Guerra, Felix Alfonso v. State

• Court: Court of Appeals of Texas
• Decided: June 22, 2004
• Docket: 14-03-00653-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed June 22, 2004

Affirmed and Memorandum Opinion filed June 22, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-00653-CR

FELIX ALFONSO GUERRA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 11

Harris County, Texas

Trial Court Cause No. 1152993

M E M O R A N D U M   O P I N I O N

The jury found appellant guilty of burglary of a motor vehicle, and the trial court assessed punishment at 190 days= confinement in the Harris County Jail.  In four points of error, appellant contends the State=s closing argument was improper and that the evidence identifying appellant was factually insufficient.  We affirm.

FACTUAL BACKGROUND

On the morning of January 10, 2003, Joyce Bobadilla noticed that the passenger=s side window to her car was broken and that it appeared someone tried to pry open the driver=s side window.  Bobadilla approached the car and noticed appellant inside the car, apparently attempting to remove the cover from the steering wheel column.

Mistaking appellant for his brother, Abel Rodriguez, Bobadilla said, AAbel, what in the hell are you doing in my car?@  When appellant looked up, Bobadilla realized he was not Rodriguez.  Bobadilla returned to her apartment and told a friend to call the police.  Bobadilla watched out the window and saw appellant enter Rodriguez=s apartment.

Officer Dutch Taylor responded to the call.  When he arrived, Bobadilla directed him to Rodriguez=s apartment.  Officer Taylor entered the apartment and returned with Rodriguez in handcuffs.  Bobadilla told Officer Taylor that Rodriguez was not the burglar, and Rodriguez was released.  Appellant was not in Rodriguez=s apartment, so Officer Taylor left the apartment complex.

Officer Paul Williams, who had responded as backup, noticed appellant standing nearby when he also left the apartment complex.  Because appellant matched the description given by Bobadilla, Officer Williams placed appellant in his patrol car.  Bobadilla subsequently identified appellant as the burglar.

ANALYSIS

I.        Jury Argument

In his first three points of error, appellant claims the State=s closing argument was improper because it (1) commented on appellant=s failure to testify, (2) improperly shifted the burden of proof to appellant, and (3) struck at appellant over the shoulder of his counsel.  However, appellant did not object at trial and, therefore, failed to preserve his claims for appeal.  See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (A[A] defendant=s failure to object to a jury argument or a defendant=s failure to pursue to an adverse ruling his objection to a jury argument forfeits his right to complain about the argument on appeal.@).  We overrule appellant=s first three points of error.

II.       Identification

In his fourth point of error, appellant contends the evidence identifying him as the burglar was factually insufficient.  In reviewing factual sufficiency, we look at all of the evidence in a neutral light, and will reverse a conviction only if the evidence supporting guilt is so obviously weak as to render the conviction clearly wrong and manifestly unjust, or if that evidence, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust.  Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).

Bobadilla positively identified appellant as the burglar both when he was arrested and at trial.  However, appellant argues that Bobadilla=s identification of appellant was factually insufficient because she was initially convinced Rodriguez was the burglar, she told Officer Taylor that Rodriguez was the burglar and directed him to Rodriguez=s apartment, and she did not immediately inform Officer Taylor that Rodriguez was not the burglar.^[1]

Most of this testimony is explained by other testimony by Bobadilla.  She testified that she only believed Rodriguez was the burglar before she saw the burglar=s face; when the burglar looked up that she realized he was not Rodriguez.  She testified that she directed Officer Taylor to Rodriguez=s apartment because she saw appellant enter it.  Finally, she testified that she delayed telling Officer Taylor that Rodriguez was not the burglar because she wanted to give Rodriguez a chance to implicate appellant.

The only testimony by Bobadilla that was not explained was her affirmative answer when asked whether she initially told Officer Taylor that Rodriguez was the burglar.  However, this testimony is contradicted by her testimony that she knew Rodriguez was not the burglar at that time.  The weight to give contradictory testimony is within the sole province of the jury.  Cain v. State, 958 S.W.2d 404, 408B09 (Tex. Crim. App. 1997).  The jury=s determination was not clearly wrong or manifestly unjust merely because it resolved this evidence in favor of the State.  See id. at 410.  We overrule appellant=s fourth point of error.                

We affirm the judgment of the trial court.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed June 22, 2004.

Panel consists of Justices Fowler, Edelman, and Elliott.^[2]

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Appellant relies on the following testimony by Bobadilla during cross-examination:

Q:         When you walked up to your vehicle you were sure it was [Rodriguez] at that time; isn=t that right?

A:         I thought it was [Rodriguez].

Q:         And you thought it wasCso much that it was [Rodriguez] that you called the police; isn=t that right?

A:         Yes, sir.

Q:         And when the police arrived, you told the police that it was [Rodriguez] and you took him to [Rodriguez=s apartment]; is that correct?

. . .

Q:         You testified earlier that when you looked in your car you thought it was [Rodriguez].

A:         Yes.

Q:         And then you also testified that then you knew it was not [Rodriguez]?

A:         That=s right.

Q:         And then after that, you still called the police and you went after [Rodriguez] in [his apartment]; is that right?

A:         I told the police officer that the guy went into [Rodriguez=s apartment].

^[2]  The Honorable Brady Elliott, Judge of the 268th District Court of Fort Bend County, sitting by assignment pursuant to Tex. Gov=t Code ' 74.003(h).