Rodriquez v. State

721 S.W.2d 504, 1986 Tex. App. LEXIS 9048
CourtCourt of Appeals of Texas
DecidedNovember 20, 1986
DocketB14-85-974-CR
StatusPublished
Cited by7 cases

This text of 721 S.W.2d 504 (Rodriquez v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rodriquez v. State, 721 S.W.2d 504, 1986 Tex. App. LEXIS 9048 (Tex. Ct. App. 1986).

Opinion

OPINION

CANNON, Justice.

This is an appeal from a jury conviction for burglary of a motor vehicle, enhanced by two prior convictions. The jury assessed punishment at eighty years in the Texas Department of Corrections. Appellant gave timely notice of appeal.

In three points of error appellant argues for reversal and remand or acquittal. He complains of: (1) the insufficiency of the evidence to support the jury verdict; (2) error by the court below in refusing to dismiss the jury panel; and (3) improper jury argument by the prosecutor concerning parole laws. We find no error and, therefore, affirm.

In point of error one, appellant argues that there was insufficient evidence to prove that the person testifying as the owner of the burglarized vehicle was in fact the owner of the burglarized vehicle. In deciding a question of sufficiency of either direct or circumstantial evidence, we view the evidence in the light most favorable to the jury’s verdict and consider whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Burks v. State, 693 S.W.2d 932, 937 (Tex.Crim. App.1985). In applying this standard to a review of circumstantial evidence, the “exclusion of reasonable hypotheses” test may be used as one means of analyzing the sufficiency of circumstantial evidence. Garrett v. State, 682 S.W.2d 301, 304 (Tex.Crim.App.1984), cer t. denied, 471 U.S. 1009, 105 S.Ct. 1876, 85 L.Ed.2d 168 (1985). Thus, “ ‘if the evidence supports an inference other than the guilt of the appellant, then a finding of guilt beyond a reasonable doubt is not a rational finding.’ ” Garrett, 682 S.W.2d at 304-305 (quoting Denby v. State, 654 S.W.2d 457, 464 (Tex.Crim.App. 1983)).

The indictment alleged that Longi-nos Quintero was the owner of the burglarized vehicle. At trial, Quintero testified that he parked his blue and white Ford Bronco on a parking lot at a church on Aurora Street on September 20, 1985, between 8:00 and 9:00 p.m. When he returned to his Bronco, the right side window was opened and the driver’s side small window and the ignition were broken. Ms. Cotton, a witness, testified that she observed appellant and another person attempting to break the driver’s side vent window of a blue and white Bronco in the parking lot of the church next to her residence at 318 Aurora Street. Her observance of this incident occurred on September 20, 1985 at approximately 8:45 p.m. After calling the police, she observed two people in the Bronco “messing” with the steering column, and she heard a loud clanging as if metal were being broken. The investigating officer testified that he met with Ms. Cotton and the “complainant who owned the truck that had been broken into” to get an identification by the witness of the suspects he had arrested. Also, he testified the vehicle that had been broken into was a 1979 blue Ford Bronco with a white top. He further stated that the ignition had been “popped out of the truck” and that the driver’s vent window “had been pulled open.”

We hold that, under the standard of review in Burks, 693 S.W.2d at 937, the evidence was sufficient to support a finding that Quintero was the owner of the burglarized motor vehicle. Further, in analyzing the evidence under the “exclusion of reasonable hypotheses” test discussed in Garrett, 682 S.W.2d at 304, we find that the evidence does not support any reasonable hypothesis other than the guilt of appellant. Point of error one is overruled.

*506 In his second point of error, appellant argues that error was committed when his motion to dismiss the jury panel was denied. Jury selection in the trial began on December 9, 1985. At that time, appellant was scheduled to be tried with two co-defendants. Texas Code of Criminal Procedure Annotated article 35.15(b) (Vernon Supp.1986) provides: “In non-capital felony cases, the State and defendant shall each be entitled to ten peremptory challenges. If two or more defendants are tried together each defendant shall be entitled to six peremptory challenges and the State to six for each defendant.” Accordingly, each of the three defendants was allocated six peremptory challenges and the State was allocated eighteen peremptory challenges. The jury strikes were made and the panel was released for the day. The following day the jury was sworn and then retired. At that time, appellant made a motion to dismiss the jury panel, stating that he could not' get a fair trial with a panel that was struck by counsel for the former co-defendants. The basis for this assertion was that the two co-defendants chose to plead guilty and thus were not participating at trial. Appellant argues that, because he was not being “tried together” with any co-defendants, he was entitled to voir dire his own jury panel and to exercise the ten peremptory challenges authorized by statute. We are not persuaded by his argument.

Appellant urges us to construe the term “tried together” found in Tex. Code Crim.Proe.Ann. art. 35.15(b) (Vernon Supp.1986). We will do so and hold that within the context of article 35.15(b), “tried together” includes the voir dire aspect of a trial. Thus, if co-defendants are properly joined together for a trial, voir dire begins and concludes, and no specific harm is demonstrated by the statutorily authorized allocation of peremptory challenges, then a defendant who proceeds to trial with a jury struck by himself, his co-defendants and the State, regardless of whether his co-defendants proceed to trial with him, cannot complain of error. Judicial expediency dictates this result as well as the legislative intent apparent in the statute.

First, we note that, if not for the fortuitous guilty pleas of appellant’s co-defendants, appellant would have no ground to assert error. He would have proceeded to trial with his co-defendants and with the jury struck by the three defense attorneys. He lodged no objection to being tried with the co-defendants, nor did he attempt to sever his trial from that of his co-defendants. Second, appellant’s assertion that he could not “get a fair trial with this particular jury panel” is not a specific showing of harm resulting from the statutorily authorized allocation of peremptory challenges. Third, appellant did not move for additional peremptory challenges as he could have done if he did not believe that he had an adequate number of challenges. Finally, because article 35.15(b) requires allocation of an equal number of peremptory challenges for the prosecution and the defense, we regard this as a legislative determination that a fair jury may be selected by assuming the existence of “common interest” among criminal co-defendants. Point of error two is overruled.

In appellant’s third point of error, he complains that the prosecutor was allowed to argue before the jury during the punishment phase concerning how long appellant would have to serve to satisfy the sentence assessed by the jury. The court’s charge to the jury on punishment contained the required language of Tex.Code Crim.Proc. Ann. art. 37.07, § 4(b) (Vernon Supp.1986). Section 4(b) provides, in relevant part:

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721 S.W.2d 504, 1986 Tex. App. LEXIS 9048, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodriquez-v-state-texapp-1986.