Santiago Gomez IV v. State

NO. 07-09-00042-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A JUNE 4, 2010 SANTIAGO MASON GOMEZ, APPELLANT v. THE STATE OF TEXAS, APPELLEE FROM THE 64TH DISTRICT COURT OF HALE COUNTY; NO. A17779-0809; HONORABLE ROBERT W. KINKAID JR., JUDGE Before CAMPBELL and HANCOCK and PIRTLE, JJ. MEMORANDUM OPINION Appellant, Santiago Mason Gomez, was convicted of theft of property of the value of $500 or more but less than $1,500, enhanced by two prior theft convictions.[1] Appellant was sentenced to serve two years in a State Jail facility and was assessed a fine of $7,500. Appellant appeals challenging the sufficiency of the evidence and contending that the trial court erred in admitting certain exhibits. We affirm. Factual Background On September 8, 2008, Faustinon Falcon, Jr., observed a pickup truck parked beside the curb near his residence. As Falcon observed the pickup, two men got out. One, a Hispanic male headed toward the rear of the house belonging to Keith Herrington, the victim of the theft. The other man, the driver of the pickup, got out and raised the hood of the pickup and appeared to be pouring gas into the carburetor. A short time later, the Hispanic male returned carrying a power washer, electric chain saw, and some other tools. Falcon did not recognize either of the men but did take down the license plate number of the truck. Later, Falcon advised a friend of what he had seen and, after Herrington reported the theft, the Plainview Police Department sent a detective to visit with Falcon about his observations. The same day as the theft, Billy Walker, the owner of Walker Drilling in Plainview, purchased a pressure washer and chain saw from a Hispanic male. The Plainview Police eventually recovered the items Walker purchased, and they were identified by Herrington as being part of what was stolen from his house. Based on the description of the vehicle, driver, and passenger, the Plainview Police put together a photo lineup that was shown to Falcon. After viewing the photo lineup, Falcon picked out appellant as the Hispanic male he observed coming back from the rear of Herrington’s home with the power washer and electric chain saw. Additionally, Falcon identified Leo Ivory as the driver of the pickup truck. The police then obtained a statement from Ivory. In the statement, Ivory said that he was giving appellant a ride when he ran out of gas. While pulled to the curb and putting gas in the truck and the carburetor, appellant walked to the back of a house and returned with the power washer and other items. After getting the pickup running again, Ivory proceeded to his original destination, Daffrins Steel in Plainview, which was across the street from Walker Drilling. Ivory saw appellant get the items from the truck and go across the street with them. After hearing this evidence, the jury convicted appellant and sentenced him to two years in a State Jail facility. Appellant contends that the evidence is insufficient, both legally and factually, and that the trial court committed reversible error by admitting five specific photographs. We disagree with appellant and affirm the judgment of the trial court. Sufficiency of the Evidence Appellant challenges both the legal and factual sufficiency of the evidence. Therefore, we are required to conduct an analysis of the legal sufficiency of the evidence first and then, only if we find the evidence to be legally sufficient, do we analyze the factual sufficiency of the evidence. See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). Standard of Review Legal Sufficiency In assessing the legal sufficiency of the evidence, we review all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). In conducting a legal sufficiency review, an appellate court may not sit as a thirteenth juror, but rather must uphold the jury’s verdict unless it is irrational or unsupported by more than a mere modicum of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988). We measure the legal sufficiency of the evidence against a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). Factual Sufficiency When an appellant challenges the factual sufficiency of the evidence supporting his conviction, the reviewing court must determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding the appellant guilty beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). In performing a factual sufficiency review, we must give deference to the fact finder’s determinations if supported by evidence and may not order a new trial simply because we may disagree with the verdict. See id. at 417. As an appellate court, we are not justified in ordering a new trial unless there is some objective basis in the record demonstrating that the great weight and preponderance of the evidence contradicts the jury’s verdict. See id. Additionally, an appellate opinion addressing factual sufficiency must include a discussion of the most important evidence that appellant claims undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). The Texas Court of Criminal Appeals has recently declared that, when reviewing the evidence for factual sufficiency, the reviewing court should measure the evidence in a neutral manner against a “hypothetically correct jury charge.” Vega v. State, 267 S.W.3d 912, 915 (Tex.Crim.App. 2008) (citing Wooley v. State, 273 S.W.3d 260, 268 (Tex.Crim.App. 2008)). Analysis Appellant essentially contends that, because Herrington did not see appellant take the items from his house or the back porch of the house, the evidence is insufficient. This contention basically ignores the legal efficacy of circumstantial evidence. Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and the standard of review is the same for both direct and circumstantial evidence cases. King v. State, 254 S.W.3d 579, 582 (Tex.App.—Amarillo 2008, no pet.). Additionally, when conducting a legal sufficiency review, as we must initially do, we are required to consider all of the evidence admitted by the trial court, even improperly admitted evidence. Hernandez v. State, 190 S.W.3d 856, 863 (Tex.Crim.App. 2006). Thus, we have the testimony of Falcon seeing the Hispanic male bringing items from the back of Herrington’s house and placing them in Ivory’s pickup truck. Falcon later identified appellant as the Hispanic male. Herrington reported the items stolen and these items match up to the items that a Hispanic male sold to Walker on the same day as the theft. Finally, Ivory confirmed Falcon’s testimony and specifically identified appellant as the perpetrator. Ivory further testified that appellant placed the items in the back of the pickup truck and rode with Ivory over to Daffrins Steel, which was located across the street from the business from which the stolen items were recovered. Based on the totality of this evidence, the jury was entitled to find appellant guilty beyond a reasonable doubt. Appellant’s issue regarding the legal sufficiency of the evidence is overruled. In addressing the factual sufficiency of the evidence, appellant’s main contention is that the evidence does not adequately connect appellant to the theft and the stolen property. See Sims, 99 S.W.3d at 603. Again, appellant would ask this court to discount the evidence because it is not direct evidence. As stated above, circumstantial evidence is as probative as direct evidence. King, 254 S.W.3d at 582. Further, as a reviewing court, we must give deference to the jury’s determinations if supported by the evidence. Watson, 204 S.W.3d at 417. Watson does not limit the deference given to the jury’s determination of facts to only those cases that are supported by direct evidence. This being so, the evidence discussed above is factually sufficient to support the judgment of the trial court. Appellant’s issue regarding the factual sufficiency of the evidence is overruled. Admission of Photographs By his final issue, appellant contends that the trial court committed reversible error in admitting certain photographs of the items taken from Herrington. Appellant’s contention is that none of the complained of photographs were properly authenticated. Standard of Review As appellant=s issue relates to the trial court=s admission of evidence, we review the decision under the abuse of discretion standard. See Billodeau v. State, 277 S.W.3d 34, 39 (Tex.Crim.App. 2009). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules and principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1991). A reviewing court applying the abuse of discretion standard should not reverse a trial judge=s decision whose ruling was within the zone of reasonable disagreement. Green v. State, 934 S.W.2d 92, 102 (Tex.Crim.App. 1996). Analysis Initially, the State contends that appellant has waived any objection to the admission of any photographs because the objection made at trial was of a general nature that did not serve to place the trial court on notice as to why the photographs should not be admitted. See Tex. R. App. P 33.1(a)(1)(A). The objection made each time a photo was offered was that the photo had not been properly authenticated. While such an objection is not the model of clarity, we will address the issue raised by appellant. Appellant’s table of contents to his brief lists two issues pertaining to photographs. Appellant’s third issue contends that State’s exhibits 4, 5, 6, & 7 were improperly admitted due to inadequate authentication. However, when we read the actual argument portion of the brief, there is no mention of State’s exhibits 4, 5, 6, & 7. The only State’s exhibits discussed are State’s exhibits 8 & 9. Accordingly, we find that appellant has inadequately briefed his third issue and nothing is presented for review. See Tex. R. App. P. 38.1(i). As the argument in appellant’s brief pertains to State’s exhibits 8 & 9, these are two photographs of what has been described as the electric chain saw that belonged to Herrington after it had been disassembled. Prior to the admission of the pictures, Herrington specifically testified that he could identify the items in the State’s exhibits. Because the items had been identified by the owner, the requirement of authentication contained in Texas Rule of Evidence 901(a) has been met. See Tex. R. Evid. 901(a). Accordingly, the trial court did not abuse its discretion in admitting the pictures. Billodeau, 277 S.W.3d at 39. Appellant’s issues relating to the admission of the photographs are overruled. Conclusion Having overruled appellant’s contentions, we affirm the judgment of the trial court. Mackey K. Hancock Justice Do not publish. [1] See Tex. Penal Code Ann. § 31.03(e)(4)(D) (Vernon Supp.2009). un:yes'> Id. at 196 n.1. We exercise our own judgment on each issue and afford no deference to the original tribunal's decision. See Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1999). Dormancy and Revival; Scire Facias If a writ of execution is not issued within ten years after the rendition of a judgment, the judgment becomes dormant and cannot be executed upon unless revived. Tex. Civ. Prac. & Rem. Code Ann. § 34.001(a). A judgment can be revived by a petition for writ of scire facias or an action of debt if either is brought no later than two years after the judgment becomes dormant. Id. § 31.006. Rendition of Judgment Generally A judgment is rendered when the decision is officially announced orally in open court, by memorandum filed with the clerk, or otherwise announced publicly. Garza v. Tex. Alcoholic Bev. Comm'n, 89 S.W.3d 1, 6 (Tex. 2002); Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 58 (Tex. 1970); Henry v. Cullum Cos., 891 S.W.2d 789, 792 (Tex.App.—Amarillo 1995, writ denied). In order to be an official judgment, the trial court's oral pronouncement must indicate intent to render a full, final, and complete judgment at that point in time. S & A Rest. Corp. v. Leal, 892 S.W.2d 855, 858 (Tex. 1995); In re Marriage of Joyner, 196 S.W.3d 883, 886–87 (Tex.App.—Texarkana 2006, pet. denied). The trial court’s “approval of a settlement does not necessarily constitute rendition of judgment.” S & A Rest. Corp., 892 S.W.2d at 857. The trial court's words, whether spoken or written, must evince a present, as opposed to future, act that effectively decides the issues before the court. Woods v. Woods, 167 S.W.3d 932, 933 (Tex.App.—Amarillo 2005, no pet.). Compare James v. Hubbard, 21 S.W.3d 558, 561 (Tex.App.—San Antonio 2000, no pet.) (judge's statement he was “going to grant the divorce” once the final decree was on his desk did not suffice as rendition), with Baize v. Baize, 93 S.W.3d 197, 200 (Tex. App.—Houston [14th Dist.] 2002, pet. denied) (judge's statement “I’ll grant your divorce today” was rendition of judgment). Significance of Docket Entry Cadles challenges the viability of the docket entry as evidence that would support the finding that the date of rendition was April 23, 1996. We again point out that we have no reporter’s record of the trial court’s pronouncements, if any, at the conclusion of the April 23, 1996 hearing. Without such record, we are left to determine whether the trial court orally rendered judgment on April 23 from a rather skeletal record.[1] Herbert points to, of course, the docket entry following the hearing and also relies on the recitals made in the written judgment signed on May 1 as evidence that the trial court orally rendered judgment in open court on April 23. It is a long-standing rule in Texas that a docket entry may supply facts in certain situations, but it cannot be used to contradict or prevail over a final judicial order. N-S-W Corp. v. Snell, 561 S.W.2d 798, 799 (Tex. 1977) (orig. proceeding) (citing Hamilton v. Empire Gas & Fuel Co., 134 Tex. 377, 110 S.W.2d 561 (1937), Ex parte Rains, 113 Tex. 428, 433, 257 S.W. 217, 220 (1923), and Stark v. Miller, 63 Tex. 164 (1885)). Generally, when there is a question concerning the date judgment was rendered, the date the judgment was signed prevails over a conflicting docket sheet entry. See id. The Texas Supreme Court reaffirmed this principle when faced with a question as to when the trial court rendered judgment: In this case, the judgment was signed January 28, 1998. Because the signed judgment takes precedence over the docket sheet entry, we do not consider the docket sheet to be a timely rendition. Moreover, there is no indication that the court issued a memorandum of decision on January 20, 1998 or otherwise publicly announced rendition on that date. We conclude that neither the recital in the court's written judgment regarding an earlier rendition nor the January 20, 1998 docket sheet entry is sufficient to effectuate rendition of judgment on a date earlier than January 28, 1998, the date the court actually signed the judgment. Garza, 89 S.W.3d at 6–7; see In re R.A.H., 130 S.W.3d 68, 69–70 (Tex. 2004) (quoting Garza for the principle that “[w]hen there is a question concerning the date judgment was rendered, the date the judgment was signed prevails over a conflicting docket sheet entry"). Herbert directs us to our opinion in Henry to support his position. 891 S.W.2d at 791–93. In Henry, like here, we had no reporter’s record of the hearing in question and were left only with a docket entry and recitations in a later-signed judgment when called on to determine whether the trial court orally rendered partial summary judgment on Henry’s DTPA claims before she amended her petition to exclude those claims and before the trial court severed those claims from the remaining claims. Id. at 792–93. Recognizing that a docket entry that summary judgment was granted generally was insufficient to serve as rendition, we nevertheless concluded that the docket notation and the recitations in the judgment were sufficient there to support the finding that the trial court orally rendered judgment despite the absence of the record of the hearing. Id. At this point, Henry would appear to be squarely on point with the instant case and would support Herbert’s position that the trial court rendered judgment on April 23, 1996, here. However, there is an important distinction to be made. In Henry, we were not called on to rely on the docket notation to contradict a written judgment suggesting another date. That is, we had to determine whether the trial court orally rendered judgment as to the DTPA claims to determine whether the trial court’s severance had any effect and whether Henry had abandoned her DTPA claims; no one urged that the date on the written judgment was the date judgment was rendered as to the DTPA claims. See id. The appellees in Henry suggested that there was nothing to review because Henry had abandoned her DTPA claims. Id. at 792. Based on the record before us, we concluded that Henry did not abandon her DTPA claims, that partial summary judgment had been orally rendered as to those claims prior to her amendment omitting those claims. See id. at 793. Ultimately, we were not invited, as we are here, to read the docket entry to contradict the written judgment. Here, we are faced with two competing and quite significant dates, one noted in the docket entry and the other noted in the written judgment. We think this is a significant point, one on which we can reconcile our holding in Henry with our holding in the instant case, based on that well-established principle in Texas that courts cannot use a docket entry to contradict a written judgment. N-S-W Corp., 561 S.W.2d at 799. Significance of Recitals in Written Judgment Cadles also contends that any reliance on recitals in the written judgment that suggest that the parties announced on April 23 that they had reached a settlement is misplaced. Herbert contends that those recitations are further evidence to support the finding oral rendition occurred on April 23. We reject Herbert’s contention. The factual recitations or reasons preceding the decretal portion of a judgment form no part of the judgment itself. Nelson v. Britt, 241 S.W.3d 672, 676 (Tex.App.—Dallas 2007, no pet.) (citing Alcantar v. Okla. Nat'l Bank, 47 S.W.3d 815, 823 (Tex.App.—Fort Worth 2001, no pet.)). When there appears to be a discrepancy between the judgment's recital and decretal paragraphs, a trial court's recitals, which precede the decretal portions of the judgment, do not determine the rights and interests of the parties. Id. Rather, the decretal provisions in the judgment control. Id. Moreover, the recitals here memorialize nothing more than on April 23 the parties appeared and announced in open court certain terms of a judgment they agreed the court should enter. There is no expression of a responsive judicial act at that time. Such language does not evince oral rendition of judgment on April 23. See Comet Aluminum, 450 S.W.2d at 58 (quoting Coleman v. Zapp, 105 Tex. 491, 494, 151 S.W. 1040, 1041 (1912)) (“a judgment’s ‘rendition is the judicial act by which the trial court settles and declares the decision of the law upon the matters at issue’”). Rendition Occurred on May 1, 1996 The evidence before us is insufficient to support the finding that the trial court orally rendered judgment on April 23, 1996. Instead, the date of the written judgment, May 1, 1996, controls. The 1996 judgment, then, went dormant on May 1, 2006, and an action filed to revive that judgment must have been filed by May 1, 2008. See Tex. Civ. Prac. & Rem. Code Ann. §§ 31.006, 34.001(a). With that, Cadles’s petition, filed on April 28, 2008 was filed within the time permitted to revive the dormant judgment. The trial court’s conclusion that Cadles’s petition was untimely, therefore, is erroneous. Based upon the record before us, we reverse the trial court’s judgment and render the judgment that the trial court should have: Cadle’s timely petition for scire facias revived the May 1, 1996, judgment. See Trad v. Colonial Coins, Inc., No. 14-02-00172-CV, 2003 Tex.App. LEXIS 300, at *5 (Tex.App.—Houston [14th Dist.] Jan. 16, 2003, no pet.) (mem. op.). Conclusion We reverse the trial court’s judgment denying Cadles’s petition for scire facias to revive the judgment. We render judgment granting Cadles’s petition for scire facias, reviving the May 1, 1996 judgment against Herbert. Mackey K. Hancock Justice [1] In fact, our sister court has concluded that, without a reporter’s record showing what, if anything, the trial court pronounced in open court, there exists no evidence upon which a reviewing court can make a finding that judgment was rendered in open court. See Bailey-Mason v. Mason,122 S.W.3d 894, 898 (Tex.App.—Dallas 2003, pet. denied). Here, since Herbert specifically urges the docket entry and the recitations in the written judgment as evidence that judgment was orally rendered in open court on April 23, 1996, we address those arguments in an effort to explain why we do not reach the same conclusion as does Herbert based on such evidence.