Martin Refugio Villarreal v. State

• Court: Court of Appeals of Texas
• Decided: December 9, 2004
• Docket: 13-02-00714-CR
• Status: Published

Opinion

NUMBER 13-02-714-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

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MARTIN REFUGIO VILLARREAL,                                             Appellants,

v.

THE STATE OF TEXAS,                                                                Appellee.

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On appeal from the 36^th District Court

of San Patricio County, Texas.

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M E M O R A N D U M O P I N I O N

     Before Chief Justice Valdez and Justices Rodriguez and Garza

                             Opinion by Chief Justice Valdez

          After a bench trial, appellant, Martin Refugio Villarreal, was convicted of hindering apprehension or prosecution and sentenced to four years confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant’s sentence was suspended, and he was released on community supervision. Appellant raises the following three points of error on appeal: (1) the State unconstitutionally withheld exculpatory evidence; (2) the evidence is factually insufficient to support his conviction; and (3) the trial court unconstitutionally placed the burden-of-proof on appellant to present evidence of his innocence. We reverse and remand the case for a new trial.

I. Factual and Procedural Background

          As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.4.

II. Analysis Factual Insufficiency

          In his second point of error, appellant contends the evidence is factually insufficient to support his felony conviction for hindering apprehension or prosecution. Appellant asserts the evidence is insufficient to show he harbored, concealed, warned or provided any means of avoiding or hindering the arrest of Robert Anthony Galvan (Anthony). Appellant further asserts that there is no evidence of record to show he knew Anthony was wanted for a felony offense. Thus, appellant contends, at most, he is guilty of the misdemeanor version of the offense.

Standard of Review

          The standard of review used in challenges to the factual sufficiency of the evidence is well-settled. See Wheaton v. State, 129 S.W.3d 267, 272 (Tex. App.–Corpus Christi 2004, no pet.). Accordingly, we will not recite it here. See Tex. R. App. P. 47.4.

          The elements of the offense of hindering apprehension or prosecution are found in section 38.05 of the penal code, which provides:

 (a) A person commits an offense if, with intent to hinder the arrest, prosecution, conviction, or punishment of another for an offense or, with intent to hinder the arrest, detention, adjudication, or disposition of a child for engaging in delinquent conduct that violates a penal law of the grade of felony, he:

   (1) harbors or conceals the other;

   (2) provides or aids in providing the other with any means of avoiding

   arrest or effecting escape; or

   (3) warns the other of impending discovery or apprehension.

   (b) It is a defense to prosecution under Subsection (a)(3) that the warning was given in connection with an effort to bring another into compliance with the law.

   (c) An offense under this section is a Class A misdemeanor, except that the offense is a felony of the third degree if the person who is harbored, concealed, provided with a means of avoiding arrest or effecting escape, or warned of discovery or apprehension is under arrest for, charged with, or convicted of a felony, or is in custody or detention for, is alleged in a petition to have engaged in, or has been adjudicated as having engaged in delinquent conduct that violates a penal law of the grade of felony, and the person charged under this section knew that the person they harbored, concealed, provided with a means of avoiding arrest or effecting escape, or warned of discovery or apprehension is under arrest for, charged with, or convicted of a felony, or is in custody or detention for, is alleged in a petition to have engaged in, or has been adjudicated as having engaged in delinquent conduct that violates a penal law of the grade of felony.

Tex. Pen. Code Ann. § 38.05 (Vernon 2004).

Analysis

          To prove its case, the State relied on the testimony of four witnesses: Patrolman Dennis Anders; Patrolman Dennis Chupe; Patrol Supervisor Roberto Gonzales, Jr.; and Patrol Captain Leroy Grumbles. Appellant relied on the testimony of Robert Anthony Galvan. Appellant did not testify on his own behalf.

          Anders, Chupe, Gonzales and Grumbles provided similar accounts of the events surrounding appellant’s arrest. While on routine patrol, Anders saw three individuals standing at the front door of Roberto Galvan’s (Roberto) residence and recognized one of them as Anthony, Roberto’s son. Anders was aware Anthony was wanted on a felony arrest warrant; therefore, he began to turn his car around to confront Anthony. As Anders was turning around, he could hear Anthony shouting, “[open] the door, the cop is turning around.” Anders stated the door opened, and the three individuals entered the house.

          Once at the residence, Anders testified that he knocked on the front door several times before Roberto opened the door. Roberto told Anders that his son was not inside the house, as Anthony had run out the back door. Anders asked permission to enter the house, but Roberto refused, shut the door and locked it. Anders then went to the back of the residence to look for evidence someone had run out the back door. After he found none, he concluded Anthony was still inside the house.

          Meanwhile, Chupe, Gonzales, and Grumbles arrived at the scene. The officers secured the perimeter of the house and tried several more times to obtain permission for entry into the house. Grumbles sent Anders to obtain a search warrant. When Anders returned with the warrant, the officers entered the house. They saw appellant and Marissa Reynolds sitting on a couch in the living room. Chupe, Gonzales and Grumbles asked appellant where Anthony was, and appellant replied he did not know.

          The officers searched the house and eventually found Anthony hiding in a crawl space in the attic. The entry to the attic was eight feet off the ground, and assistance would be required to get into the crawl space. Anders had to use a ladder to get into the attic. Appellant was arrested after Anthony was in custody.

          Anthony testified that he was with appellant on the night of the offenses and that appellant had entered his home with him after Anthony noticed the police car. Anthony stated he entered the house and immediately exited the back door, but he ran back inside when he saw a flashlight in the backyard. He testified he entered the back bedroom and climbed into the attic through the opening in the closet unassisted. He stated he used the shelves in the closet to boost himself up to and through the entry of the attic. Anthony testified that no one saw him reenter the house.

          Appellant was convicted of the felony version of the offense. See Tex. Pen. Code. Ann. § 38.05(c) (Vernon 2004). To upgrade appellant’s conviction to the felony variety, the State must prove: (1) the person harbored or concealed was wanted, convicted, or charged with a felony offense, and (2) the person who harbored or concealed the individual knew the person harbored or concealed was wanted, convicted, or charged with a felony offense. Id.

          There is sufficient evidence of record to establish appellant was wanted on a felony offense; Anders testified that there was a felony arrest warrant for Anthony’s arrest. The State points to the testimony of Anders and Grumbles to establish appellant knew Anthony was wanted on a felony arrest warrant. Anders testified that he “believed” he told Roberto that there was a felony arrest warrant for Anthony. Grumbles testified that appellant would have heard what the officers were saying inside the house. Thus, the State is arguing that appellant must have heard the possible exchange between Anders and Roberto. Grumbles’ testimony and the State’s inference are speculative at best. We conclude the evidence, or lack thereof, supporting appellant’s felony conviction for hindering apprehension or prosecution is so weak as to be clearly wrong and manifestly unjust. Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). We sustain appellant’s second point of error.

          The proper disposition when a reviewing court sustains a factual sufficiency challenge is a remand for a new trial. Swearingen, 101 S.W.3d at 97. Our disposition of appellant’s second point of error renders appellant’s first and third points of error moot; therefore, we will not address them. See Tex. R. App. P. 47.4.

III. Conclusion

          We reverse the judgment of the trial court and remand the case for a new trial.

                                                                        Rogelio Valdez,

                                                                        Chief Justice

Memorandum Opinion delivered and filed

this 9^th day of December, 2004.