Barrera, Francisco J. v. State

Affirmed and Opinion filed December 19, 2002 Affirmed and Opinion filed December 19, 2002. In The Fourteenth Court of Appeals ____________ NO. 14-02-00041-CR ____________ FRANCISCO J. BARRERA, Appellant V. THE STATE OF TEXAS, Appellee _______________________________________________ On Appeal from the 185th District Court Harris County, Texas Trial Court Cause No. 877,130 _______________________________________________ O P I N I O N Appellant, Francisco Barrera, appeals from his conviction for burglary of a habitation. After appellant waived his right to trial by jury, the trial court found him guilty and assessed punishment at eight years’ confinement. On appeal, appellant attacks the legal and factual sufficiency of the evidence and contends that his sentence constitutes cruel and unusual punishment in violation of the United States and Texas constitutions. We affirm. I. The Evidence At trial, the complainant, Fidencio Luna, testified that on May 12, 2001, he and his wife, Melissa Luna, spent the night at her mother’s house. Melissa’s mother was out of town, and Fidencio stated that they stayed at her house to take care of it while she was away. Fidencio testified that on the day in question, he was lying down in the back bedroom of the house, along with Melissa and their six-month old daughter, when he heard the front door open and hit the closet door. He opened his eyes and observed appellant come into the bedroom. According to Fidencio, appellant was carrying a pistol and said, in Spanish, “I’m going to kill you, m----- f-----.” Fidencio further testified that when he saw appellant getting ready to squeeze the trigger he pushed appellant’s hand up and the pistol discharged. Fidencio then jumped off the bed and pushed appellant, who fell back against a wall. They began wrestling and the gun discharged again. Fidencio stated that after this second discharge, appellant began to beat him in the head with the gun. Fidencio managed to get appellant into a headlock but then released him and called the police. At this time, he noticed that the gun was on the floor in two pieces. Fidencio testified unequivocally that at no time did he give appellant permission to enter the home. He also stated that on the night in question he was living in the house and was in possession of it. He testified that appellant seemed fully aware of his actions that night. Melissa Luna, the complainant’s wife, testified that on May 12, 2001, she and her husband were staying at her mother’s house to look after the house because her mother was out of town. She stated that about 7 a.m. on the day in question she was in the back bedroom with Fidencio and their six-month old daughter. She heard the door to the bedroom open, and she saw appellant enter the room carrying a pistol. According to Melissa, appellant stated, in Spanish,” “I’m going to kill you, m----- f-----s.” Appellant began to hit Fidencio in the head with the pistol, and then the two fought and the pistol discharged. Melissa stated that she then grabbed the baby and ran. She heard another gunshot after she ran out of the room. She testified that she ran out of the house and down the street and then called 911. Melissa also testified that she had previously met appellant. Melissa and Fidencio had experienced marital problems shortly before May 12, and Melissa spent a night in a motel room with a friend. She testified that her friend was appellant’s girlfriend at the time and he stayed in the motel room with her, her friend, and her children. Melissa also stated that she had Fidencio’s van at the motel. Fidencio testified that he came and retrieved the van from the motel and that there was a pile of clothes in the back of the van that did not belong to him. Melissa acknowledged that some of appellant’s clothes were in the van. Officer Herlinda Delarosa of the Houston Police Department also testified. She stated that she was one of several officers dispatched to the scene of the disturbance. She further stated that at the scene she observed appellant being brought around from the back of the house and being placed under arrest. Officer Gary B. Young testified that he too responded to the scene. He stated that he located a pistol frame at the residence but that it was missing its handle. He observed that there were five live rounds in the pistol and one spent shell, indicating that the gun had been fired one time. Fidencio Luna testified that he discovered the handle of a pistol in the house. Appellant testified on his own behalf. He insisted that he went to the residence to retrieve his wallet, which he believed he had left in the van. Appellant admitted he had been drinking “all night long” before he drove to the house where the Lunas were staying. He denied having a weapon when he got to the house. Appellant admitted that he went to the house uninvited and that no one invited him in when he alleges he knocked on the door. He stated that when he entered the house, Fidencio charged him and they fought. II. Sufficiency of the Evidence In his first issue, appellant attacks the legal sufficiency of the evidence to support his conviction. In his second issue, appellant attacks the factual sufficiency of the evidence. Appellant essentially makes the same contention under both issues so we will address them together. A. Standards of Review In reviewing legal sufficiency, we examine the evidence in the light most favorable to the verdict and ask whether any rational trier of fact could have found all of the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Santellan v. State, 939 S.W.2d 155, 160 (Tex. Crim. App. 1997). We accord great deference to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences therefrom. See Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). We further presume that any conflicting inferences from the evidence were resolved by the jury in favor of the prosecution, and we must defer to that resolution. See id. at 133 n.13. In conducting this review, the appellate court is not to re-evaluate the weight and credibility of the evidence, but must act only to ensure the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993); Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). In reviewing the factual sufficiency of the evidence, we examine all of the evidence without the prism of “in the light most favorable to the prosecution” and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). We consider all of the evidence in the record and not just the evidence which supports the verdict. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). The court is authorized to disagree with the jury’s determination, even if probative evidence exists which supports the verdict. Clewis, 922 S.W.2d at 133. However, a factual sufficiency review must be appropriately deferential to avoid substituting the appellate court’s judgment for that of the fact finder or intruding upon the jury’s role as the sole judge of the weight and credibility of testimony. Johnson, 23 S.W.3d at 7. Unless the record clearly reveals that a different result is appropriate, we must defer to the jury’s determination concerning the weight given to contradictory testimony. Id. at 8. B. Analysis The indictment charged appellant as follows: Francisco J. Barrerra . . . on or about May 12, 2001, did then and there unlawfully, without the effective consent of the owner, namely, without any consent of any kind, intentionally and knowingly enter a habitation owned by Fidencio Luna, a person having a greater right to possession of the habitation than the defendant, and commit and attempt to commit the felony of aggravated assault with a deadly weapon, to wit: a firearm. (emphasis omitted). Appellant’s sole contention regarding the legal and factual sufficiency of the evidence is his assertion that the state failed to prove the complainant owned the house that he allegedly entered without permission. In support of his argument, appellant relies on the fact that the complainant stated he was staying at his mother-in-law’s house at the time of the offense. Appellant contends that this was an admission that the complainant was not the owner of the habitation as alleged in the indictment. Appellant acknowledges, however, that the indictment defined “owner” to include “a person having a greater right to possession of the habitation than the defendant.”[1] Regardless, appellant insists that without the testimony of complainant’s mother-in-law, the evidence was insufficient to establish that complainant was an “owner” or, stated another way, that complainant had a greater right of possession to the habitation than did appellant. Appellant cites no case law to support his contention and makes no specific argument as to why the mother-in-law’s testimony was required. Fidencio Luna, and his wife, Melissa Luna, both testified that they were staying in the house to take care of it because her mother was away. Appellant testified that he had not been invited to the house or into the house. The trial judge was well within his authority as trier of fact to believe this testimony. See Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995) (stating that “[t]he trial judge, when sitting as the sole trier of facts, is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony”). Proof of ownership may be made by circumstantial evidence, just as any other issue in a criminal case. Robertson v. State, 871 S.W.2d 701, 707 (Tex. Crim. App. 1993); Liggens v. State, 50 S.W.3d 657, 660 (Tex. App.—Fort Worth 2001, pet. ref’d); see also Hudson v. State, 799 S.W.2d 314, 315–16 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d) (finding evidence sufficient to demonstrate greater right of possession where complainant testified that appellant had been her roommate prior to burglary but had moved out and turned over key to apartment). Consequently, the testimony of the mother-in-law, or other owner of title to the property, was not necessary to sustain the conviction. Based on the testimony of appellant, complainant, and Melissa Luna, we find that the evidence was legally and factually sufficient to demonstrate that complainant had a greater right to possession of the habitation than did appellant. III. Punishment In his third and fourth issues, appellant contends that the sentence was not proportional to the offense and thus constituted cruel and unusual punishment in violation of, respectively, the federal and Texas constitutions. See U.S. Const. amend. VIII; Tex. Const. art. I, § 13.[2] Appellant’s trial counsel, however, failed to raise this argument in the court below by making a timely request or objection on these grounds. The argument is therefore waived. See Tex. R. App. P. 33.1; Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995). Furthermore, even if appellant had preserved the issue, the sentence did not constitute cruel and unusual punishment. Appellant was convicted of a first degree felony and sentenced to eight years confinement. See Tex. Pen. Code Ann. § 30.02(d)(2) (Vernon Supp. 2002).[3] The statutory range of punishment for a first degree felony is five to ninety-nine years. Id. § 12.32(a) (Vernon 1994). Generally, punishment assessed within the statutory limits is not considered cruel and unusual punishment. Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972); Cooks v. State, 5 S.W.3d 292, 298-99 (Tex. App.—Houston [14th Dist.] 1999, no pet). However, in Solem v. Helm, the United States Supreme Court recognized a narrow exception to this general rule. 463 U.S. 277, 290 (1983). Under Solem, a reviewing court must first make a comparison of the gravity of the offense with the severity of the sentence. See Harmelin v. Michigan, 501 U.S. 957, 1005 (1991). If, after making the comparison, a court determines the sentence is grossly disproportionate, it considers the sentences received for similar crimes in the jurisdiction and in other jurisdictions to determine the constitutionality of the sentence. See id. The evidence supports the conclusion that appellant entered a habitation and attacked complainant in the home, beating complainant in the head with a pistol, and discharging the weapon at least once in the general direction of an infant. Appellant could have received a punishment ranging from five to 99 years. See Tex. Pen. Code Ann. §§ 12.32(a). Eight years is on the low end of the possible range. By making the entering of a habitation for the purpose of committing a felony a first degree felony, the legislature has identified the crime as among the most serious acts addressed in the penal code. And rightfully so; a person’s home is imbued in both the law and the mind with a great sense of privacy and protection. See generally Laney v. State, 76 S.W.3d 524, 528 (Tex. App.—Houston [14th Dist.] 2002, pet. filed) (discussing privacy concerns relating to residences). We find the eight year sentence imposed by the court in this case is not grossly disproportionate to the crime committed. Appellant points out that he expressed remorse when he testified during the punishment phase, that he had never previously been convicted of a felony, and that there was testimony that he had friends and family in the community who would have supported him had he been placed on probation. Although these factors may well have been considered by the trial court in its assessment of punishment, they do not have a significant impact on our analysis of the proportionality of the punishment imposed. Appellant additionally notes that he testified he had been drinking heavily prior to the criminal episode. While voluntary intoxication is not a defense to the commission of a crime, evidence of temporary insanity caused by intoxication may be introduced in mitigation of the penalty for the charged offense. Tex. Pen. Code Ann. § 8.04(a)-(b) (Vernon 1994).[4] Appellant, however, does not contend, and presented no evidence to suggest, either that his intoxication was involuntary or that it caused temporary insanity. Consequently, his level of intoxication has no bearing on whether his sentence is proper. In sum, we find appellant’s sentence is not grossly disproportionate to his crime. Accordingly, we need not examine the other Solem factors. See Harmelin, 501 U.S. at 1006. We overrule appellant’s third and fourth issues. The judgment of the trial court is affirmed. /s/ Eva M. Guzman Justice Judgment rendered and Opinion filed December 19, 2002. Panel consists of Justices Edelman, Seymore, and Guzman. Do Not Publish — Tex. R. App. P. 47.3(b). [1] The indictment is proper under the Texas Penal Code. Section 30.02 (a) of the code states “A person commits [burglary] if, without the effective consent of the owner, the person . . . (3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.” Tex. Pen. Code Ann. § 30.02(a) (Vernon Supp. 2003). Section 1.07(35) states that: “‘Owner’ means a person who: (A) 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 . . . .” Id. § 1.07(35) (Vernon 1994). “Possession” is defined as meaning “actual care, custody, control, or management.” Id. § 1.07(39). [2] The Eighth Amendment has been incorporated through the Due Process Clause of the Fourteenth Amendment and made binding upon the states. See Robinson v. California, 370 U.S. 660, 666 (1962). Although appellant makes his state and federal constitutional claims under separate issues, he fails to argue the existence of any distinctions between federal and state law. Accordingly, we will not address his state constitutional claims separately. See Balentine v. State, 71 S.W.3d 763, 772 n.8 (Tex. Crim. App. 2002). [3] Under section 30.02(d), a burglary is considered a first degree felony if: “(1) the premises are a habitation; and (2) any party to the offense entered the habitation with intent to commit a felony other than felony theft or committed or attempted to commit a felony other than felony theft.” Tex. Pen. Code Ann. § 30.02(d). [4] To raise issue of temporary insanity by voluntary intoxication, defendant must present evidence that his intoxication caused him to not know that his conduct was wrong or rendered him incapable of conforming his conduct to the requirements of the law he violated. Lee v. State, 874 S.W.2d 220, 223 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d).