Garcia v. State

893 S.W.2d 17, 1994 Tex. App. LEXIS 3157, 1994 WL 709052
Court of Appeals of Texas·Decided December 22, 1994·No. No. 13-93-091-CR·Published·Cited by 1 cases

Opinions

OPINION

GILBERTO HINOJOSA, Justice.

Appellant was indicted for burglarizing Charles Webster’s house. A jury found appellant guilty, and the trial court assessed punishment, enhanced by two prior felony convictions, at 50 years in prison. Appellant asserts, by two points of error, that the trial court erroneously admitted evidence showing he rode a stolen bicycle to the Websters’ house. We affirm.

By point one, appellant contends the trial court erred in admitting the evidence because the State failed to show that he stole the bicycle.1 We do not consider the merits of this argument because appellant failed to raise this contention in the trial court and thereby failed to preserve error. See Tex. R.App.P. 52(a). Point one is overruled.

In point two, appellant contends the probative value of the extraneous offense was outweighed by the unfair prejudice to him. To adequately address appellant’s argument, a review of the evidence is necessary.

On June 19, 1992, Roger Wahl saw a man riding a bicycle very slowly by his house. Wahl watched as the man looked around, stopped next door at the Websters’ house, rang the Websters’ doorbell, and walked toward the Websters’ backyard. Wahl, who watched from a bedroom window, lost sight of the man as he went around the house, so Wahl called a neighbor to see if the neighbor could see what was going on. Unable to find out what was going on and believing the man’s actions were suspicious, Wahl directed his wife Lois to call the police. Wahl then moved to another bedroom window just in time to see “the backside of’ a man going into the Websters’ kitchen window.2

Police Sergeant Juan Hernandez was patrolling in the neighborhood and just happened to be in front of the Wahls’ house when he received a broadcast about a burglary in progress. He drove to the end of the block and came back through an alley behind the Wahls’ and Websters’ houses just in time to see someone going in through the Websters’ window. He parked his patrol car and headed toward the window. When Lois Wahl saw the officer arrive in the back, she decided to go out front with her portable phone. Meanwhile, Officer Hernandez approached the Websters’ sliding glass door. At that point, the intruder looked out and was, for a brief moment, face-to-face with the officer. Hernandez could see the man’s upper body and face and that he was wearing a cap and dark shirt. Hernandez tried to open the sliding glass door, but it was locked. The intruder turned and ran out the front door, leaving his bicycle behind. By the time Officer Hernandez got around to the front, the intruder was gone.3

Lois Wahl told Hernandez the man had run between some houses across the street. Hernandez ran after him but could not locate him. Hernandez returned to the Wahls’ to [20]*20get a description of the man, which he then broadcast along with the direction of flight to other units. A minute or two later, Officer Jesus Vasquez observed a man fitting the broadcast description running about four blocks from the Websters’. Vasquez captured the man after a foot chase through some woods, across a drainage ditch, and into an open field. Vasquez found “nothing” on or around appellant, but he had seen appellant make gestures like he was dropping something out of his pockets. Vasquez checked around and found some collector’s currency in a plastic bag.

Charles Webster came home after being notified about the burglary. He found some drawers in his bedroom chest pulled out and a jewelry box open. A gold watch and tie clasp were missing.

At trial, Officer Vasquez identified appellant as the man he caught. Officer Hernandez identified appellant as the man he saw in the Websters’ house. Roger and Lois Wahl could not identify appellant as the man they saw at the Websters’ house. Roger Wahl testified the man he saw wore a dark blue T-shirt and shorts, was about 5'9" tall, and was about the same build as himself. Roger Wahl testified that appellant fit within the description he had given. Lois Wahl described the man she saw as “about 5'8" to 5'10", in that range, heavy set, Hispanic,” wearing shorts and a dark T-shirt.

Officer Patsy Pemelton assisted with the Webster burglary. She processed the house for latent prints but was unable to lift any legible prints. Later, she went through the property appellant had when arrested to see if there were any stolen items. She identified State’s exhibit # 9 as a photograph of a Jordan Air baseball cap appellant had with him when arrested. She identified State’s exhibit # 10 as a photograph of the bicycle abandoned at the Websters’ house. Over appellant’s objection, Pemelton testified that after she photographed the property, she released it “to the person who identified it.” 4

Michael Anzaldua, a twelve-year-old boy, testified that in June 1992, his house was “robbed.” Over appellant’s objection, Anzal-dua identified the bicycle which was left by the burglar at the Websters’ house as belonging to him. Anzaldua testified he got his bicycle back from the police department two days after he had last seen it. The State also proffered evidence that the baseball cap belonged to Anzaldua, but the trial court sustained appellant’s objection regarding it, and so no evidence was introduced that the cap belonged to Anzaldua.5 The trial court admitted evidence about the stolen bicycle for the limited purposes of showing intent and identity, and the jury was so instructed in the charge.

Appellant objected twice to the introduction of evidence that the bicycle and baseball cap were stolen. The first time was when Officer Pemelton testified about the items. The second time was when Anzaldua testified. The State’s theory of admission was two-fold. First, the State argued appellant had the stolen property while he was committing the Webster burglary and therefore it showed his intent to steal. The State argued such evidence was necessary to show intent because appellant was not captured with any of the Websters’ property. Second, the State argued the stolen property established appellant’s identity as the man who entered the Websters’ house. Since the cap and bicycle belonged to the same person, appellant’s possession of the cap at the time of his arrest tied him to the bicycle, and the bicycle tied him to the Websters’ house. The State argued such evidence was necessary to show identity because the Wahls could not identify appellant as the intruder and because Officer Hernandez’s identification of appellant needed to be buttressed in light of appellant’s cross-examination of Hernandez about his ability to identify the briefly-encountered intruder.

An extraneous offense is admissible if it has relevance apart from its tendency to prove the character of a person in order to [21]*21show that he acted in conformity therewith. Montgomery v. State, 810 S.W.2d 372, 387 (Tex.Crim.App.1990). A party may introduce extraneous misconduct evidence when it logically serves to make “more probable or less probable” an elemental fact; where it serves to make “more probable or less probable” an evidentiary fact that inferentially leads to an elemental fact; or where it serves to make “more probable or less probable” defensive evidence that undermines an elemental fact. Id. Evidence of other crimes may be admitted to show intent and identity unless the prejudicial effect substantially outweighs its probative value.

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Garcia v. State, 893 S.W.2d 17, 1994 Tex. App. LEXIS 3157, 1994 WL 709052 (Tex. Ct. App. 1994).

893 S.W.2d 17 (Garcia v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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