COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-03-082-CR
JOSE
LUIS GRANADOS APPELLANT
V.
THE
STATE OF TEXAS STATE
------------
FROM
CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
MEMORANDUM OPINION1
I.
Introduction
Appellant
Jose Luis Granados appeals his conviction for burglary of a habitation with
intent to commit sexual assault. A jury found Granados guilty and assessed his
punishment at thirty years’ confinement. In two points, Granados contends that
the trial court erred by accepting a vague and uncertain jury verdict and that
the evidence is factually insufficient to support his conviction. We will
affirm.
II.
Background Facts
On
the night of the burglary, Veronica Arelleno put her daughter to bed around
midnight, studied for a college admission exam, and eventually went to bed at
around 2 a.m. Arelleno awoke because someone lifted and moved her arm. She first
thought it was her husband from whom she was separated, but she looked up and
saw a thin person wearing a light-colored mask. Arelleno heard the sound of an
aerosol spray can being dispensed close to her. She thought that the intruder
was trying to spray something in her eyes, but the liquid did not touch her. She
jumped up and, in English and in Spanish, asked whether the intruder wanted
money or sex, but the intruder did not respond and continued to spray. She tried
not to scream because her daughter was in a bed in the same bedroom. Her
daughter woke up nonetheless and told the intruder to leave her mom alone.
At
that point, Arelleno feigned unconsciousness. She let her entire body become
limp. She thought that if the intruder wanted to rob her, he would notice that
she was unconscious and take whatever he wanted. Instead, he took the covers off
Arelleno. Her shorts were pulled off with the covers. The intruder grabbed
Arelleno underneath her arms and dragged her face down into the living room. As
she lay face down on the living room floor, the intruder touched her with his
tongue or his lips “in the part between [her] buttocks and [her] legs” and
touched her with his hand between her legs. Arelleno heard a zipper open, and
then her daughter entered the living room, started to cry, and ran back to the
bedroom. Arelleno heard the intruder go to shut the bedroom door, so she got up.
Arelleno
charged the intruder, who was no longer wearing the mask, and tried to hit him
in the groin area. When Arelleno saw the man’s face, she immediately
recognized him as someone she had seen around the apartment complex. She
identified Granados as the intruder. Arelleno hit the man in his privates
approximately three times. The intruder hit Arelleno in the shoulder and near
her ear. During the scuffle, Arelleno ran to the phone to call the police but
then noticed that the phone had been disconnected. The intruder fled, and
Arelleno locked her front door and called the police from her other phone. As
she waited for the police, Arelleno noticed that her television and VCR were
also disconnected.
The
police arrived and took Arelleno to the police station to make a report. She
told the police that she had seen the intruder around the apartment complex and
that he drove a small blue truck. She described the intruder as a skinny forty
to fifty year-old male and selected Granados from a photo line-up. She said that
Granados did not have permission to enter her apartment or to touch her body.
Before she left the police station, the police took photographs of the bruise on
her shoulder and the scratches on her legs made when Granados dragged her to the
living room.
Police
obtained a warrant for Granados’s arrest and found him hiding in a closet in
his apartment. Granados came out of the closet wearing only white boxer shorts
and motioned for his pants. One of the officers searched Granados’s pants
before giving them to Granados and found an offwhite ski mask in the left front
pocket of the pants.
At
trial, Granados testified that he spent the night in question at Artelio
Lechuga’s apartment in Carrollton. He explained that the mask belonged to him
and that he used it for painting. He admitted that he knew where Arelleno lived.
On cross-examination, Granados answered “yes” to a question about whether he
had ever entered Arelleno’s apartment; however, on redirect examination, he
said that he had never been in her apartment.
In
spite of Granados’s alibi, the jury found him guilty and assessed his
punishment at thirty years’ confinement. This appeal followed.
III.
Verdict Not Vague or Conflicting
In
his first point, Granados contends that the trial court committed error by
receiving a vague and uncertain jury verdict that conflicted with the
indictment. The indictment charged that:
on
or about the 19th day of August 2002, [Granados] did intentionally or
knowingly, without the effective consent of Veronica Arelleno, the owner
thereof, enter a habitation with intent to commit sexual assault,
PARAGRAPH
TWO: And it is further presented in and to said court that [Granados] . . . on
or about the 19th day of August, 2002, did intentionally or
knowingly, without the effective consent of Veronica Arelleno, the owner
thereof, enter a habitation and did attempt to commit or commit sexual assault.
The
court’s charge instructed the jury on both of the above indictment paragraphs.
However, the verdict form provided only one conviction option, stating, “We,
the jury, find the Defendant, JOSE LUIS GRANADOS, guilty of the offense of
Burglary of a Habitation with Intent to Commit a Felony, to-wit: Sexual Assault,
as charged in the Indictment.” Thus, Granados complains that because the term
“felony,” appears in the verdict form but not in the indictment, and because
the term “felony” was not defined in the court’s charge to the jury, the
jury’s verdict conflicts with the indictment, rendering it uncertain. Granados
also complains that the court’s charge failed to properly instruct the jury
because it instructed the jury on two theories of commission of the offense but
provided for conviction on only one theory.
The
State points out that the court’s charge did provide, “You are instructed
that Sexual Assault is a felony.” The State contends that this instruction in
the court’s charge eliminated the ambiguity Granados claims exists. The State
also argues that any limitation that the general verdict form placed on the
jury’s determination of Granados’s guilt was a windfall to Granados.
Significantly,
the record shows that out of the presence of the jury, Granados requested the
very instruction and language in the verdict form that he now complains about:
THE
COURT: All right. And the changes that we have incorporated from discussions off
the record are that the Court has entitled the offense in the first paragraph,
as well as in the verdict form, burglary of a habitation with intent to commit a
felony, to-wit: sexual assault, at the request of the defense.
And
are there any further objections or specially requested charges from the State?
[PROSECUTOR]:
No, Your Honor.
THE
COURT: From the defense?
[DEFENSE
COUNSEL]: No, Your Honor. [Emphasis added.]
Because
Granados requested the inclusion of the very language he now complains about any
error is not preserved for our review. See Cadd v. State, 587 S.W.2d 736,
741 (Tex. Crim. App. 1979) (op. on reh’g); Willeford v. State, 72
S.W.3d 820, 823 (Tex. App.—Fort Worth 2002, pet. ref’d). We overrule
Granados’s first point.
IV.
Factually Sufficient Evidence
In
his second point, Granados argues that the evidence is factually insufficient to
support his conviction. Specifically, Granados contends that the evidence is
factually insufficient to establish that he had the intent to commit sexual
assault when he entered Arelleno’s apartment. The State responds that there is
ample evidence to support the jury’s verdict.
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, 134 (Tex. Crim. App. 1996). Evidence is factually insufficient
if it is so weak as to be clearly wrong and manifestly unjust or the adverse
finding is against the great weight and preponderance of the available evidence.
Johnson, 23 S.W.3d at 11. Therefore, we must determine 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
verdict, or the proof of guilt, although adequate if taken alone, is greatly
outweighed by contrary proof. Id. In performing this review, we are to
give due deference to the fact finder’s determinations. Id. at 8-9; Clewis,
922 S.W.2d at 136. We may not substitute our judgment for that of the fact
finder’s. Johnson, 23 S.W.3d at 12. Consequently, we may find the
evidence factually insufficient only where necessary to prevent manifest
injustice. Johnson, 23 S.W.3d at 9, 12; Cain v. State, 958 S.W.2d
404, 407 (Tex. Crim. App. 1997).
To
make a determination of factual insufficiency, a complete and detailed
examination of all the relevant evidence is required. Johnson, 23 S.W.3d
at 12. A proper factual sufficiency review must include a discussion of the most
important and relevant evidence that supports the appellant’s complaint on
appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
A
person commits burglary of a habitation if, without the effective consent of the
owner, he enters a habitation with intent to commit a felony. Tex. Penal Code Ann. §
30.02(a)(1) (Vernon 2003). The indictment alleged that Granados entered
Arelleno’s apartment with the intent to commit sexual assault. Id. §
22.011(a) (Vernon Supp. 2004). A person commits sexual assault if he
intentionally or knowingly causes the penetration of the anus or sexual organ of
another person by any means without that person’s consent or causes the sexual
organ of another person, without that person’s consent, to contact or
penetrate the mouth, anus, or sexual organ of another person, including the
actor. Id. § 22.011(a)(1)(A), (C).
The
jury is exclusively empowered to determine the issue of intent, and the events
of a burglary may imply the intent with which the defendant entered. Moreno
v. State, 702 S.W.2d 636, 641 (Tex. Crim. App. 1986); Moore v. State,
54 S.W.3d 529, 539 (Tex. App.—Fort Worth 2001, pet. ref’d). Thus, intent may
be inferred from the defendant's conduct and surrounding circumstances. Id.
Further, where the charge is burglary with an intent to commit a felony, the
offense is complete whether the intended felony is committed, as long as the
burglarious entry is made with the intent to commit the felony alleged. Id.
Here,
the record demonstrates that Granados observed Arelleno in the apartment complex
parking lot and knew where she lived. He broke into her apartment wearing a ski
mask and attempted to spray some substance on Arelleno. After Arelleno feigned
unconsciousness, Granados dragged her into the living room and touched with his
tongue or lips and his hand in her buttock area between her legs. Granados had
disconnected Arelleno’s phone, television, and VCR.
At
trial, Granados attacked Arelleno’s report to the police because it contained
fewer details than she gave in court. Granados testified at trial that he was
not even in the area on the night in question and that he used the ski mask
police found in his pant’s pocket in his work as a painter. He admitted at
trial that he entered Arelleno’s apartment. According to Granados, the
disconnected appliances show an intent to commit theft, not to sexually assault
Arelleno upon entering her apartment.
Viewing
all of the evidence in a neutral light, the proof that Granados intended to
commit sexual assault when he entered the apartment is not so obviously weak as
to undermine confidence in the verdict or outweighed by contrary proof. See
Sendejo v. State, 26 S.W.3d 676, 677-78 (Tex. App.—Corpus Christi 2000,
pet. ref’d) (holding uncontroverted testimony that appellant entered home and
touched child on leg near genital area was legally and factually sufficient to
support intent element of defendant’s conviction for burglary of a habitation
with the intent to commit indecency with a child); Sharpe v. State, 881
S.W.2d 487, 490 (Tex. App.—El Paso 1994, no pet.) (holding victim’s
testimony that defendant unplugged her phone, got on top of her, and she thought
he was going to rape her, supported defendant’s conviction for burglary of a
habitation with the intent to commit sexual assault); Moone v. State, 802
S.W.2d 101, 104 (Tex. App.—Austin 1990, pet. ref’d) (holding evidence
sufficient to support defendant’s conviction for burglary of a habitation with
intent to commit sexual assault when defendant entered thirteen-year-old
girl’s room in dead of night, was intoxicated, used knife to cut her
underwear, concealed his identity when she awoke, and used mild force to prevent
her from arousing others in house); Ramer v. State, 714 S.W.2d 44, 47
(Tex. App.—Dallas 1986, pet. ref’d) (holding evidence sufficient to support
defendant’s conviction for burglary of a habitation with intent to commit
sexual assault when defendant broke into apartment, jumped on top of complainant
in bed with his zipper open, and threatened to kill her if she did not stop
screaming). Additionally, courts have rejected arguments like the one Granados
raises that the sexual assault was an afterthought that developed during the
burglary. See Moore, 54 S.W.3d at 539 (stating events of burglary may
imply intent with which defendant entered); Coleman v. State, 832 S.W.2d
409, 413-15 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d)
(same). Moreover, the fact that Granados may also have intended to steal does
not negate his intent to sexually assault Arelleno. See Ramirez v. State,
815 S.W.2d 636, 642-43 (Tex. Crim. App. 1991) (holding that confession presented
evidence appellant intended to commit theft, but that evidence did not prevent
State from presenting other relevant evidence on appellant’s felonious intent
to commit sexual assault).
Viewing
the evidence in a neutral light, we cannot conclude that the evidence supporting
Granados’s guilt of the offense of burglary of a habitation with the intent to
commit sexual assault is so weak as to render the jury’s verdict clearly wrong
and unjust or that the verdict is against the great weight and preponderance of
the evidence at trial. See Moore, 54 S.W.3d at 540; see also Thomas v.
State, 126 S.W.3d 138, 147 (Tex. App.—Houston [1st Dist.] 2003,
pet. ref’d). Assuming the jury chose to believe Arelleno’s version of
events, the jury could have reasonably inferred from Granados’s actions that
he entered the apartment with the intent to sexually assault Arelleno. See
Moore, 54 S.W.3d at 540. Thus, we hold that the evidence is factually
sufficient to support Granados’s conviction. We overrule Granados’s second
point.
V.
Conclusion
Having
overruled Granados’s two points, we affirm the trial court’s judgment.
SUE
WALKER
JUSTICE
PANEL
B: LIVINGSTON, DAUPHINOT, and WALKER, JJ.
DO
NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED:
April 8, 2004
NOTES
1.
See Tex. R. App. P. 47.4.