Ronnie James Roedersheimer v. State

• Court: Court of Appeals of Texas
• Decided: June 30, 2005
• Docket: 13-04-00378-CR
• Status: Published

Opinion

                             NUMBER 13-04-378-CR

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG

RONNIE JAMES ROEDERSHEIMER,                              Appellant,

                                           v.

THE STATE OF TEXAS,                                              Appellee.

                   On appeal from the 36th District Court

                           of Aransas County, Texas.

                     MEMORANDUM OPINION^[1]

                Before Justices Rodriguez, Castillo, and Garza

                  Memorandum Opinion by Justice Castillo

A jury convicted appellant Ronnie James Roedersheimer of burglary of a habitation.^[2]  The trial court assessed punishment at eight years' confinement in the Texas Department of Criminal JusticeBInstitutional Division.  By two issues, Roedersheimer asserts that (1) the evidence is insufficient to sustain the verdict, and (2) the photographic lineup was impermissibly suggestive.  We affirm.

I.  RELEVANT FACTS

On or about January 16, 2004, at around noon, retired police officer James Valentino^[3] was routinely walking his dog in his neighborhood when he observed a young man on a bicycle with a "big large sack over his shoulder."  The man appeared to be getting ready to take off on his bicycle.^[4]  The two, approximately fifteen to twenty feet apart, made eye contact.  Valentino asked him what he was doing there.  The man dropped the sack and rode away.  Valentino saw a broken window on the back of a small house.  The "sack" was a bed sheet.  In it, Valentino saw "stereo components."  He saw no one else in or around the property.  Ten days later, Valentino identified Roedersheimer from a police photograph lineup.  At trial, Valentino identified Roedersheimer as the man he saw that day.

Deputy Ronnie Crisp testified that he was dispatched to the scene.  He determined a broken rear window to be the point of entry to the house.  Crisp unwrapped the sheet at the scene and found a home-stereo unit inside.  The owner of the house, William French, testified that the last time he was at his house, the window was not broken and the stereo equipment was in its place.  He testified that he did not give Roedersheimer, who he did not know, permission to enter his house.  French testified that he owned the stereo equipment. 

Criminal investigator Matthew Baird testified that, on January 26, 2004, he showed Valentino a six-person photographic lineup.  "A few seconds later," without hesitation, Valentino identified Roedersheimer as the person involved in the burglary offense.  The lineup was admitted in evidence, without objection.  When Baird reached Roedersheimer's residence to execute the arrest warrant, he observed a bluish, ten-speed bicycle "against the fence opposite the porch." 

The defense called Marcy Roedersheimer, Roedersheimer's mother, to testify.  She testified that on January 16, 2004, Roedersheimer did not have "short blonde hair" as Valentino describedBinstead his head was "shaved bald."  She further testified that he owned a car but not a bicycle.  Two photographs of Roedersheimer admitted in evidence depict him bald and with shorter hair than represented in the photographic lineup. 

II.  SUFFICIENCY OF THE EVIDENCE

A.  Legal Sufficiency Standard of Review

A legal‑sufficiency challenge requires us to review the relevant evidence in the light most favorable to the verdict, and then to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003) (en banc); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (en banc).  This standard is designed to give "full play to the [jury's] responsibility fairly" to "draw reasonable inferences from basic facts to ultimate facts."  Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003).  We consider all the evidence that sustains the conviction, whether properly or improperly admitted.  Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001) (citing Garcia v. State, 919 S.W.2d 370, 378 (Tex. Crim. App. 1994) (en banc)).  Similarly, we consider all the evidence that sustains the conviction, whether submitted by the prosecution or the defense, in determining the legal sufficiency of the evidence.  King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (en banc); Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993) (en banc).  In this review, we are not to reevaluate the weight and credibility of the evidence; rather, we act only to ensure that the jury reached a rational decision.  Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993) (en banc).

The legal sufficiency of the evidence is measured against the elements of the offense as defined by a hypothetically correct jury charge for the case.  Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Cano v. State, 3 S.W.3d 99, 105 (Tex. App.BCorpus Christi 1999, pet. ref'd).^[5]  This standard of legal sufficiency ensures that judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime, rather than a mere error in the jury charge submitted.  Malik, 953 S.W.2d at 240.  We then determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson, 443 U.S. at 319; Johnson, 23 S.W.3d at 7.      

B.  Factual Sufficiency Standard of Review

1.  Scope and Standard of Review

A factual‑sufficiency review begins with the presumption that the evidence supporting the jury's verdict is legally sufficient, that is, sufficient under Jackson v. Virginia, 443 U.S. 307, 319 (1979).  See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996) (en banc).  In a factual sufficiency review, the appellate court views all the evidence in a neutral light and determines whether evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or if evidence contrary to the verdict is strong enough that the beyond‑a‑reasonable‑doubt  standard could not have been met.  Threadgill v. State, 146 S.W.3d 654, 664 (Tex. Crim. App. 2004) (en banc).  A clearly wrong and unjust verdict occurs where the jury's finding is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias."  Prible v. State, No. AP‑74,487, 2005 Tex. Crim. App. LEXIS 110, at *16‑*17 (Tex. Crim. App. January 26, 2005) (designated for publication).  In conducting a factual sufficiency review, we review all the evidence.  Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997).  We must consider the most important evidence that the appellant claims undermines the jury's verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).  However, we approach a factual‑sufficiency review with appropriate deference to avoid substituting our judgment for that of the fact finder.^[6]  Johnson v. State, 23 S.W.3d 1, 6‑7 (Tex. Crim. App. 2000) (en banc).  Every fact need not point directly and independently to the accused's guilt.  Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex. Crim. App. 1981).  A conclusion of guilt can rest on the combined and cumulative force of all the incriminating circumstances.  Id.

Our neutral review of all the evidence, both for and against the challenged elements, looks to determine whether proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or whether proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.  See Zuniga v. State, 144 S.W.3d 477, 484‑85 (Tex. Crim. App. 2004); see also Zuliani v. State, 97 S.W.3d 589, 593‑94 (Tex. Crim. App. 2003).  We remain mindful of the jury's role to resolve conflicts in testimony.  See Mosley v. State, 983 S.W.2d 249, 254 (Tex.

Crim. App. 1998) (en banc) (holding that questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact); see also Esquivel v. State, 506 S.W.2d 613, 615 (Tex. Crim. App. 1974).  We must assume that the fact finder resolved conflicts, including conflicting inferences, in favor of the verdict, and must defer to that resolution.  Matchett v. State, 941 S.W.2d 922, 936 (Tex. Crim. App. 1996) (en banc).

2.  Hypothetically Correct Jury Charge

We measure the factual sufficiency of the evidence against a hypothetically correct jury charge.^[7]  Adi v. State, 94 S.W.3d 124, 131 (Tex. App.BCorpus Christi 2002, pet. ref'd).  Thus, the hypothetically correct jury charge authorized the jury to find Roedersheimer guilty of the offense of burglary of a habitation if he (1) intentionally and knowingly (2) entered French's habitation (3) with the intent to commit theft.^[8]  See Tex. Pen. Code Ann. ' 30.02(a)(3) (Vernon 2003) and _ 31.03(a) (Vernon Supp. 2004-05); Williams v. State, 505 S.W.2d 838, 841 (Tex. Crim. App. 1974).  "Owner" means a person who "has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor."  Tex. Pen. Code Ann. ' 1.07(a)(35)(A) (Vernon Supp. 2004-05).

Guilt of the offense of burglary can be established circumstantially by the combined and cumulative force of all the incriminating circumstances.  Medrano v. State, 658 S.W.2d 787, 790 (Tex. App.BHouston 1983, pet. ref'd) (citing Phipps v. State, 630 S.W.2d 942, 945 (Tex. Crim. App. 1982)).  However, proof of guilt by accompanying circumstances is subject to the same rigorous standard of proof required of direct evidence, namely, proof beyond a reasonable doubt.  See Medrano, 658 S.W.2d at 790 (citing Hankins v. State, 646 S.W.2d 191, 200 (Tex. Crim. App. 1983) (en banc opinion on rehearing)).  In deciding whether the circumstantial evidence is sufficient to support a conviction, each case must necessarily be tested by its own facts.  Id. (citing Robinson v. State, 570 S.W.2d 906, 910 (Tex. Crim. App. 1978) and Ysasaga v. State, 444 S.W.2d 305, 308 (Tex. Crim. App. 1969)).  The State may prove entry through circumstantial evidence.  Gilbertson v. State, 563 S.W.2d 606, 608 (Tex. Crim. App. [Panel Op.] 1978); Draper v. State, 681 S.W.2d 175, 177 (Tex. App.BHouston [14th Dist.] 1984, pet. ref'd). 

When there is independent evidence of a burglary, the unexplained personal possession of recently stolen property will support an inference that the possessor is guilty of the offense in which the property was stolen.  Harris v. State, 656 S.W.2d 481, 483 (Tex. Crim. App. 1983) (en banc); Hardesty v. State, 656 S.W.2d 73, 76 (Tex. Crim. App. 1983) (en banc).  Once the permissible inference arises, sufficiency of the evidence must still be examined according to applicable evidentiary standards of appellate review, because the inference is not conclusive.^[9]  Hardesty, 656 S.W.2d at 77.  Flight is also a circumstance indicating guilt.  Colella v. State, 915 S.W.2d 834, 839 n.7 (Tex. Crim. App. 1995) (en banc) ("We have repeatedly held that flight is evidence of a circumstance from which an inference of guilt may be drawn."); Rumbaugh v. State, 629 S.W.2d 747, 752 (Tex. Crim. App. 1982); Valdez v. State, 623 S.W.2d 317, 319 (Tex. Crim. App. 1981) (en banc); McWherter v. State, 607 S.W.2d 531, 534 (Tex. Crim. App. 1980).

C.  Discussion

In his first issue, Roedersheimer asserts that the evidence is legally and factually insufficient to prove (1) entry, and (2) identity.  He argues that no one saw him, or anyone else, enter or leave the premises. 

1.  Entry

The evidence of entry is circumstantial.  Viewed in the light most favorable to the verdict, the evidence showed that Valentino saw an individual he unequivocally identified as Roedersheimer in possession of stereo components that belonged to Fisher.  Once Roedersheimer fled, Valentino observed a broken window which deputy Crisp identified as the point of entry into the house.  French testified that the stereo equipment was in the residence when he was last there, and he did not give Roedersheimer permission to access the house.  While outside the house,  Roedersheimer fled the scene and he left behind French's stereo components.  We conclude that the combined and cumulative force of the evidence, when viewed in the light most favorable to the verdict, was sufficient for a rational trier of fact to find, beyond a reasonable doubt, the essential element of entry.  See  Tex. Pen. Code Ann. _ 30.02(a)(3) (Vernon 2003); Escamilla, 143 S.W.3d at 817; Medrano, 658 S.W.2d at 790; Draper, 681 S.W.2d at 177; Colella, 915 S.W.2d at 839 n.7.  We conclude the evidence is legally sufficient to prove entry.  Id.

Roedersheimer focuses on contrary evidence that law enforcement did not secure the scene or lift fingerprints from the property or the scene that would place him inside the residence.  Viewed in a neutral light, the evidence indicates that Roedersheimer was the sole person outside the house in possession of property that was removed from French's house without French's consent.  Upon eye contact with Valentino while in possession of the property, Roedersheimer fled the scene leaving the property behind.  We conclude that the evidence is not too weak to support the jury's finding of the essential element of entry nor is the weight of the evidence contrary to the verdict strong enough that the State could not have met its burden of proof beyond a reasonable doubt.  See Zuniga, 144 S.W.3d at 484‑85; Medrano, 658 S.W.2d at 790.  We conclude the evidence was also factually sufficient to prove entry.  Id.

2.  Identity

Roedersheimer also focuses his sufficiency challenge on the essential element of identity.  He points to evidence that contradicts Valentino's description of the person he saw at the scene.  Roedersheimer further argues that Valentino admitted his eyesight was not 20-20 and, in his law enforcement experience, mistakes in identification occur.  In short, he argues that Valentino's errors in his description of the wrongdoer render the evidence of identity insufficient.

During cross-examination, Valentino testified that he described to police that the wrongdoer was five feet seven inches tall and had short blonde hair.  Roedersheimer points to a defense exhibit admitted in evidence, the booking sheet, that shows Roedersheimer's height as five feet three inches.  However, Valentino testified he had "no doubt" that Roedersheimer was the person he saw.  Valentino testified he was fifteen to twenty feet from Roedersheimer and the two made eye contact.  Valentino explained that he said "about" that height and further explained that Roedersheimer was on the bicycle. 

Regarding Valentino's description of short blonde hair, Roedersheimer points to contrary evidence that, according to his mother's testimony, he was bald on January 16, 2004.  Two photographs admitted in evidence show he was bald and he had short hair.  The lineup photograph shows his hair longer.  Even so, investigator Baird testified that, ten days after the offense, Valentino identified Roedersheimer without hesitation and within seconds of viewing the photographic lineup. 

Viewed in the light most favorable to the verdict, we conclude that a rational trier of fact could have found the essential element of identity beyond a reasonable doubt.  See Escamilla, 143 S.W.3d at 817.  We conclude the evidence is legally sufficient to prove identity.

Viewed in a neutral light, we conclude that the evidence is not too weak to support the jury's finding of identity nor is the weight of the evidence contrary to the verdict strong enough that the State could not have met its burden of proof beyond a reasonable doubt.  See Zuniga, 144 S.W.3d at 484‑85.  That the evidence of guilt was not free of contradiction and that the credibility of witnesses may have been subject to question does not require us to conclude that the verdict was factually insupportable.  See Zuliani, 97 S.W.3d at 593‑94.  Those circumstances merely create issues for the jury to resolve.  Id.  The jury is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony.  Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 1981); Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979).  We conclude the evidence is factually sufficient to prove identity.

Accordingly, we overrule the first issue presented.

III.  PHOTOGRAPHIC LINEUP

In his second issue, Roedersheimer argues that the photographic lineup was impermissibly suggestive.  The State responds, in part, that error was not preserved.

"All a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it."  Keeter v. State, No. PD‑1012‑03, 2005 Tex. Crim. App. LEXIS 521at *9 (Tex. Crim. App. April 6, 2005) (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992) (en banc)); see Tex. R. App. P. 33.1; Young v. State, 137 S.W.3d 65, 69-70 (Tex. Crim. App. 2005) (en banc); Martinez v. State, 91 S.W.3d 331, 336-37 (Tex. Crim. App. 2002).  Because Roedersheimer did not present his complaint to the trial court, he has not preserved error for review.  We overrule the second issue presented.

IV.  CONCLUSION 

Having overruled both issues, we affirm the trial court judgment.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 30th  day of June, 2005.

---

^[1] See Tex. R. App. P. 47.2, 47.4.

^[2] See Tex. Pen. Code Ann. ' 30.02(a)(3) (Vernon 2003).  The indictment alleged that, on or about January 16, 2004, Roedersheimer intentionally and knowingly entered a habitation without the effective consent of William French, the owner, and attempted to commit or did commit theft of property, including a stereo with DVD.  "Habitation" means a structure that is adapted for the overnight accommodation of persons.  See Tex. Pen. Code Ann. ' 30.01(1) (Vernon 2003).  Roedersheimer does not challenge the sufficiency of the evidence supporting the structure as a habitation.  Even so, evidence established that the property owner used the house at issue for overnight accommodation. 

^[3] Valentino retired after working thirty‑four years in law enforcementBwork including experience with cases involving the offense of burglary of a habitation. 

^[4] Valentino described the bicycle as a "12-speed-type bicycle," dark in color.

^[5] A hypothetically correct jury charge does not simply quote from the controlling statute.  Gollihar v. State, 46 S.W.3d 243, 254 (Tex. Crim. App. 2001).  Its scope is limited by the statutory elements of the offense as modified by the charging instrument.  See Fuller v. State, 73 S.W.3d 250, 254 (Tex. Crim. App. 2002) (Keller, P.J., concurring) (quoting Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000)).  Malik flatly rejects use of the jury charge actually given as a means of measuring sufficiency of the evidence.  See Gollihar, 46 S.W.3d at 252.  Malik controls sufficiency of the evidence analysis even in the absence of alleged jury charge error.  Id. at 255. 

^[6] We always remain aware of the fact finder's role and unique position, a position we are unable to occupy.  Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000) (en banc).  Exercise of our authority to disagree with the fact finder's determination is appropriate only when the record clearly indicates our intervention is necessary to stop manifest injustice.  Id. at 9.  Otherwise, we accord due deference to the fact finder's determinations, particularly those concerning the weight and credibility of the evidence.  Id.  Absent exceptional circumstances, issues of witness credibility are for the jury, and we may not substitute our view of the credibility of a witness for the constitutionally guaranteed jury determination.  Id.; Tex. Code Crim. Proc. Ann. art. 38.04.  (Vernon 1979).

^[7] The court of criminal appeals has not specifically applied the hypothetically correct jury charge analytical construct to factual‑sufficiency reviews in jury trials.  See Zubia v. State, 998 S.W.2d 226, 227 n.2 (Tex. Crim. App. 1999) (per curiam) (en banc) (dismissing as improvidently granted the question of whether Malik should extend to factual grounds not submitted to the jury).

^[8] A hypothetically correct charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or restrict its theories of liability, and adequately describes the particular offense proof.  Malik, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Cano, 3 S.W.3d 99, 105 (Tex. App.BCorpus Christi 1999, pet. ref'd).  See also footnote 5.

^[9] In reviewing the sufficiency of the evidence, we should look at "events occurring before, during and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to do the prohibited act."  Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004) (citing Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985) and Thompson v. State, 697 S.W.2d 413, 416 (Tex. Crim. App. 1985)).  Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative effect of all the incriminating facts are sufficient to support the conviction.  Id. (citing Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987) (en banc) and Russell v. State, 665 S.W.2d 771, 776 (Tex. Crim. App. 1983) (en banc)).  The evidence is sufficient if the conclusion of guilt is warranted by the combined and cumulative force of all the incriminating circumstances.  See id.