Leonard Rosas Rodriguez v. State

Affirmed and Memorandum Opinion filed November 18, 2008 Affirmed and Memorandum Opinion filed November 18, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-07-00618-CR ____________ LEONARD ROSAS RODRIGUEZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 174th District Court Harris County, Texas Trial Court Cause No. 1096510 M E M O R A N D U M   O P I N I O N A jury convicted appellant, Leonard Rosas Rodriguez, of burglary of a habitation and sentenced him to 70 years= confinement in the Institutional Division of the Texas Department of Criminal Justice. See Tex. Penal Code Ann. ' 30.02 (Vernon 2003). In three issues, appellant argues the evidence is legally and factually insufficient to support his conviction and the trial court erred in defining reasonable doubt for the jury. We affirm. I. Factual and Procedural Background On July 14, 2006, Maira Burns came home from work and discovered that her home had been burglarized. She first noticed as she drove into her driveway that the back door was ajar. Before entering the house, Burns called her husband to ask if he had left the door open. He told her he had closed and locked it that morning as is his habit every morning. While checking the house to see if anyone was still in the house, Burns saw that her daughter=s bedroom window had been broken and that several items were missing. When police officers arrived, they noticed that large pieces of the broken window had been removed and were resting by the garage. The officers determined that the window was the point of entry for the burglar and that he departed through the back door. Officer Jimmy Williams applied fingerprint powder to the glass and lifted several fingerprints from it. He sent the prints to Officer Ralph Saldivar, a fingerprint analyst, who submitted the prints to the Automatic Fingerprint Identification System (AFIS). AFIS revealed a match to an individual, who was later identified as appellant. Officer Saldivar also testified that the prints from the glass matched known prints of appellant. A jury convicted appellant of burglary of a habitation and sentenced him to 70 years in prison. II. Legal and Factual Insufficiency In his first two issues, appellant contends that the evidence is legally and factually insufficient to support a conviction for burglary of a habitation because the only evidence connecting him to the burglary consisted of fingerprints found on a portion of a broken window pane outside the house. A. Standard of Review In a legal sufficiency review, we view all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U .S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d. 560 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005). The jury, as the sole judge of the credibility of the witnesses, is free to believe or disbelieve all or part of a witness=s testimony. Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998). We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993); Harris v. State, 164 S.W.3d 775, 784 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). When reviewing the factual sufficiency of the evidence, we view all the evidence in a neutral light and set aside the verdict Aonly if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.@ Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). We then ask whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the jury=s verdict seems clearly wrong and manifestly unjust, or whether, considering conflicting evidence, the jury=s verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S .W.3d 404, 417 (Tex. Crim. App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We give deference to the jury=s determinations, particularly those concerning the weight of the evidence and the credibility of witness testimony. See Johnson, 23 S.W.3d at 8B9. Our analysis must consider the evidence appellant claims is most important in allegedly undermining the jury=s verdict. Sims v. State, 99 S.W .3d 600, 603 (Tex. Crim. App. 2003). B. Analysis A person commits burglary of a habitation if, without the consent of the owner, the person enters the habitation and commits or attempts to commit a felony, theft, or assault. Tex. Penal Code Ann. ' 30.02(a)(3) (Vernon 2003). AEnter@ is defined as intruding with any part of the body. Tex. Penal Code Ann. ' 30.02(b)(1) (Vernon 2003). Appellant contends that the evidence is legally and factually insufficient because the presence of his fingerprint on the outside of the home is insufficient evidence of entry. The presence of fingerprints alone is sufficient to prove identity of a burglar if the evidence shows that the fingerprints were made at the time of the offense. Nelson v. State, 505 S.W.2d 271, 273 (Tex. Crim. App. 1974); Washington v. State, 721 S.W.2d 502, 504 (Tex. App.CHouston [14th Dist.] 1986, pet. ref=d). Whether fingerprint evidence is sufficient to sustain a conviction depends on the facts and circumstances of each case. Phelps v. State, 594 S.W.2d 434, 436 (Tex. Crim. App. 1980). An important factor is the accessibility of the fingerprinted object to the defendant. Id. In this case, Officer Williams testified that he lifted latent fingerprints from window glass that had been removed from the broken window and placed next to the house. He testified that he could not recall whether he also lifted fingerprints from the inside of the glass. Officer Saldivar, who was qualified as an expert in fingerprint identification, testified that the fingerprints found on the glass matched appellant=s fingerprints. There was no evidence that appellant had been on the premises prior to the entry. Appellant contends a fingerprint outside of a habitation alone is insufficient evidence to support a conviction and cites Hood v. State, 860 S.W.2d 931, 934 (Tex. App.CTexarkana 1993, no pet.) and McClesky v. State, 924 S.W.2d 427, 428 (Tex. App.CBeaumont 1996, no pet.). In Hood, the complainant=s home was burglarized while the complainant was out of town. 860 S.W.2d at 933. The defendant had previously performed maintenance work at the complainant=s home where the burglary occurred. Id. at 934. As a result, the court reasoned that the fingerprint only provided some evidence that the defendant Amay have been at the home at some time,@ but it did not in itself establish that he committed the burglary. Id. In addition, the defendant=s girlfriend had confessed to and was convicted of the burglary and claimed to have committed the burglary without the defendant. Id. The court held the fingerprint alone was insufficient to prove entry into the home because no evidence placed the defendant in the home or in possession of the stolen property. Id. at 937. Hood is distinguishable because in this case there is no evidence in the record that appellant had any prior connection to the complainant=s residence. No one saw him near the home before the burglary and no other person has been implicated in the burglary. Moreover, there was no evidence that appellant had previously been to the complainant=s home or that the complainant or her husband recognized appellant. Appellant also cites McCleskey v. State, in support of his argument that a fingerprint alone, outside of a habitation, is insufficient to support a conviction. 924 S.W.2d 427. However, the McCleskey court noted that the Court of Criminal Appeals found the evidence was sufficient where a defendant=s fingerprints were found on glass that was removed by hand from the putty around the window pane after the window was broken. Id. at 429, citing Mann v. State, 420 S.W.2d 614 (Tex. Crim. App. 1967). In this case, as in Mann, the window had been broken and the pieces placed next to the garage. Appellant=s fingerprints were found on the pieces placed next to the garage. Moreover, there was no evidence that appellant had been on the premises prior to the entry and theft. Viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have inferred that the prints must have been placed on the window by the person who removed the window after breaking it. In addition, there is no evidence that appellant could have left his fingerprints on the glass at another time. Viewing the evidence in a neutral light, we find the evidence supporting the verdict is not so weak as to conclude that the verdict is clearly wrong and manifestly unjust. See Koster v. State, 773 S.W.2d 763, 764 (Tex. App.CBeaumont 1989, pet. ref=d) (fingerprint evidence found sufficient to support conviction when defendant=s fingerprint appeared on window screen he removed to gain entrance as there was no other plausible explanation for how the fingerprint was left on the screen). Appellant=s first two issues are overruled. III. Reasonable Doubt Instruction In his third issue, appellant contends that the trial court erred in defining reasonable doubt for the venire. At the beginning of jury selection, before the attorneys began their voir dire, the trial court reviewed Aa few general principles of law.@ In explaining the State=s burden of proof, the court defined reasonable doubt as follows: A reasonable doubt is a doubt based upon reason and common sense after a careful and impartial consideration of all the evidence in the case. It is the kind of doubt that a reasonable person would make B that would make a reasonable person hesitate to act in the most important of his or her own affairs. Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs. The court continued to discuss such general principles as the defendant=s right not to testify, and the role of an indictment. Neither party objected to the trial court=s comments. In asserting the trial court=s error, appellant relies on Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000). In addressing an erroneous jury instruction on reasonable doubt, the Court of Criminal Appeals determined that Athe better practice is to give no definition of reasonable doubt at all to the jury.@ Id. at 573. In this case, the trial court followed the court=s admonition and did not include a definition of reasonable doubt in the jury charge. However, appellant contends that by defining reasonable doubt to the venire during jury selection the trial court violated the court=s recommendation of Abetter practice@ in Paulson. The State argues that even if Paulson should be applied to the trial court=s comment to the venire, appellant failed to preserve error because he did not object to the comment. As a general rule, trial counsel must object to preserve error, even if it is Aincurable@ or Aconstitutional.@ Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). However, in Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000), a plurality of the Court of Criminal Appeals held that a trial court=s comments during voir dire Awhich tainted [the defendant=s] presumption of innocence in front of the venire, were fundamental error of constitutional dimension and required no objection.@ Id. at 132. In Blue, the trial court apologized to the venire for its long wait, explained that the delay was because the defendant was indecisive on whether to accept a plea bargain, and expressed its preference that the defendant plead guilty. Id. at 130. A plurality opinion is not binding precedent and we are not obligated to follow it. See Murchison v. State, 93 S.W.3d 239, 262 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d). Further, even if Blue were binding, the trial court=s comments in this case were not of such a nature that the presumption of innocence was tainted. Therefore, by failing to object to the trial court=s definition of reasonable doubt, appellant waived error. See Tex. R. App. P. 33.1. Appellant=s third issue is overruled. The judgment of the trial court is affirmed. /s/ John S. Anderson Justice Judgment rendered and Memorandum Opinion filed November 18, 2008. Panel consists of Chief Justice Hedges and Justices Anderson and Frost. Do Not Publish C Tex. R. App. P. 47.2(b).