Quincy Lamont Anderson v. State

Opinion issued January 22, 2009 In The Court of Appeals For The First District of Texas NO. 01-06-00944-CR QUINCY LAMONT ANDERSON, Appellant v. THE STATE OF TEXAS, Appellee On Appeal from the 268th District Court Fort Bend County, Texas Trial Court Cause No. 43558-B MEMORANDUM OPINIONA jury convicted appellant, Quincy Lamont Anderson, of burglary of a habitation and assessed punishment at 20 years in prison. See Tex. Pen. Code Ann. § 30.02(a)(1) (Vernon 2003). In four issues, appellant contends that: (1) the evidence supporting his conviction was legally and factually insufficient; (2) his arrest was illegal; (3) the court erred in denying his motion to suppress a blood sample obtained during his arrest; and (4) the State’s use of the term “home invasion” during trial violated his due process rights and Texas Rule of Evidence 404(b). We affirm. Background About 2:00 a.m. on September 20, 2005, Missouri City Police Department Detective Greg Nelson was dispatched to the scene of a burglary of a house. A person, later identified as Joseph Hebert, was reported dead at the scene. Police determined that Hebert was one of several men who had broken through the front door of the house and had been fired upon by Gamal Duncan, one of two men who were renting the house. Duncan was a marijuana dealer. On the night of the shooting, Detective Nelson was contacted by two women, who identified themselves as Hebert’s sister and mother, who told Nelson that they believed that Hebert was the shooting victim referred to in a news report they had seen. Detective Nelson found the call strange because the news report had not provided the victim’s identity or a description, and he believed that a participant in the burglary had told the women and other members of Hebert’s family what had happened. Investigators soon began to suspect that appellant, who was Hebert’s cousin, was one of the other perpetrators. A few days later, Detective Nelson received an anonymous tip from a woman claiming that appellant had admitted to a role in the burglary. The informant recited details of the incident that had not been publicly released. Detective Nelson contacted Hebert’s mother and sister, and the mother confirmed that appellant had told her about the robbery as well. Detective Nelson then swore out an affidavit and obtained an arrest warrant. Houston police officers arrested appellant pursuant to the warrant. During the arrest, appellant, who had sustained a gunshot wound during the burglary, bled on the shirt of one of the arresting officers. The shirt was collected, the blood on it was tested, and the blood matched a sample taken from the scene of the robbery. Sufficiency of the Evidence In his third issue, appellant argues that the evidence is legally and factually insufficient to support an inference of his intent to commit theft when he entered the home. Standards of Review We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict and determining whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Cruz v. State, 238 S.W.3d 381, 386 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (citing King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000)). The trier of fact is the sole judge of the weight and credibility of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we may not reevaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). When conducting a factual sufficiency review, we view all of the evidence in a neutral light. Brown v. State, 212 S.W.3d 851, 859 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (citing Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999)). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Brown, 212 S.W.3d at 859 (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). Under the first prong of Johnson, we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Brown, 212 S.W. 3d at 859 (citing Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006)). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id. In conducting a factual sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury’s verdict. Brown, 212 S.W.3d at 859 (citing Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003)). We may not re-weigh the evidence and substitute our judgment for that of the fact-finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The fact-finder alone determines what weight to place on contradictory testimonial evidence because that determination depends on the fact-finder’s evaluation of credibility and demeanor. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n. 5. Legal Sufficiency A person commits the offense of burglary of a habitation if, without the effective consent of the owner, he enters a habitation with the intent to commit a felony, theft, or an assault. Tex. Pen. Code Ann. § 30.02(a)(1). The elements of the offense of burglary, including intent, may be established by circumstantial evidence. Nelson v. State, 599 S.W.2d 809, 810 (Tex. Crim. App. 1980); Ortega v. State, 626 S.W.2d 746, 749 (Tex. Crim. App. 1981). It is well settled that the act of breaking and entering a building at night raises the presumption that the act was done with the intent to commit theft. Clark v. State, 543 S.W.2d 125, 128 (Tex. Crim. App. 1976); see also Alvarado v. State, 596 S.W.2d 904, 906 (Tex. Crim. App. 1980) (applying rule in case involving burglary of a habitation). Here, the State presented evidence that appellant either broke and entered into Gamal Duncan’s house or acted together with others in doing so. See Clark, 543 S.W.2d at 127 (“An individual may be guilty of burglary even though he did not personally enter the burglarized premises if he is acting together with another in the commission of the offense.”). The burglary took place at approximately 1:30 a.m. Although Gamal Duncan had not invited appellant into his house and had never even seen appellant before the trial, police officers found appellant’s blood at the scene. The first officer to arrive at the house testified that the front door had been forced open. The evidence that appellant either broke and entered into Gamal Duncan’s house or acted together with others in doing so was sufficient for the jury to infer that appellant intended to commit the offense of theft. See Alvarado, 596 S.W.2d at 906. The State also produced additional evidence from which the jury could infer that theft was the motive for appellant’s entry into the home. Duncan admitted to dealing marijuana for a living. Detective Nelson testified that burglars commonly break into the homes of drug dealers to steal drugs and money. Evidence is legally sufficient as long as it provides the requisite proof needed to satisfy the elements of the offense charged. Bousquet v. State, 47 S.W.3d 131, 137 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d). We hold that the evidence supports an inference of intent to commit theft and is legally sufficient to sustain appellant’s conviction for the offense of burglary of a habitation. Factual Sufficiency In support of his factual sufficiency challenge, appellant points to evidence that Duncan denied firing shots at the intruders during his initial interview with police officers. At trial, appellant argued that Duncan had tried to rob him during a drug deal. When confronted about the matter on the stand, Duncan testified that he denied having fired the shots at first because he was nervous about having drugs in his house. Duncan further stated that he never sells drugs at his house and would never tell a customer where he lives. Detective Nelson testified that it would be so unusual as to be “outside the realm of [his] experience” for a drug dealer to rob one of his own customers and attempt to cover it up by claiming that the customer broke into the dealer’s house. Viewing the relevant evidence in a neutral light, favoring neither the State nor appellant, and with appropriate deference to the jury’s credibility determinations, we conclude that the evidence supporting the verdict is not too weak to support the jury’s finding of guilt beyond a reasonable doubt and that the weight of the evidence contrary to the verdict is not so strong that the State could not have met its burden of proof on the issue of appellant’s intent to commit theft. See Pena v. State, 251 S.W.3d 601, 609 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). Accordingly, we hold that the evidence on the issue of intent is factually sufficient to support appellant's conviction for the offense of burglary of a habitation. We overrule appellant’s third issue.Legality of Arrest In his first issue, appellant contends that Detective Nelson’s affidavit was insufficient to establish probable cause for the issuance of the warrant for the arrest of appellant. Standard of Review An affidavit in support of an arrest warrant must provide the magistrate with sufficient information to support an independent judgment that probable cause exists for the issuance of the warrant. Boley v. State, 16 S.W.3d 95, 97 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (citing Castillo v. State, 739 S.W.2d 280, 290 (Tex. Crim. App. 1987)). The warrant’s affidavit need only contain probable cause; it need not contain sufficient evidence that would convince a jury of the defendant’s guilt beyond a reasonable doubt. McFarland v. State, 928 S.W.2d 482, 509-10 (Tex. Crim. App. 1996), overruled on other grounds, Mosley v. State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998). The sufficiency of the affidavit is examined under the “totality of the circumstances” analysis articulated by the United States Supreme Court in Illinois v. Gates. See 462 U.S. 213, 238-39, 103 S. Ct. 2317, 2332 (1983); see also Hennessy v. State, 660 S.W.2d 87, 90 (Tex. Crim. App. 1983). Warrant affidavits should be interpreted in a common-sense and realistic manner, and the reviewing magistrate is permitted to draw reasonable inferences from the facts supporting the averments. Boley, 16 S.W.3d at 97 (citing Lagrone v. State, 742 S.W.2d 659, 661 (Tex. Crim. App. 1987)). In resolving the issue of sufficiency, we must conduct an independent review, deferring to the issuing magistrate's original decision, to determine whether the magistrate had a “substantial basis” for concluding that probable cause existed for the issuance of a warrant. State v. Escobar, 764 S.W.2d 570, 572 (Tex. App.—Houston [1st Dist.] 1989, pet. ref’d). Discussion Appellant’s attack on the investigating officer’s affidavit centers primarily on two contentions: (1) that the affidavit does not adequately establish the reliability of the anonymous informant, and (2) that the affidavit does not show any independent confirmation of the informant’s claims. We disagree. The affidavit contains ample evidence of both the informant’s reliability and subsequent investigation by the affiant. The anonymous informant provided a “description of the scene” and recounted “details known only to the Affiant and those present at the event”—in other words, the informant had information about the burglary that had not been publicly released, which corroborated her claim that she had been told of the crime by one of its participants. Additionally, the affidavit states that the investigating officer, after speaking with the informant, contacted appellant’s cousin and aunt, and that the aunt confirmed the informant’s statement about appellant’s role in the robbery. We hold that the magistrate had a substantial basis for concluding that probable cause existed for the issuance of an arrest warrant for appellant and overrule appellant’s first issue. Motion to Suppress In his second issue, appellant argues that the trial court erred in denying his motion to suppress a blood sample obtained during his arrest because the blood sample was obtained in violation of appellant’s state and federal Constitutional rights. Specifically, appellant contends that the taking of the sample violated Section 1.06 and Chapter 18 of the Texas Code of Criminal Procedure because the sample was not taken pursuant to a search warrant or with appellant’s consent. In support, appellant cites a line of Texas and federal cases stemming from the United States Supreme Court’s holding in Schmerber v. California that the taking of a defendant’s blood implicates the Fourth Amendment’s protection against unreasonable searches and seizures. See 384 U.S. 757, 767-68, 86 S. Ct. 1826, 1834 (1966); Escamilla v. State, 556 S.W.2d 796, 798 (Tex. Crim. App. 1977). Appellant did not raise these contentions before the trial court in his motion to suppress, at the pretrial hearing, or in his objections at trial. Where a complaint on appeal does not comport with an objection made at trial, the error is not preserved on the complaint. Schultze v. State, 177 S.W.3d 26, 41 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (citing Goff v. State, 931 S.W.2d 537, 551 (Tex. Crim. App. 1996)); see also Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005) (arguments not specifically stated in motion to suppress or at hearing were not preserved for appeal). Because he never objected to the admission of the blood sample on the grounds urged in his second issue, appellant has failed to preserve the issue for review. See Schultze; Tex. R. App. P. 33.1(a). We overrule appellant’s second issue. Texas Rule of Evidence 404(b) and Due Process In his fourth issue, appellant complains that the prosecuting attorney’s reference to the crime for which appellant was being tried as a “home invasion” rather than a “burglary” violated Texas Rule of Evidence 404(b) and deprived appellant of due process of law. However, the prosecuting attorney referred to the crime as a home invasion several times at trial without drawing an objection from appellant, including during an extended exchange in which the prosecutor asked a testifying police officer to explain why the crime in question was more consistent with a home invasion than a burglary. Generally, unsworn statements by an attorney are not evidence. Peterson v. State, 961 S.W.2d 308, 311 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d). However, if such “non-evidence” is introduced and considered by the court without objection, it then becomes evidence. Id. To preserve error under Texas law, a party must object each time inadmissible evidence is offered unless that party has requested a running objection or has objected out of the presence of the jury to the testimony he deems objectionable on a given subject. Love v. State, 199 S.W.3d 447, 456 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (citing Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003)). The record does not reflect any request for a running objection or any objection out of the presence of the jury to the “home invasion” language. Appellant failed to preserve the issue for review. Appellant further argues that the prosecutor’s reference to the crime as a home invasion constitutes fundamental error and therefore requires no objection because the prosecutor’s language shifted the burden of proof in the case. An appellate court may, in criminal cases, “tak[e] notice of fundamental errors affecting substantial rights although they were not brought to the attention of the [trial] court.” Boler v. State, 177 S.W.3d 366, 373 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (citing Jasper v. State, 61 S.W.3d 413, 420 (Tex. Crim. App. 2001)); Tex. R. Evid. 103(d). No objection is required when the error is so egregious that it rises to constitutional dimensions. Boler, 177 S.W.3d at 373 (citing Jasper, 61 S.W.3d at 421). However, as this court noted in Boler, such occasions are rare, and appellant here simply states that fundamental error exists while failing to point to any reason or authority to support such a conclusion. The case appellant cites, Blue v. State, dealt not with prosecutorial conduct but with comments made by a trial judge in the presence of the jury regarding a criminal defendant’s plea negotiations. Thus, it is substantively distinguishable. See 41 S.W.3d 129 (Tex. Crim. App. 2000). Moreover, Rule 404(b), the only rule specifically cited by appellant, is inapplicable in this context. Rule 404(b) states that evidence of extraneous offenses is not admissible at the guilt-innocence phase of a trial to prove that a defendant committed the charged offense in conformity with a bad character. Blackwell v. State, 193 S.W.3d 1, 9 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d); Nobles v. State, 843 S.W.2d 503, 514 (Tex. Crim. App. 1992); Tex. R. Evid. 404(b). An extraneous offense is defined as “any act of misconduct, whether resulting in prosecution or not, that is not shown in the charging papers.” Rankin v. State, 953 S.W.2d 740, 741 (Tex. Crim. App. 1996) (emphasis in original). When he used the term “home invasion,” the prosecutor was clearly referring to the offense for which appellant was on trial, not to any extraneous offense. We do not find fundamental error and overrule appellant’s fourth issue. Conclusion We affirm the judgment of the trial court. George C. Hanks Justice Panel consists of Justices Jennings, Hanks, and Bland. Do not publish. See Tex. R. App. P. 47.2(b).