol. 3, p. 43. Thus a reviewing court
should apply the egregious harm standard set forth in Almanza in
determining whether reversible error exists. See Almanza v. State, 686
S.W.2d 157 (Tex. Crim. App. 1985).
Appellant first argues that the jury charge fails to adequately define
effective consent to include “consent by a person legally authorized to act for
the owner.” See Tex. Penal Code Ann. § 1.07(a)(19). Appellant claims that
the exclusion of this portion of the statutory definition of effective consent
was error since it was “central to the defensive theory of the case.” While
the issue of effective consent was central to the determination of the case, the
evidence and argument presented by Appellant would not have been
strengthened by an instruction that effective consent includes consent by a
person legally authorized to act for the owner. So even if the court erred by
excluding the full statutory definition of “effective consent” from the jury
charge, Appellant is unable to show the sort of egregious harm required
under Almanza to compel reversal.
- 17 - Appellant advanced several theories at trial. First, that Mr. Alderete
and Mr. Arguello gave apparent consent for Appellant to enter their rooms
because neither of them affirmatively communicated that they did not want
any housekeeping services and neither posted any sort of notice on their door
for hotel staff to stay out. R.R. Vol. 4, pp. 63-64. Second, Appellant argued
that she did not steal Mr. Alderete’s or Mr. Arguello’s property. She
introduced evidence through the testimony of Raul Munoz that she had
received the phone reportedly seen in her possession on the day of the
incident from a friend by the name of Benjamin Tarbet, and argued that Mr.
Alderete’s phone was more likely stolen by Melina Escobar. Id. at 27, 64-
65. She also introduced evidence through Munoz that Mr. Arguello’s iPad
was found on the ground outside his room by Munoz (Appellant’s common
law husband and a convicted burglar), picked up by Appellant, and stored
under the mattress in her room for safekeeping. Id. at 27-34.
Appellant did not urge the argument that she had received consent to
enter the hotel room from a person legally authorized to act for the owner,
only that she had the apparent consent of Alderete and Arguello, the alleged
owners themselves. In fact, Appellant’s main argument with respect to
Melina Escobar was that Escobar was more likely than Appellant to be the
person who committed the thefts, since she possessed a key to the hotel
- 18 - rooms while Appellant did not. Furthermore, even if appellant had argued at
trial that she was given consent to enter the rooms in question by Melina
Escobar and that Escobar was a person legally authorized to act for the
owner, the evidence that appellant induced Ms. Escobar’s consent by fraud
would apply with precisely the same force and the jury could have found any
such consent ineffective as induced by fraud.
The State’s theory of the case was that Mr. Alderete and Mr. Arguello
never consented to Appellant’s entry into their rooms and that any apparent
consent to enter given by Melina Escobar was ineffective as induced by
fraud. This argument would have equal force whether Escobar was regarded
as an owner for the purposes of the burglary statute or a person legally
authorized to act for the owner. While the State did briefly argue in closing
that Ms. Escobar could not consent to Appellant’s entry because she was not
an owner and “could not give consent for the owner if the owner didn’t want
to give it,” the bulk of the State’s argument was dedicated to the theory that
any consent to enter was induced by Appellant’s fraud and thus ineffective.
R.R. Vol. 4, pp. 59-61. In light of the evidence showing that Appellant
gained consent to enter the victims’ rooms by pretense, the argument of
State’s counsel that Appellant’s fraudulent scheme rendered any consent to
enter ineffective regardless of the identity of the party granting consent, and
- 19 - the argument of Appellant’s counsel urging that Melina Escobar was the
potential culprit rather than a person legally authorized to act for the owner,
it is difficult to see how the exclusion of the full statutory definition of
effective consent could have theoretically harmed Appellant, much less
caused actual egregious harm amounting to the deprivation of a fair and
impartial trial as required by Almanza and its progeny.
Appellant next argues that it was error for the court to include in the
jury charge the statement that “entry is without the owner’s effective consent
if it is without the owner’s assent in fact,” claiming that the instruction
invades the province of the jury, instructs them to find an essential element
of the offense, and misstates the law. Appellant is incorrect.
The Texas Penal Code defines consent as follows: “’Consent’ means
assent in fact, whether express or apparent.” Tex. Penal Code Ann. §
1.07(a)(11). This definition equates “consent” with “assent in fact.”
Therefore, the court’s instruction that “entry is without the owner’s effective
consent if it is without the owner’s assent in fact” is functionally the same as
an instruction saying “entry is without the owner’s effective consent if it is
without the owner’s consent.” While the explanatory value of such a
tautological instruction may be questionable, it cannot be argued that it
- 20 - invades the province of the jury to instruct them that they may not find
consent to be effective where they also find no consent to exist at all.
Nor does the definition instruct the jury that they must find an
essential element of the offense, but only that they are required to find a lack
of effective consent where they have first found a lack of any consent at all,
since the prior conclusion follows necessarily from the latter. A juror who
found that a defendant had no consent to enter a habitation could not then
rationally conclude that the defendant had effective consent to enter.
Thus, the inclusion of this instruction was not error. Even if it was
error for the court to include an instruction not expressly provided by statue,
regardless of whether the instruction accurately describes the law, any such
error would be harmless and would not have deprive Appellant of a fair and
impartial trial.
Finally, Appellant argues that the State and the trial court misstated
the law during voir dire in such a way that misled the jury. According to
Appellant, these statements created a false impression that the law required
“consent for every action taken in a person’s home.” It should first be noted
that Appellant did not object to the statements at the time they were made
and so did not preserve any alleged error. Nevertheless, we believe
- 21 - Appellant mischaracterizes the statements and overestimates their effect on
the jury.
The statements at issue were made in the context of a discussion about
the concept of effective consent. The full context of the statements shows
that they did not misstate the law or mislead the jurors regarding the meaning
of effective consent, but instead fleshed out the concept that consent can be
ineffective if induced by fraud, i.e. that a person who misrepresents the
reason for their entry into another’s residence can render any consent to enter
ineffective. See Gordon v. State, 633 S.W.2d 872 (Tex. Crim. App. 1982).
This is an accurate statement of the law, and any confusion caused by this
discussion in the presence of the venire did not result in the sort of egregious
harm required by Almanza for reversal.
ARGUMENT ON REPLY TO ISSUE NO. 3
The trial court did not abuse its discretion by refusing to permit the
testimony of Raul Munoz on the issue of Appellant’s eligibility for jury
recommended community supervision.
Standard of Review
A trial court’s evidentiary rulings are reviewed for abuse of discretion.
Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990) (en
banc). The trial court's ruling will not be disturbed if it is "within the zone of
- 22 - reasonable disagreement." Winegarner v. State, 235 S.W.3d 787, 790 (Tex.
Crim. App. 2007). Instead, the ruling will be upheld if it is reasonably
supported by the record and correct on any theory of law applicable to the
case. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).
A defendant is eligible for jury recommended community supervision
only if before the trial begins the defendant files a written sworn motion with
the judge that the defendant has not previously been convicted of a felony in
any state, and the jury enters in the verdict a finding that the information in
the defendant’s motion is true. Tex. Code Crim. Proc. Art. 44.12 § 4(e).
A witness may not testify to a matter unless evidence is introduced
sufficient to support a finding that the witness has personal knowledge of the
matter. Tex. R. Evid. 602. A lay witness’s testimony in the form of opinions
or inferences is limited to those opinions or inferences which are rationally
based on the perception of the witness. Tex. R. Evid. 701.
Analysis
The trial court did not abuse its discretion by sustaining the State’s
objection to the proffered testimony of Raul Munoz since Munoz could not
provide competent evidence that Appellant had never been convicted of a
felony in any state.
- 23 - Munoz testified at both phases of trial. At the guilt/innocence phase
he testified that he was 36 years old, he had known Appellant for four and a
half years, and was her common law husband. R.R. Vol. 3, pp. 25-35. At
the punishment phase, Munoz reiterated that he had not known Appellant for
her entire life. R.R. Vol. 4, p. 46. When asked about details of Appellant’s
educational background, Munoz was unable to answer with certainty; he
could not remember what colleges Appellant attended and was not familiar
with her areas of study. R.R. Vol. 4, pp. 46-47.
The parties then questioned Munoz outside the presence of the jury to
establish whether he could testify from personal knowledge that Appellant
had never been convicted of a felony in any state. R.R. Vol. 4, pp. 66-70.
Munoz stated that, to his knowledge, Appellant had never been convicted of
a felony but, under cross-examination, admitted that he had no personal
knowledge of Appellant’s criminal history beyond the last five years. R.R.
Vol. 4, p. 67-68.
Appellant argues that Munoz should have been permitted to offer
opinion testimony that Appellant had never been convicted of a felony
offense, based on his own limited personal knowledge of Appellant’s
criminal history and rational inferences therefrom, and that such opinion
- 24 - testimony would have been sufficient to allow the issue of Appellant’s
eligibility for community supervision to be submitted to the jury.
This interpretation of Rule 602 and Rule 701, if accepted by the Court,
would produce a very strange situation in which practically any witness,
regardless of their lack personal knowledge of a defendant’s actual criminal
history, could require a trial court to submit the issue of that defendant’s
eligibility for community supervision to the jury by merely establishing a
passing familiarity with the defendant, testifying that to their limited
knowledge the defendant has never been convicted of a felony, and then
testifying to their opinion that the defendant has never been convicted of a
felony in any state, based on their own minimal knowledge.
Appellant’s argument fails because Rule 701 does not authorize a
witness to offer any opinion as long as he has some personal knowledge
relating to a fact in issue, but only those opinions or inferences that are
rationally based on the witness’s perception or personal knowledge. Tex. R.
Evid. 701. Appellant asserts that “[i]t was a reasonable conclusion for Mr.
Munoz to form his opinion, belief, or inference [that Appellant had never
been convicted of a felony offense in any state] because of the many
experiences within his personal knowledge.” But the trial court disagreed,
implicitly finding that Munoz’s limited knowledge of Appellant’s life and
- 25 - criminal history prior to their meeting made irrational any inference that
Appellant had never been convicted of a felony.
Appellant cites Osbourn v. State, 92 S.W.3d 531 (Tex. Crim. App.
2002) in support of her claim that Munoz’s opinion testimony should have
been admitted. But Osbourn illustrates precisely why the trial court did not
abuse its discretion in excluding Munoz’s testimony. In Osbourn, the court
held that a lay witness’s “opinion that appellant possessed marijuana, based
on the odor she smelled and the green, leafy substance she saw, was one that
a reasonable person could draw from the circumstances.” Osbourn v. State,
92 S.W.3d at 538. This is a very different situation than the case at bar,
where Appellant urges that a reasonable person could form an opinion that a
particular person had never been convicted of a felony in any state based on
their personal knowledge that the person had not been convicted of a felony
in the four and a half years the witness had known them. Such a conclusion
simply cannot be rationally inferred from Munoz’s limited personal
knowledge.
Appellant also cites Trevino v. State, 577 S.W.2d 242 (Tex. Crim.
App. 1979) for the proposition that “when testimony reasonably supports a
defendant’s motion for probation, the issue should be submitted to the jury.”
But by comparing the facts in Trevino to the case at bar, it becomes clear that
- 26 - Munoz’s testimony did not “reasonably support” Appellant’s motion for
probation, and was properly excluded. In Trevino, the appellant’s wife
testified in support of his application for probation that she had known
appellant since he was ten years old and that he had not been convicted of a
felony during that time. The Court of Criminal Appeals said that such
testimony was sufficient to require a charge on probation. Mr. Munoz, on
the other hand, only knew Appellant for four and a half years, admitted that
he had no personal knowledge of her criminal history prior to meeting her,
and was unable to answer other basic questions about her personal history.
The trial court did not abuse its discretion by excluding Munoz’s
testimony, because the record reasonably supports the conclusion that
Munoz’s personal knowledge was not sufficient to support a rational
inference that Appellant had never been convicted of a felony in any state.
Even if the trial court erred in excluding Munoz’s testimony, any error would
be subject to harm analysis. Potier v. State, 68 S.W.3d 657, 666 (Tex. Crim.
App. 2002). Any error was harmless in light of the fact that Appellant had
the option to produce other competent evidence to prove that she had never
been convicted of a felony, and did so. The jury was given the option of
placing Appellant on probation but instead elected to sentence her to a term
of 18 years confinement, a term that could not be probated.
- 27 - ARGUMENT ON REPLY TO ISSUE NO. 4
Appellant’s Fifth Amendment right against self-incrimination was not
violated when she chose to testify in order to establish her eligibility for
jury recommended community supervision.
The proposition that a criminal defendant cannot be compelled to take
the stand and give evidence against herself is so well understood that it
requires no citation of authority to support it. Brumfield v. State, 445 S.W.
2d 732, 735 (Tex. Crim. App. 1969)(overruled on other grounds). This
constitutional right may, of course, be waived if done knowingly, voluntarily
and intelligently, and it is well established that when an accused takes the
stand she waives her privilege against self-incrimination. Id. A defendant
who takes the stand as a witness is subject to the same rules as any other
witness. She may be contradicted, impeached, discredited, attacked,
sustained, bolstered up, made to give evidence against herself, cross-
examined as to new matter, and treated in every respect as any other witness
testifying in behalf of defendant. Holder v. State, 140 Tex. Crim. 55, 58, 143
S.W.2d 613 (Tex. Crim. App. 1940).
Appellant claims that her decision testify at the punishment phase of
trial was not made knowingly, intentionally, or voluntarily because she felt
impelled to do so only to establish her eligibility for probation, and she
- 28 - would not have chosen to testify had she been able to offer other competent
evidence of her eligibility for probation. Appellant analogizes her situation
to Sweeten vs. State, 693 S.W.2d 454 (Tex. Crim. App. 1985), in which a
defendant was impelled to testify in order to overcome the impact of the
improper introduction of illegally obtained evidence.
Appellant’s argument fails for several reasons. First, Raul Munoz’s
testimony was properly excluded. See supra. Second, even assuming
arguendo that Raul Munoz’s testimony was improperly excluded, we are
unaware of any authority supporting the assertion that a defendant’s right
against self-incrimination is not voluntarily waived when that defendant
takes the stand in order to provide otherwise excluded evidence. Such a
situation is very different from one in which a defendant’s decision to testify
is fundamentally tainted by the State’s introduction of illegally obtained
evidence. See Sweeten v. State, 693 S.W.2d at 458. In that situation, the
State is required to establish that the illegally obtained and improperly
introduced evidence did not impel the defendant to testify. Id. at 459. Here,
since the State has not created any improper or illegal impetus for Appellant
to testify, we bear no burden to explain Appellant’s reasons for electing to do
so. See Sherlock v. State, 632 S.W.2d 604, 606-07 (Tex. Crim. App. 1982).
- 29 - Appellant stated on the record prior to the exclusion of Raul Munoz’s
testimony and prior to her election to testify that she fully understood all the
advantages and disadvantages of testifying. R.R. Vol. V, p. 64. While
Appellant’s trial counsel did also state that her election to testify was the
result of the court’s decision to exclude Mr. Munoz’s testimony, she cannot
claim that she was improperly compelled testify since the court did not abuse
its discretion in excluding Munoz’s testimony.
Furthermore, even if Munoz’s testimony was wrongfully excluded,
Appellant has not established that her own testimony was required to prove
her eligibility for community supervision. It may be true, as Appellant now
claims, that “there were no other witnesses available, in the heat of trial, that
would have been able to testify they had known Appellant her entire life and
make the offer that she never had been convicted of a felony,” but that does
not mean that no such competent evidence existed or that it could not have
been secured for presentation at trial.
Appellant was not called to the stand by the State. See Birdsong v.
State, 82 S.W.3d 538 (Tex. Crim. App. 2002). She was not compelled to
testify. She voluntarily waived her right against self-incrimination, with a
full understanding of the potential for impeachment, apparently believing
that it was worth the risk in order to establish her eligibility for community
- 30 - supervision. Appellant now asks the Court to find that Appellant’s own
inability to produce competent evidence of her eligibility for community
supervision, aside from her own testimony, rendered her decision testify
involuntary. The court should decline to do so.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, the State prays the
Court deny Appellant’s appeal and affirm the judgment of the trial court.
Respectfully submitted,
OFFICE OF THE DISTRICT ATTORNEY 33rd and 424th JUDICIAL DISTRICTS Wiley B. McAfee, District Attorney P.O. Box 725 Llano, Texas 78643 Telephone: (325) 247-5755 Telecopier: (325) 247-5274
/S/ R. Blake Ewing By: _______________________________ R. Blake Ewing Assistant District Attorney State Bar No. 24076376 ATTORNEY FOR APPELLEE
- 31 - CERTIFICATE OF COMPLIANCE
This is to certify that the pertinent portion of this brief contains 6,406 words printed in Times New Roman 14-point font, according to the Microsoft WordTM 2013 word count tool.
/S/ R. Blake Ewing _______________________________ R. Blake Ewing
CERTIFICATE OF SERVICE
This is to certify that a true copy of the above and foregoing instrument, together with this proof of service hereof, has been forwarded on the 25th day of November, 2015, to Mr. Gary Prust, Attorney for Appellant, by email at gary@prustlaw.com /S/ R. Blake Ewing _____________________________ R. Blake Ewing Assistant District Attorney
- 32 -